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Matter of Proposals No. 98-X-29314 Reflective Sheeting License Plates

August 31, 1998

IN THE MATTER OF REQUEST FOR PROPOSALS NO. 98-X-29314 REFLECTIVE SHEETING LICENSE PLATES


Before Judges Shebell and Keefe.

The opinion of the court was delivered by: Shebell, P.j.a.d

[9]    Argued telephonically on August 24, 1998

On appeal from Final Decision of the Division of Purchase and Property.

The opinion of the court was delivered by

On April 25, 1997, the State of New Jersey, Department of Treasury, Division of Purchase and Property (Division) issued Request For Proposal (RFP) No. 98-X-29314, soliciting bids from firms for the supply of reflective sheeting materials and support services necessary to produce finished license plates. The RFP called for a one year contract with possible extensions totaling up to an additional twenty four (24) month period beyond the original expiration date.

A mandatory pre-bid conference was held on May 15, 1997. After the bid conference, an addendum to the RFP was issued that clarified the four specific line items to be bid by the vendors. The first line item provided for "pre-clear" graphic reflective sheeting license plate materials including the stretch and registry equipment with support services. The second line item provided for "pre-clear" graphic reflective sheeting license plate material and support services only, without stretch and registry equipment. The third line item provided for "pre-clear" license plate material without stretch and registry equipment. Line item four provided:

PRICE OF SUPPLYING AND INSTALLING STRETCH AND REGISTRY EQUIPMENT NEEDED TO PRODUCE GRAPHIC REFLECTIVE LICENSE PLATES. PRICE TO INCLUDE FULL WARRANTY (1 YEAR MINIMUM) ON ALL EQUIPMENT...

THIS EQUIPMENT MUST BE COMPATIBLE WITH AND ALLOW THE USE OF ANY EXISTING STOCK OF REFLECTIVE SHEETING IN POSSESSION OF DEPTCOR. IT SHOULD MEET OR EXCEED THE PERFORMANCE STANDARDS OUTLINED IN THE SPECIFICATIONS WITH ALL BRANDS OF REFLECTIVE SHEETING JUDGED AS ACCEPTABLE EQUALS BY THE STATE OF NEW JERSEY.

On June 16, 1997, intervenor, Avery Dennison (Avery) submitted a bid of $204,000 under line item four. Avery's bid was contingent upon the award of line item two to Avery so that Avery could also provide the "pre-clear" graphic reflective sheeting license plate material and support services for $.75 per square foot. Avery provided the following analysis of why its conditional bid was advantageous to the State:

Combining the sheeting and purchase of equipment appears to be the lowest cost option over the long term for the State. This eliminates the need for the sheeting manufacturer to amortize the equipment, maintenance, and removal costs over a three (3) year period and build the cost into the sheeting price. Selection of this option should result in competitive sheeting prices for all future bids.

On June 13, 1997, 3M Corporation (3M) submitted a bid of $260,000 under line item four. 3M also submitted a bid under line item two for $.705 per square foot, however, its bid for line item two was rejected for an alteration without initialing, leaving Avery's bid as the only valid bid for line item 2.

By letter dated August 5, 1997, 3M protested only the award of line item four to Avery. 3M contended that Avery's bid was non-conforming and illegal. On August 8, 1997, Lana J. Sims, Director of the Division, notified 3M that line one was awarded to 3M and line two and four were awarded to Avery. The Director, in awarding the two line items to Avery, noted that each decision was independent of the other and in conformance with the specifications. The Director declared this to be a Final Agency Decision, stating 3M's appeal is denied.

By letter dated August 14, 1997, 3M submitted a request for reconsideration of the Director's decision, or in the alternative, a stay of the implementation of the contract to permit 3M an opportunity to seek judicial review. On August 29, 1997, the Director determined that reconsideration of 3M's claim was appropriate and directed the agency to refrain from issuing the contract while she examined 3M's arguments. By letter dated December 15, 1997, the Director again rejected 3M's arguments. She found that the manner in which Avery responded to line items number two and four did not enable it to secure an unfair competitive advantage. 3M requested a stay of the Director's award pending appeal, and the Director agreed to a stay pending appeal of the award of lines two and four.

On January 7, 1998, 3M filed a Notice of Appeal with this court, challenging only the award of line item four to Avery. On January 23, 1998, 3M filed a motion to accelerate review, which we granted. On March 20, 1998, the Director issued a final determination rescinding the award to Avery and notifying all bidders of the State's intention to rebid line items two and four. The Director noted that she had "reviewed the brief filed on behalf of 3M in the matter of their appeal and [ ] reconsidered the appropriateness of ...


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