Appeal of JAIDAN INDUSTRIES, INC., from action of the Board of Education of the Elmont Union Free School District regarding rejection of a contract bid.

Decision No. 16,856

(December 29, 2015)

Colum P. Nugent, Esq., attorney for respondent

ELIA, Commissioner.--Petitioner, Jaidan Industries, Inc. (“Jaidan”), appeals the determination by the Board of Education of the Elmont Union Free School District (“respondent” or “board”) to reject petitioner’s bid for a project to renovate the district’s Alden Terrace School (“school”).  The appeal must be dismissed.

On January 29, 2012, respondent published a notice seeking submission of bids for a capital project to replace 193 windows at the school and to perform asbestos abatement work and other repairs (“Project I”).  Petitioner submitted a bid, but by letter dated March 13, 2012, the district’s project architect advised petitioner that the bid was determined to be “non-responsive” because it failed to comply with certain bid specifications.

According to respondent, on May 15, 2012, the district’s voters rejected the proposed school year 2012-2013 budget, which would have included expenditures for Project I.  Respondent thereafter revised the proposed budget and reduced expenditures by more than $1.6 million, in part by removing Project I from the budget.  The record indicates that respondent accordingly rejected all bids and canceled Project I in or about May or June 2012.  The revised budget, which did not include Project I, was submitted to and approved by the voters on June 19, 2012.

In the fall of 2012, the district determined that a number of the windows at the school were so deteriorated that replacement was a necessary safety measure.  On October 7, 2012, the district published a request for submission of base bids to replace 32 windows at the school, as well as for alternate bids that could bring the total number of windows replaced to 78 (“Project II”).  Certain services the district originally sought in Project I were not included in Project II.  Petitioner did not submit a bid for Project II.  This appeal ensued.  Petitioner’s request for interim relief was denied on December 11, 2012.

Petitioner alleges that the decision to reject Jaidan’s bid for Project I was arbitrary and capricious, and that respondent crafted and interpreted the specifications for Project I to permit favoritism and to deny an award of the contract to Jaidan.  Petitioner also alleges that respondent violated General Municipal Law §103, and contends that it was arbitrary, capricious and against the public interest to cancel Project I and then rebid the project with allegedly substantially similar specifications.  Petitioner further alleges that certain bid specifications for Project II are arbitrary and capricious, impede competitive bidding and promote favoritism.  Finally, although not entirely clear, petitioner appears to seek an order directing that Jaidan be awarded the contract for the windows work, presumably as specified in Project I.

Respondent argues that petitioner lacks standing to maintain this appeal; that the appeal is moot because Project I was canceled and petitioner did not submit a bid on Project II; that the appeal is untimely because it was not commenced within 30 days of either the decision to cancel Project I or the date of publication of the request for bids on Project II;[1] and that the appeal is barred in whole or in part by petitioner’s failure to file a timely notice of claim pursuant to Education Law §3813(1) and by estoppel, laches, and waiver.  Respondent also claims that that it rejected all bids and canceled Project I solely for budgetary reasons, and that it had alerted prospective bidders in the published notice that “[t]he Board reserves the right to reject any or all bids, accept any bid in whole or part, waive any informality and to accept such bid which, in the opinion of the Board, is in the best interests of the School District.”  Respondent asserts that the decision to cancel Project I was not related to any particular bid or bidder, that Project II was substantially different and downscaled from Project I, and that respondent acted within its authority when it sought bids for the revised project (Project II).

In its reply, petitioner further contends that there is no indication in board minutes or other public documents of a decision by the board to cancel Project I or advertise for bids for Project II, in violation of the Open Meetings Law.  Petitioner also argues that respondent has violated the Freedom of Information Law (“FOIL”) by failing to respond to petitioner’s FOIL requests for information about the two projects, which impeded petitioner’s ability to present necessary information in this appeal.

I must first address the procedural issues.  First, I note that, in its reply, petitioner alleges for the first time certain Open Meetings Law violations based on the board’s alleged failure to provide any indication of a public discussion or decision to cancel Project I or begin a bidding process for Project II.  Together with the reply, petitioner also submits extensive material in further support of Jaidan’s challenges to the bid specifications for both Project I and Project II.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits about the bid specifications that are not responsive to new material or affirmative defenses set forth in the answer, particularly since petitioner does not explain why such information could not have been submitted with the petition in this matter.

In any case, I do not have jurisdiction to address the alleged FOIL and Open Meetings Law violations.  As to FOIL, Section 89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Olka, 48 Ed Dept Rep 10, Decision No. 15,776; Application of Gentile, 47 id. 438, Decision No. 15,747; Appeal of T.K., 47 id. 234, Decision No. 15,679).  Similarly, Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of McColgan and El-Rez, 48 Ed Dept Rep 493, Decision No. 15,928; Applications and Appeals of Del Río, et al., 48 id. 360, Decision No. 15,886).  Therefore, I have no jurisdiction to address either the FOIL or the Open Meetings Law allegations raised in this appeal.

I reject respondent’s assertion that the notice of claim procedures in Education Law §3813(1) govern this appeal, which was commenced pursuant to Education Law §310.  It has long been recognized that an appeal to the Commissioner pursuant to §310 is not an “action or proceeding” that requires service of a notice of claim on a board of education (Appeal of the Borad of Education of the Canastota Central School District, 48 Ed Dept Rep 235, Decision No. 15,847; Appeal of Hollister, 39 id. 109, Decision No. 14,188).  Therefore, Education Law §3813 is not applicable here.

To the extent that petitioner seeks to challenge the conduct of the bid proceedings and award of a contract for Project II, petitioner lacks standing because Jaidan did not submit a bid for Project II.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  A party that does not submit a bid in response to a request for bids is not aggrieved by the award of the contract to another party (see e.g. Appeal of Roth, 50 Ed Dept Rep, Decision No. 16,171).

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Project I, the project for which petitioner submitted a bid, was canceled and petitioner did not submit a bid for Project II.  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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

The bulk of petitioner’s papers addresses respondent’s rejection of Jaidan’s bid for Project I as nonresponsive.  However, the record indicates that all bids for Project I, not just petitioner’s bid, were ultimately rejected and the project was canceled.  Indeed, petitioner admits in the petition that “[t]he respondent then rejected all bid proposals.”  With respect to the competitive bidding requirements for public works contracts involving expenditures of more than $35,000, a school district is authorized under General Municipal Law §103(1) to reject all bids and re-advertise for new bids, provided that such action is not arbitrary or capricious and is supported by a rational basis (see Matter of Stilsing Elec. v. County of Albany, 97 AD2d 631).  Respondent has provided uncontradicted evidence that the cancellation of Project I was for budgetary reasons and not due to any motive of favoritism or discrimination against petitioner, and that the decision was not irrational, arbitrary or capricious.  Moreover, petitioner admits that “respondent had the authority to reject all bids” with respect to Project I.  Upon rejection of all bids and cancellation of Project I, any claims based on the rejection of petitioner’s individual bid are moot and must be dismissed (see Appeal of Compass Group USA, Inc., 49 Ed Dept Rep 306, Decision No. 16,036).

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

THE APPEAL IS DISMISSED.

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