Opinion
2015-06-17
In the Matter of HELLO ALERT, INC., appellant, v. EAST MORICHES FIRE DISTRICT, et al., respondents.
Law Offices of Stanley E. Orzechowski, P.C., Nesconset, N.Y., for appellant. Dranitzke, Lechtrecker, Trabold & Johnson, Patchogue, N.Y. (Harold G. Trabold of counsel), for respondents East Moriches Fire District, Board of Fire Commissioners of East Moriches Fire District, Evan Goldstein, Thomas P. Kelly, Jr., Paul K. Sweeney, Joseph G. Edwards, and Donald R. Croche.
Law Offices of Stanley E. Orzechowski, P.C., Nesconset, N.Y., for appellant. Dranitzke, Lechtrecker, Trabold & Johnson, Patchogue, N.Y. (Harold G. Trabold of counsel), for respondents East Moriches Fire District, Board of Fire Commissioners of East Moriches Fire District, Evan Goldstein, Thomas P. Kelly, Jr., Paul K. Sweeney, Joseph G. Edwards, and Donald R. Croche.
Farber, Rosen & Kaufman, P.C., Rego Park, N.Y. (Richard C. Lunenfeld of counsel), for respondent Eastern Long Island Electronics, Inc.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, ROBERT J. MILLER, and SYLVIA O. HINDS–RADIX, JJ.
In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the East Moriches Fire District dated May 2, 2011, awarding to Eastern Long Island Electronics, Inc., a contract for the supply, installation, and maintenance of certain radio equipment, the appeal is from (1) a decision of the Supreme Court, Suffolk County (Pastoressa, J.), dated May 4, 2012, and (2) a judgment of the same court dated April 8, 2013, which, upon the decision, denied the petition and dismissed the proceeding.
ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision ( see Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718); and it is further,
ORDERED that the judgment is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.
In April 2011, the East Moriches Fire District (hereinafter the fire district) and its board of commissioners (hereinafter the board) issued an invitation to bid on the installation and maintenance of a new radio dispatch system. The petitioner and Eastern Long Island Electronics, Inc. (hereinafter Eastern), each submitted a bid. Eastern offered to install the equipment described in the bid specifications, whereas the petitioner, as permitted by the specifications, proposed a different system, which it stated was equivalent to the specified system.
Upon reviewing the bids, the board determined that, although the petitioner's bid for the equipment was lower than Eastern's bid by approximately $450, its monthly maintenance charges were higher by $350 per month and, thus, that the petitioner's bid would cost the fire district $4,200 more annually than Eastern's. In addition, the board determined that the petitioner did not fulfill the requirement of having a service location within 20 miles of the fire district. For these two reasons, the board rejected the petitioner's bid, and awarded the contract to Eastern.
The petitioner thereafter commenced this CPLR article 78 proceeding, contending, inter alia, that the board had acted arbitrarily and capriciously in awarding the contract to Eastern, and alleging, among other things, that the fire district and Eastern had colluded to ensure Eastern's success. The Supreme Court issued a decision, in which it explained that the petitioner had failed to demonstrate that the board had acted arbitrarily and capriciously, or that its determination lacked a reasonable basis. In a judgment based thereon, the court denied the petition and dismissed the proceeding.
