IN RE BID SOLICITATION 18DPP00205, CENTRAL JERSEY LANDSCAPING T0777 SNOW PLOWING AND SPREADING SERVICES PROTEST OF NOTICE OF INTENT TO AWARD (NEW JERSEY DEPARTMENT OF THE TREASURY)

NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0515-18T3

IN RE BID SOLICITATION
#18DPP00205, CENTRAL JERSEY
LANDSCAPING T0777 SNOW
PLOWING AND SPREADING
SERVICES PROTEST OF NOTICE
OF INTENT TO AWARD.
______________________________

Argued June 4, 2019 – Decided June 26, 2019

Before Judges Fisher, Suter and Enright.

On appeal from the New Jersey Department of the
Treasury, Division of Purchase and Property, RFP No.
18DPP00205.

Richard Wayne Hunt argued the cause for appellant
Central Jersey Landscaping, Inc. (Parker McCay, PA,
attorneys; Richard Wayne Hunt and Ashley Hope
Buono, on the brief).

Rebecca Pluckhorn, Deputy Attorney General, argued
the cause for respondent Department of Treasury,
Division of Purchase and Property (Gurbir S. Grewal,
Attorney General, attorney; Beth L. Mitchell, Assistant
Attorney General, of counsel; Rebecca Pluckhorn, on
the brief).

PER CURIAM
 Central Jersey Landscaping (CJL) appeals from two decisions made by

the Department of Treasury, Division of Purchase and Property (the Division),

initially rejecting CJL's bid for salt-spreading services and later denying CJL's

request for a stay of that decision. We affirm.

The record reveals that on January 30, 2018, the Division issued an online

Bid Solicitation, also known as a Request for Proposal (RFP). In its RFP, the

Division sought bids from contractors experienced in snow plowing and salt-

spreading services. However, potential vendors could choose to limit their bids

to either plowing or spreading services. The Division specifically solicited bids

for over three hundred "price lines," also known as "snow sections" for

approximately 13,000 miles of federal, state and interstate roads under its

jurisdiction. Snow sections are fixed sections of the highway requiring snow

plowing and salt spreading. The Division intended to award each contract to the

bidder with the lowest hourly rate.

The RFP informed bidders of the criteria the Division might use to

evaluate proposals, including: the firm's experience, which was to be detailed

in a form known as "Attachment Two"; the vendor's equipment, which was to

be detailed in a form known as "Attachment One"; and the vendor's hourly rate.

Regarding a vendor's level of experience, the RFP specifically required that

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bidders show "at a minimum, two years' experience performing snow plowing

or spreading services on public roadways." The proposal further advised

vendors that the stated criteria "may be used to evaluate Quotes . . . received

in response to this Bid Solicitation . . . . The evaluation criteria categories

may be used to develop more detailed evaluation criteria to be used in the

evaluation process." The RFP further instructed that bidding vendors "must

furnish all information required by completing the forms accompanying the

[RFP]." Additionally, vendors were cautioned that failure to submit the forms,

which included Attachments One and Two, "will result in rejection of the

Quote."

On March 16, 2018, CJL electronically submitted its bid for salt-spreading

services on several price lines. The same day, the State publicly announced the

names of one hundred and sixty-four firms who submitted quotes for the first

round. After reviewing the bids, the State rejected at least thirty-two vendors

for failure to conform to the mandatory administrative requirements for Quote

submission. Eight vendors, including CJL, were deemed non-responsive

because they failed to submit Attachment Two.

Just two days after learning of its rejection by the Division, CJL emailed

the Division informally asking it to reconsider its decision. CJL advised it had

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"been a vendor with the DOT for the past five years" and had interpreted a

section of the RFP to apply only to snow removal vendors because the clause

stated "The Vendor (Bidder) must furnish all information required by

completing the forms accompanying this Bid Solicitation (RFP) for one (1) or

more Snow Sections and offering optional graders and loaders."

On August 29, CJL formally asked the Division to either provide CJL an

in-person hearing or reconsider its decision, again noting it had five years of

experience on other State contracts. CJL completed and submitted Attachment

Two with its protest. CJL argued it was not afforded the same flexibility as

other vendors (who also had been deemed deficient) to cure deficiencies. CJL

further complained the online bidding system had malfunctioned. Additionally,

CJL contended Attachment Two only applied to vendors bidding on snow

plowing contracts, whereas CJL limited its bids to salt-spreading contracts.

Without holding a hearing, the Division denied CJL's request for

reconsideration on September 5, 2018. The Acting Director issued a twelve-

page decision in which it found CJL's bid materially deviated from t he bid

requirements, that the Division could not consider experience which was not

detailed in CJL's bid, that instructions on the bidder solicitation form were not

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materially misleading and that no system issues impacted the bidding process

when the bidding opened.

