Commissioner of Education dismissed an appeal challenging a school district's use of cooperative bidding in connection with a capital project

 

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

 

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[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(link is external) (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(link is external) (last accessed Apr. 24, 2024).

[3] Id. at p. 12.

New York State's Comptroller releases audits of certain government agencies

On May 15, 2024, New York State Comptroller Thomas P. DiNapoli announced the following State agency and New York City agency audits were issued. 

Click on the text highlighted in COLOR to access the complete audit report posted on the Internet.

New York City Department of Education – Mental Health Education, Supports, and Services in Schools (Follow-Up) (2023-F-34)

The New York Education Law mandates that all schools ensure that their health education programs recognize the multiple dimensions of health by including mental health and its relation to physical health. While instruction is the cornerstone for promoting students’ mental health, a holistic, comprehensive approach would also include mental health awareness training for school staff and ready access to in-school mental health supports and services for all students. A prior audit report, issued in August 2022, found that the New York City Department of Education (DOE) did not monitor whether schools meet the requirement to have mental health instruction as part of the curriculum and that DOE could make improvements in the implementation of mental health support and services in schools. The follow-up found that DOE has made progress in addressing the problems identified in the initial audit report, implementing four of the five recommendations.

New York City Emergency Management – Hazard Mitigation and Coordination (Follow-Up) (2023-F-38)
New York City Emergency Management (NYCEM) helps New Yorkers through citywide emergencies, including weather-related events, and also works to advance long-term initiatives that reduce risk and increase the resilience of New York City. NYCEM’s New York City Hazard Mitigation Plan (HMP) identifies the hazards that pose a risk to the city and actions agencies are taking to reduce the impacts of these hazards. NYCEM also maintains four citywide evacuation plans as well as Continuity of Operations (COOP) plans to ensure that individual organizations can continue to perform essential functions during a disruption to normal operations. A prior audit, issued in October 2022, found weaknesses in NYCEM’s monitoring processes, inaccuracies in data reported on NYCEM’s HMP website, lack of evidence that NYCEM conducted formal assessments of its four citywide evacuation plans, and that NYCEM could have done more to monitor and follow up with City agencies to ensure COOP plans were completed. A follow-up found that NYCEM has made some progress in addressing the six recommendations from the initial audit report, partially implementing three and not implementing three.

Department of Health – Medicaid Program – Excessive Premium Payments for Dual-Eligible Recipients Enrolled in Mainstream Managed Care and Health and Recovery Plans (Follow-Up) (2023-F-39)

Many Medicaid recipients are enrolled in Medicare and are referred to as “dual-eligibles.” Additionally, many Medicaid recipients receive their services through managed care, including Mainstream Managed Care (MMC), which provides comprehensive coverage, and Health and Recovery Plans (HARP), which provide specialized care to recipients age 21 or older with serious mental illness and/or substance use disorders. Within MMC and HARP is the Integrated Benefits for Dually Eligible Enrollees Program (IB-Dual), which pays lower MMC and HARP premium rates for Medicaid recipients in MMC or HARP who enroll in Medicare and do not need long-term services and support. A prior audit, issued in October 2022, found over $190.6 million was paid on behalf of dual-eligible recipients who were ineligible for IB-Dual and over $3.5 million was paid on behalf of dual-eligible recipients who appeared eligible for IB-Dual but were not enrolled in a timely manner. The follow-up found DOH officials made progress with the initial audit’s four recommendations, implementing two and partially implementing two.

Office of Temporary and Disability Assistance – National Directory of New Hires Data Security (2023-S-43)
The Office of Temporary and Disability Assistance (OTDA) is responsible for supervising State programs that provide assistance and support to eligible families and individuals. As part of managing these programs, OTDA obtains National Directory of New Hires (Directory) data including information on new hires, quarterly wage, and unemployment insurance to verify eligibility information. All state agencies that receive and process Directory data must demonstrate a strong security posture and comply with security requirements that define the administrative, technical, and physical security controls. The audit found that OTDA is fully compliant with 31 of the 32 federal requirements for securing Directory data, and the remaining requirement was found to be not applicable due to current practices at OTDA.

Office of Mental Health – Reporting of Community-Based Services Under the Transformation Reinvestment Plan (Follow-Up) (2024-F-5)
To reduce the capacity at its inpatient facilities and provide services in lower-cost, more accessible community-based settings, the Office of Mental Health (OMH) developed the Transformation Reinvestment Plan (Plan) in 2014. The Plan aims to rebalance the agency’s institutional resources by further developing and enhancing community-based services (CBS) in the State. Under the Plan, OMH  reinvests funds realized through the closure of inpatient State beds into expanded CBS. To document its oversight of reinvestments and services provided under the Plan, OMH prepares monthly reports compiled from data submitted by voluntary providers that received the funds. A prior audit, issued in October 2022, identified inconsistencies with how a key piece of data is collected that could impact the accuracy of the information included in the reports, as well as opportunities for OMH to improve its communication and data collection to ensure greater accuracy of its reports. The follow-up found OMH officials have made some progress in addressing the three recommendations in the initial audit report, fully implementing one, partially implementing one, and not implementing one.

