Framan Mech., Inc. v New York City Hous. Auth. 2024 NY Slip Op 31688(U) May 15, 2024 Supreme Court, New York County
Docket Number: Index No. 150229/2024 Judge: J. Machelle Sweeting Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001 (U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.150229/2024 FRAMAN MECHANICAL, INC. vs. NEW YORK CITY HOUSING AUTHORITY

Motion No. 001 Page 1 of 4 The following e

- filed documents, l isted by NYSCEF document number (Motion 001) 2, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31

were read on this motion to/for ARTICLE 78 (BODY OR OFFICER)

.

P etitioner f

i l e d a m o t i o n seek i n g an order and j udgment pursuant to Article 78 of the Civil

Practice Law and Rules:

a) Declaring that the decisions issued by respondent New York City Housing Authority

(“NYCHA”), dated September 12, 2023, September 13, 2023, December 7, 2023,

December 26, 2023, and January 8, 2024 (collectively, the “ Decisions”)

, which deemed

Framan’s bid non

- responsive for Request for Quotation (“RFQ”) number 40799 for the

"Boiler Replacement at Lehman Village (Building 4) project (the “ Project”), were arbitrary

a n d capricious a n d constitute an abuse of discretion, and/or affected by an error of law ;

b) Vacating and annulling the Decisions in their entirety ; and

c) Declaring petitioner Framan’s bid as responsive and compelling NYCHA to award the

Project contract to Framan, the lowest responsible bidd er

. 

### SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. J. MACHELLE SWEETING PART 62
Justice

----------------------------------------------------------------- -- -------------- X INDEX NO. 150229/2024

MOTION DATE 01/09/2024

MOTION SEQ. NO. 001

DECISION + ORDER ON MOTION FRAMAN MECHANICAL, INC.

P etitioner

,

- v
- NEW YORK CITY HOUSING AUTHORITY,

Respondent

.

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NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 05/15/2024

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### [* 1]150229/2024 FRAMAN MECHANICAL, INC. vs. NEW YORK CITY HOUSING AUTHORITY

Motion No. 001 Page 2 of 4 Arguments Made by t h e P arties

Petitioner argues that it had submitted a bid for the Project that was $125,000 lower than

the nearest bid, but NYCHA denied petitioner’s bid for reasons that were arbitrary, capricious, and

an abuse of discretion. Sp ecifically, NYCHA denied petitioner’s bid for the sole reason that

petitioner, due to a technical glitch , failed to timely submit two l etters of a ssent from

subcontractors.

Petitioner argues that y ears earlier, petitioner had bid on a different NYCHA project (the

“earlier bid”) , and in the earlier bid, NYCHA had given petitioner the opportunity to cure ten

deficiencies . Petitioner argues :

This refusal contradicts NYCHA’s previous practice of allowing [petitioner] Framan to rectify more material and fatal defects post

- bid, demonstrating a notable inconsistency and arbitrariness in NYCHA's decision

- making process and its exercise of discretion. NYCHA's Decisions deviate from its established precedents without reasonable justification and violate th e established law, warranting their annulment as arbitrary, capricious, and an abuse of discretion.

In opposition, NYCHA argues , first, that in the earlier bid, the ten deficiencies petitioner

was allowed to cure constituted non

- material typographical errors and non

- material missing

identification information that w a s not expressly required prior to t h e bid opening

. In contrast,

here, letters of assent for the subject bid w e r e a material cond ition, and the Project RFQ clearly

warned all bidders th at t h e failure to submit such l etters of a ssent “shall” result in a bid being

declared non

- responsive. NYCHA also argues that petitioner was not the only bidder found non

responsive for failure to include letters of assent, and that a decision in p etitioner’s favor would

giv e petitioner an unfair advantage

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### [* 2]150229/2024 FRAMAN MECHANICAL, INC. vs. NEW YORK CITY HOUSING AUTHORITY

Motion No. 001 Page 3 of 4 NYCHA argues, second, that it is well established law that the decision to award a public

contract is a purely discretionary act and cannot be compelled by a court. Therefore, NYCH A

argues, the court may not direct NYCHA t o award the contract for the Project to petitioner

.

