IN THE MATTER OF THE BELLMAWR TRUCK REPAIR COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF THE BELLMAWR

TRUCK REPAIR COMPANY, INC.,

CHALLENGE TO AWARD OF CONTRACT

T2108 FOR MAINTENANCE AND REPAIR

FOR HEAVY DUTY VEHICLES BY THE

DIRECTOR OF THE DIVISION OF

PURCHASE AND PROPERTY, DEPARTMENT

OF TREASURY.

________________________________

February 7, 2017

Argued November 30, 2016 Decided

Before Judges Alvarez and Accurso.1

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

Evan A. Blaker argued the cause for appellant Bellmawr Truck Repair Company, Inc. (Cohen, Seglias, Pallas, Greenhall & Furman, P.C., attorneys; Shawn R. Farrell and Kathleen M. Morley, on the brief).

Roza Dabaghyan, Deputy Attorney General, argued the cause for respondent New Jersey Department of Treasury, Division of Purchase and Property (Christopher S. Porrino, Attorney General, attorney; Beth L. Mitchell, Assistant Attorney General, of counsel; Ms. Dabaghyan, on the brief).

PER CURIAM

Bellmawr Truck Repair Company, Inc. appeals from a September 2, 2015 final agency decision of the Division of Purchase and Property, contending the Division failed to award Contract T2108 for maintenance and repair services for heavy duty vehicles with "reasonable promptness." N.J.S.A. 52:34-12. Because Bellmawr only raised that argument after the Division had already rendered its final decision in this matter and offers no factual support for its claim, we affirm.

The essential facts are easily summarized. Bellmawr was a contractor under the prior iteration of contract T2108, which ran for six years and was scheduled to end on February 28, 2015. It did not, however, rebid the contract when the Division published a new RFP (request for proposals) in August 2014. Instead, after the Division issued a notice of intent to award the new contract and the expiration of the protest period, Bellmawr wrote to the Lieutenant Governor complaining it did not receive electronic notice of the reprocurement.

Bellmawr's letter was referred to the Division for response. The Division wrote to Bellmawr explaining that the reprocurement was advertised in the newspaper, publicized on the State's website, an automated email was sent to all vendors registered with the Division's electronic notification service for the contract's commodity code number, and a personal email was sent to all existing contractors, including Bellmawr, alerting them to the bid deadlines.

Following the Division's award of the contract to multiple bidders, Bellmawr filed a formal protest with the Division on July 30, 2015, claiming it was registered with the Division's electronic notification service and did not receive notice. The Division's acting chief hearing officer issued the Division's final agency decision on September 2, 2015. Noting that Bellmawr's protest was filed beyond the ten-day protest period and thus the Director was free to disregard it under N.J.A.C. 17:12-3.3(b)3, the hearing officer nevertheless addressed all aspects of Bellmawr's claim that notice of the reprocurement was flawed.

Six weeks later, on October 16, 2015, counsel for Bellmawr wrote to the hearing officer "to open a dialogue concerning the bid and award." Referring to the September 2, 2015 final agency decision, counsel noted the absence of any proof the reprocurement had been properly advertised as asserted and further observed that the nine months it took the Division to award the contract "can hardly be considered 'reasonably prompt' within the meaning of [N.J.S.A. 52:34-12]." Counsel ended the letter with a request

that the Division produce evidence that the RFP was properly advertised and publicized as claimed and represented by the Division. Additionally, we request that the Division produce evidence of the August 29, 2014 email that allegedly provided notice to Bellmawr of the subject bid solicitation. Absent satisfactory evidence in this regard, we shall proceed on behalf of Bellmawr to seek all legal remedies available to it pursuant to N.J.A.C. 17:12-3.1(b).

The Division responded within two weeks with the proofs requested.

In the face of those proofs, Bellmawr has abandoned on this appeal its claims that the contract was not properly advertised. The only claim it makes is that the Division "arbitrarily and unduly delayed awarding the [c]ontract," thus violating "N.J.S.A. 52:34-12(a)(g)'s mandate to award a state-solicited contract with 'reasonable promptness.'" It asserts that because "no justification for the unreasonable delay has ever been articulated by the Division, this [c]ourt must order a rebid of the [c]ontract." We disagree.

As is apparent from the face of the RFP and the Division's thirteen-page, single-spaced recommendation report, and as emphasized by the Division in its brief, seventy bidders submitted bids in one or more of sixteen different categories, constituting over fifty different price lines, for one or more of three regions. The Division rejected ten bids, received six protests from rejected bidders and reinstated three of those bids after protest. The Division resolved three price ties involving multiple bidders utilizing published tie-break criteria and determined to forego an award on ten price line items in the face of non-responsive or non-favorable proposals. It evaluated proposals not eligible for award due to lack of manufacturer's certification from eighteen bidders in two categories and from thirty-one bidders in fourteen categories who certified they could not service the price lines or categories bid.

The Division negotiated price reductions from thirty-one bidders during the negotiations period, with nine bidders advising their original proposal pricing represented their best and final offers. It undertook an in-depth review of past complaints against six proposed awardees and determined, based on the age and nature of the complaints, as well as the bidders' otherwise satisfactory performance, that should have no effect on the award. In the end, the Division made contract awards to fifty different bidders for one or more price lines across the sixteen categories and three regions.

Our role in reviewing the decision of an administrative agency is limited. In re Carter, 191 N.J. 474, 482 (2007). We accord a strong presumption of reasonableness to an agency's exercise of its statutorily delegated responsibility, City of Newark v. Nat. Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980), and defer to its fact finding, Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001). We will not upset the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable; that it lacked fair support in the evidence; or that it violated legislative policies. In re Stallworth, 208 N.J. 182, 194 (2011); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963).

Applying those standards provides us no basis on which to overturn the Division's decision here. Most notably because Bellmawr's failure to have timely protested the award on the basis that the Division failed to render it with "reasonable promptness," has deprived us of a record on which the Division's performance could be judged. See Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 586 (2012); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Bellmawr's reliance on other statutes, some in other states, to argue that the Division "arbitrarily and unduly delayed" awarding the contract is misplaced. The "reasonableness" of the time period for an award of a State contract will obviously be dependent on the facts and circumstances of the particular procurement. See, e.g., Barrick v. State, 218 N.J. 247, 253 (2014) (upholding an award made sixteen months after the submission of bids). Bellmawr's failure to create a record in the agency by its untimely protest makes it not possible to consider whether this award violated any legislative policy, including that the award be made with "reasonable promptness."

Bellmawr offers nothing more than its own opinion that nine months is too long a period for the award of this contract or, indeed, any state contract. It fails to offer any facts in support of its claim or identify how the delay restricted competition or favored particular bidders. Accordingly, it offers us no basis on which to order a rebid of the contract in the public interest. See Keyes Martin & Co. v. Dir., Div. of Purchase & Prop., 99 N.J. 244, 256 (1985).

Affirmed.

1 Hon. Carol E. Higbee participated in the panel before whom this case was argued. The opinion was not approved for filing prior to Judge Higbee's death on January 3, 2017. Pursuant to

R. 2:12-2(b), "Appeals shall be decided by panels of 2 judges designated by the presiding judge of the part except when the presiding judge determines that an appeal should be determined by a panel of 3 judges." The presiding judge has determined that this appeal shall be decided by two judges.