Appeal of QUALITE SPORTS LIGHTING, LLC from action of the Board of Education of the Penfield Central School District regarding a procurement contract.

Decision No. 17,411

(June 18, 2018)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Heather M. Cole, Esq., of counsel

ELIA, Commissioner.--Steve Danzig, Vice President of Sales for Lightspec, Inc., a manufacturer’s representative of Qualite Sports Lighting, LLC, appeals on behalf of Qualite Sports Lighting, LLC (“Qualite”) from a determination of the Board of Education of the Penfield Central School District (“respondent”) to enter a contract for the purchase and the installation of a lighting system for respondent’s athletic fields (the “Project”).[1]  The appeal must be dismissed.

The Project was broken into two contracts; one was for the purchase and installation of a lighting system for respondent’s athletic fields and the other was a contract for electrical contracting work related to the Project. 

On October 9, 2014, Musco Sports Lighting, LLC (“Musco”) submitted a proposal to respondent for the purchase and installation of a lighting system.  On December 16, 2014 respondent’s Assistant Superintendent for Business sent a letter informing Musco of respondent’s intention to purchase the lighting system for respondent’s athletic fields and the installation thereof from Musco. Respondent asserts that the purchase from Musco was made pursuant to General Municipal Law §103(16) and district policy by “piggybacking” on a contract that Musco has with the Central Susquehanna Intermediate Unit d/b/a Keystone Purchasing Network (“KPN”), a governmental entity in Pennsylvania.  Respondent issued a purchase order for the lighting system and its installation by Musco on May 11, 2015.

The deadline for submission of bids on the contract for the electrical services work was June 16, 2015 and bids were opened on that date, but respondent was not scheduled to award a contract to a qualified electrical contractor until June 24, 2015.  The purchase and installation of a lighting system for the respondent’s athletic fields was not included in that competitive bid.  This appeal was commenced on June 16, 2015.  Petitioner’s request for interim relief was denied on June 23, 2015.

Petitioner alleges that respondent’s action in entering a contract for the purchase of the lighting system and its installation from Musco without competitive bidding through a piggybacking process is in violation of General Municipal Law §103.

As relief, petitioner requests that I: (1) issue a stay of bidding on the electrical services work; (2) investigate and determine whether the fair bidding practices of the State of New York have been violated relative to this project; and (3) direct respondent to allow a bid from petitioner. 

Respondent argues that petitioner’s appeal is untimely, moot, and not ripe; that the petition is jurisdictionally defective; that petitioner failed to join a necessary party; and that the piggybacking contract with Musco was authorized by General Municipal Law §103(16) and district purchasing policy No. 5410, which provides for piggybacking.

The appeal must be dismissed for failure to join Musco 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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).

Petitioner is seeking the opportunity to submit a bid for the Project in order to reverse the piggybacking contract given to Musco pursuant to General Municipal Law §103(16).  If petitioner were successful in such an attempt, Musco would be adversely affected, and as a result, Musco is a necessary party and should have been joined in petitioner’s appeal.  I note in this regard that 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 through competitive bidding:

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 petitioner 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]).

In this case, this appeal was commenced prior to the award of the electrical services contract through competitive bidding and it appears that the only relief sought by petitioner with respect to the electrical services contract is a stay of bidding.  Regardless, the principle embodied in 8 NYCRR §275.8(c) applies equally to a contract awarded through an exception to competitive bidding, such as a piggybacking contract—-the party awarded the contract would be adversely affected if the contract is set aside and competitive bidding is required and therefore must be joined as a necessary party.  Musco is not named as a respondent in the caption, and there is no evidence in the record to indicate that Musco was served with a copy of the notice of petition or petition.  Therefore, this appeal must be dismissed for failure to join Musco as a necessary party.

Furthermore, to the extent petitioner seeks relief relating to the competitive bidding process employed by respondent in awarding the electrical services contract, 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).

On June 23, 2015, petitioner’s request for interim relief prohibiting respondent from receiving any more bids for the electrical services contract related to the Project was denied.  Although the parties have not submitted any evidence relating to the award of such contract after this appeal was commenced, the record indicates that respondent was scheduled to make a decision on the award of such contract on June 24, 2015.  Thus, at this point such contract has to have been awarded or all bids rejected by respondent (see General Municipal Law §103[1]).  Because the stay has been denied, the deadline for submission of bids has passed, the bidding process has necessarily been completed, the petition does not allege that the procedures followed by respondent in seeking bids or awarding the electrical services contract were in violation of law, and the only relief requested by petitioner with respect to the electrical services contract is a stay of the bidding process, petitioner’s claim in regard to such contract must be dismissed as moot. 

Additionally, the appeal must be dismissed to the extent petitioner requests that I investigate whether the New York State competitive bidding statutes were violated.  An appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Huffine, 48 Ed Dept Rep 386, Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857).

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

THE APPEAL IS DISMISSED.

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