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), A-0515-18T3

Background

The New Jersey Division of Purchase and Property issued an RFP (18DPP00205) seeking snow plowing and/or salt-spreading services across ~300 "price lines" (snow sections); awards were to go to the lowest hourly rate with experience and equipment considered.
The RFP required bidders to complete mandatory forms including Attachment One (equipment) and Attachment Two (experience), and warned failure to submit required forms "will result in rejection of the Quote." The RFP required at least two years' experience plowing or spreading public roadways.
Central Jersey Landscaping (CJL) submitted bids for salt-spreading but did not include Attachment Two; the Division deemed CJL non-responsive and rejected its bids along with other vendors who failed to submit Attachment Two.
CJL requested reconsideration, claiming Attachment Two did not apply to spreading-only bids, that the online system malfunctioned, and that the Division should have considered its prior state contract experience or allowed cure; the Division denied reconsideration without a hearing.
CJL appealed and sought a stay of awards; the Acting Director denied the stay, the Appellate Division denied emergent relief, and CJL appealed the rejection and denial of a stay to the Appellate Division.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Attachment Two was a material, non-waivable bid requirement	CJL: Attachment Two was immaterial or inapplicable to spreading-only bids and therefore its omission was waivable	Division: Attachment Two was expressly required by the RFP to document required experience; omission rendered the bid non-conforming	Attachment Two was material and non-waivable under Meadowbrook; omission deprived State of assurance about experience and could unfairly advantage CJL, so rejection upheld
Whether CJL was unfairly or discriminatorily treated compared to other bidders allowed to cure deficiencies	CJL: Division cured other bidders' defects and could have done so for CJL or relied on CJL's prequalification/previous DOT work	Division: The other bidders were meaningfully different (submitted required docs; some had prior ownership forms on file); no authority allowed use of outside files to cure CJL's missing Attachment Two	No disparate treatment: other rejections were corrected only where record showed the required material was actually submitted or previously on file; Division reasonably refused to consider information outside CJL's bid
Whether the Division should have used other submitted documents (prequalification, Attachment One) to determine CJL's experience	CJL: Other submitted paperwork demonstrated experience; Division could have looked beyond Attachment Two	Division: RFP and RFP section 6.7 limited evaluation of experience to Attachment Two and barred reliance on outside materials	Division correctly limited evaluation to materials within the bid; reliance on outside files was not permitted; rejection stands
Whether a stay of the award should have been granted	CJL: Stay needed to prevent irreversible award while appeal pending	Division: No entitlement to stay because bid was non-conforming and Division lawfully proceeded	Denial of stay affirmed; emergency relief denied by Appellate Division

Key Cases Cited

Stallworth v. Dep't of Corrections, 208 N.J. 182 (review standard for agency action) (agency action reversed only when arbitrary, capricious, unreasonable, or unsupported by substantial evidence)
George Harms Constr. v. N.J. Tpk. Auth., 137 N.J. 8 (agency action review and limits)
Jasper Seating Co. v. In re, 406 N.J. Super. 213 (standards for interfering with contract award decisions)
Commercial Cleaning Corp. v. Sullivan, 47 N.J. 539 (director's discretion in awarding public contracts)
Henry v. Rahway State Prison, 81 N.J. 571 (standard for agency action: arbitrary, capricious, unreasonable)
Bueno v. Bd. of Trs., 422 N.J. Super. 227 (burden on challenger to show agency breached standard)
Meadowbrook Carting Co. v. Borough of Island Heights, 138 N.J. 307 (two-prong test for materiality and waivability of bid defects)
Barrick v. State Dept. of Treasury, 218 N.J. 247 (material deviations are non-waivable)
In re On-Line Games Contract, 279 N.J. Super. 566 (non-conforming bid is treated as no bid)
Terminal Constr. Corp. v. Atl. County Sewerage Auth., 67 N.J. 403 (public bidding objectives and interpretation)
State v. Ernst & Young, L.L.P., 386 N.J. Super. 600 (statutory framework for award to responsible, conforming bidder)