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Decision No. 16,783

Appeal of BELLPORT UNITED METHODIST CHURCH, LESLIE O’CONNOR, MICHAEL BILECKI and E. ANNE HAYES from action of the Board of Education of the South Country Central School District and Lorrie D. Colichio d/b/a Little Scholars Learning Academy regarding a contract.

Decision No. 16,783

(July 3, 2015)

Regina Seltzer, Esq., attorney for the petitioners

Guercio & Guercio, LLP, attorneys for respondent board of education, Douglas A. Spencer, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioners appeal the determination of the Board of Education of the South Country Central School District (“board”) to award a contract for Universal Pre-Kindergarten (“UPK”) services to Lorrie D. Colichio d/b/a Little Scholars Learning Academy (“Academy,” together with the board, “respondents”).  The appeal must be dismissed.

On May 25, 2011, the board published in a newspaper of general circulation a Request for Proposals (“RFP”) to participate as a collaborating agency in providing the district’s UPK program for 2011-2012 school year.  The proposals were required to be submitted to the district by noon on June 1.  Petitioner, Bellport United Methodist Church (“Bellport”), the Academy and two additional vendors responded to the RFP and submitted timely applications.  On the evening of June 1, 2011, at a regularly scheduled board meeting, the board selected the Academy to provide educational services in connection with the district’s 2011-2012 UPK program.  This appeal ensued.  Petitioners’ request for interim relief seeking a stay of the contract award was denied.

Petitioners allege that the board withheld information regarding the issuance of the RFP from Bellport.  Petitioners contend that the Academy is not an “eligible agency” within the meaning of Education Law §3602-e and 8 NYCRR Subpart 151-1 pertaining to UPK programs.  Petitioners further assert that the district’s provision of space in an elementary school for the operation of the Academy’s UPK program is impermissible and not in compliance with Education Law §414.

Petitioners also allege that, in selecting a provider of UPK services, the board failed to comply with the competitive process procedures set forth in Subpart 151-1 of the Commissioner’s regulations. Petitioners maintain that Academy does not meet the program criteria under Subpart 151-1, that Bellport has significantly more experience in providing UPK services, and that Academy was not the lowest bidder.  Petitioners contend that the board’s actions were arbitrary, capricious, and contrary to law.  They seek an order nullifying the board’s award of the contract.

Respondent board contends that the petition fails to set forth a clear and concise statement of claim and fails to establish petitioners’ entitlement to relief.  Respondent board further contends that petitioners seek an advisory opinion, that they failed to join a necessary party and that the appeal is moot, warranting dismissal.  Respondent Academy denies petitioners’ allegations and seeks dismissal of the appeal.

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  The appeal challenged the award of a UPK contract for the 2011-2012 school year, requested interim relief which was denied, and the school year at issue concluded.  I take judicial notice that Bellport was subsequently awarded a UPK contract in the district for each subsequent school year.  There being no further meaningful relief to be granted, the matter is academic and must be dismissed.  I do not conclude that this matter is inherently capable of repetition yet evading review, as petitioners argue, since the RFP at the heart of this dispute relates to a single school year.  Petitioners are not precluded from challenging future awards of UPK contracts.

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