CJL filed a notice of appeal on October 3, 2018, and on the following day,

it asked the Division to stay the award of the disputed salt-spreading contracts

until the appeal was heard. The Acting Director denied CJL's request for a stay

on October 16, 2018, whereupon CJL moved for emergent relief before us. We

denied CJL's application and this appeal followed.

CJL raises the following arguments for our consideration:

POINT I

THE DIVISION'S DECISION TO REJECT
[APPELLANT'S] BID WAS ARBITRARY,
CAPRICIOUS, AND UNREASONABLE BECAUSE
ATTACHMENT [TWO] WAS NOT A MATERIAL
TERM OF THE SOLICITATION AND THEREFORE,
THE DIVISION'S REJECTION SHOULD BE
REVERSED.

POINT II

THE DIVISION'S PROCUREMENT METHOD AND
AUTOMATIC REJECTION OF [APPELLANT'S] BID
WAS IMPROPER, UNFAIR, AND DID NOT
PROVIDE UNIFORMITY TO ALL BIDDERS.
THUS, [APPELLANT'S] BID SHOULD BE
REMANDED TO THE DIVISION FOR
EVALUATION AND CONSIDERATION ON THE
REMAINING CONTRACT YEARS.

A-0515-18T3
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 Our role when reviewing administrative agency determinations is limited.

In re Stallworth, 208 N.J. 182, 194 (2011). Courts can intervene only in rare

instances when "an agency action is clearly inconsistent with its statutory

mission or with other State policy." George Harms Constr. v. N.J. Tpk. Auth.,

137 N.J. 8, 27 (1994). A reviewing court "may not substitute its own judgment

for the agency's, even though the court might have reached a different

result." Stallworth, 208 N.J. at 194 (citations omitted). Generally, a reviewing

court "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 Seating Co.,

Inc., 406 N.J. Super. 213, 222 (App. Div. 2009) (quoting Commercial Cleaning

Corp. v. Sullivan, 47 N.J. 539, 549 (1966)).

An agency action is only reversed when it is "arbitrary, capricious, or

unreasonable, or [] not supported by substantial credible evidence in the record

as a whole." Stallworth, 208 N.J. at 194 (alteration in original) (quoting Henry

v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). A challenger must prove

an agency's action breached this standard. Bueno v. Bd. of Trs., 422 N.J. Super.

227, 234 (App. Div. 2011).

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 CJL initially contends Attachment Two was an immaterial requirement

for its bid and therefore, a waivable defect. It also asserts the Division's final

decision is incompatible with the two-part materiality test, noting Attachment

Two was used in the evaluation process as a tiebreaker for certain price lines.

We do not find these arguments persuasive.

"[T]he bidding statutes are [intended] to benefit the taxpayers and they

'are construed as nearly as possible with sole reference to the public good.'" In

re Jasper, 406 N.J. Super. at 222 (quoting Terminal Constr. Corp. v. Atl. County

Sewerage Auth., 67 N.J. 403, 409 (1975)). "Their objects are to guard against

favoritism, improvidence, extravagance and corruption; their aim is to secure

for the public the benefits of unfettered competition." Terminal Constr. Corp.,

67 N.J. at 410. The statute governing the specifications, invitations and award

of public contracts, N.J.S.A. 52:34-12, reflects that an award of a public

contract: "shall be made with reasonable promptness . . . by written notice to

that responsible bidder whose bid, conforming to the invitation for bids, will be

most advantageous to the State, price and other factors considered." State v.

Ernst & Young, L.L.P., 386 N.J. Super. 600, 618-19 (App. Div. 2006) (quoting

N.J.S.A. 52:34-12(g)). "Any or all bids may be rejected when the State

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Treasurer or the Director of the Division of Purchase and Property determines

that it is in the public interest so to do." N.J.S.A. 52:34-12(a).

The Director of the Division is vested with the discretion to determine

"which bid will be most advantageous to the State." Commercial Cleaning Corp.

v. Sullivan, 47 N.J. at 548. Although the Director enjoys broad discretion, that

discretion is not limitless. Barrick v. State Dept. of Treasury, Div. of Property,

218 N.J. 247, 258 (2014). For example, the Division is prohibited from

awarding a contract to a proposal that materially deviates from RFP

requirements. Id. at 259. In determining whether a deviation is material and

not waivable, our Supreme Court articulated a two-prong test.

[F]irst, whether the effect of a waiver would be to
deprive the [contracting party] of its assurance that the
contract will be entered into, performed and guaranteed
according to its specified requirements, and second,
whether [the defect] is of such a nature that its waiver
would adversely affect competitive bidding by placing
a bidder in a position of advantage over other bidders
or by otherwise undermining the necessary common
standard of competition.

