The Court of Appeals, in a full-fledged opinion by Judge Fahey, reversing Supreme Court, over a two-judge dissent, determined that defendant county was required to use the formula outlined in its request for proposals (RFP) when evaluating bids for county contracts (here involving use of private bus services). The county included one formula in the RFP and used a different formula in awarding the contract:
Here, the County deviated from the criteria specified in its RFP when it evaluated the proposals received pursuant to its request. The emphatic language used in the RFP's paradigm of a percentage to points ratio — stating that if a 10% cost difference exists between the lowest offeror and the next lowest, then the latter “will have 2 points deducted from the maximum score of 20” — makes clear that the “example” was meant to explain that a percentage to points ratio is one in which a one percent cost difference translates to one percent of the total number of points allocated to cost. Instead, the County used a 2-point deduction for every 4% difference in price. Applying this new formula, a one percent cost difference corresponded to 2.5%, rather than one percent, of the number of points assigned to cost.
The County abandoned the cost formula it had promised to apply and instead created a new formula that disfavored ACME. This was arbitrary and capricious … . Matter of ACME Bus Corp. v Orange County, 2016 NY Slip Op 07835, CtApp 11-22-16
MUNICIPAL LAW (IN AWARDING A COUNTY CONTRACT TO A PRIVATE BUS COMPANY, THE COUNTY'S DEVIATION FROM A FORMULA DESCRIBED IN ITS REQUEST FOR PROPOSALS WAS ARBITRARY AND CAPRICIOUS)