        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

968
CA 14-00264
PRESENT: SMITH, J.P., FAHEY, LINDLEY, VALENTINO, AND DEJOSEPH, JJ.


IN THE MATTER OF M.L. CACCAMISE ELECTRIC CORP.,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

CITY OF ROCHESTER AND POWER & CONSTRUCTION
GROUP, INC., RESPONDENTS-RESPONDENTS.


ERNSTROM & DRESTE, LLP, ROCHESTER (JOHN W. DRESTE OF COUNSEL), FOR
PETITIONER-APPELLANT.

T. ANDREW BROWN, CORPORATION COUNSEL, ROCHESTER (JOHANNA BRENNAN OF
COUNSEL), FOR RESPONDENT-RESPONDENT CITY OF ROCHESTER.

BOND, SCHOENECK & KING, PLLC, ROCHESTER (KARL S. ESSLER OF COUNSEL),
FOR RESPONDENT-RESPONDENT POWER & CONSTRUCTION GROUP, INC.

COUCH WHITE, LLP, ALBANY (JOEL M. HOWARD, III, OF COUNSEL), FOR
ASSOCIATED GENERAL CONTRACTORS OF NEW YORK STATE, LLC, AMICUS CURIAE.


     Appeal from a judgment (denominated order and judgment) of the
Supreme Court, Monroe County (Matthew A. Rosenbaum, J.), entered
January 13, 2014 in a CPLR article 78 proceeding. The judgment denied
the petition and vacated a temporary restraining order.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioner, an electrical contractor, submitted the
low bid for a street lighting project, which required that certain
lights owned by respondent City of Rochester (City) be separated and
isolated from the Rochester Gas & Electric (RG&E) electrical and
distribution system. After the City rejected petitioner’s bid and
awarded the contract to respondent Power & Construction Group, Inc.
(Power), petitioner commenced this CPLR article 78 proceeding seeking
a judgment “[a]nnulling . . . the award” of the contract to Power, and
“[d]irecting the award” of the contract to petitioner “as the lowest
responsive and responsible bidder.” Supreme Court properly denied the
petition.

     Contrary to petitioner’s contention, the City’s rejection of
petitioner’s bid was not affected by an error of law, and was not
arbitrary and capricious, or an abuse of discretion. Section 2.1.1 of
the City’s invitation to bid provided that the City’s intent was “[t]o
                                 -2-                           968
                                                         CA 14-00264

obtain the services of an [RG&E] approved electrical utility
contractor with the necessary expertise to isolate/separate the
specified City owned Street Lighting facilities from the [RG&E]
distribution network as directed by the City.” Given the unique
nature of the project—notably, the existence of an agreement between
the City and RG&E, and the fact that any contractor who was hired for
the project would be working on private RG&E property, facilities, and
equipment—we conclude that the court properly determined that section
2.1.1 included a valid precondition that did not impede competition
and that had a rational relationship to obtaining the best work at the
lowest price (see Matter of P & C Giampilis Constr. Corp. v Diamond,
210 AD2d 64, 65-66; see also Le Cesse Bros. Contr. v Town Bd. of
Williamson, 62 AD2d 28, 31, affd 46 NY2d 960; Matter of B. Milligan
Contr. v State of New York, 251 AD2d 1084, 1084). In addition, the
record is clear that petitioner’s bid was “non-responsive to the
specific requirements set forth in [section 2.1.1]” inasmuch as
petitioner was not on RG&E’s list of approved contractors and did not
have the requisite training and experience to work with RG&E’s
distribution network (P & C Giampilis Constr. Corp., 210 AD2d at 65).

     We reject petitioner’s further contention that the City’s use of
RG&E’s list of approved contractors was essentially a pretext for the
City to avoid its purported obligations under General Municipal Law §
103 (15) to consider certain factors in compiling a list of “qualified
bidders.” The City did not maintain a list of “qualified bidders,” as
that term is used in the statute, for its public works projects, and
was under no obligation to do so (id.).




Entered:   October 3, 2014                      Frances E. Cafarell
                                                Clerk of the Court