F u r t h e r , N Y C H A a r g u e s , any relief awarded to petitioner would be limited to bid preparation costs

only

. In Reply, petitioner argues that NYCHA’s failure to contact petitioner regarding the

missing letters before disqualifying petitioner is a substantial break f r o m NYCHA’s own practice

and procedures a n d is irrational and arbitrary. Petitioner argues that he cured the omission only

on e day after he was made aware of it, and that NYCHA went against the best interests of the

public a n d to the taxpayers’ detriment

, b y disqualifying his bid , which was $125,000 lower than

any others

.

Conclusions of Law

Here, petitioner does not deny that he fa iled to timely submit the letters of assent, nor does

petitioner deny that the Project RFQ contained an express requirement that made clear t h a t t h e

f a i l u r e t o c o m p l y w i t h t h i s condition would result in a bid being declared non

- responsive.

T h e r e f o r e , N Y S C H A ’ s d e c i s i o n , w h i c h w a s i n accordance w i t h t h i s r e q u i r e m e n t , w a s not arbitrary,

capricious, or an abuse of discretion. See P & C Giampilis Const. Corp. v Diamond , 210 AD2d

64 (1st Dept 1994) (“Courts have repeatedly upheld the rejection by municipal agencies of

competitive bids, without any further investigation other than a review of the bid documents, based

upon non

- responsiveness, where, as here, the bids failed to comply with the literal requirements

of the bid specifications [internal q uotations omitted]”); Red Apple Child Dev. Ctr. v Ch ancellor's

Bd. of Review , 307 AD2d 815 ( 1st Dept 2003 ): INDEX NO. 150229/2024

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### [* 3]150229/2024 FRAMAN MECHANICAL, INC. vs. NEW YORK CITY HOUSING AUTHORITY

Motion No. 001 Page 4 of 4

In the context of a CPLR article 78 proceeding, it is well settled that judicial review is limited to a determination of whether the administrative action is arbitrary and capricious or lacks a ration al basis. Where such a rational basis exists, an administrative agency's construction and interpretation of its own regulations and of the statute under which it functions are entitled to great deference. Furthermore, a municipality awarding contracts
purs uant to competitive bidding has the discretion to reject bids for noncompliance with its competitive bidding requirements. [internal citations omitted]

G i v e n the c i r c u m s t a n c e s h e r e , t h i s c o u r t f i n d s t h a t t h e d e c i s i o n b y N Y C H A w a s w i t h i n i t s

d i s c r e t i o n a n d w a s n e i t h e r a r b i t r a r y n o r c a p r i c i o u s o r a n a b u s e o f d i s c r e t i o n

. See Mun. Testing

Lab., Inc. v New York City Tr. Auth. , 233 AD2d 105 (1st Dept 1996) (“ The award of the subject

contract [...] was a matter within the Authority's discretionary management of its operations, and

therefore not justiciable absent an indication that the Authority disregarded its own guidelines ”);

P & A Bros., Inc. v City of New York Dept. of Parks & Recreation , 184 AD2d 267 (1st Dept 1992)

(“ The Supreme Court, however, correctly recognized that the acceptance or rejection of bids is a

determination within the discretion of the agency and may not be disturbed absent actual

improp riety or unfair dealings, neither of which are even alleged here. ”).

Conclusion

For the reasons s e t f

o r t h h e r e i n , it is hereby:

ORDERED that this petition is DENIED; and it is further

ORDERED that there being no other applications, this proceeding is closed.

5 /1 5 /2024 $SIG$ DATE J. MACHELLE SWEETING, J.S.C.

CHECK ONE: X CASE DISPOSED NON

- FINAL DISPOSITION

GRANTED X DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE INDEX NO. 150229/2024

NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 05/15/2024

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