The following papers having been read on ths motion: (numbered 1-

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1 -.. _.._._-.._ _...._ ,-_ ".- c## "---- _---. SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. F. DANA WINSLOW, Justice TRIAL/IAS, PART 11 In the Matter of the Application of NASSAU COUNTY D. COMBUSTION SALES, INC. and RAHAMIM BAZINI, Petitioners, for an Order and Judgment under Article 78 of the Civil Practice Law and Rules and for other relief, MOTION DATE: MOTION SEQ # 001 INDEX NO.: /05 - against - POWER AUTHORITY OF THE STATE OF NEW YORK, NASSAU COUNTY DEPARTMENT OF PUBLIC WORKS, EASCO BOILER CORP. MAJOR SYSTEMS INC. and SELECT ENERGY SERVICE8,I:NC:, Respondent( s). The following papers having been read on ths motion: (numbered 1- Notice of Petition and Exhibits... Petitioner RAAMIM BAZINl's Affidavit in Support... Memorandum of Law in Support... Respondent, Power Authority of the State of New York, Affidavit of Riicard F. Verdi in Opposition, Verified Answer & Memorandum of Law Supporting Dismissal... Respondent, NASSAU COUNTY, Verified Answer and Objections In Point of Law and Affidavit of Joseph Davenport In Opposition to the Petition... Respondent, EASCO BOILER CORP., Affirmation in Opposition... Respondent, SELECT ENERGY SERVICES, INC., Verified Answer with Objections in Point of Law, Affidavit of Ayokunle Kafi in Opposition to Petition & Memorandum of Law... 7 Petitioner s Reply Affidavit & Reply Memorandum of Law...

2 Proceeding in the nature of mandamus, pursuant to CPLR Aricle 78 brought by the petitioners, MJ.D. Combustion Sales, Inc. and Rahamim Bazini (collectively referred to herein as "MID"), for a judgment inter alia declaring that the determination of the respondents, Power Authority of the State of New York ("NYA") and Nassau County, sued incorrectly herein as Nassau County Deparment of Public Works ("Nassau County"), rejecting MJD' s boilers and burners and holding that MID' s boilers and burers could not be utilzed on the public works project known as Mechanical Upgrades at Nassau County DPW, CMB EMS Ph I & Ph II ESP (the "Project") are in violation of lawful procedure and are arbitrar, capricious, uneasonable and an abuse of discretion is herewith DENIED. On March 6, 1996, NY A and Nassau County entered into an agreement called the High Efficiency Lighting Program Cost Recovery Agreement ("HELP Agreement" arising out ofnya' s development and implementation of a Statewide energy conservation program for municipal and governental buildings and facilties. The HELP Agreement expressly stated at the outset that "(NYPA) shall enter into Installation Agreements with various electrical contractors...for the installation of HELP equipment in the selected (Nassau County) facilties (see HELP Agreement Whereas" Clause 2). The HELP Agreement fuher provided that NYP A would be required to "retain the services of qualified Subcontractors to make all approved HELP installations (see id p. 11 2). In or about 2002, NYP A retained respondent, Select Energy Services Inc. ("SESI" to conduct feasibilty studies and design reports for energy improvements at certain buildings within the county of Nassau, including 240 Old Countr Road, Mineola, New York (the "240 building Based on its feasibilty study and design report, SESI developed a plan to implement its findings and recommendations called a "Customer Installation Commitment" between NYP A and Nassau County for work to be performed at inter alia,

3 the 240 building. The Customer Installation Commitment provided a detailed design and implementation package for energy conservation measures identified in SESl's feasibilty study and design report, including a boiler room upgrade involving replacement of thee existing boiler units and the replacement of the existing hot water storage tans with a gas fired water heater. In July 2005, NYA entered into the Customer Installation Commitment with Nassau County. In or about 2005, respondent, NYP A, in accordance with the relevant public bidding statutes, sought bids to perform the work of the Project at the 240 building. this regard, it issued specific plans and specifications with respect to the boilers and burners to be installed at the 240 building. Pursuant to these plans and specifications, in order to be acceptable under the terms of the Contract, the boilers to be produced by the contractor awarded the Contract had to comply with certain requirements; as such, the plans and specifications expressly named respondent, Easco s model FST-200 boiler as the "standard" boiler to be utilzed. Allegedly, Nassau and NYP A took the specifications frori Ea.sco' smodel FST.;200 - a.nd-utilzed- sliclr specifications in preparing plans and--. specifications for the boilers to be used at the Project. As for the burers, the plans and specifications similarly expressly named respondent, Gordon Piatt model S 14. GOburer as the "standard" burner to be utilzed at the Project. Upon deciding that it wanted to submit a bid to be awarded the Contract respondent, Major Systems, Inc. ("Major ) sought the advice and guidance of petitioner MJD Combustion Sales, Inc. ("MID"), which is in the business of supplying boilers and burners to public improvement construction projects. Ultimately, only three companies including Major, prepared and submitted responses to the bid package. No other company or individual, including the Petitioners submitted a bid response. Upon its review of the bid responses, SESI recommended to NY A to award the bid to Major. NYA agreed with SESI' s recommendation and on May , awarded the project and authorized SESI to enter a contract with Major. On August 2, 2005, SESI ""W_.. n

