Levittown opened the bids on the re-bid project on June 29, 1998. Petitioner and Whitsons were again the only bidders, and again, petitioner's bid was lower. Although petitioner submitted certified financial statements for the preceding five years, it was unable to submit proof of its profitability for three of the last five years, because, by its own admission, it has not enjoyed a profit in three of the last five years. Levittown rejected petitioner's bid as non-responsive on the grounds that petitioner had failed to submit proof of profitability for three of the last five years and then awarded the contract to Whitsons, the only remaining bidder. This appeal ensued.
Petitioner alleges three separate causes of action.
For relief, petitioner requests that I invalidate the food service contract award to Whitsons and direct Levittown to award the contract to petitioner. Respondent Levittown has not submitted an affidavit from any district official to explain the basis for its actions. It also maintains it was not obligated to provide petitioner with a hearing because it did not find petitioner to be not responsible, but rather rejected petitioner's bid as non-responsive. Respondent Whitsons contends that Levittown properly accepted its bid. Whitsons also claims that I do not have jurisdiction to hear this appeal, asserting that petitioner may only seek review of an award of a public contract by commencing an Article 78 proceeding.