GOLD TYPE BUSINESS MACHINES, INC. v. DIRECTOR, DIVISION OF PURCHASE AND PROPERTY, DEPARTMENT TREASURY, STATE OF NEW JERSEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1419-06T51419-06T5

GOLD TYPE BUSINESS

MACHINES, INC.,

Appellant,

v.

DIRECTOR, DIVISION OF

PURCHASE AND PROPERTY,

DEPARTMENT OF THE TREASURY,

STATE OF NEW JERSEY,

Respondent.

____________________________________

 

Submitted October 29, 2007 - Decided:

Before Judges A. A. Rodr guez and C. S. Fisher.

On appeal from a final agency decision of the Director, Division of Purchase and Property, Department of the Treasury.

Calo Agostino, P.C., attorneys for appellant (Anthony F. Valente, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Cynthia Hackett, Deputy Attorney General, on the brief).

PER CURIAM

Gold Type Business Machines, Inc. (Gold), appeals from the September 25, 2006 final decision of the Acting Director of the Division of Purchase and Property (Director), which declared Gold's bid to be unresponsive. We affirm.

On December 16, 2005, the Division issued Request for Proposal 06-X-38501 (RFP), seeking bids for contracts to provide the State and its cooperative purchasing members "rugged" computer hardware, including vehicle-mounted computers, portable computers, printers, related peripherals and services (collectively "rugged computers"). Gold submitted a bid in response to the request. The Division opened and publicly announced all bids. By letter, the Division requested Best-and-Final Offers (BAFOs) from a number of bidders, including Gold. The letter included a spreadsheet listing all of the other bidders' bids. Gold submitted its BAFO. On June 23, 2006, the Division determined that it would not offer Gold a contract.

Shortly thereafter, Gold served a timely Notice of Protest. On September 25, 2006, the Director issued a final agency decision, finding the Division had properly denied Gold a contract.

Gold is a New Jersey corporation with its principal place of business in East Rutherford. Founded in 1972, it is engaged in the business of selling computer hardware, software and related equipment, primarily to police departments.

In the present appeal, Gold only challenges the decisions not to award it a contract for two of its bids. Accordingly, the remainder of Gold's bids, which were also rejected, are not before us on this appeal.

Following bid submissions, a Committee evaluated the bids based on several criteria. The RFP advised the bidders that the State reserved the right to negotiate with and/or seek BAFOs from any bidder. Following the submission of any BAFOs, if required, the Committee would make recommendations to the Director as to which bidder(s) the Division should award contracts.

The Committee reviewed all of the submitted bids and requested BAFOs from six bidders, including Gold. Included in this letter were three tables setting forth all of the bidders' bids in each of the categories. The stated purpose of including all bids was "to encourage all bidders to provide their best prices in this BAFO . . . ."

On June 23, 2006, the Division issued the Notice of Intent stating which bidders it intended to contract with, none of whom were Gold. Shortly thereafter, Gold filed a Notice of Protest with the Division pursuant to N.J.A.C. 17:12-3.3(a)(2). Gold made four points of protest: 1) Gold's proposal for vehicle-mounted computers was responsive and responsible, the denial being without substantial credible evidence; 2) Gold's proposal for a handheld computer was responsive and responsible, the denial being "clear error;" 3) Gold's proposal for a printer was responsive and responsible, the denial being "clear error"; and 4) the State violated the terms of the RFP and N.J.S.A. 52:34-12a(f) by communicating the other bidders' bids in its letter seeking BAFOs.

In a final agency decision, the Director, Alice K. Small, affirmed the recommendation of the Committee. She addressed each of Gold's four points of protest in detail. With regard to the vehicle-mounted computers, the Director laid out, in table format, the RFP requirements, what Gold's protest letter stated and what Gold's original bid stated. For each, there are noticeable differences. For the Data911 computer specifically, the Director found there was "no information in the four corners of Gold's bid proposal that" the Data911 it was offering had the required ports. Such a defect rendered Gold's bid "incomplete and unacceptable." Based on these differences, which the Director deemed considerable and non-conforming, the Director rejected Gold's first point of protest, finding that:

Gold's offers of product configurations that did not comply with base requirements of the RFP constituted non-waiveable, material deviations from the RFP requirements that could not be rectified by clarifications or cannot be modified by subsequent submissions, including material that was presented [in] Gold's letter of protest.

