Opinion
968 CA 14-00264.
10-03-2014
In the Matter of M.L. CACCAMISE ELECTRIC CORP., Petitioner–Appellant, v. CITY OF ROCHESTER and Power & Construction Group, Inc., Respondents–Respondents.
Ernstrom & Dreste, LLP, Rochester (John W. Dreste of Counsel), for Petitioner–Appellant. T. Andrew Brown, Corporation Counsel, Rochester (Johanna Brennan of Counsel), for Respondent–Respondent City of Rochester. Bond, Schoeneck & King, PLLC, Rochester (Karl S. Essler of Counsel), for Respondent–Respondent Power & Construction Group, Inc. Couch White, LLP, Albany (Joel M. Howard, III, of Counsel), for Associated General Contractors of New York State, LLC, Amicus Curiae.
Ernstrom & Dreste, LLP, Rochester (John W. Dreste of Counsel), for Petitioner–Appellant.
T. Andrew Brown, Corporation Counsel, Rochester (Johanna Brennan of Counsel), for Respondent–Respondent City of Rochester.
Bond, Schoeneck & King, PLLC, Rochester (Karl S. Essler of Counsel), for Respondent–Respondent Power & Construction Group, Inc.
Couch White, LLP, Albany (Joel M. Howard, III, of Counsel), for Associated General Contractors of New York State, LLC, Amicus Curiae.
PRESENT: SMITH, J.P., FAHEY, LINDLEY, VALENTINO, and DeJOSEPH, JJ.
Opinion
MEMORANDUM:Petitioner, an electrical contractor, submitted the low bid for a street lighting project, which required that certain lights owned by respondent City of Rochester (City) be separated and isolated from the Rochester Gas & Electric (RG & E) electrical and distribution system. After the City rejected petitioner's bid and awarded the contract to respondent Power & Construction Group, Inc. (Power), petitioner commenced this CPLR article 78 proceeding seeking a judgment “[a]nnulling ... the award” of the contract to Power, and “[d]irecting the award” of the contract to petitioner “ as the lowest responsive and responsible bidder.” Supreme Court properly denied the petition.
Contrary to petitioner's contention, the City's rejection of petitioner's bid was not affected by an error of law, and was not arbitrary and capricious, or an abuse of discretion. Section 2.1.1 of the City's invitation to bid provided that the City's intent was “[t]o obtain the services of an [RG & E] approved electrical utility contractor with the necessary expertise to isolate/separate the specified City owned Street Lighting facilities from the [RG & E] distribution network as directed by the City.” Given the unique nature of the project-notably, the existence of an agreement between the City and RG & E, and the fact that any contractor who was hired for the project would be working on private RG & E property, facilities, and equipment-we conclude that the court properly determined that section 2.1.1 included a valid precondition that did not impede competition and that had a rational relationship to obtaining the best work at the lowest price (see Matter of P & C Giampilis Constr. Corp. v. Diamond, 210 A.D.2d 64, 65–66, 619 N.Y.S.2d 271 ; see also Le Cesse Bros. Contr. v. Town Bd. of Williamson, 62 A.D.2d 28, 31, 403 N.Y.S.2d 950, affd. 46 N.Y.2d 960, 415 N.Y.S.2d 413, 388 N.E.2d 737 ; Matter of B. Milligan Contr. v. State of New York, 251 A.D.2d 1084, 1084, 674 N.Y.S.2d 204 ). In addition, the record is clear that petitioner's bid was “non-responsive to the specific requirements set forth in [section 2.1.1]” inasmuch as petitioner was not on RG & E's list of approved contractors and did not have the requisite training and experience to work with RG & E's distribution network (P & C Giampilis Constr. Corp., 210 A.D.2d at 65, 619 N.Y.S.2d 271 ).
We reject petitioner's further contention that the City's use of RG & E's list of approved contractors was essentially a pretext for the City to avoid its purported obligations under General Municipal Law § 103(15) to consider certain factors in compiling a list of “qualified bidders.” The City did not maintain a list of “qualified bidders,” as that term is used in the statute, for its public works projects, and was under no obligation to do so (id. ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.