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Decision No. 14,997

Appeal of MICHAEL S. PASCAZI from action of the Dutchess Board of Cooperative Educational Services regarding a contract.


Appeal of MICHAEL S. PASCAZI from action of the Orange-Ulster Board of Cooperative Educational Services regarding a contract.



(December 8, 2003)


Donoghue, Thomas, Auslander & Drohan, attorneys for respondents, Daniel Petigrow, Esq., of counsel


MILLS, Commissioner.--In separate appeals, petitioner challenges decisions of the Dutchess Board of Cooperative Educational Services ("respondent Dutchess BOCES") and the Orange-Ulster Board of Cooperative Educational Services ("respondent Orange-Ulster BOCES") to award contracts to Hudson Valley DataNet LLC ("DataNet") to provide high-speed internet access to various facilities owned by the BOCES and their component school districts.  Because the appeals raise similar issues of law and fact they are consolidated for decision.  The appeals must be dismissed.

In May 2000, respondent Orange-Ulster BOCES issued a request for proposal ("RFP") to establish a fiber-optic network to provide high-speed internet access to various school buildings owned by Orange-Ulster BOCES and its component school districts.  In December 2000, respondent Dutchess BOCES issued an RFP for similar services.  In both cases, DataNet was the successful bidder.  It was awarded a contract on June 19, 2000 by Orange-Ulster BOCES and on January 10, 2001 by Dutchess BOCES.  Orange-Ulster executed a contract with DataNet on November 22, 2000 and Dutchess BOCES executed a contract with DataNet on or about July 7, 2001.

By letter dated June 7, 2002 to the District Superintendent of Dutchess BOCES, petitioner alleged, among other things, that DataNet had failed to post a payment bond as required by the bidding documents and the New York State Finance Law or to comply with the "Prevailing Wage Rate Law."  Petitioner used the letterhead of Fiber Optik, a communications service company, and stated that the company is "a land owner and school taxpayer."  Petitioner requested that the District Superintendent "investigate this matter" and "if" appropriate, terminate the agreement" and "re-bid the balance of the contract term."  There is no evidence in the record that the District Superintendent or respondent Dutchess BOCES replied to petitioner"s letter.

By letter dated June 11, 2002 to the board president of Orange-Ulster BOCES, petitioner registered essentially the same complaints with respect to the Orange-Ulster BOCES" November 22, 2000 agreement with DataNet.  By letter dated August 29, 2002, the board president advised petitioner that after reviewing the matter, counsel opined that the bidding for the contract had "complied with the proper legal procedures" and that the agreement did "not require the posting of a bond"."  These appeals ensued.  Petitioner"s requests for interim relief were denied on September 27, 2002 (Orange-Ulster BOCES) and October 15, 2002 (Dutchess BOCES).

In each appeal, petitioner contends that the successful bidder was required by both the bid documents and the New York State Finance Law to post a payment bond and that DataNet"s failure to do so requires that the agreements be set aside.  Petitioner also contends that the agreements constitute public works projects, and are therefore subject to certain provisions of the Labor Law requiring the successful bidder to, among other things, pay laborers prevailing wages.  Respondents contend that the appeals are untimely.  Respondents also contend, among other things, that petitioner lacks standing, has failed to join DataNet as a necessary party, and that I lack jurisdiction to entertain violations of the Labor Law.  Respondents allege that their bidding processes and contract awards were proper in all respects.

I must first address several procedural matters.  Petitioner requests that I disregard as untimely respondent Orange-Ulster BOCES" affidavit in opposition to petitioner"s stay request and both respondents" answers.  However, the record reflects that my Office of Counsel granted respondent Orange-Ulster BOCES an extension to respond to petitioner"s stay request until September 23, 2002 and until October 10, 2002 to answer the petition.  Respondent Orange-Ulster BOCES" papers were served within these time frames.  Similarly, the record reflects that respondent Dutchess BOCES was given an extension until October 18, 2002 to answer the petition, and served its answer within this time frame.  Accordingly, I have accepted respondents" pleadings.

I lack jurisdiction to entertain petitioner"s claim that the contracts at issue constitute public works projects and that DataNet was therefore required to pay laborers prevailing wages.  It is within the expertise and jurisdiction of the Commissioner of Labor to investigate and redress alleged violations of Labor Law "220 (Labor Law "220; see, Matter of Cayuga-Onondaga Counties BOCES v. Sweeney, 89 NY2d 395).  Accordingly, the appeals must be dismissed to the extent that petitioner alleges violations of the Labor Law.

The remainder of petitioner"s claims must be dismissed as untimely.  An appeal to the Commissioner of Education pursuant to Education Law "310 must be initiated within 30 days of the action or decision complained of unless any delay is excused for good cause shown(8 NYCRR "275.16). An appeal challenging a contract award must be commenced within 30 days from the date that the award of the contract became final (seeAppeals of Lombardo, 38 Ed Dept Rep 730, Decision No. 14,128; Appeal of McDougall, et al., 37 id. 611, Decision No. 13,941; Appeal of Eastman Kodak Company, 32 id. 575, Decision No. 12,918).  Petitioner claims that DataNet"s bids were non-responsive because DataNet did not post payment bonds.  The contracts were awarded on June 19, 2000 (Orange-Ulster BOCES) and January 10, 2001 (Dutchess BOCES) and agreements executed on November 22, 2000 (Orange-Ulster BOCES) and July 7, 2001 (Dutchess BOCES).  Petitioner did not commence the appeal against Orange-Ulster BOCES until September 18, 2002 and against Dutchess BOCES until September 25, 2002 and offers no explanation for the lengthy delay.  Petitioner"s June 2002 letters to respondents asking them to investigate the contracts and, if appropriate, terminate them, do not extend his time to commence an appeal.

Further, I find no merit to petitioner"s assertion that performance under the contracts constitutes continuing wrongs that may be appealed at any time.  The continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as unlawful appointments to a district"s shared decision-making team (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155) or certain ongoing expenditures under an austerity budget that did not comply with the law (Appeal of Aarseth, 32 Ed Dept Rep 506, Decision No. 12,901).  The doctrine does not apply where the specific action being challenged is a single action or decision and the resulting effects are not intrinsically unlawful (seeAppeals of Simpson, et al., 40 Ed Dept Rep 5, Decision No. 14,402).  Petitioner challenges DataNet"s failure to post payment bonds, which is not inherently unlawful, and therefore the continuing wrong doctrine does not apply (see, Appeals of American Quality Beverages, 42 Ed Dept Rep 144, Decision No. 14,804).  Accordingly, the appeals must be dismissed as untimely.

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