4 entered into a contract with Major for Major s perfonnance of the upgrade work at the 240 building. SESI never entered into a contract of any kind with the Petitioners for any goods or services, including any goods or services related to SESI's work for NY A. After being awarded the Contract, Major submitted MID' s boilers and burners for approval by NYA as an equal to the Easco s boilers and Gordon Piatt' s burners. Specifically, MJD was intending to supply Rockmils MP series boilers and Webster JB3C burners. Upon completing its review, NYP A forwarded to Major a list of "comments which they believed outlined items in which MID' s boilers and burners did not satisfy the requirements of the plans and specifications. Major then forwarded said list to MJD. Apparently, unlike the Easco/Gordon Piatt boilerlburner combination which was UL-approved, Major s proposed alternate boilerlburner combination had not been tested by UL as a unit, and thus was not listed under UL 2106, the applicable regulation. On August , NYPA issued a detennination rejecting MJD' s boilers and burers on the ba.sis thafthe "Rocknils MPseries boiler (WasJnot listed-tideful2106 n Ihan attempt to rectify the problem, NYP A provided SESI with the names of thee boiler manufactuers whose equipment was UL listed. SESI passed those names along to Major. Major, through Petitioners, submitted a second proposed choice ofboilerlburner equipment to SESI which again was not the standard tye identified in the specifications; namely, it was composed of a Best boiler and a Webster JB3C burer. However, this combination also was not listed under UL By letter dated September , SESI again infonned Major that NYA had rejected Major s proposed second choice of the Best/Webster combination because of the UL-listing problem. Following the rejection of Major s second proposed boilerlburner combination Petitioners refused or otherwise failed to supply boilerlburner equipment which met the specifications for the project at the 240 building. Ultimately, the $2. 8 milion Contract was awarded Major who subsequent to both rejections, obtained UL-listed boilerlburner combinations which met the specifications from another supplier (not the Petitioners). mm.

5 Apparently as of Januar , the boilers and burers for the project in this case have already been installed. Upon the instant proceeding, petitioners, MID Combustion Sales, Inc. and Rahamim Bazini seek a judgment inter alia declaring that the determinations by NY A and Nassau County, rejecting MID' s boilers and burers and holding that MJD' s boilers and burners could not be utilzed on the public works project, are in violation of a duty enjoined on Nassau County and NYP A by law, and are in violation oflawful procedure and are arbitrar, capricious, uneasonable, and an abuse of discretion. Petitioners submit that Nassau and NYP A' s determinations were arbitrar and capricious, in violation of Nassau and NYA' s duties to provide the people of the State of New York and the County of Nassau with the best and least expensive equipment and an unreasonable abuse of Nassau and NYA' s discretion due to the fact that in direct violation of the General Municipal Law 9103, Nassau and NYPA created a specification scheme and engaged in further conduct to ensure that only entity (Easco) would be able to supply boilers to the Project. Thus, petitioners argue, not only should Nassau and NYA' s determinations be vacated, but the contracts containing the improper plans and specifications should be declared ilegal and null and void and Easco and Major should be required to return all sums paid to them for boilers and burners in connection with the Project. In opposition to the petition, each respondent, by separate affidavits, asserts inter alia that the proceeding is entirely insufficient as the petitioner MID lacks the requisite standing, both as a bidder and as a taxpayer. Moreover, respondents argue that the relief requested, specifically, "directing Nassau and NY A to remove any boilers and burners installed at the Project in the event boilers and burners have already been installed" would require the Respondents to destroy via demolition the new boilers that have already been installed. This Cour herewith finds that a proceeding in the nature of mandamus, does not lie in this case where the petitioner had no direct stake in the outcome of the bidding process; the petitioners do not claim that Nassau County or NYP A "failed to perform a duty enjoined upon it by law" (CPLR 7803(1)) where, for example, there is no allegation.._'_..m

6 that either Nassau County or NYP A violated the competitive bidding statutes. In fact, this Court is also persuaded by NYPA' s argument that " (they) know of no reason why petitioners, suppliers not manufacturers, could not supply the specified standard boilerlburners, or those later identified as accepted equals (see NYP A Affdavit in Opposition 54). This Court agrees. First and foremost, this Court notes at the outset that the company through which petitioners attempted to supply certain boilers and burners for the project was, in fact ultimately awarded the Contract. Thus, petitioners, bring this proceeding merely as potential suppliers of a bidder who was ultimately successful in installng the boilers and burers for the Project. A part does not have standing to contest an administrative determination unless he or she has in fact been injured by the decision (see Transactive Corporation York State Department of Social Services, et. ai. 92 NY2d 579 (1998); State Law Enforcement Offcers v. New see also New York v. New York State Offce of Mental Health, 175 Misc. 2d 663 (Sup. Ct. 1998)). Moreover, to confer stahding, the injury must fall within the " zone of interests" that the pertinent statute aims to protect or promote and it must be different in degree or kind from that suffered by the general public The two prong standing test of Transactive (see id.). is clearly not met in this case. As to the "zone of interests " prong ofthe Transactive test, first, although the General Municipal Law was intended to ensure competitive bidding in order to obtain the best work or supplies at the lowest possible price, in this case, there is simply no evidence that NYP A avoided its obligations under the General Municipal Law 1 03 to have free competition with respect to boilers and burers by purchasing the boilers and burners that were listed under UL 2106, the applicable safety regulation. Moreover, petitioners' claim that NY A violated the GML is completely meritless in the first instance in that NYP A, as a public authority independent of the state, is not subject to the competitive bidding requirements of GML 1 03 (see Lancaster Development, Inc. v. Power Authority of State of New York 145 AD2d 806 (3 n m

7 to bring this proceeding (see id.). As potential equipment suppliers, petitioners object to a bidding process in the absence of any complaints by the actual bidders. Clearly, petitioners do not have standing to pursue an Aricle 78 petition challenging the contract award. The proceeding is herewith dismissed. Dated: June 29, 2006 ENTER: ENTEREO SE? NASS caun"f U COUNTY U=. RK' S OFFiCE