[Meadowbrook Carting Co. v. Borough of Island
Heights, 138 N.J. 307, 315 (1994).]

We are satisfied the Division performed an appropriate Meadowbrook

analysis and properly concluded the subject specification involving Attachment

Two was a material, non-waivable condition.

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 As to the first prong of the Meadowbrook test, the Acting Director

concluded that without Attachment Two, the Division could not be assured the

spreading services would be done appropriately. There was nothing arbitr ary or

capricious in finding a deviation from disclosing CJL's level of experience

deprived the State of its "assurance that the contract will be entered into,

performed and guaranteed according to its specified requirements."

Meadowbrook, 138 N.J. at 315. The Acting Director noted RFP section 3.2

specified that vendors must "[p]ossess, at minimum, two (2) years' experience

performing snow plowing or spreading services on public roadways." Next,

RFP section 4.4.3 advised bidders that Attachment Two was a necessary

submittal and RFP section 6.7 confirmed that experience was a factor upon

which awards would be made. Additionally, N.J.A.C. 17:12-2.2(a) states that

in order for a bidder to be eligible for a contract award, its proposal must contain

all attachments required by the RFP's terms. Since Attachment Two was the

only bid form that covered a bidder's experience as required by the RFP, it meets

the first prong of the materiality test.

Prong two of the Meadowbrook test also is satisfied, as waiver of CJL's

completion of Attachment Two would have placed CJL in a position of unfair

advantage over other bidders. In Meadowbrook, 138 N.J. at 311-12, a

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government entity waived the requirement for a consent of surety on a garbage -

removal contract for one of the bidders. Addressing the second prong of the

materiality test, the Meadowbrook Court ruled this consent was non-waivable,

in part, because the waiver gave the vendor an unfair advantage over other

bidders. Id. at 322-23. The Court expressed concern that other bidders unable

to meet the requirement for a consent of surety may have been dissuaded from

bidding at all. Id. at 323. Likewise, had other vendors known the requirement

was waivable, they may have entered bids and increased competition for the

contract. Id. at 323-24. The Meadowbrook Court cautioned that providing a

waiver for a defective bid "had the capacity to affect the fairness of the bidding

process," even though it was evident there was no corruption or actual adverse

effect on the process. Id. at 322-23. In voiding the bid, the Court recognized

its decision might occasionally result in additional cost to the public, but found

the integrity of the bidding process is paramount. Id. at 325.

Meadowbrook guides our analysis here. Had CJL been awarded a contract

on its bids without furnishing Attachment Two, it would have enjoyed an unfair

advantage over contractors who chose not to bid due to the requirements set

forth in Attachment Two. Moreover, the possibility certainly exists th at other

contractors could have put forth a more advantageous bid than CJL if they knew,

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in advance, the requirement of Attachment Two was waivable. Thus, we agree

with the Acting Director that the second prong of Meadowbrook was satisfied

here.

As our Supreme Court has observed:

Deviations from material specifications risk
transgressing the duty to avoid favoritism, corruption,
and the like. Requiring adherence to material
specifications maintains a level playing field for all
bidders competing for a public contract. Thus,
requirements that are material to an RFP are non-
waivable; the winning bidder's proposal must comply
with all material specifications.

[Barrick, 218 N.J. at 259.]

Essentially, if a vendor's bid fails to satisfy an RFP requirement which is

determined to be non-waivable, then "the inquiry is over because the bid is non-

conforming and a non-conforming bid is no bid at all." In re On-Line Games

Contract, 279 N.J. Super 566, 595 (App. Div. 1995).

CJL next argues Attachment Two was not material as it was not itemized

or included on the Bidder's checklist - which was appended to the solicitation.

Moreover, CJL argues against materiality, claiming the language of Attachment

Two does not inquire about salt-spreading experience. We find no merit in these

arguments.

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 The Procurement Program Checklist states it was created "as a guide to

assist Vendors . . . in preparing a complete and responsive Quote . . . ." The

checklist confirms "[i]t is the Vendor's . . . responsibility to ensure that all

requirements of the Bid Solicitation . . . have been met." This warning appears

in bold font at the top of the page with the word, "all," underlined. At the bottom

of the checklist, the form also advises "[v]endors . . . must ensure that all

requirements of the Bid Solicitation . . . have been met as the Bid Solicitation

. . . language supersedes this advisory checklist in the event of an error or

omission." In an effort to highlight this language, the words are in a slightly

larger font than those on the rest of the form and the word, "supersedes," is

underlined. These statements on the checklist, taken together with the

mandatory language in other parts of the RFP, provided notice it was the bidder's

responsibility to ensure all the required forms were submitted and that the

checklist might not list all necessary paperwork. CJL's failure to heed the

warnings outlined in the checklist does not make Attachment Two any less

material.

