In the Matter of ACME Bus Corp., Appellant,v.Orange County, et al., Respondents.

Brief

N.Y.October 20, 2016

To be Argued by: CAROL C. PIERCE (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 RESPONDENTS-RESPONDENTS ORANGE COUNTY AND ORANGE COUNTY DEPARTMENT OF GENERAL SERVICES LANGDON C. CHAPMAN COUNTY ATTORNEY FOR ORANGE COUNTY CAROL C. PIERCE SENIOR ASSISTANT COUNTY ATTORNEY Attorneys for Respondents-Respondents Orange County and Orange County Department of General Services 15 Matthews Street, Suite 305 Goshen, New York 10924 Tel.: (845) 291-3150 Fax: (845) 291-3167 Date Completed: January 6, 2016 i TABLE OF CONTENTS Pages TABLE OF AUTHORITIES……………………………………………..…..iii-vii COUNTER-STATEMENT OF QUESTIONS PRESENTED………………….….1 COUNTER-STATEMENT OF THE NATURE OF THE CASE………………….1 COUNTER-STATEMENT OF FACTS……………………………………………3 A. Background ..................................................................................................... …3 B. The RFP ………………………………………………………………...…..…..5 C. The Award …………………………………………………………………….10 D. The Petition, Opposition, Reply and Sur-Reply……………………….……...11 E. The Supreme Court Decision and Order…………………………………........13 F. The Appellate Division Order …………………………………………..……..14 G. Petitioner-Appellant Acme’s Motions for Leave to Appeal…………………...14 POINT I STANDARD OF REVIEW………………………………………………..……..15 POINT II RFP DOH02-13 AND THE COUNTY’S SUBSEQUENT AWARD OF THE CONTRACTS WAS IN ADHERANCE WITH THE ORANGE COUNTY PROCUREMENT POLICY AND GENERAL MUNICIPAL LAW §104-b ……18 ii POINT III THE DECISION TO AWARD THE TRANSPORTATION CONTRACTS TO RESPONDENTS QUALITY AND VW HAD A RATIONAL BASIS AND THEREFORE SHOULD NOT BE DISTURBED……………………………......28 POINT IV APPELLANT-PETITIONER ACME FAILED TO SUSTAIN ITS BURDEN OF PROOF BY DEMONSTATING THAT THE COUNTY’S DECISION WAS ARBITRARY AND CAPRICIOUS, OR THE RESULT OF ACTUAL IMPROPRIETY, UNFAIR DEALING OR SOME OTHER VIOLATION OF STATUTORY REQUIREMENTS …………………………………………...….38 POINT V EDUCATION LAW §305(14)(f), 8 NYCRR §156.12(b), AND FAMILY COURT ACT §236 IS NOT APPLICABLE TO RFP DOH02-13…………………….…...41 POINT VI ACME HAS FAILED TO ADHERE TO THIS COURT’S RULES AND THE ISSUES PRESENTED BY APPELLANT HAVE BEEN ABANDONED……...50 Acme Abandoned Certain Issues In Its Motion For Leave To Appeal…….….51 CONCLUSION………………………………………………………………..….54 iii TABLE OF AUTHORITIES Cases Acme Bus Corp. v. Board of Roosevelt Union Free School District, 91 N.Y.2d 51 (1997) ............................................................................... 38, 39, 40 Akpan v. Koch, 75 N.Y.2d 561 (1990) .......................................................................................... 16 American Totalisator Co. v. New York State Dept. of Taxation and Finance, 80 A.D.2d 373 (3d Dept. 1981) .................................................................... 25, 26 Automated Wagering Intern. Inc. v. New York State Dept. of Taxation and Finance, 195 A.D. 2d 169 (3d Dept. 1994) ................................................................. 36, 37 AWL Industries, Inc. v. Triborough Bridge and Tunnel Authority, 41 A.D.3d 141 (1st Dept. 2007) .......................................................................... 23 Bingham v. New York City Transit Authority, 99 N.Y.2d 355 (2003) .......................................................................................... 52 Board of Educ. Of Lawrence Union Free School Dist. No. 15 v. McColgan, 18 Misc. 3d 572 (2007) ........................................................................................ 43 Clancy-Cullen Storage Co., Inc. v. Board of Elections in the City of New York, 98 A.D.2d 635 (1st Dept. 1983) .......................................................................... 23 Dalton v. Educational Testing Service, 87 N.Y.2d 384 (1995) .......................................................................................... 50 Humphrey v. State of New York, 60 N.Y.2d 742 (1983) ........................................................................................... 50 Hunts Point Term. Produce Coop. Assn., Inc. v. New York, 13 Misc.3d 988 (Sup. Ct. Bronx Cnty. 2006), rev’d on other grounds, 36 A.D.3d 234 (1st Dept. 2006) .............................................................. 25, 26, 27 iv I. Janvey & Sons v. County of Nassau, 60 N.Y. 2d 887 (1983) ......................................................................................... 38 Jo & Wo Realty Corp v. City of New York, 157 A.D.2d 205 (1st Dept. 1990), aff’d 76 N.Y. 2d 962 (1990) ......................... 22 Madison Sq. Garden, LP v. New York Metro. Transp. Auth., 19 A.D.3d 284 (1st Dept. 2005), appeal dismissed 5 N.Y.3d 878 (2005) ... 22, 39 Matter of Baumann & Sons Buses v. Board of Educ. Northport-East Northpoint UFSD, 46 N.Y.2d 1061 (1979) ............................................................................. 38 Matter of Cataract Disposal v. Town Board of Town of Newfane, 53 N.Y.2d 266 (1981) ....................................................................... 17, 25, 27, 28 Matter of Citiwide News v. New York City Tr. Auth., 62 N.Y.2d 464(1984)……….……………………………………………………17 Matter of Conduit & Found Corp. v. Metropolitan Transp. Auth, 66 N.Y.2d 144 (1985) ................................................................................... 18, 38 Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400 (1986) .......................................................................................... 16 Matter of Merson v. McNally, 90 N.Y.2d 742 (1997) .......................................................................................... 16 Matter of New York State Ch., Inc. Associated Gen. Contrs. of Am. v. New York State Thurway Auth, 88 N.Y.2d 56 (1996) .......................................................... 40 Matter of Pell v. Board of Education of Union Free School Dist. No. 1 of the Towns of Scarsdale and Mamaroneck, Westchester County, 34 N.Y. 2d 222 (1974) ............................................................................. 15, 16, 40 Matter of Progressive Dietary Consultants of New York v. Wyoming County, 90 A.D.2d 214 (4th Dept. 1982) .......................................................................... 25 v Matter of Quest Diagnostics Inc. v. County of Suffolk, 21 Misc.3d 944 (Sup. Ct. Suffolk County 2008) ................................................. 19 Matter of Riverkeeper Inc. v. Planning Bd. Of Town of Southeast, 9 N.Y.3d 219 (2007) ......................................................................... 16, 17, 25, 27 Matter of T.F.D. Bus Co. v. City School Dist. of Mount Vernon, 237 A.D.2d 448 (2d Dept. 1997) ......................................................................... 23 Matter of Tri-State Aggregates Corp v. Metro. Transp. Auth., 108 A.D. 2d 645 (1st Dept. 1985) ........................................................................ 22 Nehorayoff v. Mills, 282 A.D.2d 932 (3d Dept. 2001) ......................................................................... 39 New York Centr. & Hudson River R.R.Co. v. Auburn Interurban Electric R. Co., 178 N.Y. 75 (1904) .............................................................................................. 51 Peckham v. Calogero, 12 N.Y.3d 424 (2009) ................................................................................... 16, 40 Quain v. Buzzetta Const. Corp., 69 N.Y.2d 376 (1987) ................................................................................... 53, 54 Starburst Realty Corp. v. City of New York, 131 Misc.2d 177 (Sup. Ct. New York County 1985), mod. on other grounds 125 A.D.2d 148 (1987), lv denied 70 N.Y.2d 605 (1987) .................................... 22 Transactive Corp. v. New York State Dept. of Social Services, 236 A.D.2d 48 (3d Dept. 1997), aff’d 92 N.Y.2d 579 (1998) ............................. 22 Werter v. Bd. Of Regents of Univ. of State of New York, 18 A.D.2d 1032 (3d Dept. 1963) ......................................................................... 39 Wooley v. New York State Dept. of Correctional Services, 15 N.Y. 3d 275 (2010) ......................................................................................... 16 vi Statutes CPLR §5501(b) ........................................................................................................ 50 Education Law §305 ....................................................................... 14, 41, 46, 49, 53 Education Law §305(14) ............................................................. 1, 12, 13, 44, 45, 46 Education Law §305(14)(a) .............................................................................. 42, 49 Education Law §305(14)(f) ....................................................... 41, 45, 46, 48, 49, 53 Education Law §3205(1)(a) ..................................................................................... 42 Education Law §3602-e ........................................................................................... 42 Education Law §3635 .............................................................................................. 43 Education Law §3635(g) .......................................................................................... 43 Education Law §4410 .............................................................................................. 43 Family Court Act §236 ............................................................... 1, 14, 41, 44, 45, 53 General Municipal Law §104-b(e) ........................................................................... 20 GML § 104-b ...................................................... 5, 12, 17, 18, 19, 20, 21, 25, 26, 46 GML §104-b(1) ........................................................................................................ 19 GML §104-b(2)(e) ............................................................................................ 20, 33 GML §104-b(5) ........................................................................................................ 23 New York State Education Law § 4410(8) ................................................................ 3 General Municipal Law §103 ..................................................... 4, 17, 18, 19, 21, 25 New York State Public Health Law, § 2559-a .............................................. 3, 43, 44 vii Regulations 10 NYCRR § 69-4.19 ................................................................................................ 3 22 NYCRR §500.11 ................................................................................................. 51 22 NYCRR §500.11(f) ...................................................................................... 51, 53 22 NYCRR §500.22 ................................................................................................. 51 22 NYCRR §500.22(b)(4) ....................................................................................... 51 8 NYCRR §156.12 ...................................................................... 1, 46, 47, 48, 49, 53 Other Authorities Opns. St. Comp., 2007 No.1 2007 WL 4138396 (January 22, 2007)…………………….……………………4, 5 Opns. St. Comp., 1991 No. 91-34 1991 WL 253780 (N.Y.S.St. Cptr.)………………………………………………..4 Opns. St. Comp., 1986 No. 86-25 1986 WL 31715 (N.Y.St. Cptr.)………………………………..