By JODI SOKOLOWSKI
Buffalo Law Journal

A small Depew apparel supplier is claiming that the Buffalo City School District was influenced in accepting a bid for athletic uniforms because of a "pay-to-play" condition in the contract.

"It's totally contradictory to all known bidding regulations, case law and (request for proposal) requirements within the history of the State of New York," said Chiacchia & Fleming LLP partner Andrew Fleming, attorney for Jim Ludtka Sporting Goods.

Ludtka Sporting Goods won a round in state Supreme Court in 2007, with Hon. John Michalek ruling that an agreement between the school district and AdPro Team Sports was void because of bidding procedures that were followed.

"Judge Michalek said it has to go back to competitive bidding," Fleming said. "He didn't really hesitate. He pulled the trigger."

However, the petition to appeal was recently dismissed by the Appellate Division, 4th Department, of state Supreme Court, allowing the district's contract with AdPro to remain in effect.

The dismissal on procedural grounds was based on AdPro's not being named as a respondent.

"We conclude that AdPro is a necessary party, inasmuch as there is no question that the relief sought, i.e. nullification of its contract with respondents, would inequitably affect its rights," the court wrote in its decision, entered Feb. 1.

Fleming said he didn't even get to argue his brief and plans to either re-file the petition, possibly adding AdPro as a party in the new filing, or take the case to the state's highest court.

"They did not get to the merits of our contention," Fleming said. "The Appellate Division made this unilateral call; we didn't see it coming."

The ruling means that the district is not required to re-bid the six-year athletic apparel contract with AdPro, which supplies sporting uniforms manufactured by Nike.

The school district received two bids, one from AdPro and another from Laux Sporting Goods, following its request for proposals, according to Gary Crosby, chief financial and operating officer. He said Jim Ludtka Sporting Goods, which held a non-bid agreement with the district for more than 10 years, did not submit a bid.

"The next thing we knew, they were crying foul," Crosby said.

AdPro president Ron Raccuia said Ludtka's case is "nonsense" and "pure sour grapes."

The RFP included language referring to an "exclusive rights compensation," Crosby said, that Fleming considers a "pay-to-play" provision. But Crosby said the voluntary donation to the Buffalo Public Schools Foundation that grants those exclusive rights is "anything that the vendor chooses to make it."

AdPro presented a $17,500 check, expected to be the first of six, months after the bid was accepted. Raccuia said the donation comes out of AdPro's pocket, while gifts of uniforms, clothing and equipment will come from Nike.

"If you throw the donation out and just compare what AdPro bid, AdPro won (the bid) hands down," he said. "The donation was just icing on the cake."

The accepted bid, which charges per uniform item, was "tens of thousands less" than what Ludtka Sporting Goods was charging the district over its long-term vendor relationship, Crosby said. He said once he and Schools Superintendent James Williams learned of the "cozy arrangement" between Ludtka and the district, the district instituted an RFP process.

Even though the contract is for six years, the district can review or cancel the contract every year.

"If the market changes and prices collapse on uniforms, we have the opportunity to bid it out again. We're not locked in. This deal is bulletproof," Crosby said.

Raccuia said he's not concerned that his company could lose the contract.

"We sell them the No. 1 brand in the world, save them 30 to 40 percent and provide them with tremendous service," he said.

While Fleming continues to claim a pay-to-play preference, Crosby said the change in RFP is in the best interest of the students, district and taxpayers.

"We're not here to provide vendors with lucrative deals," he said.