On appeal from a final decision of the Acting Director of the Division of Purchase and Property.
Matthews, Pressler and Petrella. Petrella, J.A.D.
Burroughs Corporation appeals from the final determination of the Acting Director of the Division of Purchase and Property (Division) which awarded a contract for a data processing system and related support services to International Business Machines Corporation (IBM). The Division had solicited Requests for Proposals (RFP) for the acquisition of data processing equipment to implement a statewide Prosecutor's Management Information System known as PROMIS.
The complex nature of the proposal, as well as the marked differences among vendors in individual computer "hardware" and "software" characteristics and components, resulted in the RFP not requiring particular items of equipment. Rather, vendors were requested to propose a system that could meet the
overall objective and functional requirements of PROMIS. The RFP did detail specific minimum computer hardware and software requirements. However, other sections of the RFP clearly indicated that deviations from these requirements, if explained or justified, would be permissible. For instance, § 5.2 under "Vendors Proposal" specified that each bidder submit a "Proposal Overview" as follows:
This section will give a summary of the vendor's approach to fulfill the requirements in this RFP. The vendor will emphasize the rationale for the particular solution being proposed, and the unique advantage of the hardware and software selected. This section must be concise, factual, and directed at giving a quick overview of the proposal.
If the vendor's proposal does not meet all the minimum terms and conditions of the RFP or specifications, each such deviation must be listed in this section together with the vendor's explanation for the deviation. Failure to comply fully with this requirement will result in the vendor being penalized or possibly disqualified during the evaluation.
Certain factors to be considered by a "Technical Evaluation Committee" (committee) for each proposal were set forth in § 7.1 of the RFP. Conformance to the hardware and software requirements in the RFP would be used in the evaluation, but exact conformance was not specified as requisite to the acceptance of the bid. The Division was authorized to award the contract in whole or in part to the vendor "best meeting specifications and conditions." The technical evaluation criteria, in addition to considering the proposal with respect to the RFP requirements, also took into account available support service, knowledge and familiarity of the vendor with similar applications; "performance of vendor's hardware, software and personnel in the functional benchmark test"; "completeness of the vendor's proposal to the RFP" and "recommendations by the vendor that will benefit the State of New Jersey." Bidder's worksheets also sought responses regarding overall system characteristics and required bidders "to identify system characteristics that exceed or fail to meet specifications or requirements."
After the RFP was distributed to numerous vendors a bidder's conference was held at which representatives of 26 companies*fn1 participated. Subsequent to that meeting an "Additions/Clarifications to the Request for Proposal" was issued. This addendum reflects that deviations from the specifications would not disqualify the bid. Thus, item 5 stated that proposals would be accepted "from vendors which they feel best satisfy the specifications contained in the RFP."
Item 31 of the addendum indicated that deviations from the referenced software standards "must be fully supported by the vendor and the vendor should indicate their [sic] ...