As to CJL's argument that Attachment Two does not pertain to salt-

spreading experience, we refer to question three on the form, which states: "[i]f

you do not possess experience plowing public roadways, please document any

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plowing or spreading experience you possess." Although the other questions

predominately relate to snow plowing, question three clearly asks the vendor

about its spreading experience. Additionally, the RFP defines a "snow section"

as "[a] predetermined section of highway requiring snow plowing and/or

spreading services." Thus, CJL's argument regarding the materiality of

Attachment Two as to spreading experience is flawed.

We also find CJL's contention that Attachment Two was not material

because the Division used the form as a "tiebreaker" in certain instances just as

unavailing. As the State points out, Attachment Two was used in the evaluation

process as a tiebreaker for certain price lines. A tie could surface if vendors

submitted identical hourly rates. Such a situation would not make Attachment

Two any less material.

CJL next complains it was unfairly treated by the Division because other

vendors were allowed to go outside the "four corners" of their bids to cure their

bid deficiencies. In its reply brief, CJL also posits the Division should have

considered CJL's bid because CJL performed spreading work under previous

State contracts. Additionally, CJL asserts Attachment One contained enough

information about its experience to warrant further inquiry from the Division,

and that it was a pre-qualified vendor that had previously provided its experience

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to the Division. In essence, CJL suggests the Division improperly rejected its

bid because it had enough information about CJL's experience from sources

other than Attachment Two. We find these arguments misplaced.

As to its claims of disparate treatment, CJL points to the Division's

Recommendation Report, which identified certain rejections that were

ultimately rescinded. CJL notes one of the bidders had its bid originally rejected

because it did not provide pricing information. However, that same bidder later

contacted the hearing unit stating the pricing information was submitted with its

bid. The Division soon discovered the correct documentation had been

submitted, but the format was not compatible with the Division's computer

software. Unlike CJL, this bidder submitted the required documentation with

its bid and the Division did not have to go outside the four corners of the bid to

find it.

The other three vendors initially found to be noncompliant had not

submitted Ownership Disclosure forms. 1 However, the RFP provided:

[a] current completed Ownership Disclosure Form must
be received prior to or accompany the submitted Quote
. . . . A Vendor's . . . failure to submit the completed
and signed form with its Quote . . . will result in the

1
This form addresses N.J.S.A. 52:25-24.2, which requires a corporation,
partnership, or limited liability company to disclose the names and addresses of
all members or stockholders of the entity who own a ten percent or more share.
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 rejection of the Quote . . . unless the Division has on
file a signed and accurate Ownership Disclosure Form
dated and received no more than six (6) months prior to
the . . . submission deadline for this procurement.

[Emphasis added.]

This language mirrors N.J.S.A. 52:25-24.2, which requires the disclosure to

either accompany the bid or occur prior to the bid. Specifically, N.J.S.A. 52:25-

24.2 states that "no corporation, partnership, or limited liability company shall

be awarded a contract . . . unless prior to the receipt of the bid or accompanying

the bid . . ." the vendor discloses the required information. Thus, the requisite

disclosure of ownership, which was missing from three other vendors, could be

submitted prior to their bids. On the other hand, CJL cites to no statutory

authority, statute, precedent or any language in the RFP that permitted the

Division to rely on CJL's previous record with the DOT to satisfy the experience

criteria. In light of these facts, we are not persuaded other vendors were given

preferential treatment over CJL to cure their bid deficiencies. Essentially, CJL

was not similarly situated to the other vendors, as no avenue existed for the

Division to look outside the four corners of CJL's bid and cure the deficiencies

pertaining to CJL's prior experience. Our conclusion that CJL was not subjected

to disparate treatment also is bolstered by the uncontroverted fact that seven

other bidders who did not submit Attachment Two were deemed non-responsive

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and were not awarded a contract while two other vendors who did submit

Attachment Two were also rejected because they did not demonstrate they had

the requisite experience.

Next, CJL's suggestion that the Division could have gleaned CJL's level

of experience from its submission of other paperwork, such as its

prequalification paperwork, is similarly unpersuasive. Although CJL submitted

prequalification paperwork to the State, no statute or other authority permitted

the Division to rely on information CJL had on file with the Division. As the

State highlights, RFP section 6.7 made clear the experience component of the

evaluation would be based on the information provided in Attachment Two and

not information outside of a bidder's proposal.

As we are satisfied the Acting Director correctly determined Attachment

Two was material to CJL's bid and that the Division fairly treated all bidders

who either did not submit Attachment Two or failed to demonstrate the requisite

experience during the bidding process, we discern no basis to disturb the

Division's final agency decisions of September 5, 2018 and October 16, 2018.

The remainder of CJL's arguments do no warrant discussion in a written opinion.

R. 2:11-3(e)(1)(E).

Affirmed.

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