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Decision No. 14,428

Appeal of DAN MITCHELL, MICHAEL BORRECCA, JOANNE FURNELL, FREDERICK FURNELL, DONNA LOIACONO, PETER DAWSON, ROBERT HARGREAVES, VINCENT FILIPPELLI and PATRICIA FILIPPELLI from action of the Board of Education for the Longwood Central School District, Pav-Lak Industries, Inc., and Roland's Electric, Inc., regarding the award of a contract.

Decision No. 14,428

(August 4, 2000)

Flanagan, Cooke & French, LLP, attorneys for petitioners, Richard Flanagan, Esq., of counsel

Ingerman Smith, LLP, attorneys for respondent board, Mary Ann Sadowski, Esq., of counsel

Peter C. Cotelidis, Esq., attorney for respondent Pav-Lak Industries, Inc.

MILLS, Commissioner.--Petitioners appeal a determination by the Board of Education of the Longwood Central School District ("respondent board") to award a contract, N.Y.S.E.D. No. 58-02-12-06-0-015-005 ("the project"), to respondent Pav-Lak Industries, Inc. ("respondent Pav-Lak") for the general construction component, and to respondent Roland's Electric, Inc. ("respondent Roland") for the electrical component. The appeal must be dismissed.

In December 1998, the voters of the Longwood Central School District ("district") approved a $107 million bond referendum authorizing a variety of addition and alteration work to be performed in each of the district's facilities. On December 28, 1999, respondent board publicly advertised certain construction work related to expansion of the Longwood High School. The specifications for the project as publicly advertised were divided into the four categories mandated by General Municipal Law "101 - plumbing (A-6), HVAC (A-7), electrical (A-8) and general construction. The general construction category was further divided into four separate components - site work (A-2), structural steel (A-3), masonry (A-4) and general construction excluding the scope of components A-2 through A-4 (A-5). Bidders could bid on some or all of these general construction components separately. The bid date under this original advertisement was February 2, 2000.

Three addenda to the bid documents were issued in January 2000, which were provided to all parties who had previously obtained the bid documents for the advertised project. Addendum #2 included a form of proposal for a single general construction package (A-10), as an alternative to the four separate components (A-2, A-3, A-4 and A-5). As a result of the three addenda, respondent board readvertised this project on January 31, 2000, and extended the bid date to February 14, 2000. However, this second advertisement of the project only noted the same contract components identified in the original advertisement, A-2 through A-9, and did not specifically include reference to A-10, the aggregate general construction contract which encompassed the work included in the separate components A-2 through A-5.

The bids were opened on February 14, 2000. As to the separate general construction components, there were 13 bids for A-2, 4 for A-3, 6 for A-4, and 8 for A-5. There were also 4 bids for A-10, the aggregate general construction contract. At its meeting on March 9, 2000, respondent board awarded the general construction contract to respondent Pav-Lak, the lowest bidder on the A-10 aggregate contract, with a bid of $11,298,900. Respondent board contends that it elected to award the aggregate general construction contract (A-10) because it offered the district the greatest savings in administrative time and costs, as opposed to issuing separate contracts for the various components of the general construction work (A-2, A-3, A-4 and A-5) to different contractors. At the same meeting, the contract for electrical work, A-8, was awarded to respondent Roland with a bid of $2,336,455. Three other bids for contract A-8, including one submitted by Mainline Corp. ("Mainline"), were not considered because respondent board determined that the bids were incomplete.

By Order to Show Cause issued on March 20, 2000, a contractor, who had submitted a separate bid on contract A-5 and an aggregate bid on contract A-10, initiated an Article 78 proceeding in Suffolk County Supreme Court, Angelo Capobianco, Inc. v. Longwood Central School District, Index No. 7309-00 ("Capobianco"). The petitioner in Capobianco sought an order nullifying the award of contract A-10 to Pav-Lak Industries, Inc. The court denied petitioner's request for a preliminary injunction by a bench order issued on March 24, 2000. This Education Law "310 appeal was subsequently commenced on April 6, 2000. A request for interim relief was denied on May 24, 2000. The corporate petitioner in Capobianco is not a party in this appeal, and none of the individual parties who are petitioners in this appeal are parties to the Article 78 proceeding.

Petitioners herein contend that the award of contracts A-10 and A-8 violates "103 of the General Municipal Law ("GML"). As to the aggregate general construction contract A-10, petitioners assert that contract A-10 was not advertised in the January 31, 2000 public advertisement of the project, and that the award of contract A-10 is therefore void. Petitioners further assert that the total amount of the aggregate contract awarded to respondent Pav-Lak is $1.2 million more than the sum of the lowest bids submitted individually on components A-2 through A-5, and that the decision to award the aggregate contract rather than the separate component contracts violated the requirement in GML "103 to award the contract to the lowest responsible bidder.

As to the electrical contract A-8, petitioners contend that respondent board improperly refused to consider the lowest bid, submitted by Mainline with a base bid of $2,039,000. Instead, respondent board awarded the contract to the second lowest bidder, Roland, whose bid was $118,000 more than Mainline's bid. Petitioners request that I annul the award of contracts A-10 and A-8, overturn respondent board's decision to proceed with the aggregate general construction contract rather than the separate component contracts, direct respondent board to award contracts A-2 through A-5 to the lowest bidders on those individual components, and direct respondent board to award contract A-8 to Mainline.