Second, the Director affirmed the Committee's recommendation to not award Gold a contract in the handheld-computer category. Gold does not appeal this decision.

In response to Gold's third point of protest, the Director found that the only printer offered by the bidders that conformed to the RFP's requirements was the Pentax PocketJet 3 Plus, which had a manufacturer's suggested list price (MSLP) of $449. Gold, in its bid, proposed the Pentax PocketJet 3, and stated its MSLP as $499. The Director noted that although the Committee accepted Gold's bid as one for the Plus model based on Gold's submission of Plus-model literature, the Committee's decision, and her affirmance, were based on the submitted MSLP.

The Director also, through an independent investigation, determined that the MSLP of the Plus was obtainable through Pentax's website. She directed the assigned buyer for the contract to contact Gold and another bidder to determine where the Division could obtain verification of the Plus's MSLP. Gold responded it could not provide verification for the $499 price, but it did attach a copy of a Pentax website with the amount $449 circled. The Director determined that this response "does not serve to substantiate that the printer pricing offered . . . would be accessible and verifiable as required by the RFP . . . ." She also found uncertainty in Gold's repeated references to the "Pentax PocketJet 3 kit" instead of the "Pentax PocketJet 3 Plus kit" (which have substantially different output capabilities) to be additional cause not to award Gold a rugged-printer contract. The Director affirmed the decision not to award Gold a contract in the printer category.

Fourth and finally, the Director found no illegality in the Committee's inclusion of the other bidders' bids in its request for BAFOs. She found that the RFP did not prohibit disclosure of the initial pricing offered by bidders, but only

[a]ll contacts, records of initial evaluations, any correspondence with bidders related to any request for negotiation or BAFO, any revised technical and/or price proposals, the Evaluation Committee Report and the Award Recommendation . . . .

The Director noted the slight distinction: "The list of unavailable items does refer to revised pricing offered by bidders but does not include the initial pricing offered by the bidders." (emphasis added). The Director thus found no error in the Committee announcing the bids to the other bidders.

The Director also found that the language of N.J.S.A. 52:34-12, in effect at the time of the RFP announcement, did not prohibit disclosure of the others' bids. The Director concurred in the Committee's reasoning for including the other bids, which was that

[s]ince the public announcement of the pricing on February 22, 2006 may have provided one or more of the bidders with pricing information that would have benefited some bidders and not others, thereby adversely affected [sic] the equal footing precept, the Purchase Bureau prudently and properly opted to provide the

pricing information to all bidders invited to participate in the BAFO process.

And, although the Legislature amended the statute to prohibit the disclosure which occurred in this case, the change did not take effect until April 1, 2006, about five weeks after the Committee opened the bids and announced publicly them on February 22, 2006. The Committee, therefore, according to the Director, did not violate the statute by including the other bids in its letter seeking BAFOs.

"Courts have only a limited role to play in reviewing the actions of other branches of government." George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994). Generally, a reviewing court will not upset an agency's decision unless it was arbitrary, capricious or unreasonable, it violated legislative policy or the factual findings are not supported by the evidence. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). "[A]gencies[' decisions] in technical matters which lie within their special competence" are entitled to deference from reviewing courts. Pasquince v. Brighton Arms Apartments, 378 N.J. Super. 588, 597 (App. Div. 2005).

With agency decisions regarding public contracts, "[t]here is a prima facie presumption that the power and discretion of governmental action has been properly exercised." Miller v. Passaic Valley Water Comm'n, 259 N.J. Super. 1, 14 (App. Div.), certif. denied, 130 N.J. 601 (1992).

Based on our review of the record, Gold cannot overcome this presumption and we discern no abuse of discretion on the part of the Director.

Affirmed.

(continued)

(continued)

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A-1419-06T5

December 12, 2007