………………….4 COUNTER-STATEMENT OF QUESTIONS PRESENTED 1. Did the County Respondents have a rational basis to award the transportation contracts for pre-school special education children to Respondents VW and Quality? The Courts below answered this question as follows: Yes. 2. Did Petitioner-Appellant Acme Bus Corp. (“Acme”) fail to sustain its burden of showing that the County engaged in actual impropriety, unfair dealing or some other violation of statutory requirements in awarding the contracts to Respondents VW and Quality? The Courts below answered this question as follows: Yes. 3. Was the County’s Request for Proposals subject to Education Law §305(14), 8 New York Code Rules and Regulations (“NYCRR”) §156.12(b) and Family Court Act §236? The Courts below answered this question as follows: No. COUNTER-STATEMENT OF THE NATURE OF THE CASE This appeal arises from an underlying Article 78 proceeding commenced by Petitioner-Appellant Acme Bus Corp. (“Acme”), in the Orange County Supreme Court after Acme was not awarded transportation contracts for pre-school special education children and children with special needs under a Request for Proposals (“RFP”) issued by Respondents-Respondents County of Orange and Orange 2 County Department of General Services (collectively “the County Respondents” or “the County”). In the Supreme Court, the County Respondents moved to dismiss Acme’s Article 78 petition on the grounds that (a) Petitioner Acme failed to state a cause of action under Article 78; and (b) the County’s decision to award the transportation contracts to Respondents VW Trans, LLC (“VW”) and Quality Bus Services, LLC (“Quality”) was rationally based and not arbitrary and capricious. By decision, order and judgment issued by the Hon. Elaine Slobod, JSC, the Supreme Court granted Respondent County’s motion and dismissed Acme’s petition on the merits. (R. 3-7). Petitioner-Appellant Acme appealed the decision and order of the Supreme Court to the Appellate Division. Thereafter, on March 4, 2015, the Appellate Division unanimously affirmed the Supreme Court’s decision. For the reasons stated herein, the decision below should be affirmed. The lower courts correctly held that the County’s decision to award the contracts to VW and Quality had a rational basis; and that Acme failed to sustain its burden to show that the County’s decision to award the contract to the Respondents was arbitrary and capricious or that there was an actual impropriety, unfair dealing or some other violation of statutory requirements. 3 COUNTER-STATEMENT OF FACTS A. Background Pursuant to New York State Public Health Law, § 2559-a, the County of Orange is required to provide suitable transportation services for children receiving services under the Early Intervention Program for Infants and Toddlers with Disabilities “either directly, by contract, or through reimbursement at a mileage rate authorized by the municipality for the use of a private vehicle or for other reasonable transportation costs….” See, also, 10 NYCRR § 69-4.19 to the same effect. The County also provides transportation services in connection with “special education services and programs for preschool children with handicapping conditions” pursuant to New York State Education Law § 4410(8). To comply with these mandates, the County contracts with providers of transportation services for these special needs children in order to get the children to and from the locations where they will receive special education and/or services. In 2008, the County entered into a contract with Petitioner-Appellant Acme to provide these services. This was a three-year contract, with options for two one- year extensions, both of which were exercised. (R.18). The contract term, as extended, would have expired on June 30, 2013, but was extended an additional 60 days by a change order to the contract, so that the contract with Acme terminated, by its terms, on August 31, 2013 (R. 1906). 4 Subject to several exceptions, State law requires, generally, that contracts for “public work”, (i.e., services) in excess of $35,000.00 be competitively bid, and that such contracts be awarded to the lowest responsible, responsive bidder. (See General Municipal Law [“GML”] § 103). Notwithstanding, not all contracts for services are required to be competitively bid. One of the exceptions to that general rule applies when the contract involves professional services. “Professional services which fall within this exception involve the application of specialized expertise, the use of professional judgment, or a high degree of creativity in the performance of the contract.” Opns. St. Comp., 1991 No. 91-34, 1991 WL 253780 (N.Y.St.Cptr.) See, also, Opns. St Comp, 1986 No. 86-25, 1986 WL 31715 (N.Y.St.Cptr.): “contracts for professional services and services requiring special or technical skill, training or expertise are not contracts for public work, as that phrase is used in the bidding statutes, and, therefore, are not subject to the competitive bidding mandate.” It was undisputed in this case that the transportation services for special needs children, as described above, are highly specialized and therefore fall outside the GML § 103 competitive bidding requirement, allowing the County to consider factors other than price in awarding the contract - the contract does not have to be awarded to the lowest bidder. New York State Comptroller Opinion 2007-1 5 (January 22, 2007) (2007WL 4138390). Procurement of such services is governed by GML § 104-b, which provides, in relevant part: “1. 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. To further these objectives, the governing board of every political subdivision and any district therein, by resolution, shall adopt internal policies and procedures governing all procurements of goods and services which are not required to be made pursuant to the competitive bidding requirements of section one hundred three of this article or of any other general, special or local law.” GML §104-b(1). (emphasis added). In furtherance of GML § 104-b, Orange County duly adopted a procurement policy (R. 1861-1878 and R. 1879) which, inter alia, sets forth the rules and procedures for the procurement of professional services. (R. 1868-1870). In particular, the policy provides: “if the estimated cost of a particular Professional Service contract is $35,000 or more, the Procuring Agency must issue a Request for Proposals (RFP) that, at a minimum, requires submission of pricing and qualifications by potential service providers.” (R. 1861-1878). B. The RFP Because Acme’s contract was to expire on August 31, 2013, on or about May 28, 2013, in accordance with GML § 104-b and the County procurement 6 policy, the Orange County Department of General Services (“DGS”) issued a Request for Proposals RFP-DOH02-13, (hereinafter the “RFP”), soliciting proposals from companies for the transportation of children requiring early intervention and special education services. (R.48-117). The RFP described in detail the contract specifications (R. 54-75) including: insurance requirements (R. 53); bonding requirements (R. 53-54); offeror’s qualifications (R.54-55); number of children served and conformance with school calendars (R. 56); general safety, (R. 56-57); driver qualifications and requirements (R. 57-58); driver assistant qualifications (R. 59-60); training requirements (R. 60-61); duties of drivers (R.61- 63); vehicle standards, equipment and inspections (R. 63-67); management and supervision requirements (R.67); routes (R. 68-70 ); emergency procedures (R.71); vehicle breakdowns and accidents (R.71 ); pricing (R.74-75); and basis of award (R.77-79). The RFP solicited proposals for three separate geographical zones delineated Zone 1, Zone 2 and Zone 3. (R.48-118 , attachment B at RFP-R. 91). Prices were to be submitted for three years, by zone, and further broken down by route and vehicle type. (R.92-100, attachment C). Each proposer could bid on any or all of the three zones. The RFP provided that contracts could be awarded to one or more offerors. (R.52 ¶ 7). 7 The RFP required the following documentation with the submission of any proposal: (a) Experience in providing preschool special education transportation; (b) References; (c) Driver Safety and training programs; (d) Proposer’s DMV records for past five years; (e) Experience and use of GPS and video monitoring system; (f) NYS DOT BUSNET scores; (g) Current report from BUSNET for previous three years; (h) Proof of financial stability; (i) Proposer’s insurance, bid bond/performance bonds; (j) Transition plan; (k) Proposal; (l) Certifications; and (m) Sealed cost proposal. (R. 74-75; 76-77). The RFP also contained nine separate criteria on which each proposal was to be evaluated, including but not limited to experience, references, quality and safety records and cost. (R. 77-79). Each of the nine categories was to be scored on a range of 5-20 points, with a maximum total score of 100 points. The cost proposal (Criteria #9) was allotted 20 out of the 100 points. With respect to the evaluation of the cost proposal, the lowest cost proposer would receive the maximum of 20 points. The RFP provided that points would be awarded to the next lowest proposers and so forth based on a percentage to points ratio. (R. 79). The RFP did not set forth a specific ratio but, set forth an explanation - as an example, or illustration only - that a deduction of 2 points might be applied for every 10% increase over the low bidder’s price. (R.79). 8 The RFP also provided that the County would base the award of the transportation contracts to the offeror whom, the County Respondents ascertained was able to best suit the County’s needs as follows: “The submission of a proposal implies the Offeror’s acceptance of the evaluation criteria and Offeror’s acknowledgement that subjective judgments must be made by the Evaluation Committee. Award of any contract shall be made to the responsible Offeror whose proposal is determined to be in the best interests of the County. The County reserves the right to: accept other than the lowest price offer, waive any informality, or reject any or all proposals, with or without advertising for new proposals, if in the best interest of the County”. (emphasis added). (R. 79). The RFP specified that “[o]fferors are responsible for reporting in writing any errors, omissions or ambiguities found in this RFP.” (R. 51, ¶3). A pre-bid conference was held on or about June 11, 2013, during which time all prospective offerors had an opportunity to ask any questions, solicit information and seek clarification on any of the terms and conditions in the RFP and the contract. Acme was in attendance at this meeting. (R. 113-115). Following the meeting, all prospective offerors had the opportunity to submit written questions to the Department of General Services. On June 18, 2013 the County issued a list of questions asked at the meeting and submitted responses to these questions in writing. (R. 115-117). On or about June 28, 2013, the County received proposals from Petitioner- Appellant Acme (R. 119-870) and Respondents-Respondents Quality (R. 983- 9 1392) and VW (R. 1393-1784). Petitioner-Appellant Acme and Respondent Quality submitted proposals for all three zones and Respondent VW submitted a proposal for only Zone 3. (R. 119-870; 983-1392; 1393-1784). Each of the three proposals included all of the requisite submissions and documentation and met all of the requirements of the RFP, including the submission of bid bonds in the