General Municipal Law § 103(1) provides that, in awarding any contract in excess of $35,000, public entities must award the contract to “the lowest responsible bidder.” “The central purposes of New York's competitive bidding statutes are the ‘(1) protection of the public fisc by obtaining the best work at the lowest possible price; and (2) prevention of favoritism, improvidence, fraud and corruption in the awarding of public contracts' ” ( Matter of AAA Carting & Rubbish Removal, Inc. v. Town of Southeast, 17 N.Y.3d 136, 142, 927 N.Y.S.2d 618, 951 N.E.2d 57, quoting Matter of New York State Ch., Inc., Associated Gen. Contrs. of Am. v. New York State Thruway Auth., 88 N.Y.2d 56, 68, 643 N.Y.S.2d 480, 666 N.E.2d 185; see Matter of L & M Bus Corp. v. New York City Dept. of Educ., 17 N.Y.3d 149, 156, 927 N.Y.S.2d 311, 950 N.E.2d 915; Matter of Conduit & Found. Corp. v. Metropolitan Transp. Auth., 66 N.Y.2d 144, 148, 495 N.Y.S.2d 340, 485 N.E.2d 1005; Brega Transp. Corp. v. Brennan, 105 A.D.3d 985, 986, 964 N.Y.S.2d 203; Matter of Construction Contrs. Assn. of Hudson Val. v. Board of Trustees, Orange County Community Coll., 192 A.D.2d 265, 267, 600 N.Y.S.2d 953). Nevertheless, it is a municipality's right to determine whether a bid meets its specifications, and that determination is entitled to deference if it is supported by “any rational basis” ( Matter of Hungerford & Terry, Inc. v. Suffolk County Water Auth., 12 A.D.3d 675, 676, 785 N.Y.S.2d 506; see Brega Transp. Corp. v. Brennan, 105 A.D.3d at 987, 964 N.Y.S.2d 203; see generally Matter of Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 N.Y.3d 219, 232, 851 N.Y.S.2d 76, 881 N.E.2d 172; Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 232, 356 N.Y.S.2d 833, 313 N.E.2d 321; Matter of Trump on the Ocean, LLC v. Cortes–Vasquez, 76 A.D.3d 1080, 1083, 908 N.Y.S.2d 694). Thus, “ ‘a court may not substitute its judgment for that of the board or body it reviews unless the decision under review is arbitrary and unreasonable and constitutes an abuse of discretion’ ” ( Matter of Dreier v. LaValle, 29 A.D.3d 790, 791, 815 N.Y.S.2d 661, quoting Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d at 232, 356 N.Y.S.2d 833, 313 N.E.2d 321; see Matter of Rodriguez v. County of Nassau, 80 A.D.3d 702, 703, 915 N.Y.S.2d 159; Matter of Jul–Bet Enters., LLC v. Town Bd. of Town of Riverhead, 48 A.D.3d 567, 852 N.Y.S.2d 242). It is the petitioner's burden to demonstrate that a bid has been wrongly awarded ( see Matter of Terraferma Elec. Constr. Co., Inc. v. City of New York, 30 A.D.3d 607, 818 N.Y.S.2d 147).
Here, the board identified three reasons for rejecting the petitioner's bid: (1) the petitioner did not demonstrate that it had a service location within 20 miles of the fire district; (2) the petitioner offered to supply equipment which differed from the bid specifications; and (3) over the life of the contract, the monthly maintenance costs would render the petitioner's bid more expensive than Eastern's. Although the petitioner disagrees with the board's conclusions as to each of these points, any one of them would provide a rational basis for the rejection of the petitioner's bid. In any event, even were we to disagree with the board's conclusions in this regard, we are not free to substitute our judgment for that of the board ( see Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d at 232, 356 N.Y.S.2d 833, 313 N.E.2d 321; Matter of Rodriguez v. County of Nassau, 80 A.D.3d at 703, 915 N.Y.S.2d 159; Matter of Jul–Bet Enters., LLC v. Town Bd. of Town of Riverhead, 48 A.D.3d 567, 852 N.Y.S.2d 242; Matter of Dreier v. LaValle, 29 A.D.3d at 791, 815 N.Y.S.2d 661).
The petitioner's conclusory claims of fraud and collusion also do not entitle it to relief. A “spectral ‘appearance of impropriety’ is insufficient proof to disturb a [municipality's] determination under the competitive bidding statutes” ( Matter of Acme Bus Corp. v. Board of Educ. of Roosevelt Union Free School Dist., 91 N.Y.2d 51, 55, 666 N.Y.S.2d 996, 689 N.E.2d 890, quoting Matter of Conduit & Found. Corp. v. Metropolitan Transp. Auth., 66 N.Y.2d at 150, 495 N.Y.S.2d 340, 485 N.E.2d 1005). Instead, a party challenging a procurement “has the burden to demonstrate ‘actual’ impropriety, unfair dealing or some other violation of statutory requirements” ( Matter of Acme Bus Corp. v. Board of Educ. of Roosevelt Union Free School Dist., 91 N.Y.2d at 55, 666 N.Y.S.2d 996, 689 N.E.2d 890, quoting Matter of Conduit & Found. Corp. v. Metropolitan Transp. Auth., 66 N.Y.2d at 149, 495 N.Y.S.2d 340, 485 N.E.2d 1005; see Matter of L & M Bus Corp. v. New York City Dept. of Educ., 17 N.Y.3d at 156, 927 N.Y.S.2d 311, 950 N.E.2d 915; Brega Transp. Corp. v. Brennan, 105 A.D.3d at 987, 964 N.Y.S.2d 203). Here, the petitioner made no such showing, instead relying on mere conjecture and innuendo, which the Supreme Court properly rejected.
The petitioner's remaining contention is without merit.