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Decision No. 14,164

Appeal of WORLD NETWORK INTERNATIONAL SERVICES, INC. (WNIS) from a determination of the Board of Education of the Port Jefferson Union Free School District regarding a public bidding contract.

Decision No. 14,164

(July 15, 1999)

Ingerman Smith, L.L.P., attorneys for respondent, Mary Anne Sadowski, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Port Jefferson Union Free School District ("respondent" or "the district") to award a contract to Contemporary Computer Services, Inc. The appeal must be dismissed.

On June 18, 1998, respondent opened the bids it received in response to its bid solicitation for a computer network system. The bid solicitation requested a base bid as well as eight alternate bids, each of which modified the contract by adding work. Respondent chose to award the contract on the aggregate of the base bid and alternate number 1. Petitioner’s bid was the fourth lowest of the bids received by the district. Respondent awarded the contract to Contemporary Computer Services, Inc., the lowest bidder. This appeal ensued. Petitioner’s request for interim relief was denied on August 8, 1998.

Petitioner challenges respondent’s decision to award the contract to Contemporary Computer Services, Inc., and contends among other things, that the bids of unspecified bidders were incomplete because they did not respond to each of the eight alternate bids that were contained in respondent’s solicitation. Petitioner also claims that respondent has "arbitrarily rejected [its] repeated low bids" in the past. For relief, petitioner requests that I order respondent to either re-bid the computer network system project, or re-evaluate the bids submitted. Petitioner has named only the district as a respondent.

Respondent contends that it complied with the public bidding statutes in awarding the contract to Contemporary Computer Services, Inc. It also maintains the appeal should be dismissed because petitioner failed to name the successful bidder as a respondent. In addition, respondent contends that the petition is both untimely and unclear to the extent it challenges respondent’s rejection of other unspecified bids.

Turning first to respondent's 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, Decision No. 14,095; Appeal of Adams, 38 id. 549, Decision No. 14,091). 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:

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 this appeal 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 requires dismissal of the appeal.

The petition must also be dismissed to the extent petitioner attempts to challenge respondent’s rejection of past bids. A petition must be sufficiently clear to advise respondent of the nature of petitioner’s claim and the acts complained of (8 NYCRR "275.10; Appeal of Chefalo, 38 Ed Dept Rep 519, Decision No. 14,084; Appeal of Grihin, 38 id. 399, Decision No. 14,064). Petitioner’s vague reference to respondent’s rejection of its bids in the past fails to satisfy this standard and prevents respondent from fashioning an appropriate defense. Nor does petitioner specify a demand for relief for these claims as required by "275.10 of the Commissioner’s regulations. Accordingly, the petition must be dismissed to the extent petitioner seeks to challenge respondent’s rejection of unspecified bids submitted by petitioner in the past (8 NYCRR "275.10; Appeal of Foshee, 38 Ed Dept Rep 346, Decision No. 14,051).

Even if this appeal were not dismissed on procedural grounds, I would dismiss it on the merits. In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which it seeks relief (8 NYCRR "275.10; Appeal of Morris, et al., 38 Ed Dept Rep 427, Decision No. 14,066). Petitioner has failed to establish that respondent’s decision to award the contract to Contemporary Computer Services, Inc., was improper. A board of education may ask for bids in the alternative and it may exercise reasonable discretion in the selection of the alternative it desires (Matter of Appeals of Bimco Industries, Inc., 11 Ed Dept Rep 191, Decision No. 8,415). Respondent’s solicitation contains requests for a base bid as well as eight alternate bids. Although the bid instructions require bidders to submit a bid on the base proposal, they do not require bidders to submit a bid on each of the eight alternate proposals as a condition for respondent’s consideration. To the contrary, the instructions reserve respondent’s right to "...accept or reject any Unit Prices and/or alternates, if, in [the district’s] opinion the best interest of [the district] will thereby be promoted." Accordingly, respondent acted within its right in awarding the contract on the base bid and alternate 1, regardless of whether the successful bidder submitted bids on the remaining alternates (see, Davis v. Mollenberg-Betz Machine Co., Inc., 124 AD2d 1071).

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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