| Matter of E.W. Tompkins Co. Inc., v State Univ. of N.Y. |
| 2009 NY Slip Op 03080 [61 AD3d 1248] |
| April 23, 2009 |
| Appellate Division, Third Department |
| In the Matter of E.W. Tompkins Company, Inc.,Appellant, v State University of New York et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Owen Demuth of counsel), for StateUniversity of New York, respondent. Woods Oviatt Gilman, L.L.P., Rochester (Sean T. Hanna of counsel), for Postler & JaeckleCorporation, respondent.
Kavanagh, J. Appeal from a judgment of the Supreme Court (Ceresia, Jr., J.), entered June17, 2008 in Albany County, which dismissed petitioner's application, in a proceeding pursuant toCPLR article 78, to review a determination of respondent State University of New Yorkrejecting petitioner's bid for performance of work on a public construction project.
In January 2008, respondent State University of New York (hereinafter SUNY) advertisedfor bids on a project involving the upgrade of the heating and cooling plant at its University atAlbany campus. The work included asbestos abatement, demolition of parts of the existingsystem, installation of new equipment, new piping and extensive electrical work. The bidspecifications included a requirement under the heading of "Quality Assurance" that the biddingcontractor, among other things, had "completed at least 3 similar projects within the immediatepast 5 years involving centrifugal chillers, boiler house controls, HTW generator burnerreplacement with controls, replacement of large diameter piping (24") over significant [*2]distances." The specifications further stated that "[r]eferences mustbe submitted with the bid documenting the scope of work completed, the contract value, the timeframe it was completed under, and the name of the client, and a client representativeknowledgeable in the scope of work completed with contact information."
Petitioner submitted its bid for the project on February 5, 2008. After reviewing it, RandallOlocki, SUNY's Associate Director of Architecture, Engineering and Construction Management,sent a letter to petitioner requesting additional information with respect to the three projects thatpetitioner listed in its bid as evidence that it had the requisite prior work experience, andpetitioner timely responded. Thereafter, although petitioner was the lowest bidder on the project,Olocki informed it in writing that the contract had been awarded to another contractor,respondent Postler & Jaeckle Corporation, because the evaluation committee found petitioner'sbid and subsequent clarification to be "non-responsive." In that regard, Olocki identified whatinformation was missing in petitioner's bid and stated that SUNY was unable to verify thatpetitioner had the prior work experience required by the bid specifications. In addition, Olockinoted that the three projects listed by petitioner in its bid as evidence of this prior workexperience had, in fact, been performed by another firm, Albany Specialties, Inc.
In response, petitioner's attorney sent a letter to Olocki informing SUNY, for the first time,that petitioner had merged with Albany Specialties in 2005, and asked that its bid bereconsidered. In the letter, petitioner's attorney provided a detailed description of petitioner'sprior work experience—and that of Albany Specialties—and argued that this workhistory satisfied the requirements as set forth in the bid specifications. SUNY denied the requestto reconsider. Petitioner then commenced this CPLR article 78 proceeding seeking to set asideSUNY's determination and to award the contract to petitioner. Supreme Court concluded thatSUNY had a reasonable basis to conclude that petitioner's bid was unresponsive and dismissedits petition.
Judicial review of an agency's decision denying or awarding a contract "is limited toascertaining whether there is a rational basis to support the agency's determination" (Matterof Adelaide Envtl. Health Assoc. v New York State Off. of Gen. Servs., 248 AD2d 861, 862[1998]; see Matter of Stacor Corp. v Egan, 122 AD2d 480, 481 [1986]), and the burdenof proof rests with the party challenging the decision (see Matter of Adelaide Envtl. HealthAssoc. v New York State Off. of Gen. Servs., 248 AD2d at 862). In addition, an agency,when composing bid specifications, may establish requirements—as long as they arerationally based—that set forth criteria for experience and qualifications that must be metfor an entity to be an eligible bidder and, it "may disqualify a bidder for failure to comply" withthese requirements (Matter of Majestic Plumbing & Consulting Corp. v Half Hollow HillsCent. School Dist., 282 AD2d 749, 749 [2001]; see Ajay Glass & Mirror Co. v Countyof Erie, 155 AD2d 988, 989 [1989]; see also Awl Indus., Inc. v Triborough Bridge & Tunnel Auth., 41AD3d 141, 142 [2007]; Matter of A.I. Smith of Long Is. v City of Long Beach, 158AD2d 454, 455 [1990]).
