Opinion
No. 206.
Argued November 18, 2008.
Decided December 16, 2008.
APPEAL, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered June 5, 2007. The Appellate Division order, insofar as appealed from, modified, on the law, a judgment of the Supreme Court, Nassau County (Roy S. Mahon, J.; op 2006 NY Slip Op 52683[U]), entered in a proceeding pursuant to CPLR article 78, which had denied the petition to annul a resolution of respondent Town Board of the Town of Oyster Bay authorizing respondent Town of Oyster Bay to enter into a contract with respondent recycling company. The modification consisted of deleting the provision of the judgment denying that branch of the petition which was to annul the resolution, substituting therefor a provision granting that branch of the petition, and annulling the resolution and the contract between the Town and respondent recycling company.
Matter of Omni Recycling of Westbury, Inc. v Town of Oyster Bay, 41 AD3d 482, reversed.
Giaimo Associates, LLP, Kew Gardens ( Joseph O. Giaimo of counsel), for Giove Company, Inc., appellant.
Gregory J. Giammalvo, Town Attorney, Oyster Bay ( Frank M. Scalera of counsel), for Town of Oyster Bay and another, appellants.
Anthony E. Core, P.C., Westbury ( Anthony E. Core and Jacqueline Caputo of counsel), for respondent.
Michael E. Kenneally, Jr., Albany, for Association of Towns of the State of New York, amicus curiae.
Before: Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES.
OPINION OF THE COURT
The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the petition denied in the entirety.
It has long been recognized that public work contracts that require the exercise of specialized or technical skills, expertise or knowledge are not subject to the sealed, competitive bidding requirements under General Municipal Law § 103 ( see e.g. People v Flagg, 17 NY 584) and may instead be awarded using the request for proposals (RFP) process set forth in General Municipal Law § 104-b. In May 2004, respondent Town of Oyster Bay passed a resolution authorizing the use of section 104-b procedures for the procurement of goods and services not subject to competitive bidding, and the Town's Department of Public Works issued an RFP for "Services for the Recycling of Newspaper, Mixed Paper and Corrugated Cardboard" and "Services for the Recycling of Commingled Glass, Ferrous and NonFerrous Metal and Rigid Plastic Containers." Proposals were solicited from nine companies, which were eventually narrowed to petitioner Omni Recycling of Westbury, Inc. and respondent Giove Company. The Town obtained independent review of the two submissions by a consultant, conducted a public hearing and awarded the contract to Giove.
General Municipal Law § 103 (1) provides, in part, that "[e]xcept as otherwise expressly provided by an act of the legislature or by a local law adopted prior to September first, nineteen hundred fifty-three, all contracts for public work involving an expenditure of more than twenty thousand dollars and all purchase contracts involving an expenditure of more than ten thousand dollars, shall be awarded . . . to the lowest responsible bidder furnishing the required security after advertisement for sealed bids in the manner provided by this section."
Omni then initiated this proceeding, arguing that the Town should have used the competitive bidding process under section 103. We conclude, however, that based on the description of the particular services to be rendered in the RFP, this recycling contract fell within the special skills exception to the "lowest responsible bidder" requirement of section 103 (1) and therefore was properly awarded using an RFP process consistent with the section 104-b procedures adopted by the Town.
In memorandum.
Order, insofar as appealed from, reversed, etc.