Respondents contend that the decision to award contract A-10 to respondent Pav-Lak was in total compliance with the requirements of GML "103 regarding advertisement and award to the lowest responsible bidder, and that respondent board reasonably chose to proceed with the aggregate contract rather than individual contracts for the general construction components. Respondents further assert that the board properly refused to consider the bid submitted by Mainline for contract A-8 because the bid package was incomplete. Respondents Pav-Lak and board also raise a number of procedural objections (no answer was submitted by respondent Roland). Both respondents claim that the pending Suffolk County Supreme Court proceeding, Capobianco, involves the same issues as this appeal and the appeal should therefore be dismissed. Respondents also contend that, to the extent that petitioners allege violations of the Open Meetings Law, these claims must be dismissed for lack of jurisdiction. Respondent board further alleges that the appeal is untimely because it was commenced more than 30 days after award of the contracts on March 9, 2000.

I will initially address the procedural objections. I find that the appeal is timely. Petitioners served an initial notice of petition and petition upon respondents board and Pav-Lak on April 6, 2000. However, the notice of petition was defective, and respondent Roland had neither been served nor named in the petition or caption although Roland is a necessary party to an appeal seeking to void a contract awarded to Roland. Upon notification by my Office of Counsel of the defect in the notice of petition, petitioners promptly served an amended notice of petition and petition upon the board and Pav-Lak, and personally served the papers on Roland on April 21, 2000. Where a petition is served in a timely manner but is defective in form, the defects may be cured by the service of a corrected petition (Appeal of Sponcy, 33 Ed Dept Rep 126, Decision No. 12,998; Matter of Roth, 23 id. 352, Decision No. 11,245). Roland has not appeared to raise any objections to the timeliness of service upon it nor any alleged prejudice resulting from the timing of service, so I decline to dismiss the appeal on the grounds of any untimeliness of service upon Roland.

I agree with respondents, however, that the appeal must be dismissed for lack of jurisdiction insofar as it raises any challenges to the Open Meetings Law. 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 (see, e.g., Appeal of Goldin, 38 Ed Dept Rep 317, Decision No. 14,043, and the cases cited therein).

I must reject respondents' contention that I am required to dismiss this appeal on the basis of the pending Supreme Court proceeding in Capobianco. The parties in the instant appeal are not identical to the parties before the court in Capobianco. None of the parties to this appeal are also parties in Capobianco, and the sole petitioner in Capobianco is not a party to this appeal. This appeal also seeks relief not before the Supreme Court in Capobianco, to void the award of the electrical contract A-8 to Roland.

Although I am cognizant of numerous previous Commissioner’s decisions which recognize that it is contrary to the orderly administration of justice to have multiple tribunals making determinations concerning the same controversy (e.g., Appeal of Phillips, 38 Ed Dept Rep 165, Decision No. 14,008), the prior decisions have involved petitioners who simultaneously filed "310 appeals and proceedings in other forums raising similar claims and seeking similar relief. Such parties made an election of remedies to pursue their claims in these other judicial or administrative forums, and the Commissioner did not permit them to relitigate the same issues in a proceeding instituted pursuant to "310 of the Education Law. In the instant appeal, since the named petitioners are not parties to any other claims filed in any other forum, they have not made such an election of remedies and would be without remedy if I dismissed this appeal. Accordingly, due to the different parties and existence of a claim for relief regarding contract A-8 that is not raised in Capobianco, I decline to dismiss the instant appeal on the grounds that the Capobianco Article 78 proceeding is pending in Supreme Court.

The appeal must, however, be dismissed on the merits. As to the award of the aggregate contract A-10 to respondent Pav-Lak, the Suffolk County Supreme Court issued a decision in Capobianco on May 26, 2000, dismissing the petition. The court rejected the claim that respondent board had failed to advertise contract A-10, in violation of GML "103. The court found that respondent had complied with the requirement to advertise "a statement of the time when and the place where all bids received pursuant to the notice will be publicly opened and read" (GML "103[2]).

Upon the record before me, which includes the petition and responding papers filed in the Article 78 proceeding, I have no basis to disagree with the finding of the court on this issue. The court in Capobianco found that respondent board's initial and second advertisements complied with the literal requirements of GML "103(2) to state when and where bids would be opened. Notice of the addition of the proposal form for the aggregate A-10 contract was sent to all parties who had previously picked up copies of the bid documents.

