Opinion
102422/11.
March 17, 2011.
The following papers, numbered 1 to ___ were read on this motion to/forArt. 78
PAPERS NUMBERED
Notice of Motion/ Order to Show Cause — Affidavits — Exhibit 1-2 Answering Affidavits — Exhibits 3-4 Replying AffidavitsUpon the foregoing papers, it is ordered that this motion to (1) reverse and annul respondents determination declining to award a contract to petitioner, (2) to enjoin, restrain and stay respondents from awarding, executing, enforcing and implementing the contract, (3) to direct and compel respondents to award the contract to petitioner, (4) to direct and compel respondents to provide full and complete responses to petitioner's FOIL request dated January 5, 2011, (5) to direct and compel respondents to re-open the procurement process for the contract and/or permit petitioner to fully perfect its appeal and/or letter of protest on the merits, (6) to enjoin, restrain and stay respondents from awarding, executing, enforcing, registering and implementing the contract pending respondents adjudication of petitioner's administrative appeal, Is granted solely to the extent of ordering Respondents to provide responses to petitioner's FOIL request dated January 5, 2011 as stated herein, the balance of the petition is denied.
Petitioner Faces N.Y., Inc., is in the business of providing Housing services for indigent Individuals suffering from AIDS and HIV related illnesses, for the counties of Manhattan and the Bronx. HRA awarded faces with a contract to provide Housing services to 100 units of Scatter Site I Housing, initially for the period between July 1, 1989-June 30, 1999. This contract was renewed yearly through June 30, 2007. Subsequently HRA modified this contract to add an additional 10 units. The contract is scheduled to expire on March 31, 2011. On August 14, 2008 HRA released a Request For Proposal (RFP), which sought proposals for qualified vendors to provide Housing Services for 1,734 Scatter Site I Housing units for indigent Individuals with AIDS or HIV related illnesses throughout the five boroughs of New York City. The RFP divided these units into 19 different geographic groups. HRA would make one award for each group. Group 5 of the RFP sought a contractor to provide Housing Services for 110 units in the Counties of Bronx and Manhattan.
The RFP provided that "All proposals accepted by the agency will be reviewed to determine whether they are `responsive' or `non-responsive' to the requisites of this RFP. Proposals that are determined by the agency to be non-responsive will be rejected. The Agency's Evaluation Committee will evaluate and rate all remaining proposals based on the evaluation criteria prescribed below:
— Demonstrated quantity and quality of successful relevant experience 50% — Demonstrated level of organizational capability. 10% — Quality of proposed approach 40%A contract award will be made to the responsible proposer(s) whose proposal(s) are determined to be the most advantageous to the City, taking into consideration the price and such other factors or criteria which are set forth in the RFP in order to ensure the most equitable distribution of services Citywide. The technical scores will be averaged and proposals will be placed in descending order of technical score. A competitive range of technically viable proposals will be established. Only those proposals determined to be in the competitive range will be further considered. The proposer(s) offering the highest technical score and a price that does not exceed the maximum cost per unit of $24,000 set forth in the RFP will be selected for award. . ." [see Petition Exhibit C pg.15].
In response to this RFP four potential vendors submitted proposals. Each proposal was scored by three separate reviewers who comprise the evaluation committee. Each reviewer scored each proposal based on its own merits, without reference to other proposals, and then an evaluation committee meeting was held where the reviewers discussed the proposals and the rating they chose to assign. Following this meeting the reviewers were given an opportunity to revise their scores based on the discussions held at the meeting. The scoring, based on the RFP rating, resulted in petitioner being ranked third in the field of four and the contract being awarded to another vendor. [ see Petition, see Affidavit of Vincent Pullo].
By letter dated October 21, 2010 Respondents informed petitioner that its proposal was not selected. The letter further stated " the New York City contracting process is a complex one, and the fact that your agency did not receive a new award pursuant to this RFP Is no reflection on Its ability to perform the services and we would encourage you to submit proposals in response to future RFP's." [see Petition Exhibit E]. Petitioner filed an appeal pursuant to section 2-07 of the PPB rules to challenge a determination of `non-responsiveness'. HRA Agency Chief Contracting Officer Vincent Pullo responded to this appeal by correspondence date November 30, 2010 stating that" my office did not deem FACES non-responsive. New providers were chosen as a result of competitive request for proposal process. The proposals submitted In response to the RFP solicitation were scored by a selection committee in accordance with the requirements of the RFP, and the top technically ranked proposers were selected as apparent winners. After committee scoring, FACES' proposal was not selected."[see Petition Exhibit F I].
