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Decision No. 14,761

Appeal of LEO OLSEN, on behalf of BETTER MILES, INC., from action of the Board of Education of the Connetquot Central School District regarding the awarding of a contract.

Decision No. 14,761

(July 24, 2002)

Guercio & Guercio, attorneys for respondent, Vanessa M. Sheehan, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals a contract award by the Board of Education of the Connetquot Central School District ("respondent"). The appeal must be dismissed.

On or about October 23, 2001, respondent declared 13 of the district"s vehicles to be surplus equipment. Due to the vehicles" poor condition, respondent decided to use a bid process for their sale as scrap. Respondent"s bid specifications required all bidders to submit proof of general liability insurance. There were seven bidders for the surplus vehicles, although not every bidder bid on every vehicle. Petitioner, president of Better Miles, Inc., bid on two of the vehicles, a 1955 Willys Jeep ("Jeep") and a 1963 International tractor ("tractor"). The district disqualified four of the bidders, including petitioner, for failure to attach proof of general liability insurance, as required in the bid specifications. On January 4, 2002, respondent"s director of purchasing notified Mid-Island Auto Wreckers ("Mid-Island") that its bid for all 13 vehicles had been accepted. On January 10, 2002, petitioner called respondent and learned of the bid results. This appeal ensued. Petitioner"s request for interim relief was denied on February 12, 2002.

Petitioner contends that he should have been awarded the two vehicles because he was the high bidder on the Jeep and tractor and because respondent already had a copy of his liability insurance policy on file from an unrelated contract. Petitioner further contends that respondent"s bid specifications regarding proof of insurance were unreasonable and unusual in that no amount of insurance coverage was specified. He argues that proof of insurance is usually not required until after notification of the bid results. Petitioner requests that the bid results be reversed and the tractor and Jeep be awarded to him.

Respondent contends that its decision to require insurance as part of the bid specification was reasonable and that it had no obligation to search its files for copies of insurance papers that petitioner may have submitted in connection with a different bid. Respondent argues that the methods used to sell the surplus equipment were lawful and reasonable. Respondent alleges that it was informed by the successful bidder that the Jeep and tractor were destroyed and, therefore, the appeal is moot. Respondent also contends that the appeal is untimely and that petitioner failed to join necessary parties.

Initially, I must address several procedural issues. Petitioner submitted reply papers with additional evidence. 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 a Student with a Disability, 41 Ed Dept Rep __, Decision No. 14,719; Appeal of Huber, et al., 41 id. ___, Decision No. 14,676; Appeal of Karpoff, et al., 40 id. ___, Decision No. 14,527). Therefore, while I have reviewed petitioner"s submission, I have not considered those portions of the reply containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

An appeal to the Commissioner pursuant to Education Law "310 must be instituted within 30 days of the action or decision complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Respondent contends that petitioner should have filed the appeal within 30 days of the date respondent notified the successful bidder on January 4, 2002. Petitioner contends that he did not learn of the bid results until he called the district on January 10, 2002. There is no other evidence in the record to indicate when petitioner was notified of the bid results. In any event, pursuant to General Construction Law "25-a(1), "[w]hen any period of time, computed from a certain day, within act is authorized or required to be done, ends on a Saturday, Sunday or a public holiday, such act may be done on the next succeeding business day...." The thirtieth day from January 4 2002, was February 3, 2002, a Sunday. Petitioner commenced his appeal on Monday, February 4, 2002. Therefore, the appeal is timely.

Respondent also contends that the appeal is moot because Mid-Island stated to respondent"s director of purchasing that the Jeep and tractor had been destroyed. Petitioner disputes that contention and submitted photographs with his reply papers allegedly showing the Jeep and tractor in front of Mid-Island"s garage after the date they were supposedly destroyed. Respondent did not respond to the photographs and has offered no further information supporting its position. Under these circumstances, I decline to dismiss the appeal as moot.

The appeal, however, must be dismissed for failure to join 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 Roff, 41 Ed Dept Rep __, Decision No. 14,708; Appeal of Gargan, 40 id. __, Decision No. 14,528; Appeal of World Network International Services, 39 id. 30, Decision No. 14,164). Here, petitioner seeks the reversal of respondent"s bid award and the transfer of the two vehicles in question to him. Clearly, a decision in petitioner"s favor would adversely affect Mid-Island. Therefore, Mid-Island should have been joined as a party and petitioner"s failure to do so requires dismissal of the appeal.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. In an appeal to the Commissioner, the petitioner bears the burden of establishing the facts upon which he or she seeks relief and demonstrating a clear legal right to the relief requested (8 NYCRR "275.10; Appeal of a Student Suspected of Having a Disability, 41 Ed Dept Rep ___, Decision No. 14,702; Appeal of L.S., 41 id. ___, Decision No. 14,683).

Petitioner"s displeasure with respondent"s bid specifications does not establish that they were illegal, irrational or arbitrary. Respondent contends that it required proof of insurance as part of the bid because the vehicles were in such poor condition it was feared that someone might be injured while removing them from school property. It is undisputed that the bid specifications required the attachment of proof of general liability insurance to the bid and that petitioner failed to attach such proof. Finally, respondent has the authority to decide whether differences between bid specifications and the bid itself are material (Suit-Kote Corp. v City of Binghamton Board of Contract and Supply, 216 AD2d 831).