                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 29, 2015                    518916
________________________________

In the Matter of JOHNSON
   ELECTRICAL CONSTRUCTION
   CORPORATION et al.,
                    Appellants,
      v                                      MEMORANDUM AND ORDER

NEW YORK STATE DEPARTMENT OF
   TRANSPORTATION et al.,
                    Respondents.
________________________________


Calendar Date:    November 19, 2014

Before:    Lahtinen, J.P., Garry, Rose and Devine, JJ.

                              __________


      Peckar & Abramson, PC, New York City (Paul G. Monte of
counsel) and Murtagh Cohen & Byrne, Rockville Centre (Edward T.
Byrne of counsel), for appellants.

      Eric T. Schneiderman, Attorney General, Albany (Owen Demuth
of counsel), for New York State Department of Transportation,
respondent.

      Pinks, Arbeit & Nemeth, Hauppauge (Robert S. Arbeit of
counsel), for Hinck Electrical Contractors, Inc., respondent.

                              __________


Rose, J.

      Appeal from a judgment of the Supreme Court (Connolly, J.),
entered January 6, 2014 in Albany County, which dismissed
petitioners' application, in a proceeding pursuant to CPLR
article 78, to review two determinations of respondent Department
of Transportation denying petitioners' objections to the awarding
of certain contracts to respondent Hinck Electrical Contractor,
                              -2-                518916

Inc.

      Respondent Department of Transportation (hereinafter DOT)
issued an invitation for bids (hereinafter IFB) for the
maintenance of two computerized traffic management system
projects. In response to the IFB, petitioner Johnson Electrical
Construction Corporation, petitioner Welsbach Electrical
Corporation of L.I. and respondent Hinck Electrical Contractor,
Inc. each submitted bids. Upon learning that Hinck was the
apparent low bidder for both projects, petitioners each filed
formal objections with DOT, claiming, among other things, that
Hinck's bid should be rejected because it lacked key personnel on
its staff meeting the qualifications and requirements of the IFB
and could not obtain them without poaching petitioners'
employees. DOT denied the objections, and the determinations
were upheld upon administrative appeal. Petitioners then
commenced this CPLR article 78 proceeding seeking to enjoin DOT
from entering into a contract with Hinck for the subject
projects, reverse the administrative determinations and award the
contracts to petitioners. Supreme Court found, among other
things, that petitioners failed to demonstrate that the IFB
requires a bidder's proposed staffing plan to consist of current
employees, and dismissed the petition. This appeal ensued.

      The only issue properly before us is petitioners'
contention that Hinck failed to meet the IFB requirements to the
extent that, at the time it submitted its staffing plan to DOT,
it did not yet employ the specialized and certified field crew
described in the redacted resumes included with the plan. In
reviewing an administrative determination, we will not substitute
our own judgment for that of the administrative agency, but must
instead determine "whether it is erroneous or arbitrary and
capricious and, thus, without a rational basis" (Matter of
Eastern Niagara Project Power Alliance v New York State Dept. of
Envtl. Conservation, 42 AD3d 857, 861 [2007] [internal quotation
marks and citation omitted]; see Matter of Allen Group [Allen
Testproducts Div.] v Adduci, 123 AD2d 91, 95 [1987], lv denied 69
NY2d 610 [1987]). The burden of proof in this regard rests with
petitioners (see Matter of Global Tel*Link v State of N.Y. Dept.
of Correctional Servs., 70 AD3d 1157, 1158 [2010]; Matter of
Interstate Indus. Corp. v Murphy, 1 AD3d 751, 752 [2003]). Here,
                              -3-                  518916

a review of the IFB reveals no requirement that the proposed key
personnel be current employees of the low bidder at the time the
staffing plan is submitted. Nor has DOT had such a requirement
in the past, according to its Director of Purchasing. We must,
therefore, agree with Supreme Court that petitioners failed to
satisfy their burden of establishing that DOT's interpretation of
the IFB was irrational or unreasonable.

      Although petitioners raise additional challenges to the
validity of Hinck's bid and the propriety of DOT's acceptance
thereof, these issues are either raised for the first time on
appeal or in a reply affidavit and not in the petition itself.
Accordingly, such issues are not properly before us and we
decline to consider them (see Matter of LaBarbera v Town of
Woodstock, 55 AD3d 1093, 1094 [2008]; Matter of University Hgts.
Nursing Home v Chassin, 245 AD2d 776, 778-779 [1997]).

     Lahtinen, J.P., Garry and Devine, JJ., concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