Petitioner filed a second appeal with the Mayor's Office of Contract Services [ see Petition Exhibit K]. This appeal was denied by correspondence dated January 24, 2011 in which Petitioner was Informed in detail why the contract was awarded to another vendor, why the provisions in the `Procurement Policy Rules (PPB §§ 2-07 2-08) are not applicable, that its only recourse is to file a protest with HRA under PPB § 2-10, and that there is no provision for an appeal or a stay of the award under these situations. The letter also Informed petitioner of public hearings and the opportunity for a debriefing. [see Petition exhibit Q ].
HRA accepted all of the letters sent by petitioner with respect to this RFP and the awarding of the contract to another vendor as one protest. This protest was denied by Roy Esnard, HRA's General Counsel on February 14, 2011. Mr. Esnard provided Petitioner with a detailed explanation of the process, why the provisions in the PPB It was relying on were not applicable, that this determination is final and that "the award process shall not be stayed as it Is not in the best interest of the city to delay this action." [see Petition exhibit Z].
Following the denial of its protest petitioner brings this article 78 proceeding seeking: (1) to reverse and annul respondent's determination as arbitrary, capricious in bad faith and done without affording petitioner its guaranteed rights under the laws of the city and state of New York and the Constitution of the United States, (2) enjoining, restraining and staying respondents from awarding, executing, enforcing, registering and implementing the contract, (3) directing and compelling respondents to award the contract to petitioner, (4) directing and compelling respondents to provide full and complete responses to petitioner's FOIL request dated January 6, 2011, (5) directing and compelling respondents to re-open the procurement process for the contract, re-consider petitioner's proposal for the contract and/or permit petitioner to fully perfect the appeal and/or letter of protest on the merits and directing and compelling respondents to process and determine petitioner's administrative appeal in accordance with the applicable laws, rules and regulations of the city and state of New York, (6) enjoining, restraining and staying respondents from awarding, executing, enforcing, registering and Implementing the contract pending respondent's adjudication of petitioner's administrative appeal and (7) for such other and further relief as to the court may deem to be just and proper.
The New York City Charter, Title 9 Procurement Policy Board Rules (PPBR) 2-07(b) Determination of Non-Responsiveness, states: "if the lowest price bid or any proposal is found non-responsive, a determination, setting forth in detail and with specificity the reasons for such finding, shall be made by the ACCO. A copy of such determination shall be mailed to the non-responsive vendor no later than two business days after the determination is made and the agency shall inform the vendor of the right to appeal as set forth herein. Such notice shall also inform the vendor that, if an appeal is taken, award of the contract shall be stayed pending the determination of the agency head, unless the ACCO makes a determination and Informs the vendor, pursuant to subdivision (e) of this Rule, that the award will not be stayed because proceeding with the award without delay is necessary to protect substantial city Interest. . ." A determination of non-responsiveness must be appealed within five days from receipt of the determination [ see PPBR 2-07(e)].
PPBR 2-08(h) states: "(1) if a bidder or offeror who otherwise would have been awarded a contract is found non-responsible, a determination of non-responsibility setting forth in detail and with specificity the reasons for the finding of non-responsibility shall be prepared by the contracting officer. (2) a copy of the determination of non-responsibility shall be immediately sent to the non-responsible bidder or offeror. Notice to the non-responsible bidder must be mailed no later than two business days after the determination of non-responsibility Is made and must inform the contractor of the right to appeal the determination to the Agency Head or designee within ten calendar days of receipt. . . ."
PPBR 2-10 states: ". . . . A protest shall be made within ten days after the protesting vendor knows or should have known of the facts that prompted the protest but no later than ten days after publication of the notice of award. . .The Agency Heads determination shall be final. The procurement action under protest shall not be stayed unless the Agency head determines that it is in the City's best Interest to delay the action."