required amount and surety letters guaranteeing a performance bond in the event the offeror was awarded the contract. (R. 119-870; 983-1392; 1393-1784). An evaluation of the proposals was conducted by a committee consisting of four evaluators, including the Transportation Manager under contract with the County to administer the transportation contract. Each evaluator first scored each proposal on criteria one through eight (per zone), and then opened the sealed cost proposal and evaluated the cost proposal. (R. 1916). As clearly set forth in the RFP, the lowest cost proposal for each zone was awarded 20 points, and deductions were made from the scores of the higher bidders based on a percentage to points ratio. Petitioner-Appellant Acme’s cost proposal was considerably higher than Respondents-Respondents VW and Quality. (R.859-870; R. 998-1006; R. 1384-1392). Acme had the highest price proposal for all three zones; its price proposals were anywhere from 15%-28% higher per diem as compared to the Respondents. Accordingly, Acme received low scores with respect to the cost criteria and as a result, Acme’s total overall scores were 10 lower than VW and Quality for all three zones. (R. 1785-1790). Quality had the lowest pricing for Zones 1 and 2, and received 20 points for those zones and a deduction for Zone 3. (R. 1785-1790). VW had the lowest pricing for Zone 3 and received a score of 20 for that zone. (R. 1785-1790)1. Acme had submitted a price proposal for each zone separately and, alternatively, a proposal for all three zones combined, which allowed it to offer a discount from its “separate-zone” proposal. (R. 859-870). When evaluating Acme’s cost proposal in comparison with the other offerors, the evaluators used the prices submitted in Acme’s proposal based on its whole program rate, which was significantly lower than its individual zone price proposal. (R. 1792). However, even using the reduced rates as proposed by Acme, the rates were still significantly higher in cost than any other offeror. C. The Award When the scores of the nine criteria were added for each proposer, Quality had the highest score for Zones 1 and 2, and VW had the highest score for Zone 3. (R. 1785-1790). Additionally, awarding the contract for Zone 3 to VW and Zones 1 and 2 to Quality realized a cost savings to the County of approximately $1,674,033.00 annually or $5,022,099 over the three years and $8,370,165 over the 1 VW did not submit proposals for Zones 1 and 2. 11 five year contract, if the options were exercised.2 (R. 1795). Consequently, the County reasonably determined that it would be in the best interests of the County to award the contracts to Quality (Zones 1 and 2) and VW (Zone 3). On July 15, 2013 the Orange County Commissioner of Health recommended to the Department of General Services that the contracts be awarded accordingly. (R. 1805). On the same day, the Department of General Services issued Notice of Award letters to VW and Quality and a Notice of No Award letter to Acme. (R. 1802-1804). Subsequently, contracts were drafted and executed between the County of Orange and VW and Quality. (R. 1806-1834; R.1835-1860). Transportation services pursuant to those contracts commenced on September 1, 2013 and are currently in effect until August 31, 2016. D. The Petition, Opposition, Reply and Sur-Reply Thereafter, on July 24, 2013, Petitioner filed an Order to Show Cause and Verified Petition pursuant to Article 78 of the CPLR seeking to vacate and annul the award of contracts to Respondents VW and Quality and awarding the contracts to Acme on the following grounds: (a) The RFP failed to identify a specific methodology or formula regarding the evaluation of the cost proposals; (b) VW did not meet the requisite qualifications under the RFP; (c) the transportation contracts were not awarded to the highest scoring proposer (alleging upon information and 2 The two (1) year options have a provision for an increase based upon the consumer price index. 12 belief, that Acme was); (d) Quality and VW failed to meet vehicle and equipment requirements in addition to bid and performance bond requirements.3 Thereafter, the County, VW and Quality submitted opposition papers to Acme’s petition and Order to Show Cause. The County opposed the petition on the following grounds: (a) Acme failed to state a cause of action under Article 78; (b) The RFP and contract award properly followed the County’s procurement policy and General Municipal Law §104-b and therefore the award was not arbitrary or capricious; and (c) the proposals submitted by VW and Quality satisfied the qualifications, experience, vehicle and equipment, performance bond and bid bond requirements of the RFP. (R. 1905-1986). In response, Acme submitted Reply papers consisting of an affidavit from the principal of Acme, an affidavit from an accountant and attorney affirmation with memorandum of law. (R. 2116-2279). Additionally, contained in Acme’s reply memorandum of law, Acme presented a new argument not contained in its moving petition - that the RFP did not comply with Education Law §305(14). (R. 2260-2279). Because this new argument was only raised in Acme’s reply papers, 3 Acme’s Order to Show Cause initially also requested a temporary restraining order, which was withdrawn. The Acme petition also alleged that upon information and belief, Respondents Quality and VW did not satisfy the bid and performance bond requirements. The record provided by the County showed that the bid bonds were satisfied and the performance bonds were not due until after execution of the contracts, which had not occurred at the time the Petition was filed. They were later timely satisfied after the execution of the contracts. 13 the County objected to the Court considering the new argument or, in the alternative, to permit the County to submit a sur-reply. (R. 2280-2281). As a result, the Court orally permitted the County to submit a sur-reply to address the new argument contained in Acme’s reply. The County Respondents sur-reply papers pointed out that Education Law §305(14) is inapplicable to the instant matter, and that even if it was applicable, that RFP DOH02-13 contained all the criteria enumerated under Education Law §305(14)(f). (R.2286-2295). E. The Supreme Court Decision and Order In a Decision and Order dated August 13, 2013, the Hon. Elaine Slobod dismissed Acme’s petition, holding that Acme failed to sustain its burden in showing that the County’s decision to award the contract to VW and Quality lacked a rational basis or was based on impropriety, unfair dealing or other statutory violations. (R. 3-7). The Court further concluded that the County had a rational basis for their determination and award and declined to re-examine the scores given by the evaluators during the RFP process- stating that “the weight the County Respondents afforded to the cost portion of the proposals was a matter within their sound discretion.” (R. 6). Lastly, the Court also rejected Acme’s argument that the RFP failed to comply with Education Law §305(14). (R. 6). 14 F. The Appellate Division Order On March 4, 2015, the Appellate Division unanimously affirmed the Supreme Court’s decision that the County had a rational basis for awarding the transportation contracts to Respondents VW and Quality over Acme. (R. 2299- 2300). Additionally, the Court also held that neither Education Law §305 nor Family Court Act §236 were applicable to the instant RFP. (R. 2299-2300). Furthermore, because the Court found that a rational basis existed for the County’s determination, Petitioner’s remaining arguments were determined to be either without merit, or were not addressed in light of the Court’s determination. (R. 2299-2300). G. Petitioner-Appellant Acme’s Motions for Leave for Appeal Thereafter, on April 7, 2015, Petitioner Acme filed a notice of motion for leave to appeal from the Appellate Division. (Supp. Appx. 1-82). Acme requested leave to appeal to the Court of Appeals to address two “violations” that they argued constituted the arbitrary and capricious nature of the County’s determination: (a) The County, as alleged by Acme disregarded its “points to percentage” ratio in calculating the “cost category”; and (b) The County, as alleged by Acme, disregarded its criteria in awarding points in the “performance categories”. Accordingly, said leave to appeal was denied by the Appellate Division. 15 Subsequently, on July 7, 2015, Petitioner Acme filed a motion for leave again, this time to the Court of Appeals. (Supp. Appx. 104-142). Acme’s request for leave to appeal in this instance differed from its previous request in that it rested on one sole question: “whether a municipality, in awarding contracts pursuant to an RFP, may deviate from its own specifications for determining the “highest scoring proposer”. (Supp. Appx. 114). On September 22, 2015, this Court granted Acme’s request for leave to appeal. (R. 2298). LEGAL ARGUMENT POINT I STANDARD OF REVIEW In reviewing an administrative decision, a court must determine if the decision of the administrative body had a rational basis, or was arbitrary and capricious. Matter of Pell v. Board of Education of Union Free School Dist. No. 1 of the Towns of Scarsdale and Mamaroneck, Westchester County , 34 N.Y. 2d 222 (1974). “Generally, in a CPLR article 78 proceeding, we examine whether the action taken by the agency has a rational basis. We may overturn administrative action where it is ‘taken without sound basis in reason’ or ‘regard to the facts’. If we conclude ‘that the determination is supported by a rational basis, [we] must sustain the determination even if [this C]ourt concludes that it would have reached a different result than the one reached by the agency’. (internal citations 16 omitted). Wooley v. New York State Dept. of Correctional Services, 15 N.Y.3d 275, 280 (2010). A decision is arbitrary and capricious when it is “taken without sound basis in reason or regard to the facts.” Peckham v. Calogero, 12 N.Y.3d 424, 431 (2009). Moreover, a Court cannot usurp an administrative body’s decision, if rationally based. Id. In fact, the Court must defer to the determination of the administrative board, if there is a rational basis, even if the Court would have reached a different conclusion. Wooley v. New York State Dept. of Correctional Services, 15 N.Y. 3d 275, 280 (2010); Matter of Pell, supra at 231. “If the court finds that the determination is supported by a rational basis, it must sustain the determination even if the court concludes that it would have reached a different result than the one reached by the agency. Further, courts must defer to an administrative agency’s rational interpretation of its own regulations in its area of expertise.” (internal citations omitted). Peckham v. Calogero, 12 N.Y.3d 424, 431 (2009). Accordingly, this Court has consistently held that the Court’s role in reviewing an administrative decision is not to “weigh the desirability of any action or to choose among the alternatives”, Matter of Riverkeeper, Inc. v. Planning Bd. Of Town of Southeast, 9 N.Y.3d 219, 232 (2007); Matter of Merson v. NcNally, 90 N.Y.2d 742, 752 (1997); Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 416 (1997); Akpan v. Koch, 75 N.Y.2d 561, 571 (1990), but to defer to the agency with the required expertise. 