Although petitioners raise conclusory claims that there may have been "larger contractors" who would only have been interested in submitting a bid on the aggregate general construction contract, I note that the record is devoid of any proof or complaint by such a contractor that it was misled by respondent board’s newspaper advertisement about the nature or extent of the general construction work being bid. Likewise, the record indicates that all parties who had previously obtained bid documents after the first solicitation for bids, on December 28, 1999, were subsequently provided with updated information regarding the addenda, including the opportunity to submit an aggregate bid for general construction work, in advance of the revised bid opening date, February 14, 2000. In an appeal to the Commissioner, petitioner bears the burden of establishing all the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Alexander, 39 Ed Dept Rep 265, Decision No. 14,232; Appeal of Trombley, 39 id. 115, Decision No. 14,189). As the court in Capobianco recognized, petitioner has not established any prejudicial effect resulting from respondent board’s failure to note specifically the opportunity to submit an aggregate bid for general construction work in its second newspaper advertisement soliciting bids for this project.

I also have no basis to disagree with the court's rejection of the claim that it was arbitrary and capricious for respondent board to award an aggregate contract for general construction work to respondent Pav-Lak, rather than to award the individual contracts A-2 through A-5 to the lowest responsible bidders on each component of that work. A school board has the right to solicit bids in alternative categories and to select the lowest responsible bidder in either category (Acme Bus Corp. v. Board of Education of the Roosevelt UFSD, 91 NY2d 51, 55 [1997]). The court in Capobianco determined that respondent board was entitled to exercise reasonable discretion in the selection of the alternative bids, and that petitioner failed to establish that the award process, or respondent board's stated purpose to "save administrative time and costs," was unlawful or improper (citing Acme Bus, supra) or was not served by the aggregate contract. The court rejected the contention that the award of the aggregate contract was arbitrary and capricious solely because the aggregate contract totals approximately one million dollars more than the total of the low bids for the four component contracts A-2 through A-5, in the absence of any proof that respondent board's desire to save administrative time and costs was not served by the aggregate contract.

In an issue not raised in Capobianco, I conclude that respondent board was justified in refusing to consider the bid submitted by Mainline because its bid submission was incomplete. The electrical contractors submitting bids for contract A-8 were required to submit bids for the base bid electrical work, as well as several alternates that included changes that either added or deducted electrical work from the base bid amount. Mainline failed to submit a bid figure for Alternates Elec-6 and 7, which were included in addenda to the bid specifications and which added work to the base bid electrical work.

Upon the record before me, I cannot find that respondent board's determination to reject Mainline's incomplete bid was arbitrary or capricious. Mainline's bid was concededly incomplete and lacked bids for the two Alternates at issue. Respondent board has the authority to decide whether differences between the bid specifications and the bid itself are material (Suit-Kote Corp. v. City of Binghamton Bd. of Contract and Supply, 216 AD2d 831 [3d Dept 1995]). The board may decline bids that fail to comply with the literal requirements of the bid specifications, or it has discretion to waive nonmaterial irregularities if waiver is in the best interests of the district and if such irregularities did not give the bidder a significant advantage over other bidders (N.E.P. Glass Co., Ltd. v. Board of Education, 233 AD2d 570 [3d Dept 1996]; Diamond D Const. Corp. v. County of Erie, 209 AD2d 922 [4th Dept 1994]); seealsoAppeal of Veterans Transportation Co., Inc., 16 Ed Dept Rep 250). A refusal to waive the irregularity will be upheld if it can be supported by any rational basis (Diamond D. Const. Corp v. County of Erie, supra).

Respondent board asserts that Alternate Elec-6 was contained in Addendum No. 2, issued on January 25, 2000, and that Alternate Elec-7 was contained in Addendum No. 4, issued on February 7, 2000. Mainline contends, however, that Alternate Elec-6 was contained in Addendum No. 4 and was not faxed to Mainline until February 9, 2000, and that Alternate Elec-7 was not contained in any of the bid documents provided to Mainline at any time.

I have reviewed Addendum No. 2 carefully in its entirety, as respondent board did not provide any specific page or section reference. Addendum No. 2 adds Alternate Elec-6 in Change No. 76, page 23 of the Addendum, for work associated with wiring new exhaust fans. In Addendum No. 4 dated February 7, 2000, there is also reference to an Alternate Elec-6, but no reference to an Alternate Elec-7. However, respondent board also submits a Clarification No. 2, dated February 10, 2000 and addressed to all bidders, indicating that the "Alternate Elec-6" in Addendum No. 4 should read "Alternate Elec-7." Petitioners do not contend that Mainline did not receive the entire contents of Addendum No. 2, nor do petitioners mention the February 10, 2000 Clarification No. 2. According to a table provided by petitioners, of nine companies that submitted bids for contract A-8, 6 of them submitted bids on Alternate Elec-6, and 6 submitted bids for Alternate Elec-7. Mainline was the only bidder that failed to submit a bid for both Alternate Elec-6 and Elec-7. Two other contractors submitted bids for Alternate Elec-6 but not for Elec-7, and 1 submitted a bid for Elec-7 but not Elec-6.

Petitioners have not established any wrongdoing on the part of respondents that resulted in Mainline's failing to find Alternate Elec-6 in Addendum 2, nor did petitioners establish that the time between notice of Alternate Elec-7 and the opening of bids was so unreasonably short that contractors were reasonably unable to comply with the requirement to provide a bid on the Alternates. Petitioners have thus not established that they are entitled to the relief sought (Appeal of Alexander, supra; Appeal of Trombley, supra).