On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-3058-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez, Reisner and Chambers.
In July 2008, the South Jersey Transportation Authority (the Authority) awarded: (1) a contract for light duty towing services on the Western Sector of the Atlantic City Expressway (the Expressway) and (2) a contract for heavy duty towing services on the Eastern Sector of the Expressway to Riehl's Towing and Maintenance, Inc. (Riehl's). The lowest bidder, Joseph Robles, t/a Joe's Auto Repair (Joe's), was not awarded the contracts.
Joe's commenced this action in lieu of prerogative writs. The Authority and Riehl's answered. The parties stipulated the facts. Judge Steven P. Perskie found that the Authority's conduct was not arbitrary nor capricious and upheld the Authority's decision. We affirm.
The stipulated facts are as follows. Joe's is in the business of providing automobile and light and heavy duty towing and repair services. Riehl's is also engaged in the same business. The Authority, the owner and operator of the Expressway, is a quasi-governmental entity established pursuant to the South Jersey Transportation Authority Act (Act), N.J.S.A. 27:25A-1 to -43.
Joe's had been the authorized tow truck operator on the Western Sector of the Expressway since 1999. The most recent contract for towing services for the Western Sector was awarded in September 2002. Joe's continued to hold the contract through September 2008. Throughout this entire period, Joe's operated at the same location and facility.
In May 2008, the Authority advertised for bids for light duty towing services on the Western Sector of the Expressway. The Authority received a bid from Riehl's, which the Authority rejected because the bid contained a material defect. In July 2008, the Authority re-advertised for bids for light duty towing services on the Western Sector of the Expressway. The Authority received two bids in response, one from Joe's and the other from Riehl's. The Authority also advertised for bids for heavy duty towing services on the Eastern Sector of the Expressway. The Authority received no bids for this contract. The Authority publicly re-advertised for bids. It received four bids from Joe's, Riehl's, Jimmie's Lakeside Garage (Jimmie's) and Flannagan's.
In order to determine whether or not the bidders had facilities in compliance with the bid specifications, the Authority sent agents Kevin Rehmann and Jim Sullivan to examine the premises. Rehmann prepared a memorandum detailing his findings. Rehmann noted that "[a]lthough Joe's submitted the lowest bid, an inspection of their facilities revealed several areas where the specification was not met and they did not portray a positive representation of the Authority." Specifically, Rehmann found that Paragraph 2M of the Authority specifications provides:
Administrative and customer accommodations must be clean, well maintained, and presentable at all times. Motorist facility must include a waiting lobby with restroom facilities and public telephones. Restroom facilities must meet all local and state board of health standards. Tow truck operators must be equipped with a cellular phone to allow patrons to make a phone call, or must transport the patron to a location to make a phone call.
However, as a result of his examination, Rehmann found:
The bathroom and customer area found at Joe's was nothing less than deplorable. I asked Joe to point out which areas he had designated for each, and he showed me. The bathroom, which is shared by customers and employees alike, consisted of (1) toilet and (1) sink in an area approximately 6' x 6' and was also used to store an arc welder and uniforms on hang[e]rs. There is no customer waiting room. The area indicated as such doubles as a parts room and also contains a lathe. It is necessary to travel though a repair bay with a lift to enter this room. A small round table and chairs was placed in the room to accommodate any waiting customers. Both rooms were dirty and poorly lit. Several customers who were waiting for their vehicle to be repaired were observed walking around inside and outside the garage area. The design and layout of the facility is not conducive for customer waiting. Joe's is a repair shop as well as a used auto parts business located in a rural area, and does not have a retail, customer friendly atmosphere. This should not be considered an indictment of the quality of Joe's work, but rather an observation and evaluation of the facility as it pertains to the bid specifications.
An inspection of Riehl's Towing revealed that their facility, located in Deptford Township, contained a separate customer waiting room, adjacent to the office, and separate, dedicated, customer bathroom facilities. ...