17 “It is not the province of the courts to second-guess thoughtful agency decisionmaking and, accordingly, an agency decision should be annulled only if it is arbitrary, capricious or unsupported by the evidence. The lead agency, after all, has the responsibility to comb through reports, analyses and other documents before making a determination; it is not for a reviewing court to duplicate these efforts.” Matter of Riverkeeper, Inc. v. Planning Bd. Of Town of Southeast, 9 N.Y.3d 219, 232 (2007). However, Appellant Acme’s arguments completely contradict this Court’s jurisprudence for over twenty-six years. The relief sought by Acme would essentially increase the Court’s role to overseeing each and every RPF in all 62 Counties within New York State for any party believing itself aggrieved. By the same token, Acme is also requesting this Court to overrule clear legislative language by requiring requests for proposals under GML §104-b to be implemented exactly as GML §103 mandates for bids. There is nothing in the law to support this argument. “Balanced against this important policy, however, is the equally important recognition that competitive bidding requirements impose a substantial restriction upon the activities of public entities and must be extended no further than reasonably contemplated by the Legislature.” Matter of Citiwide News v. New York City Tr. Auth., 62 N.Y.2d 464, 473 (1984). In fact, the cases cited by Acme in support of its position, only support this Court’s prior holdings and affirm the lower Courts decisions. Matter of Riverkeeper, Inc. v. Planning Bd. Of Town of Southeast, 9 N.Y.3d 219 (2007); Matter of Cataract Disposal v. Town of Bd. Of Town of Newfane, 53 N.Y.2d 266 (1981). 18 Therefore, consistent with this Court’s prior rulings, the Courts below correctly found that the County’s decision to award the transportation contracts had a rational basis and that Acme failed to meet its burden of proof that the decision was arbitrary and capricious or in violation of lawful procedure. POINT II RFP DOH02-13 AND THE COUNTY’S SUBSEQUENT AWARD OF CONTRACTS WAS IN ADHERANCE WITH THE ORANGE COUNTY PROCUREMENT POLICY AND GENERAL MUNCIPAL LAW §104-b General Municipal Law (“GML”) §103 requires local governments such as the County to procure certain goods and services in accordance with competitive bidding; specifically all purchase contracts (commodities and technology when services are not the predominant portion of the purchase) involving expenditures in excess of $20,000 and all contracts for public work (services, exclusive of professional services) involving expenditures in excess of $35,000. GML § 103 requires the foregoing contracts to be awarded to the lowest responsive, responsible bidder. (See GML §103). “These laws were not enacted to help enrich the corporate bidders but, rather, were intended for the benefit of the taxpayers. They should, therefore, be construed and administered ‘with sole reference to the public interest’.” Matter of Conduit & Found Corp. v. Metropolitan Transp. Auth., 66 N.Y.2d 144, 148 (1985). In the same way, GML §103 and §104-b were enacted for the benefit of the taxpayers. 19 General Municipal Law §104-b on the other hand, governs public contracts that are not subject to competitive bidding, such as the contracts which are the subject of this litigation. GML §104-b(1) provides that goods and services that are not required to be procured pursuant to the competitive bid requirements set forth in GML §103 must, nonetheless, be procured in such a manner “so as to assure the prudent and economical use of public moneys in the best interest 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, improvidences, extravagance, fraud and corruption.” (GML§104-b). To that end, GML§104-b requires local governments to adopt policy and procedures governing the procurement of any goods or services not required by law to be procured competitively pursuant to GML §103. “…..General Municipal Law §104-b does not mandate the award of contracts to the lowest responsible bidder, and instead, by its very terms, invites localities to formulate their own procedures and policies for the award of contracts which are in the “best interests” of the political subdivision. Clearly then, with respect to public contracts awarded under General Municipal Law §104-b, the State Legislature did not intend to preempt the entire field regarding local public contracts which are not required to be competitively bid. Rather, the State Legislature afforded the municipalities a measure of discretion in determining what constitutes their best interests and recognized that their best interests may not always be limited to price alone.” Matter of Quest Diagnostics Inc. v. County of Suffolk, 21 Misc.3d 944, 951 (Sup. Ct. Suffolk County 2008). 20 Thus, GML §104-b gives broad discretion to a local municipality to award contracts based on what would be in the “best interests” of that municipality. Within this broad discretion, GML §104-b places an emphasis on the importance of price when determining an award under an RFP “so as to assure the prudent and economical use of public moneys.” GML §104-b. “Such policies and procedures shall contain provisions which, among other things:…… e. require justification and documentation of any contract awarded to other than the lowest responsible dollar offeror, setting forth the reasons such and award furthers the purpose of this section” GML §104-b(2)(e). Similarly, the Orange County procurement policy, in accordance with GML §104-b requires a written justification from a Department who does not award a contract to the lowest priced proposal. “When quotes or proposals are required for Professional Services and a contract is not awarded to the lowest priced quote or proposal submitted, General Municipal Law §104-b(e) requires that the Department justify and document in writing the reasons for awarding the contract. The written justification must generally address how such an award furthers the public good; assures the prudent use of taxpayers’ money; ensures that the purchased goods are of the best quality at the lowest possible cost in light of the circumstances existing; and guards against favoritism, extravagance, fraud and/or corruption.” (R. 1869). Thus, both GML §104-b and the Orange County Procurement Policy stress the importance of price as a factor in awarding a contract pursuant to an RFP. In the present instance, the RFP itself informed the offerors of the importance of 21 including their “best technical and price terms in the initial offer.” (R. 77). It is uncontroverted that Acme’s proposal contained the highest price among all the offerors, thus evidencing the fact that the County adhered to the GML and its procurement policy when it did not award the contracts to Acme. Moreover, in addition to not meeting the important price factor and contrary to its contention, Acme was not the “highest scoring proposer”. Though Acme contends that it was the “highest scoring proposer” (and should be awarded additional points by this Court to make it so), awarding the contract to the “highest scoring proposer” is not required under an RFP. The only requirement for an RFP is to “secure goods and services of maximum quality at the lowest possible cost” in order to make the best use of taxpayer monies. As a result, RFP DOH 02-13 substantively and procedurally, was in compliance with the Orange County Procurement Policy as well as GML §104-b. While Acme is correct that there are no Court of Appeals cases addressing “whether the rules for bids under GML §103 should be applied to RFPs under GML §104-b”, the Appellate Division Courts have consistently upheld the principles set forth by this Court and in fact illustrate the differences between bids and proposals and the need for different standards. It is undisputed that the issuance of an RFP in this matter was proper. Accordingly, an RFP is a more flexible alternative than compared to competitive 22 bidding. See Jo & Wo Realty Corp v. City of New York, 157 A.D.2d 205 (1st Dept. 1990); aff’d 76 N.Y. 2d 962 (1990). While it is true that, like a competitive bid, an RFP must treat bidders fairly, (Matter of Tri-State Aggregates Corp v. Metro. Transp. Auth., 108 A.D. 2d 645, 646 (1st Dept. 1985), an RFP does not need to spell out every single factor that will be relied upon to evaluate proposals. Madison Sq. Garden, LP v. New York Metro. Transp. Auth., 19 A.D.3d 284 (1st Dept. 2005) appeal dismissed 5 N.Y.3d 878 (2005); Transactive Corp. v. New York State Dept. of Social Services, 236 A.D.2d 48, 53 (3d Dept. 1997), aff’d 92 N.Y.2d 579 (1998). In contrast, “standardization” of specifications is mandated by statute for competitive bidding because ‘cost is the sole determining factor in the award of a contract’. Starburst Realty Corp. v. City of New York, 131 Misc.2d 177, 186 (Sup. Ct. New York County 1985), mod. on other grounds 125 A.D.2d 148 (1987), lv denied 70 N.Y.2d 605 (1987). On the other hand, RFP’s do not “require particularization [of criteria], but only generalization.” Transactive Corp. v. NYS DSS, 236 A.D.2d 48, 53 (3d Dept. 1997, aff’d, 92 N.Y.2d 579 (1998). In fact, there is no legal requirement that the final contracts even conform to the RFP. Starburst Realty Corp. v. City of New York, 131 Misc. 2d 177 (N.Y. Sup. Ct. 1985), mod. on other grounds 125 A.D.2d 148 (1987), lv denied 70 N.Y.2d 605 (1987). 23 Furthermore, GML §104-b(5) states in pertinent part: “The unintentional failure to fully comply with the provisions of this section shall not be grounds to void action taken or give rise to a cause of action against the political subdivision or district or any officer or employee thereof.” GML §104-b(5). Courts have consistently upheld these waiver provisions, provided there is a rational basis for the waiver, or when it is determined to be in the best interests of the municipality. AWL Industries, Inc. v. Triborough Bridge and Tunnel Authority, 41 A.D.3d 141 (1st Dept. 2007); Matter of T.F.D. Bus Co. v. City School Dist. of Mount Vernon, 237 A.D.2d 448 (2d Dept. 1997); Clancy-Cullen Storage Co., Inc. v. Board of Elections in the City of New York, 98 A.D.2d 635 (1st Dept. 1983). Therefore, RFPs commonly contain waiver provisions waiving strict compliance with bid specifications, as does the RFP in the instant case. The law, therefore, undermines virtually all of Acme’s claims, which relate largely to an alleged lack of specificity with regard to routes, the formula to be applied in evaluating cost proposals, usage matrices, and the like. There is no legal requirement that the RFP have contained the level of detail that Petitioner- Appellant would have liked to have seen in the RFP and the law is clear that the absence of such specificity is consistent with the flexibility inherent in RFPs. Moreover, the RFP clearly disclosed that its award of the transportation contracts would be based upon what is ultimately determined to be within the “best 24 interests of the County”. In fact, the RFP cited this standard, not once, but four times throughout the RFP: “Basis of Award provisions vary with each RFP, please read that section carefully. Some RFPs may be awarded to more than one entity. The County reserves the right to waive any informality, reject any and all proposals, or, if noted in the Basis of Award section of this RFP, accept any proposal in whole or in part, if deemed to be in the best interest of the County.” (emphasis added). (R.52). “BASIS