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Chapter II - Subchapter A

§ 2-06 Determination

Vendor of congregate services for the elderly failed to establish that agency’s denial of its prequalified status due to a prior poor evaluation was arbitrary or capricious. An agency may consider past performance in making its pre-qualification decision. Moreover, vendor’s actions taken after its prequalified status was denied, however laudable, do not diminish the reasoning of the denial decision itself. Council of Belmont Organization, Inc. v. Dep’t for the Aging, OATH Index No. 1163/12, mem. dec. (Mar. 14, 2012).

Vendor’s prior poor performance is sufficient for agency to deny prequalification status. ALJ denied vendor’s argument that the negative evaluation should be disregarded because it did not have sufficient time to address the deficiencies. The applicable rules do not indicate that remedial measures will change the evaluation or that vendors will be allotted time to cure performance deficiencies before the evaluation is finalized and considered for other contracts. Jewish Ass’n for Services for the Aged v. Dep’t for the Aging, OATH Index No. 2413/11, mem. dec. (June 24, 2011).

Agency’s denial of application to prequalify as a vendor of senior congregate services based on prior poor performance was not arbitrary or capricious. ALJ did not credit vendor’s argument that it should have had 90 days from receipt of a letter from agency to address the deficiencies before the negative evaluation was entered. Further, because nothing in the applicable rules prescribed the manner in which an evaluation should be sent to a vendor provided it is in writing, ALJ found nothing inappropriate about the remittance of the evaluation by e-mail. Sunnyside Community Services, Inc. v. Dep’t for the Aging, OATH Index No. 2352/11, mem. dec. (June 16, 2011).

Asbestos contractor, appealing revocation of its prequalified vendor status to the Office of Administrative Trials and Hearings failed to demonstrate that the agency's actions were arbitrary or capricious, where it was undisputed that petitioner contracted with a consultant who was under criminal investigation for his involvement as a subcontractor at the Deutsche Bank building, where a fire occurred, killing two firefighters. Gramercy Group, Inc. v. Dep't of Housing Preservation & Development, OATH Index No. 637/09, mem. dec. (Nov. 12, 2008).

Based on the admittedly inaccurate answers provided on the VENDEX questionnaire, ALJ concluded that agency had a rational basis to revoke petitioner’s prequalified vendor status on the basis of concerns about vendor’s honesty and integrity. Mazzocchi Wrecking, Inc. v. Dep't of Housing Preservation & Development, OATH Index No. 1296/06, mem. dec. (May 8, 2006), aff’d, Index No. 11064/06 (Sup. Ct. N.Y. Co. Apr. 27, 2007).

It was not arbitrary or capricious for agency to revoke prequalified status for petitioner, which admittedly submitted falsified electrical permits. The company president’s lack of knowledge concerning that wrongdoing did not change the ALJ’s analysis. Norway Electric Corp. v. Dep’t of Housing Preservation & Development, OATH Index No. 203/06, mem. dec. (Nov. 28, 2005).

Where vendor made contradictory sworn statements about its relationship to a firm, ALJ concluded that agency’s revocation of vendor’s prequalified vendor status was reasonable and rational based on concerns about vendor’s truthfulness and integrity. Kapadia v. Office of the Comptroller, OATH Index No. 788/04, mem. dec. (Jan. 5, 2004).

Where administrative law judge affirms the agency's findings regarding its factual basis for revoking vendor's pre-qualified status, administrative law judge retains discretion of decide if the penalty of revocation was inappropriate or was arbitrary or capricious. Administrative law judge found that such penalty review is limited to the arbitrary and capricious standard, which is met if there is a rational basis for the administrative action. Administrative law judge found a rational basis for revocation here based upon the vendor's false answers to questions on the VENDEX questionnaire. Leroy Brookes d/b/a Brookes Plumbing & Heating v. Dep't of Housing Preservation & Development, OATH Index No. 1275/00 (Apr. 5, 2000).