Here, in an effort to establish that it possessed the requisite experience to qualify as aneligible bidder, petitioner listed in its bid submission three recent projects that it claimed itcompleted in September 2006, March 2006 and October 2007, but failed to provide a descriptionof the "scope of the work completed" for each project. When Olocki requested additionalinformation on the three listed projects, he asked that petitioner "clearly describe how these threeprojects meet the requirements outlined in [the quality assurance bid specifications], with aparticular emphasis on describing any work 'involving centrifugal chillers, HTW generator [*3]burner replacement with controls, and replacement of largediameter piping (24") over significant distances.' " While petitioner's response contained someadditional information, including the diameter and linear footage of the piping employed in eachof the three projects, it did not include any information indicating that 24-inch diameter pipinghad, in fact, been installed (all work 20-inch diameter or less). Thereafter, Olocki, by letter,informed petitioner of its decision and outlined the reasons for rejecting petitioner's bid as"non-responsive." Specifically, he found that "when [SUNY] contacted the references[petitioner] listed regarding prior similar projects, none would verify or confirm that anycentrifugal chillers, HTW generator burner replacement with controls, or 24[-inch] piping oversignificant distances were part of those projects. Furthermore, of the three projects [petitioner]identified as evidence of [its] qualifications to perform the work under this bid, two were notperformed by [petitioner], but rather by another firm, Albany Specialties, Inc."
Petitioner did not indicate in any of its bid documents that it had merged with AlbanySpecialties or explain why it was entitled in its bid to claim as its own Albany Specialties' priorexperience in performing this kind of work. Only after its bid was rejected did petitioner notifySUNY of its connection with Albany Specialties and, even then, provided little, if any detail, asto the work it actually performed on the three listed projects. Thus, on the record before us,SUNY's decision to reject petitioner's bid as nonresponsive had a rational basis.
Next, we reject petitioner's assertion that certain provisions contained in the bidspecifications violated relevant competitive bidding statutes. Bid specifications will be upheld if,as written, they constitute a responsible attempt to insure that the successful bidder will providethe best work at the lowest possible price and, at the same time, act to prevent fraud, favoritismor corruption in the letting of public contracts (see Matter of New York State Ch., Inc.,Associated Gen. Contrs. of Am. v New York State Thruway Auth., 88 NY2d 56, 68 [1996]).Given the complexity of this project and the narrow time table for its completion, therequirement that eligible bidders must have at least five years of relevant experience was notirrational (see id.). Moreover, Supreme Court properly found that Education Law§ 376—not General Municipal Law § 103 or State Finance Law §135—governed this bidding process and, thus, SUNY was authorized by statute to "awardone contract for all the work to be performed . . . without separate and independentbidding or letting on subdivisions of work to be performed" (Education Law § 376 [7]).We are also of the view that SUNY had a legitimate reason for requiring bidders to identify anysubcontractors that they used in the preparation of their bid or would employ if awarded thiscontract.
Finally, Supreme Court properly declined to consider new issues raised for the first time bypetitioner in its reply that sought to challenge deficiencies that existed in the winning bidsubmitted by Postler & Jaeckle (see CPLR 7804 [d]; Schissler v Athens Assoc., 19 AD3d 979, 980 [2005]; Matterof Crawmer v Mills, 239 AD2d 844, 844-845 [1997], lv dismissed 90 NY2d 934[1997], lv denied 91 NY2d 804 [1997]).
We have considered petitioner's remaining contentions and find them either unpreserved orunpersuasive.
Mercure, J.P., Rose, Lahtinen and Malone Jr., JJ., concur. Ordered that the judgment isaffirmed, without costs.