Decision No. 12,931

(May 14, 1993

Fusco, Carlin & Spizzirro, Esqs., attorneys for petitioner, Louis M. Spizzirro, Esq., of counsel

Plunkett & Jaffe, P.C., attorneys for respondent Mt. Pleasant Central School District, Kevin J. Plunkett, Esq., of counsel

Shamberg, Marwell, Cherneff, Hocherman, Davis & Hollis, P.C., attorneys for Citywide Transit, Inc., amicuscuriae, Robert F. Davis, Esq., of counsel

SOBOL, Commissioner.--Petitioner S. D. Transportation, Ltd. appeals from an action of the Board of Education of the Mt. Pleasant Central School District, which rejected its bid along with all other bids for a transportation contract, and subsequently entered into a renewal contract with respondent White Plains-Pleasantville Bus Line, Inc. Petitioner requests that the board's rejection of all bids be annulled and that the contract be awarded to it, or, in the alternative, that bidding be reopened. The appeal must be dismissed.

Respondent White Plains-Pleasantville Bus Line, Inc., which has not appeared in this appeal, has provided transportation services to respondent district since 1989. The contract between the respondents, as previously extended, was due to expire at the end of June 1992. On or about April 17, 1992, respondent board published a notice to bidders for transportation services for the 1992-1993 school year. The legal notice also invited alternative bids for a three-year or five-year contract.

Four bids were received prior to the May 4, 1992 deadline. Respondent White Plains-Pleasantville submitted the highest bid for a single year contract in the amount of $595,000. Petitioner submitted a single year bid in the amount of $587,300, Bronco Bus Corp. bid $542,500, and Citywide Transit, Inc. submitted a single year bid in the amount of $517,922.30.

Respondent board met on May 13, 1992 and unanimously rejected all bids. By letter dated June 3, 1992, the superintendent of schools advised petitioner that all bids had been rejected and returned its bid bond. On June 10, 1992, the board unanimously extended the existing transportation contract between it and White Plains-Pleasantville for the 1992-1993 school year. This appeal was commenced June 29, 1992. During the pendency of the appeal, Citywide Transit, Inc. was granted status as amicuscuriae and granted permission to file a brief herein.

Also during the pendency of this appeal, Citywide Transit, Inc. commenced a special proceeding pursuant to Article 78 of the Civil Practice Law and Rules against respondent school district and White Plains-Pleasantville in Supreme Court, Westchester County. That court rendered a decision and judgment on February 3, 1993. According to the decision and judgment, Citywide sought for itself relief similar in scope to the relief sought by petitioner in this appeal. Supreme Court vacated and annulled the board's rejection of all bids on May 13, 1992, remanded the matter to the board for further action consistent with its decision with respect to the four bids and directed the board to take further action no later than March 15, 1993.

I have been provided with a copy of a letter dated March 16, 1993, from petitioner's attorney to respondent board's attorney, indicating that the board of education met on March 10, 1993.

The subject matter of this appeal has been rendered moot by the decision and order of Supreme Court, Westchester County on February 3, 1993. It is well settled that the Commissioner will determine only matters that are in actual controversy and will not render a determination upon a matter which subsequent events have laid to rest (Appeal of Impellizzeri and Petrides, 32 Ed Dept Rep 26; Appeal of DiMilia, 30 id. 391; Appeal of Sileo, 28 id. 313; Appeal of Huggins, 28 id. 173). By annulling and vacating the action originally taken by the board on May 13, 1992, Supreme Court in large measure granted the relief sought here, although petitioner in this appeal was not a party to the Article 78 proceeding. If petitioner continues to be aggrieved by some action of the board, it is the action taken by the board on March 10, 1993, not the board's original action.

THE APPEAL IS DISMISSED.

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