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Decision No. 12,779

Appeal of BRONCO BUS CORP. from action of the Board of Education of the Bedford Central School District relating to the award of a contract to White Plains Bus Co., Inc.

Decision No. 12,779

(August 18, 1992)

Sidney J. Leshin, Esq., attorney for petitioner

Plunkett & Jaffe, P.C., attorneys for respondent Bedford Central School District, Lawrence Praga, Esq., of counsel

Maroney, Ponzini & Spencer, Esqs., attorneys for respondent White Plains Bus Co., Inc., Robert W. Spencer, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner Bronco Bus Corp. appeals from a determination of the Board of Education of the Bedford Central School District which awarded a transportation contract to respondent White Plains Bus Co., Inc. Petitioner requests that the contract award be annulled and made to petitioner as the next lowest bidder, or that the school district be required to re-bid the contract. The appeal must be dismissed.

Early in 1992, respondent school district prepared specifications for pupil transportation services covering the 1992-1993, 1993-1994, and 1994-1995 school years. Five bids were received, and there is no claim that any bid did not conform to the required specifications. When the bids were opened on February 24, 1992, the preliminary indication was that Bedford Bus Company, a division of White Plains Bus Co., Inc., had submitted the lowest overall bid in the amount of $3,805,230. Petitioner was the apparent second low bidder at $3,863,900, which was $58,670 higher than the low bid.

Petitioner neither claims to be the low bidder nor does it claim that respondent White Plains Bus Co., Inc. is not a responsible bidder. Instead, it claims that at the time the bids were opened, White Plains Bus Co., Inc. had not filed a certificate pursuant to General Business Law '130 indicating that it was conducting business under the assumed name Bedford Bus Company, although it had previously filed a certificate under the assumed name Scarsdale Bus Company. It is petitioner's contention that, because the certificate was not timely filed, and because the apparent low bidder was announced as Bedford Bus Company, the contract could not legally be awarded to White Plains Bus Co., Inc.

It appears from the record before me that the bid submitted on behalf of White Plains Bus Co., Inc. contained sufficient information to inform respondent school district that the bidder's true corporate name was White Plains Bus Co., Inc. and that Bedford Bus Company was an assumed name. Indeed, the letterhead of the cover letter contained the wording "Bedford Bus Company, a division of White Plains Bus Company, Inc." The bid bond identified the bonded principal as "Bedford Bus Company, a division of White Plains Bus Company, Inc." The certificate of general, automobile, and excess liability insurance listed the insured as "White Plains Bus Company, Inc., dba Bedford Bus Company." The corporate resolution form indicated that White Plains Bus Company, Inc. was the entity making the bid. Although there are some inconsistences, it is clear that the school district knew the true identity of the bidder, and petitioner does not claim otherwise. The use of a divisional, departmental or trade name in conjunction with the real name of a corporation is specifically permitted by General Business Law '130, subd. 1-a(c).

Petitioner, under these circumstances, is not entitled to any relief. General Business Law '130 is intended to give a person doing business with another knowledge of who the actual owner of the business is. It is intended to provide a central filing system for corporations. Section 130(9), as a limited sanction, provides in part: "Any person or persons carrying on, conducting or transacting business as aforesaid who fails to comply with the provisions of this section shall be prohibited from maintaining any action or proceeding in any court in this state on any contract, account or transaction made in a name other than its real name until the certificate required by this section has been executed and filed in accordance with the provisions set forth herein." (Emphasis added.)

The record indicates that a certificate of assumed name was filed on behalf of White Plains Bus Co., Inc., indicating the assumed named Bedford Bus Company, on March 31, 1992. Even prior to that filing, White Plains Bus Co., Inc. was under no legal disability other than the restriction set forth in General Business Law '130(9). Petitioner has not been injured in any way by this belated filing.

I have considered the parties' other contentions and find them without merit.