Respondents awarded the contract to another vendor without finding petitioner to be non-responsive or non-responsible. Sections 2-07(b) and 2-08(h) do not apply to this proceeding. Respondents are not required to provide Petitioner with "a determination setting forth in detail and with specificity the reasons for such finding". Similarly, once Respondents accepted petitioner's letters as one protest, although untimely, and denied its protest, that decision is final and there can be no stay unless "the Agency Head determines that it is in the City's best interest to delay the action." [see PPBR 2-10(3)].
Petitioner argues that Its due process rights were violated when respondents failed to disclose the underlying basis for the denial of its proposal. Respondents have provided petitioners with a basis for the denial of its proposal. Petitioner's were provided with the final tabulations based on the proposals' evaluation criteria. Based on this final tabulation Petitioner received a score of 81.67, ranking it third, the winning bidder having received a score of 87.33. Additionally, there were at least two public hearings where Petitioner had the opportunity to participate and an opportunity for a debriefing has been offered. Petitioner has no property interest in being awarded this contract (Conduit Foundation Corp., v. Metropolitan Transportation Authority, 66 N.Y.2d 144; Jana-Rock Construction, Inc., v. City of Syracuse, 2007 U.S. Dist. Lexis 82051 [N.D.N.Y. 2007]). Respondent's actions in awarding the contract to the entity with the most competitive proposal was rational, lawful and a reasonable exercise of its discretion (Matter of Sullivan County Harness Racing Association, Inc. V. Glasser, 30 N.Y. 2d 269), and will not be set aside (Matter of Fischbach Moore v. New York City Transit Authority, 79 A.D.2d 14, 435 N.Y.S. 2d 984 [2nd. Dept. 1981]). Respondents actions were not arbitrary, they are rational and lawful.
Petitioner made a FOIL request and seeks un-redacted documents. Respondents have provided most of the documents in a redacted form. Under Public Officers Law § 87 (2)(g) "Each agency shall, in accordance with its published rules, make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that: are interagency or intra-agency materials which are not:
I — statistical or factual tabulations or data;
II — instructions to staff that affect the public;
III — final agency policy or determinations;
IV — external audits, including but not limited to audits performed by the comptroller and the federal government."
Respondent has provided petitioner with most of the responses it is entitled to, in redacted form. The redacted portions are not statistical or factual data, but rather reasons given by the evaluators which explain their individual scores. "Opinions and recommendations prepared by agency personnel is exempt from disclosure under FOIL as `pre-decisional material, prepared to assist an agency decision maker in arriving at his decision." (Xerox corp. v. Town of Webster 65 N.Y. 2d 131, 490 N.Y.S. 2d 488 citing, Matter of McAulay v. Board of Education, 61 A.D. 2d 1048). These evaluations were conducted in order to help decide the winner of the contract. Furthermore, giving petitioner access to the redacted portions of the documents will frustrate the purpose of the law which is to "protect the deliberative process of government by ensuring that persons in an advisory role are able to express their opinions freely to agency decision makers" (Pinks v. Turrnbull, 13 Misc. 3d 1204(A), 2006 WL 2570236 [N.Y. Sup. Ct.]; Matter of Gould v. New York City Police Department, 89 N.Y. 2d 267, 675 N.E. 2d 808, 653 N.Y.S. 2d 54).
To the extent Respondents have not provided it, petitioner is entitled to a copy of the winning proposal, second place proposal, and the score sheets completed by the proposal evaluation committee members, each with the redaction of any data exempt from disclosure by the Public Officer's Law.(See Professional Standards Review Council of America, Inc., v. New York State Department of Health, 193 A.D. 2d 937, 597 N.Y.S. 2d 829 [3rd. Dept. 1993]).
Accordingly, it is Ordered and Adjudged that this article 78 petition is granted solely to the extent of ordering Respondents to provide responses to petitioner's FOIL request dated January 5, 2011 as Indicated herein, the balance of the petition is denied, and it is further
Ordered, that the Temporary Restraining Order is vacated, and it is further
Ordered, that Respondents may award, execute, enforce, register and Implement the contract with the winning bidder, and it is further
Ordered that Respondents are to provide Petitioner with a copy of the winning proposal, second place proposal and score sheets completed by the proposal evaluation committee members, with the redaction of any data exempt from disclosure by the Public Officer's law, within 30 days from the date of service of a copy of this order with notice of entry.
This constitutes the decision and order of this court.