Appeal of ENVIROSCIENCE CONSULTANTS, INC. from action of the Eastern Suffolk Board of Cooperative Educational Services regarding a contract.

Decision No. 15,693

(December 12, 2007)

Burner Cherches & Smith, LLP, attorneys for petitioner, Eric D. Cherches, Esq., of counsel

Guercio & Guercio, attorneys for respondent, Vanessa M. Sheehan, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Eastern Suffolk Board of Cooperative Educational Services (“respondent”) to award a contract to J.C. Broderick & Associates, Inc. (“Broderick”) for environmental consulting engineering services.  The appeal must be dismissed.

On June 13, 2007, respondent issued a Request for Proposal (“RFP”) for an environmental consulting engineer.  Two vendors, petitioner and Broderick, submitted proposals.  The two proposals were evaluated based upon criteria established in the RFP.  Broderick’s proposal scored 499 out of a possible 500 points and petitioner’s proposal scored 473.

Respondent awarded Broderick the contract pursuant to a resolution adopted on July 11, 2007.  This appeal ensued.  Petitioner’s request for interim relief was denied on August 16, 2007.

Petitioner alleges that the award of the contract to Broderick was unlawful, unfair and violated respondent’s policies and procedures.  Petitioner also alleges that respondent violated General Municipal Law §§103 and 104-b.  Specifically, petitioner contends that the advertisement for bid was not placed in respondent’s official newspaper.  Petitioner further maintains that, subsequent to bid submission, it was granted only a thirty minute interview while Broderick was permitted to make a PowerPoint presentation and engaged in post-bid negotiations with respondent.

Petitioner also alleges that the hourly labor rate reflected in its proposal is lower than Broderick’s in a majority of labor categories.  Petitioner maintains that the award employed an arbitrary and capricious point system, was not based on generally accepted criteria and did not fairly or equitably weigh relevant factors such as pricing.  Petitioner contends that its proposal should have received a higher score than Broderick’s and requests that the determination to award the contract to Broderick be set aside.

Respondent alleges that the petition fails to state a claim and that it should be dismissed for failure to join Broderick as a necessary party.  Respondent contends that it complied in all respects with General Municipal Law §104-b and its own procurement policy and that it was not required to comply with General Municipal Law §103.  Respondent also avers that it properly published notice of the RFP in its official newspaper, that it engaged in negotiations with Broderick only subsequent to deciding Broderick was the lowest bidder, that the contract was awarded in accordance with the RFP and that the cost of petitioner’s total proposal was higher than Broderick’s.

As a threshold matter, respondent objects to the timeliness and contents of petitioner’s reply.  A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]).  If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]).  Respondent’s affidavit of service indicates that it served its answer by mail on August 13, 2007.  The reply was served on September 4, 2007 and was therefore untimely.  Accordingly, I have not considered the contents of the reply.

Petitioner objects to respondent’s memorandum of law on the grounds that it is a sur-reply memorandum of law and respondent did not obtain prior permission to submit it.  Section 276.4 of the Commissioner’s regulations prescribes the requirements for filing a memorandum of law, including a reply memorandum of law.  Respondent’s memorandum of law was timely filed in accordance with the regulation, and its content is appropriate.  Therefore, I have considered respondent’s memorandum of law.

The appeal, however, must be dismissed for failure to join Broderick as a necessary party.  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 Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  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 Article 5-A of 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 petitioner challenges the award of a contract for services procured pursuant to Article 5-A of the General Municipal Law, it was required to join Broderick as a necessary party.  Petitioner’s failure to do so warrants dismissal of the appeal.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).  Petitioner has not demonstrated that any aspect of the bidding process was improper.

Because the contract concerns the provision of professional services, it is not subject to the competitive bidding requirements of General Municipal Law §103 (Matter of Schultz v. Warren County Bd. of Supervisors, 179 AD2d 118, lv denied, 80 NY2d 754; Vermeule v. City of Corning, 186 App Div 206, affd 230 NY 585; seee.g.People ex rel. Smith v. Flagg, 17 NY 584; Appeal of Shravah, et. al., 36 Ed Dept Rep 396, Decision No. 13,760).  However, respondent was required to follow General Municipal Law §104-b, which requires a contracting party to adopt written internal policies and procedures to govern all procurement of goods and services not required to be made pursuant to competitive bidding requirements.  Although not required to seek competitive bids, respondent determined that, consistent with its procurement policy, it was in its best interest to do so.

Petitioner presents no evidence that the evaluation process, either on its face or as implemented, was arbitrary, capricious or improper.  Respondent established technical criteria to evaluate the merit of the proposals submitted.  These criteria included vendor compliance with and responsiveness to the RFP specifications, references, project management and team experience, cost and interview(s).  These criteria were assessed by a committee consisting of respondent’s purchasing agent, two of respondent’s experts in the environmental field, the building services administrator and a representative from the department of building services.  Cost comprised 25% of the evaluation.  Respondent determined that, over a five year period, (a one year contract term with an option to renew for four years) Broderick’s labor costs were actually $357,000 lower than petitioner’s.

Nor is there evidence that petitioner was disadvantaged by the interview process.  While petitioner claims that Broderick was granted a longer in-person interview and the opportunity to make a PowerPoint presentation, respondent’s purchasing agent avers that both vendors were granted a telephone interview only.

Further, there is no persuasive proof that respondent engaged in negotiations with Broderick prior to the contract award.  Respondent’s purchasing agent affirmatively states that negotiations took place to obtain further cost reduction only after a determination was made that Broderick was the successful bidder.  Absent fraud, favoritism or corruption, renegotiation exclusively with the lowest responsible bidder to obtain a better price is proper (Fischbach & Moore v. NYCTA, 79 AD2d 14, lv denied 53 NY2d 604; Kick v. Regan, 110 AD2d 934, lv denied 66 NY2d 601).  Moreover, the RFP specifications specifically state that respondent reserves the right to negotiate terms of the contract, including award amount, with the selected vendor prior to entering into the contract.

In sum, petitioner has failed to demonstrate that respondent violated General Municipal Law, its procurement policies, or acted in an arbitrary or capricious manner in awarding the contract to Broderick.

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

THE APPEAL IS DISMISSED.

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