On appeal from a final agency decision of the Director, Division of Purchase and Property, Department of the Treasury.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 29, 2007
Before Judges A. A. Rodríguez and C. S. Fisher.
Gold Type Business Machines, Inc. (Gold), appeals from the September 25, 2006 final decision of the Acting Director of the Division of Purchase and Property (Director), which declared Gold's bid to be unresponsive. We affirm.
On December 16, 2005, the Division issued Request for Proposal 06-X-38501 (RFP), seeking bids for contracts to provide the State and its cooperative purchasing members "rugged" computer hardware, including vehicle-mounted computers, portable computers, printers, related peripherals and services (collectively "rugged computers"). Gold submitted a bid in response to the request. The Division opened and publicly announced all bids. By letter, the Division requested Best-and-Final Offers (BAFOs) from a number of bidders, including Gold. The letter included a spreadsheet listing all of the other bidders' bids. Gold submitted its BAFO. On June 23, 2006, the Division determined that it would not offer Gold a contract.
Shortly thereafter, Gold served a timely Notice of Protest. On September 25, 2006, the Director issued a final agency decision, finding the Division had properly denied Gold a contract.
Gold is a New Jersey corporation with its principal place of business in East Rutherford. Founded in 1972, it is engaged in the business of selling computer hardware, software and related equipment, primarily to police departments.
In the present appeal, Gold only challenges the decisions not to award it a contract for two of its bids. Accordingly, the remainder of Gold's bids, which were also rejected, are not before us on this appeal.
Following bid submissions, a Committee evaluated the bids based on several criteria. The RFP advised the bidders that the State reserved the right to negotiate with and/or seek BAFOs from any bidder. Following the submission of any BAFOs, if required, the Committee would make recommendations to the Director as to which bidder(s) the Division should award contracts.
The Committee reviewed all of the submitted bids and requested BAFOs from six bidders, including Gold. Included in this letter were three tables setting forth all of the bidders' bids in each of the categories. The stated purpose of including all bids was "to encourage all bidders to provide their best prices in this BAFO . . . ."
On June 23, 2006, the Division issued the Notice of Intent stating which bidders it intended to contract with, none of whom were Gold. Shortly thereafter, Gold filed a Notice of Protest with the Division pursuant to N.J.A.C. 17:12-3.3(a)(2). Gold made four points of protest: 1) Gold's proposal for vehicle-mounted computers was responsive and responsible, the denial being without substantial credible evidence; 2) Gold's proposal for a handheld computer was responsive and responsible, the denial being "clear error;" 3) Gold's proposal for a printer was responsive and responsible, the denial being "clear error"; and 4) the State violated the terms of the RFP and N.J.S.A. 52:34-12a(f) by communicating the other bidders' bids in its letter seeking BAFOs.
In a final agency decision, the Director, Alice K. Small, affirmed the recommendation of the Committee. She addressed each of Gold's four points of protest in detail. With regard to the vehicle-mounted computers, the Director laid out, in table format, the RFP requirements, what Gold's protest letter stated and what Gold's original bid stated. For each, there are noticeable differences. For the Data911 computer specifically, the Director found there was "no information in the four corners of Gold's bid proposal that" the Data911 it was offering had the required ports. Such a defect rendered Gold's bid "incomplete and unacceptable." Based on these differences, which the Director deemed considerable and non-conforming, the Director rejected Gold's first point of protest, finding that:
Gold's offers of product configurations that did not comply with base requirements of the RFP constituted non-waiveable, material deviations from the RFP requirements that could not be rectified by clarifications or cannot be modified by subsequent submissions, ...