| Brega Transp. Corp. v Brennan |
| 2013 NY Slip Op 02707 [105 AD3d 985] |
| April 24, 2013 |
| Appellate Division, Second Department |
| Brega Transport Corp., Respondent, v PaulBrennan et al., Appellants. |
—[*1] Burton Dorfman, P.C., Piermont, N.Y. (Burton I. Dorfman of counsel), forrespondent.
In an action, inter alia, for a judgment declaring that the specifications of Invitationto Bid for Transit Operations and Maintenance RFB-RC-2012-02 violate GeneralMunicipal Law § 103 and the Rockland County Charter, the defendants appeal, aslimited by their brief, from so much of a judgment of the Supreme Court, Putnam County(Nicolai, J.), dated March 30, 2012, as declared that the specifications of Invitation toBid for Transit Operations and Maintenance RFB-RC-2012-02 violate GeneralMunicipal Law § 103 and the Rockland County Charter, enjoined the County fromproceeding with the bidding process, and directed the County of Rockland to issue arevised request for bids.
Ordered that the judgment is reversed insofar as appealed from, on the law, withcosts, and it is declared that the specifications of Invitation to Bid for Transit Operationsand Maintenance RFB-RC-2012-02 do not violate General Municipal Law § 103and the Rockland County Charter.
The County of Rockland (hereinafter the county) sought bids for public bustransportation via Invitation to Bid for Transit Operations and MaintenanceRFB-RC-2012-02 (hereinafter the RFB). After reviewing the RFB, Brega TransportCorp. (hereinafter Brega) determined that it could not meet the bid specifications andprotested them as improperly exclusionary and discriminatory. The county executivedenied the bulk of Brega's protests, and Brega sought review via a CPLR article 78proceeding. The Supreme Court converted the proceeding to a declaratory judgmentaction, as requested by Brega, and entered judgment, inter alia, declaring that the RFBviolated General Municipal Law § 103 and the Rockland County Charter.
General Municipal Law § 103 (1) provides, inter alia, that, in awarding anycontract in excess of $35,000, public entities must award the contract to "the lowestresponsible bidder." "The central purposes of New York's competitive bidding statutesare the '(1) protection of the public fisc by obtaining the best work at the lowest possibleprice; and (2) prevention of favoritism, improvidence, fraud and corruption in theawarding of public contracts' " (Matter of AAA Carting & Rubbish Removal, Inc. v Town ofSoutheast, 17 NY3d 136, 142 [2011], quoting Matter of New York State[*2]Ch., Inc., Associated Gen. Contrs. of Am. v NewYork State Thruway Auth., 88 NY2d 56, 68 [1996]; see Matter of L&M Bus Corp. vNew York City Dept. of Educ., 17 NY3d 149, 156 [2011]; Matter ofConduit & Found. Corp. v Metropolitan Transp. Auth., 66 NY2d 144, 148 [1985];Matter of Construction Contrs. Assn. of Hudson Val. v Board of Trustees, OrangeCounty Community Coll., 192 AD2d 265, 267 [1993]).
"New York's competitive bidding statutes do not compel unfettered competition, butdo demand that specifications that exclude a class of would-be bidders be both rationaland essential to the public interest" (Matter of New York State Ch., Inc., AssociatedGen. Contrs. of Am. v New York State Thruway Auth., 88 NY2d at 67-68). As thisCourt has stated: "Municipalities may fix reasonable standards and limitations onproducts and services, even if they tend to favor one bidder over another by theiroperation, provided that the public interest is served and not compromised thereby. Onthe other hand, General Municipal Law § 103 is violated by bid requirementswhich reduce competition for reasons which do not inure to the benefit of the public, butrather serve other, unrelated purposes" (Matter of Construction Contrs. Assn. ofHudson Val. v Board of Trustees, Orange County Community Coll., 192 AD2d at267-268 [citations omitted]; see Matter of New York State Ch., Inc., Associated Gen.Contrs. of Am. v New York State Thruway Auth., 88 NY2d at 67; Matter of E.W. Tompkins Co., Inc.v State Univ. of N.Y., 61 AD3d 1248, 1250 [2009]). Accordingly, "[a]municipality must err on the side of inclusion, and eschew unnecessarily narrowdefinitions of the statutory term 'responsible bidder' " (Matter of Construction Contrs.Assn. of Hudson Val. v Board of Trustees, Orange County Community Coll., 192AD2d at 268, quoting General Municipal Law § 103). Nevertheless, it is amunicipality's right to determine whether a bid meets its specifications, and thatdetermination is entitled to deference if it is supported by "any rational basis" (Matter of Hungerford & Terry, Inc.v Suffolk County Water Auth., 12 AD3d 675, 676 [2004]).