Department of Health – Medicaid Claims Processing Activity April 1, 2023 Through September 30, 2023 (2023-S-9)
During the six-month period ended September 30, 2023, the Department of Health’s eMedNY computer system processed over 420 million claims, resulting in payments to providers of more than $47.1 billion. OSC’s audit of Medicaid claims processing activity identified about $13.5 million in improper Medicaid payments for claims that were not processed in accordance with Medicaid requirements. The audit also identified 12 providers in the Medicaid program who were charged with or found guilty of crimes that violated laws or regulations governing certain health care programs or who were otherwise barred from participating in the Medicaid program.

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Defendant school deemed to have "constructive notice of a condition and a reasonable time to correct or warn about its existence" that caused an injury to a teacher

Dan v City of New York

2024 NY Slip Op 02659

Decided on May 14, 2024

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: May 14, 2024
Before: Oing, J.P., González, Kennedy, Higgitt, O'Neill Levy, JJ.

Index No. 21313/16 Appeal No. 2265 Case No. 2023-03010

[*1]Janet Dan, Appellant,

v

City of New York, Defendant, New York City Department of Education et al., Defendants-Respondents.

Alpert, Slobin & Rubenstein, LLP, Garden City, (Lisa M. Comeau of counsel), for appellant.

Sylvia O. Hinds-Radix, Corporation Counsel, New York (Karin Wolfe of counsel), for respondents.

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered June 14, 2023, which, insofar as appealed from as limited by the briefs, granted the motion of defendants New York City Department of Education and New York City Board of Education (defendants) for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.

On October 26, 2015, plaintiff, a special education teacher and dean of a Bronx middle school, was helping students enter the school's main entrance shortly after 8:00 a.m. Plaintiff alleges that as she pulled open the leftmost of a pair of "very heavy" metal fire doors, the door "swung out" with great force, smashing her left hand against the tile wall.

The door lacked a doorstop to prevent it from opening completely and striking the wall. Plaintiff believed that the door had an "apparatus" which ordinarily would have prevented the door from quickly opening, but the apparatus was not functioning properly that day. Although she had previously heard the door "crack" as it opened fully against the wall, plaintiff had never noticed any problems with the door, complained about it, or heard of any incidents involving the door.

Defendants met their initial burden to establish that they neither created nor had actual notice of the alleged defect by submitting the testimony of their custodian engineer that there were no prior repairs, complaints, or prior accidents involving the door that allegedly caused plaintiff's accident (see Davila v City of New York, 95 AD3d 560, 561 [1st Dept 2012]). Defendants nonetheless failed to meet their burden of showing that they lacked "constructive notice of the condition and a reasonable time to correct or warn about its existence" (Parietti v Wal-Mart Stores, Inc., 29 NY3d 1136, 1137 [2017]).

On the issue of constructive notice, defendants relied on the testimony of the school's custodian engineer, who stated that she "usually" conducted daily inspections of the building's doors, during which she tested the doors to ensure that they were "functioning properly," "operate[d] safely," and did not "open or close too quickly." Viewed in the light most favorable to plaintiff as the nonmovant (see Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]), the custodian engineer's generalized testimony that she would regularly test the door and determine that it was functioning safely and properly, by itself and without any expert analysis, failed to establish, prima facie, defendant's entitlement to judgment as a matter of law (see Lugo v Belmont Blvd. Hous. Dev. Fund Co., 157 AD3d 559, 560 [1st Dept 2018] [denying the defendant's motion for summary judgment where the defendant "failed to offer expert analysis to show that the condition of the door was not dangerous or defective, and instead relied on the testimony of its employees, who merely observed the door and found that it functioned properly"]).

The custodian engineer initially testified [*2]without specific recall of the date in question. She admitted, however, that her daily logs did not refer to any door inspections. The custodian engineer thus did not establish when the door was last inspected before the accident (see Attia v Slazer Enters., LLC, 215 AD3d 413, 414 [1st Dept 2023]). Moreover, defendants' custodian engineer conceded that the accident would not have occurred if a doorstop had been installed near the subject door and admitted that that the doorway's design placed the door dangerously close to the wall. Coupled with plaintiff's testimony that all the other doors in the building had doorstops, an issue of fact exists as to whether defendants should have noticed the "visible and apparent" condition that the subject door was missing a doorstop, posing a foreseeable risk that the door could slam a person's hand into the wall (Hutchinson v Sheridan Hill House Corp., 26 NY3d 66, 83 [2015] [internal quotation marks omitted]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: May 14, 2024