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Decision No. 16,171

Appeal of SUSAN ROTH from action of the Board of Education of the South Country Central School District, Montauk Bus Transportation, LLC and Coastal Charter Service Corp. regarding transportation contracts.

Decision No. 16,171

(November 30, 2010)

Archer, Byington, Glennon & Levine, LLP, attorneys for petitioner, Marty Glennon, Esq., of counsel

Weinberg, Gross & Pergament, LLP, attorneys for Montauk Bus Transportation, LLC and Coastal Charter Service Corp., Marc A. Pergament, Esq., of counsel

Guercio & Guercio, LLP, attorneys for the South Country Central School District, Douglas A. Spencer, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the South Country Central School District (“board”) to award transportation contracts to Montauk Bus Transportation, LLC (“Montauk”) and Coastal Charter Service Corp. (“Coastal”)(collectively “respondents”).  The appeal must be dismissed.

On March 25, 2009, the board awarded Montauk a contract to provide home-to-school public and private transportation services.  It also voted to award Coastal a contract to provide athletic and field trip transportation services.  This appeal ensued.  Petitioner’s request for interim relief was denied on May 21, 2009.

Petitioner alleges that Montauk and Coastal are not responsible bidders and failed to provide all requested information and comply with the bid specifications.  Petitioner contends that Montauk submitted information relating to another company, Montauk Bus Services, with its bid.  Petitioner also contends that Montauk and Coastal did not make required disclosures.  Petitioner requests that the contract awards to Montauk and Coastal be set aside.

The board alleges that the appeal should be dismissed as premature and untimely, for lack of standing and for failure to join necessary parties.  The board also contends that petitioner fails to state a claim upon which relief can be granted and fails to demonstrate a clear legal right to the relief requested.

Montauk and Coastal allege that the petition is barred by the doctrines of laches and estoppel and fails to state a claim upon which relief may be granted.  Montauk and Coastal contend that they were the lowest responsible bidders, that the bidding process was fair and regular and that the board reserved the right to waive informalities relating to the bid.  Montauk maintains that the petition fails to consider documents and information submitted following the submission of its bid proposal.

Initially, I must address several matters relating to the record in this appeal.  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, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

By letter dated September 23, 2009, petitioner submitted an affidavit and exhibits for inclusion in the record pursuant to §276.5 of the Commissioner’s regulations.  The board objects to this submission.  The information contained in the submission was not previously available to petitioner.  Therefore, I have accepted and considered petitioner’s additional documentation as part of the record.

The appeal, however, must be dismissed for lack of standing.  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 Jefferson, 46 Ed Dept Rep 487, Decision No. 15,572; Appeal of Himmelberg and Little, 46 id. 228, Decision No. 15,490; Appeal of Riccinto, 46 id. 39, Decision No. 15,435).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Jefferson, 46 Ed Dept Rep 487, Decision No. 15,572; Appeal of L.A., et al., 46 id. 450, Decision No. 15,561).

While district residents and taxpayers have standing to challenge an allegedly illegal expenditure of funds (Matter of Board of Coop. Educ. Servs. For Second Supervisory Dist. Of Erie, Chautauqua and Cattaraugus Counties, et al. v. University of State Educ. Dept., et al., 40 AD3d 1349; Appeal of Loschiavo, 45 Ed Dept Rep 525, Decision No. 15,404), petitioner does not assert an illegal expenditure of district funds outside the scope of the board’s authority.  Nor does she allege actions such as fraud, waste or collusion on the part of district officers that would impact her rights as a taxpayer.  Rather, petitioner challenges the contract award based solely upon claims of technical non-compliance with applicable competitive bidding statutes and her disagreement with the board’s assessment of bidder responsibility.  Petitioner is not a bidder and, as noted above, has not demonstrated or even alleged that she suffered any personal injury as a result of the challenged actions.  Under these circumstances, I find that her status as a district resident and taxpayer is not sufficient, in and of itself, to confer standing (seeMatter of Transactive Corporation v. New York State Department of Social Services, et al., 92 NY2d 579).  Consequently, petitioner lacks standing to maintain this appeal, and the appeal must be dismissed.

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