On appeal from the Department of the Treasury, Division of Purchase and Property.
The opinion of the court was delivered by: R. B. Coleman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, R. B. Coleman and Sabatino.
Plaintiff Jasper Seating Company (Jasper) appeals from the Final Agency Determination of the Division of Purchase and Property (Division) to reject Jasper's bid as non-conforming for the State's purchase awards under its publicly-bid contract for furniture. We affirm the Division's determination.
The Division issued a Request For Proposals (RFP) on August 2, 2006, bid solicitation No. 07-X-37695, for non-modular office furniture. The solicitation was being offered for multiple State contract awards with the intent to make one statewide award for each brand of furniture listed in the RFP. An award of this type is significant as the contract award would not only cover the initial procurement of a particular brand of furniture but also all re-orders from the State and all of its using agencies and cooperative partners for a period of eighteen months. Due to the exclusivity and length of the contract, the RFP required pricing in the submitted bids to be firm for eighteen months.
The most relevant terms in the RFP which applied to all bidders are as follows. Section 6.1.5 mandates: "Responsiveness of the bidder with respect to the published price list(s) submitted. They should be adequate for the evaluators to analyze the bid proposal." Section 1.4.1 provides: "It is the sole responsibility of the bidder to be knowledgeable of all addenda related to this procurement." Section 1.4.2 provides: "The bidder assumes sole responsibility for the complete effort required in submitting a bid proposal in response to this RFP. No special consideration will be given after bid proposals are opened because of a bidder's failure to be knowledgeable as to all of the requirements of this RFP." Section 5.1 provides: "In the event of a conflict between the provisions of this RFP... the Addendum shall govern."
During the question and answer period prior to bid submittal, twice bidders asked questions regarding submissions that included catalogs with price escalation stickers on the cover. The addenda and RFP compliance questions asked by bidders regarding sticker increases and the answers thereto include the following:
RFP § 3.20.2 Price List Update
Question: If a manufacturer does not have a new published price list at the 18 month price update will a "sticker" price label be acceptable?
Answer: No. There will be no adjustments to originally submitted discounts. Only the most updated manufacturer's preprinted price lists will be acceptable.
RFP § 18.104.22.168 Mfr's Price List and Descriptive Literature Question: Our current price list has a date of February 2005 but we have a sticker on the front of our price list stating that there is a 6% upcharge effective January 3, 2006. Will our price list with the 6% upcharge that became effective January 3, 2006 be accepted as our current price list?
Answer: The price list submitted must not contain any sticker increases, upcharges etc. The discount being bid will be taken directly from the price list submitted without any additional calculation. The bidder should adjust its bid accordingly. [emphasis added.]
Both answers state unequivocally that sticker increases and sticker price labels are not acceptable. The answers to the questions went further to clarify that only the most updated ...