Varsity Transit, Inc. v. Saporita

—Appeal by Varsity Transit, Inc., from so much of an order of the Supreme Court, Kings County, dated February 27, 1979, as (1) dismissed its complaint with respect to the defendant board of education pursuant to CPLR 3211 (subd [a], par 7) for failure to state a cause of action, and (2) denied its motion for a preliminary injunction enjoining the defendant board from soliciting and opening bids on certain contracts. Order affirmed insofar as appealed from, with $50 costs and disbursements to respondent. In our opinion, Special Term correctly dismissed the complaint for failure to state a cause of action against the defendant board. We find no illegality in the bid specifications offered by the board and attacked by Varsity in the instant case. While certain labor provisions in the new proposals concerning wage rates and pension benefits, among other things, depart from the provisions which had prevailed in the plaintiffs’ prior school bus contracts with the board, such modifications fall clearly within the board’s statutory mandate to promote "the best interests of the district” and to "seek, obtain and consider new proposals” concerning contracts for the transportation of school children (Education Law, § 305, subd 14, par a). In view of the board’s clear authority and legal duty to modify its bid specifications as required by the public interest, there could be no implicit representation in the board’s adoption in the past of certain labor practices that such practices would necessarily survive in future contract proposals. Hence, plaintiffs could not, by entering into prior contracts with the board, place legal reliance upon any such representation, and the argument that the board is now estopped from changing the labor provisions is without merit. The instant complaint of Varsity amounts to an invitation to the court to review the merits of the board’s administrative decision to alter its contract proposal. In the absence of any legal justification for doing so, such an invitation must be declined. Similarly, we find no 644 merit in the contention that the bid specifications worked an illegal discrimination against Varsity. The instant contract proposals are reasonably designed to effectuate the board’s duty under the Education Law (§ 305, subd 14) to conduct bidding for school transportation contracts on a competitive basis. The specifications do not limit the possibility of success to a single bidder without reference to the public interest; conversely, they do not make it impossible for Varsity to prevail in the bidding, since Varsity has in fact been awarded those contracts on which it has submitted the lowest responsible bid (see Gerzof v Sweeney, 16 NY2d 206, 211; cf. Edenwald Contr. Co. v City of New York, 86 Misc 2d 711, affd 47 AD2d 610; American La France & Foamite Corp. v City of New York, 156 Misc 2, affd 246 App Div 699). While the new specifications may have the effect of altering Varsity’s over-all chances of success, this flows from the nature of competitive bidding, not from invidious discrimination against Varsity on the part of the board. Finally, there is no merit in Varsity’s contention that the board’s contract proposals violate the "prevailing wage” provisions of section 220 of the Labor Law and section 17 of article I of the New York State Constitution. It is hornbook law that the Labor Law provision applies only to workers involved in the construction, replacement, maintenance and repair of "public works” in a legally restricted sense of that term (Matter of Pinkwater v Joseph, 300 NY 729); the school bus drivers and matrons who are the subject of the instant contract proposals do not fall within the class of employees covered by the law (see, also, Matter of Golden v Joseph, 307 NY 62; Matter of Miele v Joseph, 305 NY 667). Furthermore, section 17 of article I of the State Constitution extends the protection of section 220 of the Labor Law to contractors and subcontractors engaged in "public works”, but was not intended to broaden the definition of "public works”. We have considered the appellant’s remaining contentions and find them to be without merit. Mollen, P. J., O’Connor and Martuscello, JJ., concur.