OF AWARD The award of the contract will be made to the Company whose response demonstrates their understanding of all aspect of this RFP and the ability to provide safe, reliable and cost efficient transportation services to the County.” (emphasis added). (R. 77). “Offerors are reminded to include their best technical and price terms in their initial offer and not to automatically assume that they will have an opportunity to participate in interviews, site visits or be asked to submit a best and final offer. The County may award the contract without interviews and/or site visits for any or all Offerors, if deemed to be within the best interests of the County.” (emphasis added). (R. 77). “The submission of a proposal implies the Offeror’s acceptance of the evaluation criteria and Offeror’s acknowledgement that subjective judgments must be made by the Evaluation Committee. Award of any contract shall be made to the responsible Offeror whose proposal is determined to be in the best interests of the County. The County reserves the right to: accept other than the lowest price offer, waive any informality, or reject any or all proposals, with or without advertising for new proposals, if in the best interest of the County. (emphasis added). (R. 77). None of the cases cited by Petitioner-Appellant in its brief support its argument that “the rule against deviations has been extended to RFPs”. Petitioner- 25 Appellant cites five cases in particular dealing with the award of public contracts: (1) Matter of Progressive Dietary Consultants of New York v. Wyoming County, 90 A.D.2d 214 (4th Dept. 1982); (2) American Totalisator Co. v. New York State Dept. of Taxation and Finance, 80 A.D.2d 373 (3d Dept. 1981); and (3) Hunts Point Term. Produce Coop. Assn., Inc. v. New York, 13 Misc.3d 988 (Sup. Ct. Bronx Cnty. 2006), rev’d on other grounds, 36 A.D.3d 234 (1st Dept. 2006); (4) Matter of Riverkeeper Inc. v. Planning Bd. Of Town of Southeast, 9 N.Y.3d 219 (2007); and (5) Matter of Cataract Disposal v. Town Board of Town of Newfane, 53 N.Y.2d 266 (1981). The first case cited by Acme, Matter of Progressive Dietary Consultants of New York v. Wyoming County, is completely inapplicable as it deals with an RFB governed under the competitive bidding statute GML §103, not an RFP governed under GML §104-b. See Matter of Progressive Dietary Consultants of New York v. Wyoming County, 90 A.D.2d 214 (4th Dept. 1982). As stated previously, bids are to be strictly construed because price is the sole factor in determining an award. See GML §103. Under an RFB, price can be the sole factor as there usually is no specialized skill or expertise knowledge required in the good or service to be provided. An RFP on the other hand, is for professional services and thus does require a level of specialized skill or expertise knowledge. As a result, the RFP evaluation is more complex –as the municipality has to evaluate each of the 26 proposals for qualifications and cost in order to determine which vendor will provide goods and services of maximum quality at the lowest possible cost. See GML §104-b. For this reason, Acme’s argument that RFPs should be applied as stringently as RFBs fails. Similarly, the second case cited by Acme, American Totalisator Co., Inc. v. New York State Dept. of Taxation and Finance, is inapposite to Acme’s position. In that matter, the Court determined that the award by the Lottery was not arbitrary and capricious, but rationally based when the Lottery awarded back-up points to break a tie score of the proposals. See American Totalisator Co., Inc. v. New York State Dept. of Taxation and Finance, 80 A.D.2d 373 (3d Dept. 1981). Acme also cites Hunts Point Term. Produce Coop. Assn., Inc. v. New York, supra which is distinguishable from the present matter. Notably, while Acme notes that the Hunts Point decision was ultimately reversed on other grounds - a standing issue, Appellant neglects to point out to this Court that the Appellate Division disagreed with the Supreme Court and determined that the RFP process was not “hidden or biased”, nor was the determination and award by the EDC arbitrary and capricious, thereby undermining Acme’s own argument. “Finally, even if we were to conclude that the Cooperative had the necessary standing to challenge the EDC’s designation, the result would nonetheless be the same. The above analysis of the merits and liabilities of the respective proposals demonstrates that the EDC did not act in an arbitrary and capricious manner in selecting Baldor, that 27 there was ample evidence from which the EDC could conclude that Baldor submitted the superior proposal; and that the Cooperative’s proposal fell far short in comparison.” Hunts Point Terminal Produce Co-op. Ass’n, Inc. v. New York City Economic Development Corp., 36 A.D. 3d 234, 248 (1st Dept. 2006). Likewise, the County Respondents’ RFP contained all the factors upon which Acme’s proposal would be evaluated. (R. 78-79). In fact, the RFP awarded 20 out of the total 100 points in the sealed cost proposal criteria, thereby putting Acme on notice that cost was a significant factor, albeit not dispositive factor. Moreover, and quite notably, Acme completely mischaracterizes the holdings found in Matter of Riverkeeper, supra and Matter of Cataract, supra, both Court of Appeals cases. Acme cites to Matter of Riverkeeper for the proposition that “if the body or officer fails to follow its own rules or regulations in rendering the determination, however, that determination will be deemed arbitrary and capricious.” (Acme Brief Pages 21-22). However, to the contrary, this Court in Matter of Riverkeeper, deferred to the lead agency’s expertise in rendering its decision. Additionally, in Matter of Cataract, this Court did not hold that “even a minor variation from the terms of an advertisement for bids is material, thus warranting rejection of a bid or an annulment of an awarded contract”. (Acme Brief Pgs. 23-24). In fact, what this Court actually stated was that, “a minor variation from the terms of an advertisement for bids should be considered material only when it would impair the interests of the contracting public authority or place some 28 of the bidders at a competitive disadvantage.” Matter of Cataract Disposal v. Town of Bd. Of Town of Newfane, 53 N.Y.2d 266, 272 (1981). Ultimately, the Court held that the town’s acceptance of a cash deposit accompanied with an indemnification agreement was a suitable alternative to the performance bond bid specification, and thus was not a material deviation from its specifications. Id. Accordingly, the cases cited by Acme in support of its arguments are wholly inapplicable to the instant matter. POINT III THE DECISION TO AWARD THE TRANSPORATION CONTRACTS TO RESPONDENTS QUALITY AND VW HAD A RATIONAL BASIS AND THEREFORE SHOULD NOT BE DISTURBED Acme, VW and Quality each submitted proposals for the three-year contract for transportation of special education/special needs preschool children. Acme and Quality submitted bids for all three zones and VW submitted a proposal for only Zone 3. Pursuant to the RFP, each transportation company had to provide certain information and documentation. The proposals were evaluated in nine categories, and the points allocated to each were as follows: CRITERIA POINTS 1 Offeror’s experience in providing Preschool Special Education transportation. Each Committee member will evaluate the Offeror’s previous experience in providing 10 29 preschool special education services to counties and school districts of similar size and geographic make-up as Orange County and assign a numeric value that will range from a low of 0 points to a high of 10 points. 2 Verification of Offeror’s references. The Offeror must include a minimum of 3 references with contact information for each reference. Each Committee member will evaluate the Offeror’s references and assign a numeric value that will range from a low of 0 points to a high of 10 points 10 3 Driver Safety and Training Programs. The Offeror will provide copies of their company’s safety and training programs along with policies and procedures concerning drug and alcohol testing programs. Each program must satisfy all Federal, State and local requirements as it pertains to School Bus drivers and Driver Assistants. The Offeror should also include any other programs that will enhance its proposal (including Service Awards Programs). Each Committee member will evaluate the Offerors’ programs and assign a numeric value that will range from a low of 0 points to a high of 10 points. 10 4 Offeror’s record of motor vehicle accidents for the past five (5) years. The Offeror must submit the total number of vehicular accidents (with and without injuries) along with the total number of 5 30 miles operated. Other forms of reporting may be accepted if the Offeror does not track accidents in this manner. Each Committee member will evaluate the Offeror’s program and assign a numeric value that will range from a low of 0 points to a high of 5 points. 5 Experience and use of GPS systems. The Offeror must include the companies experience in operating and maintaining GPS systems in a school bus environment as well as the companies experience in operating and maintaining Video Monitoring System in a school bus environment. Each Committee member will evaluate the Offerors’ programs and assign a numeric value that will range from a low of 0 points to a high of 5 points. 5 6 NYS DOT BUSNET scores (include NYC, Nassau and Suffolk operations). The Offeror shall provide all of its NYS DOT BUSNET ratings for each of the Offeror’s operations, depots, terminals etc. The Offeror must also include copies of the company’s preventive maintenance program and breakdown of the frequency of major/minor repairs as it relates to the age of equipment and the down time of vehicles for repairs. Each Committee member will evaluate the Offerors’ programs and assign a numeric value that will range from a low of 0 points to a high of 10 points. Point evaluation will be scored as follows: 15 points 97-100% 15 31 10 points 93-96% 5 points 85-92% 0 points below 85% 7 Offeror’s Financial Stability. The Offeror must include the latest 3 years of audited financials to demonstrate the company’s financial strength. Each Committee member will evaluate the Offerors’ programs and assign a numeric value that will range from a low of 0 points to a high of 5 points. 5 8 Transition plan, including key personnel (resumes), maintenance, office facilities and overall response to the scope of service. The Offeror must submit a transition plan including key personnel (with their resumes), maintenance and office facilities and overall response to the scope of services. Each Committee member will evaluate the Offerors’ programs and assign a numeric value that will range from a low of 0 points to a high of 20 points. 20 9 Sealed Cost Proposal. The Offeror submitting the lowest cost proposal will be awarded 20 points. Awarding of points to the remaining Offerors will be based on percentage to points ratio; example: if the total cost between the lowest Offeror and the next lowest Offeror is 10% then Offeror two will have 2 points deducted from the maximum score of 20. 