Appeal of ANTHONY CRISORIO, et al., from action of the Board of Education of the Bethlehem Central School District regarding a contract.
Decision No. 18,405
(May 6, 2024)
Archer, Byington, Glennon & Levine LLP, attorneys for petitioners Anthony Crisorio, New York State Laborers-Employers Cooperation and Education Trust, Eastern New York Laborers District Council, Laborers Local 190, LIUNA, AFL-CIO, James W. Versocki, Esq., of counsel
Couch White, LLP, attorneys for petitioners Associated General Contractors of New York State, LLC and Eastern Contractors Association, Inc., Joel M. Howard, III, Esq., of counsel
Honeywell Law Firm, PLLC, attorneys for respondent, Christopher J. Honeywell and Lauren P. McCluskey, Esqs., of counsel
ROSA., Commissioner.--Petitioners, a district resident and several labor and contracting organizations (collectively, “petitioners”), appeal the Board of Education of the Bethlehem Central School District’s (“respondent”) use of cooperative bidding in connection with a capital project. The appeal must be dismissed.
In 2023, respondent began soliciting bids for construction work on a capital project. The project included several components, most of which were competitively bid. A few aspects—those related to a turf field, athletic field lighting systems, and bleachers—were not. They were instead cooperatively bid through entities called Keystone Purchasing Network and Sourcewell. Those entities, in turn, awarded the work to several subcontractors. This appeal ensued. Petitioners’ request for interim relief was denied on August 9, 2023.
Petitioners argue that all aspects of the district’s contract should have been competitively bid. They contend that the contract in question was a “public works contract” that cannot be the subject of cooperative bidding. They seek a determination that respondent improperly failed to solicit bids; a determination that the cooperative bidding herein was obtained without State Education Department (SED) approval; an order directing the cessation of work on the project; and an order directing that respondent re-bid the project.
Respondent argues that the appeal must be dismissed as untimely, for lack of standing, and for failure to join a necessary party. On the merits, respondent asserts that it followed the cooperative bidding process as described in General Municipal Law (GML) § 103 (16).
In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).
Petitioners have not proven that respondent erred by cooperatively bidding aspects of the capital project. GML §103 (16) allows school districts “to contract for services related to the installation, ... of apparatus, materials, equipment, and supplies” by using other governmental contracts, often referred to as “piggybacking.” To do so, (1) the federal government, a state or any political subdivision thereof must have been a party to the contract; (2) the contract must have been made available for use by the other governmental entity; and (3) the contract must have been awarded to the lowest responsible bidder or on the basis of best value “in a manner consistent with” GML § 103.[1]
Petitioners do not allege that respondent failed to satisfy these conditions. Instead, they argue that “[t]he Cooperative Construction Project was ineligible to be awarded utilizing best value or ‘piggybacking’ ... as it was a public work contract and not a ... purchase contract [].” GML § 103 (1), as petitioners indicate, requires competitive bidding for “[p]ublic works contract[s]” over $35,000. However, GML § 103 (16) specifically exempts the bids described therein from compliance with subdivision one. Therefore, subdivision sixteen, which does not contain an exception for public works contracts, controls here.
Petitioners’ reliance on guidance from the Office of the State Comptroller is misplaced.[2] Petitioners identify a single sentence therein indicating that “best value” may not be a basis to award a “purchase contract [] necessary for the completion of a public works contract.” That sentence, however, is applicable to “Purchase Contracts and Contracts for Public Work if No Other Exception Applies” (emphasis added). Here, as explained above, the piggybacking exception in GML § 103 (16) applies.[3] Moreover, the guidance contains a separate section on piggybacking, which unambiguously states that “[u]se of these contracts constitutes an exception to the competitive bidding and offering requirements of the law.”
I have considered the parties’ remaining contentions and find them to be without merit.
THE APPEAL IS DISMISSED.
END OF FILE
[1] Office of the New York State Comptroller, Bulletin, “‘Piggybacking Law’ – Exception to Competitive Bidding (Updated) (Oct. 2021); see also Office of the New York State Comptroller, Division of Local Government and School Accountability, Report of Examination: Lockport City School District, Procurement (Apr. 2022) at p. 2, available at https://www.osc.ny.gov/files/local-government/audits/2022/pdf/lockport-2022-198.pdf (last accessed Apr. 26, 2024).
[2] Office of the New York State Comptroller, “Local Government Management Guide: Seeking Competition in Procurement,” (Jul. 2014, reprinted Jun. 2016) at pp. 26-27, available at https://www.osc.ny.gov/files/local-government/publications/pdf/seeking-competition-in-procurement.pdf (last accessed Apr. 24, 2024).
[3] Id. at p. 12.