On appeal from the Final Agency Decision of the Department of the Treasury of the State of New Jersey, #08-X-39458.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 22, 2008
Before Judges Parrillo, Lihotz and Messano.
Brushfire, Inc. (Brushfire) appeals from the final decision of the Acting Director (the Director) of the Division of Purchase and Property (the Division) awarding a contract for advertising and public relations services to Winning Strategies Public Relations, LLC (WS). Brushfire contends that the proposal submitted by WS was "materially non-responsive" to the specifications in the request for proposals (the RFP). Brushfire further argues that the Division "failed to evaluate fully the merits" of its proposal, and failed to investigate its protest of the award as required by law. We have considered these arguments in light of the record and applicable legal standards. We affirm.
On March 30, 2007, the Division's Purchase Bureau, on behalf of the Department of Health and Senior Services (DHSS), publicly advertised for proposals for a three-year contract to "plan, design, execute, and administer advertising and public relations programs . . . to promote a variety of public health programs and services," including anti-smoking campaigns. The solicitation was a re-procurement of an existing State contract due to expire on June 30, 2007. An optional pre-bid conference was scheduled for April 26, 2007, and all responses to the RFP were due by May 15, 2007.
In the information section of the RFP, prospective bidders were advised that DHSS annually directed budgetary expenditures exceeding $1.5 million dollars toward various public health issues and healthcare concerns. The RFP included a non-exhaustive list of a dozen such areas, one of which was "[s]moking prevention and cessation." Section 4.4.7 of the RFP, entitled "CONFLICT OF INTEREST," required a bidder to disclose "all contracts held by the bidder, the bidder's parent and/or subsidiaries and all contracts held by any proposed contractor, such contractor's parent and/or subsidiaries, with a tobacco company or any parent or subsidiary of a tobacco company." In section 126.96.36.199, the RFP required each submission to include a "case study" presenting "the advertising and public relations proposal . . . with all its attendant strategic and budgetary details . . . for the Comprehensive Tobacco Control Program (CTCP) campaign." The case study was to "serve as the foundation for prices" submitted in each respondent's "[p]rice [s]chedule." Each case study was to include "[o]ne  public relations [sixty]-second radio (written) spot, one  concept for print or transit (artwork), and one  concept for an internet advertisement to promote the CTCP campaign." Each bidder was to "describe how the success of the radio spot . . . the print or transit advertising . . . and the internet ad . . . c[ould] be measured against the overall goal of the campaign[.]" The two primary goals of the CTCP were "to increase the number of smokers who initiate treatment to quit smoking and  to decrease the initiation of tobacco use by youth under the age of [eighteen] and young adults [eighteen to twenty-four] years of age."
An evaluation committee (the Committee) first reviewed the nine bids submitted in response to the RFP. The Committee was comprised of professionals from the Division and DHSS and was empowered to review the submissions and offer its recommendation to the Director who had the sole authority to award the contract. By letter dated June 4, 2007, the Committee invited four bidders, including Brushfire and WS, to make oral presentations and clarify their proposals.
Following the oral presentations and further internal discussions, the Committee ranked the proposals by their "technical evaluation," i.e., without knowledge of each bid's "pricing." WS placed second while Brushfire was ranked third. On June 22, 2007, in accordance with procedures outlined in the RFP, the Committee invited the four top-ranked bidders to submit a best and final offer, which they did, each lowering their proposed prices in the process. On July 26, 2007, the Committee unanimously recommended WS be awarded the contract. By letter dated July 30, 2007, each bidder was notified of the Director's decision to award the contract to WS.
On August 13, 2007, Brushfire submitted a formal written protest to the Division. It alleged that: 1) WS had an irreconcilable conflict of interest because of its affiliation with Princeton Public Affairs Group (PPAG) which maintained "a substantial, long-standing relationship with the tobacco industry," and that WS's failure to disclose the relationship rendered its response to the RFP "materially non-responsive"; 2) WS failed to provide "specific measurable criteria" as required by RFP Sections 3.4 and 188.8.131.52, also rendering its bid non-responsive; and 3) the Division "failed to consider the merits of [Brushfire's] proposal" and misled Brushfire by supplying inaccurate information that adversely affected the submission of its best and final offer.
On August 22, 2007, WS submitted a response to Brushfire's protest, noting that it was a New Jersey limited liability company with no parent or subsidiary companies. It was owned by three individuals: James McQueeny, who owned 91.9% of its stock; Courtenay Higgins, who owned 6.5% of the shares; and Peter McDonough, who owned 1.6% of the shares. It further noted that this information was disclosed in its response to the RFP. WS emphasized that it represented a wide array of clients in the healthcare field, but that neither the company nor its owners represented or had contracts with the tobacco industry. WS also contended that it maintained no holdings in PPAG, nor did PPAG maintain any interest in WS. In particular, WS noted that Dale Florio, an active lobbyist for the tobacco industry in New Jersey and a principal in PPAG, did not have any interest in WS.
WS acknowledged that it "participate[d] in a non-exclusive, loose marketing exercise with other independently owned and operated companies referred to as a 'circle of companies,' . . . [which] [wa]s nothing more than a marketing term [and not] a binding and/or exclusive agreement." Although PPAG was part of this "circle," it would have no interest in the DHSS contract that was the subject of the RFP, either as an affiliate of WS or as a subcontractor. Referencing its actual submission, WS also denied Brushfire's claim that it failed to provide specific measurable criteria for the success of its proposed services. Finally, WS suggested that the Committee's review of the proposals was thorough and appropriate, and that it was qualified and able to perform the contract.
On September 13, 2007, the Director denied Brushfire's protest. In a written opinion, she determined that: 1) because there was no evidence that PPAG had any ownership interest in WS, nor any evidence that WS or its subcontractors had any contractual relationships with the tobacco industry, WS complied with section 4.4.7 of the RFP and there was no evidence of a conflict of interest; 2) that the submission by WS was fully responsive to the other provisions of the RFP; 3) that the Committee had thoroughly reviewed all the submissions and reasonably found WS to be the bidder whose proposal was most ...