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Michael Risoldi Auto Repair, Inc. v. New Jersey Turnpike Authority

April 8, 2008

MICHAEL RISOLDI AUTO REPAIR, INC., APPELLANT,
v.
NEW JERSEY TURNPIKE AUTHORITY, RESPONDENT.



On appeal from a Final Agency Decision of the New Jersey Turnpike Authority.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 9, 2008

Before Judges R. B. Coleman and Lyons.

Plaintiff Michael Risoldi Auto Repair, Inc. appeals from a Final Agency Decision by the New Jersey Turnpike Authority denying Risoldi's prequalification application for routine towing services on the New Jersey Turnpike. After reviewing the record in light of the contentions and applicable law, we affirm.

Michael Risoldi has been engaged in the business of towing vehicles since 1996. His corporation has been operating at its Eastampton location for over three years. The Turnpike Authority (the Authority) is a State agency responsible for the operation of the Garden State Parkway and New Jersey Turnpike. In order to properly maintain these roadways, the Authority often hires contractors to perform services. In accord with this practice, the Authority contracts with qualified towing companies to tow cars from the Turnpike. Towing companies are selected pursuant to a two-step process, as promulgated by N.J.A.C. 19:9-2.13. The first step requires prospective contractors to prequalify with the Authority for each applicable region or zone of roadway. Once prequalified, a contractor may submit a bid and these bids serve as the basis for the award of service contracts to the lowest qualified bidders for particular zones of the Turnpike.

On July 18, 2006, the Authority issued a public notice soliciting responses for a request for prequalification to provide routine towing services within a number of different zones of both the New Jersey Turnpike and the Garden State Parkway. The prequalification document was quite extensive, requiring a great deal of information. In particular, Section III(A) of the prequalification specifications required that an [a]pplicant must have a minimum of three (3) years general towing experience at present location, and a minimum of three (3) years of towing experience on New Jersey state highways or interstate roadways, or the New Jersey Turnpike or Garden State Parkway. At the discretion of the Authority, the requirement of three (3) years of towing experience at present location may be satisfied by time spent at another location.

Section III(D)(3) provided the necessary specifications of the tow company's garage facility:

Contractors will be required to have a garage facility with ample on-site secure storage for at least fifty (50) passenger vehicles, and five (5) tractor-trailers or buses. The garage facility must also be zoned accordingly to allow for these storage requirements. Satellite (off-site) storage yards will not be considered. All storage must be at address listed on the Contractor's submitted Prequalification Application. Under no circumstances will patron's vehicles be stored on city streets or in an unsecured location.

Once the Authority receives the application, the Authority personnel conduct an unannounced inspection of each proposed facility. The purpose of this inspection is to ensure that the facility meets the technical and security requirements set forth in the preapplication document. The Authority "shall make only one inspection per garage facility as part of the Prequalification process."

Plaintiff submitted a prequalification application in order to become a towing service provider at Location No. 5 of the Turnpike. In response to the Section III(A) requirement, Risoldi submitted a list of ten towing services contracts. Only six of those ten contracts had been in place for three years or more. The submission, however, made no mention of the company's experience with towing vehicles from state or interstate highways. It did mention the name of contracted companies, the location of the company and a description of work performed for each company.

On August 15, 2006, in response to the application, representatives of the Authority conducted an unannounced inspection of Risoldi's Eastampton facility. The officials also took aerial photographs of the site. Thereafter, the Authority informed Risoldi by letter, dated September 25, 2006, that its prequalification application was denied because Risoldi had "(a) no secured storage at the stated location of the garage facility; [and] (b) insufficient towing experience on New Jersey State highways or interstate roadways, or the New Jersey Turnpike or Garden State Parkway."

Upon receipt of that notice of denial, Risoldi filed a Notice of Protest. In a letter, dated September 29, 2006, counsel for Risoldi asserted "that the property is secured by fencing, natural water ways and they have security on-site 24 hours a day." Risoldi also asserted that "the information provided meets and exceeds the required qualification of the New Jersey Turnpike Highway Authority." Furthermore, plaintiff stated it has experience towing on Interstate 295, Interstate 195, Interstate 95, Interstate I-95, Interstate I-29, Interstate 129, US Highway 130, US Highway 541, US Highway 206, US Highway 537, US Highway 38, US Highway 70, US Highway 73 and Routes 1 and 9. With that letter, counsel attached several photographs of the towing company site.

On November 8, 2006, the Authority held an administrative protest hearing at which the designated hearing officer, Diane Scaccetti, Deputy Executive Director of Administration, presided. At the hearing, the Authority asserted that Risoldi's premises lacked perimeter fencing and did not have any security measure besides a gate at the front entrance. The Authority expressed its concern that cars left on the lot would be subject to theft and break-in. According to the Authority, the term "security," as it appeared in the prequalification application, was meant to be interpreted in the practical sense which includes protection against vandalism and theft. Even if thieves could not drive the cars off the lot, they might be able to purloin items from the cars. As to Risoldi's lack of experience ...


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