Where bid specifications are "not facially anticompetitive," courts apply "ordinaryrational basis review" (Matter of L&M Bus Corp. v New York City Dept. ofEduc., 17 NY3d at 160). A "spectral 'appearance of impropriety' is insufficient proofto disturb a [municipality's] determination under the competitive bidding statutes"(Matter of Acme Bus Corp. v Board of Educ. of Roosevelt Union Free SchoolDist., 91 NY2d 51, 55 [1997], quoting Matter of Conduit & Found. Corp. vMetropolitan Transp. Auth., 66 NY2d at 150). Instead, a party challenging aprocurement "has the burden to demonstrate 'actual' impropriety, unfair dealing or someother violation of statutory requirements" (Matter of Acme Bus Corp. v Board ofEduc. of Roosevelt Union Free School Dist., 91 NY2d at 55, quoting Matter ofConduit & Found. Corp. v Metropolitan Transp. Auth., 66 NY2d at 149).
Here, the Supreme Court improperly shifted the burden of proof from Brega to thecounty. Since Brega made only conclusory assertions and failed to demonstrate that thecounty's bid specifications were irrational or exclusionary, the court erred in invalidatingthe RFB on that basis (see Matter of Eldor Contr. Corp. v Town of Islip, 277AD2d 233, 234-235 [2000]; see also Matter of E.W. Tompkins Co., Inc. v StateUniv. of N.Y., 61 AD3d at 1250-1251; Matter of Positive Transp. v City of N.Y.Dept. of Transp., 183 AD2d 660, 660-661 [1992]).
The Supreme Court also found that the bid specifications improperly usurped the roleof the Rockland County Legislature because they provide that: "Where the award of acontract involves a bid in excess of $100,000, the Charter requires approval of theCounty Legislature before the County may enter into the contract. Consequently, oncethere is an evaluation of the bids and a determination of the lowest bid from a responsiblebidder by the Director of Purchasing, the bid which forms the basis of a contract inexcess of $100,000 shall be referred to the County Executive and the County Legislaturefor approval in accordance with the Charter and Administrative Code. If the low bid isdetermined to be non-responsive or the lowest bidder is determined to benon-responsible, the resolution by the County Legislature to approve the contract withthe lowest responsible bidder will include the rejection of any such bid." The court readthis language as expanding the role of the county executive and the county purchasingdirector beyond the authority entrusted to them in the county laws and charter andreducing the county legislature's role to that of a "rubber stamp." We disagree.
The Rockland County Charter provides that the county legislature has the power to[*3]approve all contracts in excess of $100,000(see Rockland County Charter Law § C2.01 [l]). However, it also providesthat among the county executive's duties are to "[b]e the chief budget officer of thecounty" and, "with the approval of the County Legislature," to execute "all contracts inexcess of $100,000" (Rockland County Charter Law § C3.02 [b], [u]). Similarly,the Laws of Rockland County provide that "the Director of Purchasing[ ] shall serve asthe principal public purchasing official for the County, and shall be responsible for theprocurement of . . . services" (Laws of Rockland County § 140-2.1[A]). In addition, the Laws of Rockland County entrust to the director of purchasing boththe authority to settle bid protests (see Laws of Rockland County §140-7.4), and to make determinations of responsibility and where a bidder is foundnonresponsible, to issue a written determination to that effect (see Laws ofRockland County § 140-3.11 [A]). Construed together (see Matter of Westchester CountyDept. of Social Servs. v Robert W.R., 25 AD3d 62, 68-69 [2005]), theseprovisions allocate a substantial role in procurement to the county executive and thedirector of purchasing and indicate that the legislature's role is one of final review. Inview of the charter and laws' entrustment of primary procurement duties to thepurchasing director and the county executive, and the RFB's explicit acknowledgment ofthe legislature's role in approving contracts in excess of $100,000, we defer to thecounty's interpretation of its RFB (see Matter of Fogelman v New York State Dept. of Envtl.Conservation, 74 AD3d 809, 810 [2010]). The RFB does not usurp the countylegislature's role in violation of the Rockland County Charter (see RocklandCounty Charter Law § C2.01 [l]).
In light of the foregoing, we need not reach the county's remaining contention.Brega's remaining contentions are without merit.
Accordingly, the County is entitled to a judgment declaring that the specifications ofthe RFB do not violate General Municipal Law § 103 and the Rockland CountyCharter (see Lanza v Wagner, 11 NY2d 317 [1962], appeal dismissed371 US 74 [1962], cert denied 371 US 901 [1962]). Angiolillo, J.P., Dickerson,Chambers and Lott, JJ., concur.