Barrick v. State
64 A.3d 1004
N.J. Super. Ct. App. Div.2013Background
- DPMC sought 15,500–16,500 sq ft for a 10-year lease for a DOL One-Stop Center in Morris County.
- SOW required the office to be within 1/4 mile of accessible public transportation.
- Bids were submitted by Barriek, RMD Properties, Highway Enterprises, and Mynt Properties; Mynt was rejected for access concerns.
- BAFOs were requested; RMD offered a larger space and lower per-square-foot rate than Barriek; Mynt was eliminated earlier for accessibility issues.
- DPMC awarded to RMD despite both bids exceeding the 1/4 mile requirement; agency deemed deviation de minimis and cost-effective.
- Barriek challenged the award, contending RMD’s bid violated the SOW and accessibility requirements; agency denied reconsideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether RMD’s bid materially deviates from the SOW | Barriek contends RMD violated the 1/4 mile accessibility requirement. | RMD’s deviation was de minimis and not material to the award decision. | Deviation is material and nonwaivable; RMD not conforming. |
| Whether the DPMC properly analyzed accessibility and materiality on reconsideration | DPMC failed to reassess accessibility and materiality when noncompliance emerged. | Agency determined de minimis deviation and market cost-effectiveness supported award. | Agency failed to apply proper materiality/waiver analysis; remand required. |
| Whether the distance/accessible transportation requirement can be waived | Waiver would undermine competitive bidding integrity and be nonwaivable. | Waiver permissible if not material and not undermining competition. | The requirement is nonwaivable; waiver improper. |
Key Cases Cited
- On-Line Games Contract, 279 N.J. Super. 566 (App. Div. 1995) (deviation from RFP may be non-waivable if material to competition)
- River Vale v. Longo Construction Co., 127 N.J. Super. 207 (Law Div. 1974) (two-prong materiality test for non-waivable deviations)
- Meadowbrook Carting Co. v. Borough of Island Heights, 138 N.J. 307 (1994) (measures materiality of waiver in bidding)
- In re Jasper, 406 N.J. Super. 213 (App. Div. 2009) (alteration to bid post-opening jeopardizes bidding integrity)