In the Matter of ACME Bus Corp., Appellant,v.Orange County, et al., Respondents.BriefN.Y.October 20, 2016To be Argued by: JOSEPH P. RONES (Time Requested: 30 Minutes) APL 2015-00251 Orange County Clerk’s Index No. 6194/13 Appellate Division–Second Department Docket No. 2013-09516 Court of Appeals of the State of New York In the Matter of the Application of ACME BUS CORP., Petitioner-Appellant, – against – ORANGE COUNTY, ORANGE COUNTY DEPARTMENT OF GENERAL SERVICES, QUALITY BUS SERVICE, LLC and VW TRANS, LLC, Respondents-Respondents. For Relief Pursuant to Article 78 of the CPLR. BRIEF FOR RESPONDENT-RESPONDENT VW TRANS, LLC FINKELSTEIN & PARTNERS, LLP Attorneys for Respondent-Respondent VW Trans, LLC 1279 Route 300 P.O. Box 1111 Newburgh, New York 12551 Tel.: (800) 634-1212 Fax: (845) 562-3492 Date Completed: January 6, 2016 1279 Route 300 Box 1111 51 ii TABLE OF CONTENTS Page POINT I THE COUNTY’S TREATING VW TRANS, LLC AS HAVING THE EXPERIENCE OF ITS PRINCIPALS WAS NOT ARBITRARY OR CAPRICIOUS ....................................................................................... 1 POINT II AWARDING THE TRANSPORTATION CONTRACT TO VW TRANS LLC WAS IN THE BEST INTERESTS OF THE TAXPAYERS ........................................................................ 4 CONCLUSION .......................................................................................................... 7 iii TABLE OF AUTHORITIES Page(s) Cases: Acme Bus Corp. v. Bd. of Educ. of Roosevelt Union Free Sch. Dist., 91 N.Y.2d 51 ...................................................................................................... 4 AWL Indus., Inc. v. Triborough Bridge & Tunnel Auth., 41 A.D.3d 141 .................................................................................................... 2 Jo & Wo Realty Corp. v. City of New York, 157 A.D.2d 205, 212, aff’d, 76 N.Y.2d 962 .................................................. 1-2 Matter of Global Tel*Link v. State of N.Y. Dept. of Correctional Services, 70 A.D.3d 1157 .................................................................................................. 6 People ex rel. de Frece v. Lathers, 141 A.D.16, 19 ................................................................................................... 1 Town of Massena v. Niagara Mohawk Power Corp., 45 N.Y.2d 482, 491 ............................................................................................ 1 Statutes & Other Authorities: General Municipal Law § 104-b (1) ...................................................................... 4, 5 1 ARGUMENT POINT I THE COUNTY’S TREATING VW TRANS, LLC AS HAVING THE EXPERIENCE OF ITS PRINCIPALS WAS NOT ARBITRARY OR CAPRICIOUS. As demonstrated by the affidavit of Frederick J. Visconti, Jr. sworn to August 31, 2013 (R. 2101-2115) and the Affidavit of Robert Brisman sworn to August 31, 2013(R. 2090-2100) they, and the companies they own, have decades of experience in the student transportation business, generally, and for at least the past ten (10) years in the transportation of special needs students, in particular. There is absolutely no statute, rule, regulation or common law authority advanced by the Petitioner-Appellant for its argument that the newly formed company should not be deemed to have the experience of its members and their principals. Such a reading of the reality of VW Trans, LLC would amount to “exalting form over substance” and work a wrong. People ex rel. de Frece v. Lathers, 141 A.D. 16, 19; Town of Massena v. Niagara Mohawk Power Corp., 45 N.Y.2d 482, 491. An RFP is a more flexible alternative to competitive bidding. It “…affords the government the flexibility, in ways not possible with competitive bidding, to achieve the greatest economic benefit in dealing with prospective contractors…” Jo & Wo Realty Corp. v. City of New York, 157 A.D.2d 205, 212, aff’d on other 2 grounds, 76 N.Y.2d 962. Even in competitive bid cases, agencies have the authority to waive non-compliance with bid specifications if such noncompliance constitutes a mere irregularity and it was in the agency’s best interest to do so. AWL Indus., Inc. v. Triborough