The New York City Procurement Policy Board Rules (“PPB Rules”) provides precious little in the way of guidance with respect to matters related to the approval of subcontractors by NYC agencies. There is no process for the review or appeal from an adverse determination by an agency rejecting a subcontractor’s request for approval (Request for Approval Subcontractor or “RFAS”).

This often leads to subcontractors attempting to resolve any adverse issues related to their RFAS by communication with the agency, usually through the prime contractor involved in submitting the RFAS and/or the Agency Chief Contracting Officer (“ACCO”). In these circumstances, what is a “rejected” subcontractor left with to do in the event these “informal” efforts at resolution are unsuccessful or are simply ignored by the agency? In a recent matter we handled on behalf of a rejected subcontractor, the subcontractor was left with no alternative but to turn to the courts for relief via an Article 78 proceeding. Typically, an Article 78 proceeding to judicially appeal an agency’s actions is viewed as a last resort due primarily to the limited basis for judicial review it provides and the extremely high burden of proof it demands.