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Decision No. 17,455

Appeal of JAMES ANSEL from action of the Board of Education of the Port Washington Union Free School District regarding procurement.

Decision No. 17,455

(July 16, 2017)

Bond Schoeneck & King, attorneys for respondent board John A. Miller and Howard M. Miller, Esqs., of counsel

ELIA, Commissioner.--Petitioner appeals, on behalf of himself and the taxpayers of Port Washington, from action of the Board of Education of the Port Washington Union Free School District (“respondent”) in procuring architectural services from Burton, Behrendt & Smith P.C. a/k/a BBS Architects & Engineers (“BBS”) relating to a school construction project or projects to be funded from a capital construction bond.  The appeal must be dismissed.

Petitioner, a resident and taxpayer in respondent’s district, challenges respondent’s action in 2015 in retaining BBS to provide architectural services in conjunction with one or more school construction projects that were to be funded through a capital construction bond in the amount of $69,877,198.00 (“the construction project”).  Respondent engaged the services of BBS to make preliminary drawings, estimates and presentations of the proposed work to be funded through the capital construction bond, and the bond resolution was later approved by the voters in a public referendum on March 10, 2015.[1] 

This appeal ensued.  Petitioner’s request for interim relief was denied on May 12, 2015.

Petitioner contends that respondent violated its own purchasing policies by failing to issue an RFP prior to selecting BBS to provide architectural services for the construction project.  Petitioner alleges that by selecting one sole source for architectural services, respondent violated district policy 6700, in which respondent declares its intention “to engage competitively and without prejudice in procurement actions which will seek to obtain optimal value for the expenditure of school district funds.”  Petitioner specifically alleges that respondent’s action violated district policy 6700-E-1, which requires that contracts for professional services be awarded through an RFP.  Petitioner further alleges that respondent violated unspecified Commissioner’s regulations by entering into an agreement with BBS for preliminary architectural services at no cost with an understanding that BBS would be selected to complete the remainder of the work contained within the capital construction bond at issue.  In his “Verified Reply to Memorandum of Law in Opposition to Request to Stay and in Support of Dismissal,” petitioner asserts that respondent could not rely upon a “ten year old Request for Proposal” issued for a project dissimilar in work and scope to the current construction project and that a new RFP is required.

As relief, petitioner requests that respondent be stayed from awarding any architectural services contract for the work contained in the capital construction bond approved on March 10, 2015; and that respondent be stayed from making any payment to BBS for any preliminary or subsequent architectural services rendered in connection with the capital construction bond approved on March 10, 2015.

Respondent asserts that petitioner lacks standing to represent taxpayers other than himself; the petition is time barred pursuant to 8 NYCRR §276.9; the petition fails to state a claim upon which relief may be granted; and the petition should be dismissed for failure to join BBS as a necessary party.

I must first address the procedural issues.  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]; Appeal of a Student with a Disability, 48 Ed Dept Rep 98, Decision No. 15,803; Appeal of Jacoby, 47 id. 321, Decision No. 15,710).  Respondent served its verified answer upon petitioner on April 20, 2015 and petitioner served his reply upon respondent on December 26, 2015.  Such reply was served more than eight months after service of respondent’s answer, and therefore, is not timely.  As a result, I have not considered petitioner’s reply.

Respondent argues that petitioner has no standing to bring this appeal on behalf of other taxpayers.  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 Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 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 Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  District residents have standing to challenge an allegedly illegal expenditure of district funds (Appeal of Frey, 57 Ed Dept Rep, Decision No. 17,308; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797; Appeal of Russo, 47 id. 429, Decision No. 15,744).

Petitioner, as a taxpayer and district resident, has standing to challenge respondent’s allegedly illegal expenditure of funds for architectural services from BBS in violation of the district procurement policies and General Municipal Law §104-b. 

However, to the extent petitioner seeks to maintain this appeal as representative of a class, he fails to establish the criteria required for approval of class status.  An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR §275.2; Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797).  A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797).  Petitioner has failed to set forth the number of taxpayers in the class he purports to represent and has not established that all questions of fact and law are common to the class.  Therefore, class status is denied. 

Respondent also asserts that the appeal be must dismissed for failure to join BBS 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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934). 