20 32 TOTAL: 100 (R. 78-79). The selection committee consisted of four evaluators. Each evaluator gave points to each company on each of the first eight criteria for Zones 1, 2 and 3. Thereafter, the sealed price bid was opened and the evaluators were able to score the companies on price. As noted above, the cost proposal had a point value of 20 out of 100 points, with 20 points going to the lowest priced offeror. The sealed cost proposals were evaluated by the committee as follows: the offeror with the lowest price received 20 points and then 2 points were deducted from the next highest proposal for every 4% over the lowest cost proposal. (R.1919-1954). Appellant-Petitioner Acme had the highest cost proposal of the three proposers, in all zones. (R. 1931-1953). In fact, Acme’s price proposals were approximately 15%-28% over and above the other proposers for prices per diem. (R.859-870;1817-1825;1846-1848). This large discrepancy was evident even using Acme’s combined zones pricing which were lower than its individual zone pricing. (R.1792). As a result, Acme received a much lower score on its price proposal than other offerors. (R. 1954). In fact, Acme received a score of 8 points 33 out of a possible 20 points, from each of the evaluators, the lowest overall score for pricing in each zone, which significantly affected Acme’s overall score. (R. 1954). Petitioner-Appellant Acme’s argument concerning the method used to score the pricing is fundamentally flawed and virtually irrelevant because Acme’s cost proposal was so much higher than the other proposals, that it would have suffered significant point reductions regardless of what percentage to point ratio was applied. Moreover, not once does Petitioner-Appellant address the fact that had the County awarded the contracts to Acme, it would have cost the taxpayers of Orange County approximately an additional $5 million dollars (or $1.6 million dollars annually), and would have required a written justification. See Orange County Procurement Policy and GML §104-b(2)(e). Acme argues, that based upon the language in the RFP, the County had to award points using a mandatory percentage to points ratio in the cost category. Acme contends that the use of the word “will” meant that the example provided in the RFP of 2 points to 10% ratio was mandatory. However, the plain language of the RFP is to the contrary. “Sealed Cost Proposal. The Offeror submitting the lowest cost proposal will be awarded 20 points. Awarding of points to the remaining Offerors will be based on percentage to points ratio; example: if the total cost between the lowest Offeror and the next lowest Offeror is 10% then Offeror two will have two points deducted from the maximum score of 20.” (Emphasis Added) (R. 79). 34 First and foremost, the formula presented in the RFP for cost was a percentage to points ratio, which is exactly what the County used in awarding points to the proposers. Additionally, the intentional use of example, which Acme believes is mandatory, was just that, an example. In fact, it provides for an “if, then” scenario, that unfortunately, did not exist: IF the total cost between lowest and next lowest was 10%, THEN two points would be deducted. However, there was not a 10% difference in price between VW and Quality. So, even taking, Acme’s argument, then both VW and Quality would have received 20 points and no points could be deducted from Quality. As a result, because the price difference was less than 10% between Quality and VW, the County used a 4% per 2 points ratio. As illustrated above, this exact argument proposed by Acme - requiring a specific condition (percentage to points ratio) to be used, is an effort by Acme to force municipalities to make mandatory RPF guidelines, which does not and cannot work. Moreover, Acme’s arguments that the fact that the County changed its percentage to points ratio after the sealed bids were opened was somehow improper is unconvincing. The County had no way to know what was inside the sealed bids in order to award the points to percentage ratio. To the contrary, Acme’s argument regarding a “usage matrix” is of no moment because it would not have affected the pricing proposals. The prices were 35 submitted on a price per unit basis. Therefore, because Acme’s price per unit was significantly higher than VW and Quality, any use matrix or multiplication by number of buses would still yield Acme the highest cost out of all the offerors. Acme’s argument that the County Respondents, by not providing exact specifications to extrapolate a usage matrix resulted in favoritism and manipulation in the RFP evaluation process holds absolutely no weight. In fact, the contrary is true. As the Supreme Court noted, at the time the RFP was issued, Acme was the current transportation provider of all three zones, and as a result, had a greater advantage than the other offerors, because it possessed actual knowledge of the current routes, buses, children and schools in all three zones. Furthermore, given that Acme had been the special education transporter in the County for the past several years, it had enough information to create its own usage matrix in determining its price proposal. Additionally, it would be impossible for the County Respondents to provide the offerors with the exact number of buses, routes, children and schools needed for the 2013-2014 school year, as they constantly changing. This information is provided to the County by the various school districts only after the special needs children’s Individual Education Programs (“IEP”) are completed, which is usually the end of June, but can be as late as August, and are subject to change through the year. (R. 1911-1918). Moreover, the County is prohibited from releasing the 36 IEPs under HIPAA, IDEA and FERPA statutes. Because children are continuously entering and leaving the County, right up to and through the beginning of the new school year, it would be impossible to give a fixed number of buses, children or routes. As each new child enters the County, or an existing child leaves the County, such changes will ultimately also change the needs of the County in providing transportation. The RFP stated that it would award the contract to the offeror(s) “whose response demonstrates their understanding of all aspect of this RFP and the ability to provide safe, reliable and cost efficient transportation services to the County.” (R. 77). Nowhere in the RFP, GML§104-b or the Orange County Procurement Policy is it required that the County award the contract to the “highest scoring proposer” as alleged by Acme. Therefore, even a determination by the County to award the contract to an offeror that did not have the highest overall score, but whose proposal was determined to be in the “best interests of the County” would be sustained as having a rational basis in the absence of proof of fraud, collusion, favoritism or some other illegality. (See Automated Wagering Intern. Inc. v. New York State Dept. of Taxation and Finance, 195 A.D. 2d 169 (3d Dept. 1994)) (the Court held that the Division of Lottery’s decision to award a contract to the second highest scoring proposer in response to the RFP was supported by a rational basis). In Automated, the Division of Lottery made the determination to award the RFP 37 after scoring the prospective proposers on numerous criteria and then conducting a price-value analysis. The Division of Lottery determined that it was in the best interests to award the contract to GTECH, the second highest scoring proposer over CDC, the highest scoring proposer with the highest prices. In reviewing the award, the Court concluded that the Division’s price-value analysis was consistent with the methodology contained in the RFP, and therefore the decision by the Division was supported by a rational basis. Automated Wagering Intern. Inc. v. New York State Dept. of Taxation and Finance, 195 A.D2d 169 (3rd Dept. 1994). Similar to the discretion used in Automated, supra., in reviewing the disparity in pricing between Acme as compared with the other offerors (with all other factors being quite similar), it was determined that if the County Respondents were to award Quality the contracts for all three zones as compared to Acme, it would result in a cost savings for the County of approximately $1,542,972 annually. (R. 1975), and if the County were to award Quality the contracts for Zones 1 and 2 and VW the contracts for Zone 3, compared with Acme at all three zones, it would result in a cost savings to the County of approximately $1,674,033.00 annually ($8,370,165.00 over a five year contract). Therefore, given that Acme’s pricing was dramatically higher than the other two offerors, and where Acme had the lowest score based on all criteria, the Courts below properly 38 held that the decision to award the contracts to Quality and VW had a rational basis. POINT IV APPELLANT-PETITIONER ACME FAILED TO SUSTAIN ITS BURDEN OF PROOF BY DEMONSTRATING THAT THE COUNTY’S DECISION WAS ARBITRARY AND CAPRICIOUS, OR THE RESULT OF ACTUAL IMPROPRIETY, UNFAIR DEALING OR SOME OTHER VIOLATION OF STATUTORY REQUIREMENTS Petitioner-Appellant Acme has the burden of proof to establish “actual impropriety, unfair dealing or some other violation of statutory requirements when challenging an award of a public contract.” Acme Bus Corp. v. Board of Roosevelt Union Free School District, 91 N.Y.2d 51, 55 (1997), citing, Matter of Conduit & Found Corp. v. Metropolitan Transp. Auth, 66 N.Y.2d 144, 149-150 (1985); I. Janvey & Sons v. County of Nassau, 60 N.Y. 2d 887 (1983); Matter of Baumann & Sons Buses v. Board of Educ. Northport-East Northpoint USFD, 46 N.Y.2d 1061 (1979). The core of Acme’s argument is that Acme should have been the “highest scoring proposer” because Acme subjectively believes it should have been awarded additional points in other criteria in the RFP. However, Acme’s arguments regarding the RFP process and what it believes it should have scored is purely speculative, subjective and self-serving. In fact, this speculative contention is belied by the record, which establishes that Petitioner justifiably received the 39 lowest total score in all three zones. Just as this Court correctly held that a Court should not substitute its judgment for that of the RFP evaluators, neither can Acme. Furthermore, Acme, by accepting and submitting a proposal under RFP DOH 02-13, accepted the use of subjective judgments made by the evaluators. “The submission of a proposal implies the Offeror’s acceptance of the evaluation criteria and Offeror’s acknowledgment that subjective judgments are made by the Evaluation Committee. Award of any contract shall be made to the responsible Offeror whose proposal is determined to be in the best interest of the County.” (R. 79). As the Courts below correctly found, Acme’s petition is based almost entirely “upon information and belief” and not upon undisputed facts and/or documentary evidence. In the absence of any evidence to support its speculative arguments, Acme has failed to rebut the presumption of regularity which attaches to administrative proceedings. Madison Square Garden, L.P. v. New York Metropolitan Transportation Authority, 19 A.D.3d 284 (1st Dept. 2005); Nehorayoff v. Mills, 282 A.D.2d 932 (3d Dept. 2001); Werter v. Bd. Of Regents of Univ. of State of New York, 18 A.D.2d 1032 (3d Dept. 1963). “A spectral appearance of impropriety is insufficient proof to disturb a municipality’s determination under competitive bidding statutes.” Acme Bus Corp. v. Bd. Of Ed. Of Roosevelt Union Free District, 91 N.Y.2d 51, 55 (1997). Likewise, the same should apply to requests for proposals. Moreover, Acme never disputes the enormous price proposal gaps between Acme and the other offerors. 