IN RE BID SOLICITATION 11-X-21175, SNOW REMOVAL AND SALTING SERVICES STATEWIDE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2583-10T1

IN RE BID SOLICITATION

#11-X-21175, SNOW REMOVAL

AND SALTING SERVICES

STATEWIDE.

____________________________

December 18, 2012

Submitted October 3, 2011 - Decided

Before Judges A. A. Rodr guez and Fasciale.

On appeal from the Division of Purchase and Property, Department of Treasury.

Roselli Griegel Lozier & Lazzaro, PC, attorneys for appellant Central Jersey Landscaping, Inc. (Grant C. Wright, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent Division of Purchase and Property (Melissa H. Raksa, Assistant Attorney General, of counsel; Melissa A. Haas, Deputy Attorney General, on the brief).

PER CURIAM

Central Jersey Landscaping, Inc. (Central) appeals from a December 17, 2010 final decision of the Division of Purchase and Property (DPP) rejecting its bid protest and awarding a bid to Garden State Sealing (GSS). We affirm.

In August 2010, DPP issued a request for proposals (RFP) for a three-year contract for statewide snow removal and salting services throughout New Jersey. Central and GSS, both of which have performed services pursuant to prior state contracts, submitted bids for the same location.1 On November 3, 2010, Central submitted its bid along with a source disclosure form and, after responding to the DPP's invitation to submit a best and final offer (BAFO), lowered its final bid price to $69,390. On November 4, 2010, GSS submitted its bid, which totaled $69,025 $365 less than Central's bid. GSS did not include a source disclosure form in its bid.

On December 2, 2010, the DPP's Purchase Bureau recommended to the DPP's acting director that the DPP award GSS the price line 00005 contract. The Purchase Bureau noted that "Central . . . submitted a responsive bid which is not considered to be the lowest cost" and further, that "[GSS] is considered to be the lowest cost, responsive, responsible bidder." On December 9, 2010, GSS submitted its source disclosure form. On December 13, 2010, Central filed a notice of bid protest with the acting director, contending that GSS's bid was nonconforming for not having included the source disclosure form, and that the Purchase Bureau did not consider the appropriate bid evaluation criteria.

On December 17, 2010, the acting director issued its final agency decision denying Central's bid protest. The director stated:

With respect to [Central's argument regarding nonconformity], RFP Section 4.4.2.3, Services Source Disclosure Form, as referenced in your protest, is one of several subsections within the RFP under RFP Section 4.4.2 setting forth certain specific standard forms of the RFP "required before contract award and that should be submitted with the bid proposal[,]"[] including . . . the Services Source Disclosure Form. RFP Section 2.1, General Definitions, expressly defines "should" as "denot[ing] that which is recommended, not mandatory. . . ." The Services Source Disclosure Form is not a mandatory submission item, such that the failure to include this form within the bid proposal is not a basis to characterize [GSS's] bid proposal non-responsive.

I note that in contradiction with RFP Section 4.4.2 setting forth certain specific standard forms of the RFP "required before contract award . . .," RFP [s]ubsection 4.4.2.3 stated:

Pursuant to N.J.S.A. 52:34-13.2, the bidder is required to submit with its bid proposal a completed source disclosure form. Refer to RFP Section 7.1.2 for further explanatory information concerning this requirement.

The apparent contradiction was resolved, however, to the extent that RFP Section 7.1.2 . . . [s]ubsection 7.1.2.2. stated:

Pursuant to the statutory requirements, the intended awardee of a contract primarily for services with the State of New Jersey must disclose the location by country where services under the contract, including subcontracted services, will be performed. The Source Disclosure Certification form accompanies this RFP.

Failure to submit sourcing information when requested by the State shall preclude award of a contract to the bidder.

Inasmuch as the "intended awardee" is known only after bid proposals have been received and the evaluation completed, the clear meaning of the RFP was not to establish the submission of the Services Source Disclosure Form as a mandatory submission requirement at bidding . . . .

Moreover, RFP [s]ubsection 7.1.2.2 clearly provides that following the identification of the "intended awardee[,]" the State[,] through the Purchase Bureau[,] shall initiate a request for the Services Source Disclosure Form. The failure of an "intended awardee" to successfully respond "shall preclude award of a contract to the bidder." In the case at point, however, following the Purchase Bureau's disclosure of its intent to award price line 00005, [GSS] . . . submitted the completed . . . Source Disclosure Form affirming, as expected, its intent to comply with the underlying statute [N.J.S.A. 52:34-13.2] . . . .

With respect to [Central's second argument, which] take[s] the position that the Purchase Bureau's recommendation that [GSS] receive the award . . . took into account only price, failing to consider all of the criteria . . . as specified within the RFP. . . . [T]he statutes governing public bidding administered by the Division mandate that contracts shall be awarded taking into account "price and other factors. . . ." RFP Section 6.4.1, Bid Evaluation Criteria, specified the following criteria as the basis for determining the bid proposal "most advantageous to the State."

a. Price

b. Experience of the bidder

c. The bidder's documented experience in successfully completing contracts of a similar size and scope to the work required by this RFP.

d. The bidder's past performance under similar contracts, including if applicable, the Division's vendor performance Database.

e. Bidder's ability to meet the equipment requirements for the specified groupings and locations.

f. Evaluation model based on several predetermined tasks, straight time, premium time/holiday rates, stand-by rates, supervisor hourly rates[,] and equipment rates per operating hour. This evaluation model will be made available only after the Notice of Intent to Award has been issued and not prior to that time.

[The] bid . . . was evaluated by the Purchase Bureau through its buyer of record.