If I were to grant petitioner’s request and order that respondent award no architectural service contract to perform work relating to the construction project and, in particular, order that no payment be made to BBS for architectural services provided, or that will be provided, in conjunction with the construction project pursuant to its contract, BBS’s contract rights clearly would be adversely affected.  Therefore, BBS must be joined as a necessary party. 

On May 12, 2015, my Office of Counsel informed petitioner that he must serve BBS with all of the pleadings, in accordance with Commissioner’s regulation §275.8(a), by no later than May 27, 2015.  However, petitioner did not personally serve BBS by May 27.  Instead, petitioner made personal service on BBS on August 20, 2015.  While petitioner did request extensions on June 23, 2015 and on July 24, 2015, petitioner did not request an extension before the expiration of the May 27 deadline, and as a result, no extension of time was granted (Application of Gates, 57 Ed Dept Rep, Decision No. 17,264).  Since petitioner failed to timely serve BBS, he failed to join BBS as a necessary party, and therefore, dismissal is warranted.[2]

For the benefit of the parties, however, I note that  professional services that require special skill or training are not subject to competitive bidding under General Municipal Law §103 (see e.g. Matter of Schulz v. Warren County Bd. of Supervisors, 179 AD2d 118, 123, lv. denied 80 NY2d 754; Trane Co. v. Broome Cnty, 76 AD2d 1015; Appeal of Gootzeit, 51 Ed Dept Rep, Decision No. 16,338; Appeal of Kackmeister, 40 id. 577, Decision No. 14,560; Appeal of Shravah, et al., 36 id. 396, Decision No. 13,760, judgment granted dismissing petition to review sub nom. Education Alternatives, Inc. v. Mills, et al., Supreme Ct., Albany Co. [Lamont, J.], December 18, 1997).  However, a school district must procure services not subject to competitive bidding in accordance with internal policies and procedures that comply with General Municipal Law §104-b.  General Municipal Law §104-b requires that such services “be secured by use of written requests for proposals, written quotations, verbal quotations and any other method of procurement which furthers the purposes of this section.”  In this case, respondent adopted a policy requiring procurement of professional services through an RFP.

However, it appears from the record that respondent had difficulty in locating a copy of the RFP that led to respondent’s appointment of BBS as district architect on August 10, 2004.  Respondent ultimately identified an April 2003 RFP for a contract for architectural services in conjunction with a specific capital construction project that was awarded to BBS, but there is no indication in such RFP that the firm awarded such contract would be appointed district architect for all capital projects.  Given the lack of clarity in this record concerning the RFP for a district architect, and the passage of time since BBS’s appointment, it would have been fiscally prudent for respondent to issue a new RFP for a district architect, given that the intent of General Municipal Law §104-b is “to assure the prudent and economical use of public moneys in the best interest of the taxpayers..., to facilitate the acquisition of goods and services of maximum quality at the lowest possible cost under the circumstances, and to guard against favoritism, improvidence, extravagance, fraud and corruption.” 

Although the appeal must be dismissed as described above, I urge respondent to issue a new RFP for a district architect in order to avoid unnecessary appeals in the future and to assure the taxpayers of the district that these professional services are being procured in a manner consistent with the purposes of General Municipal Law §104-b.  I admonish respondent that if it is going to rely upon, and continue to give legal effect to, an RFP issued 10 years ago or more, it needs to maintain a record of that RFP, regardless of whether respondent had authority to dispose of it pursuant to the applicable records retention schedule.

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

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] It appears from the record that on August 10, 2004 respondent had appointed BBS to serve as district architect on all voter approved and board authorized capital projects and that, on or about April 22, 2005, respondent executed a contract with BBS to serve as district architect.  It further appears from the record that in April 2003, respondent had issued a request for proposals (“RFP”) for architectural services related to $2.5 million to $3 million of roofing and associated work to be funded under a different capital construction bond, and that BBC was retained as district architect for that work.

 

[2] I note that my Office of Counsel, by letter dated September 17, 2015, instructed BBS to serve its answer according to Commissioner’s regulations §§275.12 and 275.13.  BBS did not serve petitioner until November 9, 2015, beyond the 20-day period, and no explanation for delay was given.  As a result, I have not considered BBS’s answer or any subsequent pleadings or papers.