Criteria for Evaluating County Bidding Process Explained

Rockland County sought bids for public bus transportation. The respondent, Brega Transportation Corporation [hereinafter “Brega”], protested the county’s bid specifications as exclusionary and discriminatory and Supreme Court agreed.  The Second Department reversed Supreme Court’s determination that Rockland County’s Invitation to Bid for Transit Operations and Maintenance [hereinafter “RFB”] violated Municipal Law 103.    After explaining the criteria for evaluation of a bidding process, the Second Department wrote:

Where bid specifications are “not facially anticompetitive,” courts apply “ordinary rational basis review” …. A “’spectral appearance of impropriety’ is insufficient proof to disturb a [municipality’s] determination under the competitive bidding statutes” … . Instead, a party challenging a procurement “has the burden to demonstrate actual’ impropriety, unfair dealing or some other violation of statutory requirements”… .  Here, the Supreme Court improperly shifted the burden of proof from Brega to the county. Since Brega made only conclusory assertions and failed to demonstrate that the county’s bid specifications were irrational or exclusionary, the court erred in invalidating the RFB on that basis… .  Brega Transp Corp v Brennan, 2013 NY Slip Op 02707, 2012-03188, Index No 498/12, 2nd Dept, 4-24-13