[Central's] assertion that the Purchase Bureau considered only price, ignoring experience and past performance is incorrect. Having considered the experience and past performance of GSS and Central . . ., concluding that both are capable of successful performance and finding little basis to draw a meaningful distinction between these two bidders, price became the basis to identify the bid proposal most advantageous to the State. . . . [I]n Commercial Clean Corp. v. Sullivan, 47 N.J. 539, 548 (1966)[,] the [New Jersey] Supreme Court . . . affirmed that "the legislature established much more flexible standards as a guide for the Director's decision to award a contract to a particular bidder whether or not he is the low bidder . . . ."

Inasmuch as [GSS] is the most favorably priced bidder for price line 00005, I conclude that the recommendation to award this price line to [GSS] is reasonable, appropriate[,] and in conformance with the Division's statutory standard for contract award and relevant case law. . . . [T]he Purchase Bureau is authorized to proceed with the award of the contract for price line 00005 to [GSS].

[(Emphasis added).]

On appeal, Central argues that the DPP erred by (1) awarding GSS the bid despite its nonconformance for failing to include the source disclosure form; and (2) failing to consider all relevant criteria in evaluating the bid proposals. Central maintains that the deviation from procedure was material.

I.

"Public bidding statutes exist for the benefit of taxpayers, not bidders, and should be construed with sole reference to the public good." Nat'l Waste Recycling, Inc. v. Middlesex Cnty. Improvement Auth., 150 N.J. 209, 220 (1997). "Our jurisprudence recognizes that the Legislature purposefully conferred broad discretion on the Director of the [DPP] to determine 'which bid will be most advantageous to the State.'" In re Jasper Seating Co., 406 N.J. Super. 213, 222 (App. Div. 2009) (quoting Sullivan, supra, 47 N.J. at 548). "[T]he Director's determinations 'as to . . . bid conformity are to be tested by the ordinary standards governing administrative action.'" Ibid. (quoting In re On-Line Games Contract, 279 N.J. Super. 566, 593 (App. Div. 1995) (stating that "[c]ourts can intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy")). Despite this "elevated scrutiny, 'judicial capacity to review administrative actions is severely limited.'" Id. at 223 (quoting George Harms Constr. Co. v. Tpk. Auth., 137 N.J. 8, 27 (1994)).

In reviewing a bid conformity determination, we consider four inquiries:

(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Ibid. (quoting George Harms Constr. Co., supra, 137 N.J. at 27).]

In determining whether the "agency's decision as to bid conformity is congruent with the legislative policies underlying our public bidding laws," the "preliminary inquiry is whether the bid deviates from the RFP." On-Line Games, supra, 279 N.J. Super. at 594. "If there is no deviation," the bid is deemed conforming. Ibid.

Here, we agree with the acting director's determination that GSS submitted a conforming bid. RFP Section 4.4.2, "Forms Required Before Contract Award and that Should be Submitted with the Bid Proposal," includes the source disclosure form. (Emphasis added). RFP defines "should" as "that which is recommended, not mandatory." We also reject Central's argument that GSS's bid deviated from RFP Section 4.4.2.3, which states that "[p]ursuant to N.J.S.A. 52:34-13.2, the bidder is required to submit with its bid proposal a completed source disclosure form. Refer to RFP Section 7.1.2 for further explanatory information concerning this requirement." (Emphasis added). Section 7.1.2.2 states, in part, that "[p]ursuant to the statutory requirements, the intended awardee of a contract" must file a source disclosure form "when requested by the state." (Emphasis added). The language does not refer to contract bidders.

Moreover, N.J.S.A. 52:34-13.2 does not expressly require the submission of a source disclosure form when submitting a bid. Additionally, the Acting Director's interpretation of the RFP does not contradict N.J.A.C. 12A:4-9.1(a)(6), as that regulation states only that the Commission "may reject bids which fail to conform with the requirements of the bid request." (Emphasis added). We conclude that the acting director's decision does not offend the state and/or federal constitution; does not violate express or implied legislative histories; is supported by substantial evidence; and is reasonably based on the relevant factors. In re Jasper, supra, 406 N.J. Super. at 223.

Because we uphold the finding that GSS did not submit a nonconforming bid, we need not reach whether any deviation was material.

II.

Central contends that the Purchase Bureau improperly focused only on price and thus failed to consider all of the RFP's bid evaluation criteria. We disagree.

"Generally, courts will not interfere with a Final Agency Determination which pertains to contract awards or rejecting a bid or bidders unless there is a finding of 'bad faith, corruption, fraud[,] or gross abuse of discretion.'" In re Jasper, supra, 406 N.J. Super. at 222 (quoting Sullivan, supra, 47 N.J. at 549).

The Purchase Bureau assessed the bids using RFP Section 6.4.1's evaluation model. The Purchase Bureau reported that certain "bids were deemed to be responsive and evaluated based on an evaluation model of several predetermined tasks, straight time, hourly rates, supervisor rates[,] and equipment rates." (Pa80). In addition, the Purchase Bureau stated that "[a] review of the contract compliance files indicates there are no outstanding complaints against any of the recommended awardees," and that GSS is a "current contract vendor[] with no complaints against" it.

The acting director found that the Purchase Bureau considered experience and past performance. Because the Purchase Bureau found "little basis to draw a meaningful distinction between" GSS and Central, "price became the basis to identify the bid proposal most advantageous to the State." We conclude that the record supports the acting director's decision.

Based on our review of the record and the controlling legal principles, we conclude that plaintiff's remaining arguments raised on appeal are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

A

1 The location at issue is "Group (3) Three Salting Services, Capitol Complex Parking Lots (Excluding Sidewalks), Trenton City Streets, West Trenton Parking Lots and Roadways, and NJ State Police Operations and Intelligence Center (ROIC)," also known as price line 00005 (collectively referred to as price line 00005).