40 As discussed in the outset of this brief, in reviewing a determination made by an administrative agency such as the determination here, the court’s inquiry is limited to whether the determination is arbitrary and capricious or without a rational basis. Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222 (1974). Thus, the Court must defer to the determination of the administrative board, if there is a rational basis, even if the Court would have reached a different conclusion. “If the court finds that the determination is supported by a rational basis, it must sustain the determination even if the court concludes that it would have reached a different result than the one reached by the agency. Further, courts must defer to an administrative agency’s rational interpretation of its own regulations in its area of expertise.” (internal citations omitted). Peckham v. Calogero, 12 N.Y.3d 424, 431 (2009). Similarly, this Court in Acme Bus Corp. v. Board of Education of Roosevelt Union Free School District, affirmed the lower Court’s denial of the petition and dismissal of the proceeding where the same Petitioner failed to meet its burden in commencing the Article 78 proceeding. “Apart from mere speculation, petitioner raises no identifiable ‘favoritism, improvidence, fraud [or] corruption’ stemming from the process used to award the subject school transportation contracts. ACME Bus Corp. v. Board of Roosevelt Union Free School District, 91 N.Y.2d 51, 56 (1997); citing also Matter of New York State Ch., Inc. Associated Gen. Contrs. v. New York State Thurway Auth, 88 N.Y.2d 56, 68 (1996). 41 Equally, as in this case, there is not even an allegation raised by Petitioner- Appellant Acme that the County’s actions involved favoritism, improvidence, fraud or corruption. Acme’s argument that it believes that it should have been awarded more points than the other proposers is conclusory and speculative, and does not rise to the level of substantial evidence of “actual impropriety” to upset the County’s final determination. Accordingly, Acme has failed to plead, let alone prove, a cognizable claim against the County Respondents. POINT V EDUCATION LAW §305(14)(f), 8 NYCRR §156.12(b), AND FAMILY COURT ACT §236 IS NOT APPLICABLE TO RFP DOH 02-13 Education Law §305, sets forth the general powers and duties of the State Commissioner of Education. The plain language of the statute clearly bestows the Commissioner of Education with certain powers and duties over children of school age, (children six years old and above in the school district) - not children, such as here, with disabilities/special needs receiving early intervention and pre-school special education services (children three to five years old). In particular, Education Law §305(14)(f) sets forth minimum requirements upon which the board of education, trustee of a school district, and the Commissioner of Education can evaluate proposals for transportation. 42 However, in the instant matter, the RFP was commissioned by the County. The Board of Education, trustee of the school district, or the Commissioner of Education were not involved, either directly or indirectly, with the evaluation or drafting of the RFP, nor were they members of the evaluation committee. Additionally, Education Law §305(14)(a) deals specifically with “school age” children and contracts to maintain school buses owned or leased by the school district, which is not applicable in this matter. “All contracts for the transportation of school children, all contracts to maintain school buses owned or leased by a school district that are used for the transportation of school children, all contracts for mobile instructional units, and all contracts to provide, maintain and operate cafeteria or restaurant service by a private food service management company shall be subject to the approval of the commissioner, who may disapprove a proposed contract if, in his opinion, the best interests of the district will be promoted thereby.” Education Law §305(14)(a). (emphasis added). New York State only mandates that a child must receive education beginning from the age of six, when they enter the school district. Education Law §3205(1)(a). Even though many school districts are not required to, they elect to provide pre-kindergarten and kindergarten services to the children within the school district. (See Education Law §3602-e). To the extent that a school district does elect to offer a pre-kindergarten or kindergarten class to the children of its 43 district, it is not mandated that the school district provide transportation to those children. Education Law §3635(g). “Education Law §3635 neither mandates or expressly authorizes school districts to provide transportation to pre-k students.” Board of Educ. Of Lawrence Union Free School Dist. No. 15 v. McColgan, 18 Misc. 3d 572 (2007). RFP DOH02-13, does not provide for the transportation of school-age children, or even pre-kindergarten or kindergarten children within the mainstream school district, but children receiving early intervention and pre-school special education services. These services are not provided through the school district, but through the New York State Department of Health, and funded by the County as specifically mandated under Education Law §4410 and Public Health Law §2559- a. The Early Intervention Program, is a New York State run program for infants and toddlers with disabilities and their families. First created by Congress in 1986 under the IDEA, the Early Intervention program is administered by the New York State Department of Health as established under Public Health Law Article 25. Hence, children between the ages of three and five years old receiving early intervention services are under the purview of the Department of Health, not the school district. The transportation of children receiving these services, is the 44 responsibility of the county or municipality, not the school district. Public Health Law §2559-a. The arguments presented by Acme in Point III of its Appellant’s brief are completely paradoxical and contradictory. Notably, Acme cites no authority to support its proposition. In the Supreme Court, Acme argued in its reply, that the County’s RFP did not comply with Education Law §305(14) and cited Family Court Act §236 as direct authority for its proposition. Justice Slobod disagreed with Petitioner-Appellant in her decision and stated the following: “Family Court Act §236 applies by its terms to children placed by the court in an institution providing special education services and requires the court to make certain provisions regarding transportation [see Family Court Act §236]). The children involved in this case are not placed pursuant to Family Court order.” (R. 6). It is unclear from Acme’s brief what Acme’s position is with respect to Family Court Act §236. Acme first argues that the County’s RFP was void because it did not adhere to Family Court Act §236. (Appellant Brief Point A). Thereafter, through a legal analysis of the Legislative history of Family Court Act §236, Acme then suggests that the legislature made Family Court Act §236 obsolete with respect to special education services for infants and toddlers. (Appellant Brief Point B). Acme even acknowledges that the statute was recently amended as early as 2012, to allow for RFPs in the procurement of transportation contracts and that the Legislature intentionally retained the remaining language, yet declares the 45 statute “meaningless”. (Appellant Brief P. 84-85). Yet again, on the next page, Acme then maintains, that even though Family Court Act §236 is “obsolete” and “meaningless”, it concedes that the statute is still applied today (thus agreeing with Judge Slobod’s decision): “There may still be some isolated cases where special education services, including transportation services, are required as a result of a Family Court placement….” (Appellant’s Brief P. 87). Petitioner-Appellant cannot have it both ways. Either Acme’s position is that the County violated Family Court Act §236, which is not “obsolete” or “meaningless”, or Acme agrees with Justice Slobod that Family Court Act §236 is used in special circumstances where a child is receiving special education services pursuant to a Court order, which is not applicable in this matter. RFP DOH 02-13 requested proposals for the transportation of children that are receiving early intervention and/or pre-school special education services in Orange County. Acme claims that the County failed to evaluate the offerors in accordance with the nine performance criteria required by Education Law §305(14). While Petitioner is correct that Education Law §305(14)(f) sets forth minimum criteria upon which a board of education or trustee of a school district shall evaluate proposals for the transportation of school children, it is not applicable to the instant matter for numerous reasons. First, Petitioner’s reliance on Education Law §305 is misplaced as it fails to distinguish children receiving 46 early intervention and/or pre-school special education services (Ages 3-5) provided by the County, from school-age children (Ages 6 and over) receiving general education services from the school district, which are governed by separate statutes and rules, i.e., Education Law §305. Therefore, while Education Law §305 may apply to school-age children within the various school districts, it is not applicable to pre-school children receiving special education services which is provided through the County. Likewise, 8 NYCRR §156.12 is also inapplicable to RFP DOH 02-13 as it is a statute delineating the regulations of the Commissioner of Education, not a municipality. In fact, 8 NYCRR §156.12(b) specifically requires that the board of education must have certain criteria to evaluate proposals from potential contractors. See 8 NYCRR §156.12(b). Nowhere within 8 NYCRR §156.12 or Education Law does it require that a municipality follow certain criteria in its evaluation. The municipality, on the other hand is governed by GML §104-b and its own procurement policy. As such, RFP DOH02-13 was in compliance with both GML §104-b and the Orange County Procurement Policy as outlined above. Moreover, even if this Court were to find that Education Law §305(14) is applicable to the instant matter, RFP DOH02-13 did comply with Education Law §305(14)(f) and 8 NYCRR §156.12. In fact, RFP DOH02-13 included all criteria as required under Education Law §305(14)(f), in addition to other criteria, 47 including but not limited to cost proposals (as required under 8 NYCRR §156.12), bid bonds and performances bond. The RFP states in pertinent part: “This solicitation describes the conditions and specifications that must be met by any person or firm receiving a contract as a result of this RFP. All Offerors must be prepared to comply with all information, conditions, stipulations, and specifications contained herein and all addenda issued prior to the opening of this RFP. The successful Offeror for each zone will be required to execute the standard County contract, a copy of which is attached as Exhibit “A” and which will incorporate the terms, conditions, and specifications of this RFP and the successful