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Decision No. 14,140

Appeal of WORLD NETWORK INTERNATIONAL SERVICES, INC. (WNIS) from a determination of the Board of Education of the Amityville Union Free School District awarding a contract to Sundata, Inc.

Appeal of WORLD NETWORK INTERNATIONAL SERVICES, INC. (WNIS) from a determination of the Board of Education of the Hauppauge Union Free School District awarding a contract to CBS Whitcom.

Appeal of WORLD NETWORK INTERNATIONAL SERVICES, INC. (WNIS) from a determination of the Board of Education of the Half Hollow Hills Central School District awarding a contract to CBS Whitcom.

Decision No. 14,140

(June 3, 1999)

Van Nostrand & Martin, attorneys for respondent Board of Education of the Amityville UFSD, LeRoy Van Nostrand, Jr., Esq., of counsel

Cahn Whishod & Lamb, attorneys for respondent Board of Education of the Hauppauge UFSD, Robert H. Cohen, Esq., of counsel

Ehrlich, Frazer & Feldman, attorneys for respondent Board of Education of the Half Hollow Hills CSD, Christine M. LaPlace, Esq., of counsel

MILLS, Commissioner.--In three separate appeals, petitioner challenges the determinations of the boards of education of the Amityville Union Free School District ("respondent Amityville" or "the district"), the Hauppauge Union Free School District ("respondent Hauppauge" or "the district") and the Half Hollow Hills Central School District ("respondent Half Hollow Hills" or "the district") to award contracts to Sundata, Inc., and CBS Whitcom, respectively. Because these appeals involve similar factual and legal issues, they are consolidated for decision. The appeals must be dismissed.

In response to a bid solicitation from each district for certain repair, maintenance or technical services to the districts’ computer or telephone systems, petitioner submitted a bid of "1% below" or "1% plus one dollar below" the lowest bid received by the district. In each case, the district rejected petitioner’s bid.

In each appeal petitioner claims that the district improperly rejected its bid and also challenges various specifications contained in the bid solicitations. Petitioner requests, among other things, that I direct the districts to award the contracts to petitioner. Petitioner also appears to challenge respondent Half Hollow Hills’ decision in 1991 to cancel a computer repair contract with petitioner. In each appeal, petitioner names only the board of education of the district as a respondent. Petitioner’s request for interim relief in each case was denied previously.

All three districts contend that they properly rejected petitioner’s bid and raise a number of procedural objections, including petitioner’s failure to join the successful bidder as a necessary party to the appeal. Respondent Half Hollow Hills also contends that petitioner’s challenge to its 1991 decision to cancel a service contract with petitioner is time barred.

Turning first to respondents’ procedural claims, a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Neufang, 38 Ed Dept Rep 567; Appeal of Adams, 38 id. 549). The Commissioner’s regulations explicitly require a petitioner to join the successful bidder as a respondent in a challenge to the award of a contract pursuant to the General Municipal Law:

If an appeal involves the award of a contract pursuant to article 5-A of the General Municipal Law or pursuant to subdivision 14 of section 305 of the Education Law, and a party other than the appellant has been designated as the successful bidder or has been awarded a contract, such successful bidder must be joined as a respondent and must be served with a copy of the petition… (8 NYCRR "275.8[c])

Because each of these appeals challenges the award of a publicly bid contract, petitioner was required to join the successful bidder as a necessary party. Petitioner’s failure to do so warrants dismissal of the appeals.

In addition, to the extent petitioner seeks to challenge respondent Half Hollow Hills’ decision in 1991 to cancel a service contract with petitioner, the appeal is time barred. An appeal to the Commissioner of Education must be commenced within 30 days of the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16; Appeal of Phillips, 38 Ed Dept Rep 297). Although petitioner does not explicitly acknowledge the untimeliness of its challenge to respondent Half Hollow Hills’ 1991 decision to cancel its contract with petitioner, it claims that it has been "reluctant to bring up this subject because of threats of retaliation on [its] contracts and business." I find petitioner’s unsubstantiated allegation insufficient to establish good cause necessary to excuse its seven-year delay in commencing this challenge. Accordingly, this claim must be dismissed as time barred.

Even if the appeals were not dismissed for procedural reasons, I would dismiss them on the merits. To be legally sufficient, a bid must be definite and certain (S.S.I. Investors Ltd v. Korea Tungsten Mining Co., Ltd., et al., 55 NY2d 935). In each case, petitioner offered a bid price of "1% below" or "1% plus one dollar below" the lowest bid. "[A] submission by one bidder of a bid dependent for its definition on the bids of others is invalid…" (Id.). Petitioner’s bids are similar to the one rejected by the Court of Appeals in S.S.I. Investors Ltd., supra, (bid of "[o]ne dollar ($1.00) more than the highest bidding price you have received for the above property" for purchase of real estate held invalid). Petitioner’s bids, standing alone, were indefinite and meaningless without reference to the bids of other bidders, and were therefore illegal (Id.). Accordingly, I find that respondents properly rejected them.

In light of this disposition, I decline to address the parties’ remaining contentions.

THE APPEALS ARE DISMISSED.

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