Bridge & Tunnel Auth., 41 A.D.3d 141. In fact, Acme used the experience of its principals and affiliated companies in support of its proposal to the Respondent, Orange County, a few examples of which are as follows: • “Acme Bus Corp, is part of a family of transportation companies …” (R – 119-121). • “Bauman and Sons Buses, like all companies has a goal.” (R- 122). • Partial List of Contracts (R-142). • Letter of reference from Bayport-Blue Point Union Free School District, dated January 8, 2013 (R-143). • Letter of Reference from Yorktown Central School District, dated November 6, 2012 (R-153) • Letter of reference from Smithtown School, dated March 18, 2013 (R-159). • Letter of reference from Commack Union Free School District, dated September 21, 2006 (R- 163). • Letter of reference from Lindenhurst Public Schools, dated March 8, 2013 (R- 168) 3 • Bauman & Sons Buses, Inc. letters of commendation, dated February 25, 2013 (R- 183) and January 24, 2012 (R-186) • Alert Coach Lines, Inc. letter of commendation dated November 15, 2012 (R-190). • The training and company policy manuals are titled for Bauman Sons Buses, Acme Bus and Alert Coach (R-204, 255, 434, 458, 463, 465-481, 507-508 ) 4 Point II AWARDING THE TRANSPORTATION CONTRACT TO VW TRANS LLC WAS IN THE BEST INTERESTS OF THE TAXPAYERS The Petitioner-Appellant’s argument notes, without contradicting the fact, that “…a contract award to Acme (i.e., without deviation) would have annually cost the County $1.6 million more than its awards to Quality Bus and VW Bus.” (Page 60 of the Brief to this Court for Petitioner-Appellant). General Municipal Law § 104-b (1) provides, in pertinent part, “Goods and services which are not required by law to be procured by political subdivisions or any districts therein pursuant to competitive bidding must be procured in a manner so as to assure the prudent and economical use of public moneys in the best interests of the taxpayers of the political subdivision or district, to facilitate the acquisition of goods and services of maximum quality at the lowest possible cost under the circumstances, and to guard against favoritism, improvidence, extravagance, fraud and corruption.” In support of the argument that the cost savings of $1.6 million is not sufficient to justify the contract award to Respondent, VW Trans, LLC, Petitioner-Appellant cites it own competitive bid case, Acme Bus Corp. v. Bd. of Educ. of Roosevelt Union Free Sch. Dist., 91 N.Y.2d 51. In that case, the bids were solicited for each individual 5 bus route and a second set of bids for all the combined bus routes. While Acme was the low bidder for many of the individual routes, the school board elected to engage in post bid negotiations with two of the lowest aggregate route bidders, excluding Acme. This Court held that two central purposes of the competitive bid process were “…(1) protection of the public fisc by obtaining the best work at the lowest possible price; and (2) prevention of favoritism, improvidence, fraud and corruption in awarding of public contracts” (id., at 55). The record of the instant case is devoid of any evidence on the part of the Respondents of “favoritism, improvidence, extravagance, fraud and corruption.” And, in view of an additional cost to the County of $1.6 million if the award had been made to Petitioner-Appellant, it should be no surprise that the lower courts found that the services were “…procured in a manner so as to assure the prudent and economical use of public moneys in the best interests of the taxpayers...” General Municipal Law § 104-b (1). Absent proof of favoritism, improvidence, fraud [or] corruption stemming from the process used to award the subject school transportation contracts, the determination of the board ought not be disturbed (Acme, supra., at 56). Indeed, the fact that the Respondent-Appellant, VW Trans, LLC, provided the requested services for a lower cost than the Petitioner-Appellant, settles the issue 6 of whether the County’s determination had a rational basis. Matter of Global Tel*Link v. State of N.Y. Dept. of Correctional Services, 70 A.D.3d 1157. reasons 7