Offeror’s proposal. The successful Offeror shall comply with all federal, state and local laws, rules and regulations governing the services to be performed hereunder as amended from time to time.” (R. 54). “The proposal must address all of the items outlined in this RFP. Offerors’ staffing, experience, and responsibilities to the Orange County Preschool and Early Intervention Program should be detailed within their proposal. Contractor must provide sufficient staff that is properly trained to dispatch, route, schedule, and supervise the work contracted for hereunder. Offerors must possess and demonstrate vehicles, facilities, knowledge, and capabilities to satisfy all New York State Department of Transportation rules, regulations, and vehicle inspection requirements. Contractor’s response to this solicitation shall include a complete description of all vehicles to be used in providing services hereunder, including any spare, substitute, or emergency vehicles. Offerors shall provide a copy of their NYS DOT BUSNET summary and profile as part of their proposal package. Each Offeror by submitting its proposal acknowledges and represents that: (1) Offeror has read and understands the specifications and its proposal is made in accordance therewith; (2) Offeror has familiarized 48 itself with the local conditions under which the work is to be performed; (3) Offeror’s price proposal is based upon all of the items, including but not limited to personnel and equipment described in the specification and in accordance with all specification, conditions, and terms hereof without exception.” (R. 77). “The County may require any or all offerors to present additional evidence of experience, ability and financial standing as well as a statement was to the materials, equipment or personnel which the offeror will have available for the performance of this contract” (R.77). Contrary to Acme’s assertions, RFP DOH02-13 contained all the elements required under Education Law §305(14)(f) and 8 NYCRR §156.12 to be considered by the committee as follows: (1) Previous experience of contractor in transporting pupils (R. 55; 76-77; 78, Criteria #1); (2) The name of the transportation company of which the contractor has been an owner or manager and previous experience (R. 52; 54; 55; 76-77; 78 Criteria #1 and 2); (3) A description of any safety programs implemented by the contractor (R 56, 57; 76-77; 78 Criteria #3); (4) A record of accidents in motor vehicles under the control of the contractor (R76-77; 78 Criteria #4); (5) Driving history of employees of the contractor (R. 57-61; 69-70; 76-77; 79, Criteria #8); (6) Inspection records and model year of the motor vehicles under the control of the contractor (R. 55; 63-67; 76-77; 78-79 Criteria #6); (7) Maintenance schedule of the motor vehicles under control of the contractor (R. 63-67, 79 Criteria #8); 49 (8) Financial analysis of the contractor (R76, 79 Criteria #7); (9) Compliance with insurance requirements (R. 53). Therefore, even if the Court were to find that Education Law §305(14)(f) and 8 NYCRR §156.12 were applicable in this matter to children receiving special education services (which, for the reasons stated above, it is not) the RFP complied with the requirements as set forth in the statute. The County’s award was made in the best interests of the County and its basis for making an award is also consistent with the principle for awarding contracts under Education Law §305. Education Law §305(14)(a) clearly provides that any and all contracts “shall be subject to the approval of the commissioner, who may disapprove a proposed contract if, in his opinion, the best interests of the district will be promoted thereby.” (emphasis added). Ed. Law §305(14)(a). Therefore, the Commissioner of Education can approve or disapprove any contract he or she deems to be in the “best interests of the district”. Likewise, RFP DOH02-13 contained similar language regarding the “best interests of the County”. Regrettably, for Acme, its price proposals were significantly higher than VW and Quality. Petitioner-Appellant does not dispute this fact, nor do they even address it anywhere in their initial reply papers or even in the two appeal briefs. Thus, the committee had a rational basis in determining that given the current 50 fiscal climate facing the County, an estimated cost savings of approximately $8.3 million dollars over five years, where the County was receiving quality services similar or equal to Acme, it was in the best interests of the County to award the contracts to Respondents VW and Quality. POINT VI ACME HAS FAILED TO ADHERE TO THIS COURT’S RULES AND THE ISSUES PRESENTED BY APPELLANT HAVE BEEN ABANDONED Generally, pursuant to CPLR §5501(b) the Court of Appeals shall review questions of law only. The exception to this rule, is where “the appellate division, on reversing or modifying a final or interlocutory judgment, has expressly or impliedly found new facts and a final judgment pursuant thereto is entered.” CPLR §5501(b). Because the above exceptions do not apply to the instant matter, this Court is bound to review questions of law only. See Dalton v. Educational Testing Service, 87 N.Y.2d 384 (1995); Humphrey v. State of New York, 60 N.Y.2d 742 (1983). It is respectfully submitted that Appellant’s appeal rests solely upon questions of fact, not questions of law. Although Acme may disagree with the lower court decisions regarding its allocation of points (a purely fact based question), that issue is not a question of law for this Court to review. “The failure of the trial court to find certain facts which appellant claims to have established by evidence is not, in the present state of this record, an error of law reviewable by this court and, if there is any 51 evidence to support the findings of fact actually made, the result in that regard is binding upon this court, even though a different conclusion should or might have reached in the court below.” (internal citations omitted). New York Centr. & H.H.R. Co. v. Auburn Interurban Electric R. Co., 178 N.Y. 75, 78 (1904). Acme Abandoned Certain Issues In Its Motion For Leave to Appeal 22 NYCRR §500.22 requires that for leave to appeal to be granted, Appellant must have preserved the issue which is presented to this Court. Failure to preserve the issue presented in the records will result in denial of leave to appeal. See 22 NYCRR §500.22(b)(4). Furthermore, pursuant to 22 NYCRR §500.11, a party will be deemed to have abandoned an argument not presented in its motion for leave to appeal. “[A] party shall be deemed to have abandoned any argument made in the intermediate appellate court briefs not addressed or reserved in the letter submission to this Court.” 22 NYCRR §500.11(f). Subsequent to the Appellate Division’s decision and order affirming the Supreme Court decision, Acme filed a motion for leave to appeal with the Appellate Division. In its motion, Acme stated that the appeal would be: “so that the Court of Appeals can address two related violations- whether the County’s determination to award the transportation contracts to Quality Bus and VW was arbitrary and capricious where the County: a. Disregarded is own “percentage to point ratio” formula clearly stated in the RFP, for calculating the number of points to be awarded to each proposer in the ‘cost category’? 52 b. Disregarded its own criteria, clearly stated in the RFP, for awarding points in five ‘performance categories’?” (Supp. Appx. 15). Thus, the questions presented to the Appellate Division for leave to appeal were fact specific questions of how the County of Orange allocated points to Acme. Upon denial of its motion for leave to appeal, Appellant then requested leave to appeal from this Court. In support of its motion, Appellant stated in its motion for leave to appeal that the question of law presented in this matter was novel. Appellant’s sole question of law was: “This Court has not addressed the question whether the rule against deviation from specifications in awarding public contracts is permanently suspended for RFPs”. (Supp. Appx. 114). Thus, this novel question of law addressing a public policy on awards of statewide public contracts under the RFP process was never presented to the Supreme Court, or the Appellate Division. In fact, this question presented for appeal in its motion for leave to this Court was completely different than what was presented and argued to the Appellate Division. Consequently, Appellant never preserved this issue and therefore cannot raise it now for the first time. Bingham v. New York City Transit Authority, 99 N.Y.2d 355 (2003). Furthermore, Acme’s argument which was first mentioned in its motion for leave to this Court, and which was granted by this Court to review is now nowhere 53 mentioned in its brief. The questions presented by Acme for this Court to review are the following: “1. May the County deviate from its own RFP specification for determining the ‘highest scoring proposer’ by disregarding (a) the ‘percentage to points ratio’ formula specified in the RFP for calculating the number of points to be awarded to each proposer in the ‘cost category’; and (b) the criteria specified in the RFP for awarding points in five ‘performance categories’? 2. Was the County’s determination to award the transportation contracts to Quality Bus and VW Bus arbitrary and capricious where the County: (a) Failed to include a ‘usage matrix’ in the RFP specifying the precise configurations of ‘route packages’ to be used for determining the total dollar cost of each proposal; and (b) Failed to evaluate competing proposals in the nine performance category format required by Education Law §305(14)(f), 8 NYCRR §156.12 and Family Court Act §236?”. (Appellant Brief Page 2). Remarkably, the novel argument presented by Acme in order to obtain leave to appeal is now absent. Again, the questions presented to this Court in its brief are purely questions of fact - how the County of Orange allocated points to the offerors under RFP DOH02-13. Furthermore, because Acme failed to present arguments regarding the failure to include a “usage matrix” and the applicability of Education Law §305, 8 NYCRR §156.12 and Family Court Act §236, in its motion for leave to appeal, these arguments should also be deemed abandoned by this Court. 22 NYCRR §500.11(f); Quain v. Buzzetta Const. Corp., 69 N.Y.2d 376 (1987). Because Acme specifically limited the issues to be reviewed in its motion for leave to appeal, it should therefore be bound by those limitations and should not be permitted to raise additional issues. Quain, supra at 379. CONCLUSION The orders and judgments of the lower Courts should be affirmed. The County's determination to award the transportation contracts to VW and Quality was not arbitrary or capricious, but had a rational basis which was consistent with State law, the County's procurement policy and was in the best interests of the County. Dated: Goshen, New York December 28, 2015 54 Respectfully Submitted, ierce Sem r Assistant County Attorney LANGDON C. CHAPMAN County Attorney of County of Orange Attorneys for Respondents-Respondents Orange County and Orange County Department of General Services 15 Matthews Street, Suite 305 Goshen, New York 10924 (845) 291-3150 s s ifi ll li it t iss s t r i i its ti f r l t l, it l t r f r t li it ti l t itt t i iti l i . i , t . . ' lit it t t 54 l t t ,