On appeal from the Final Decision of the New Jersey Turnpike Authority.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 8, 2010
Before Judges Axelrad, R. B. Coleman and Lihotz.
B&C Towing, Inc. ("B&C") appeals from a final determination of the New Jersey Turnpike Authority ("Authority") that B&C did not meet the prequalification requirements relating to on-site secure storage and local road access to the relevant interchange to submit a bid for routine towing and emergency services on the New Jersey Turnpike ("Turnpike"). We affirm.
On July 28, 2008, the Authority issued a Request for Prequalification (RFP) of contractors for routine towing and emergency services on the Turnpike and Garden State Parkway. B&C submitted a timely application to provide towing services at two interchanges on the Turnpike, which was denied on January 30, 2009. B&C protested the denial and requested a hearing. A protest hearing was conducted on April 2, 2009. The hearing officer denied B&C's protest on June l2, 2009. On July 23, 2009, the Authority's Executive Director adopted the hearing officer's decision as the final agency decision. This appeal ensued.
Following the issuance of the RFP, a mandatory pre-application conference was held on August 5, 2008. The return date for completed applications was set for October 29, 2008.
The following prequalification criteria contained in the RFP are relevant to this matter:
For Routine Towing Services on the Turnpike: Applicant's garage facility shall be located within five (5) miles driving distance of the Interchange Toll Plaza specified for the Zone upon which the Applicant intends to bid . . . . Moreover, the location of Applicant's garage facility must allow for unrestricted travel via local roads or routes other than the Turnpike. Applicant must submit detailed driving directions to the Turnpike from Applicant'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. . . .
B&C submitted timely prequalification applications to provide routine towing and emergency services at Interchanges l5E and l5W of the Turnpike. An unannounced inspection of B&C's facility was performed by Authority employees on November l7, 2008. The inspection revealed that a portion of the fence enclosing B&C's facility had been removed. B&C was informed its application for Interchanges l5E and l5W had been denied because of an "unsecured storage area." The application for l5W was also denied because B&C provided incorrect driving directions to access the interchange. On February 4, 2009, B&C protested the denial of its applications and requested a hearing. In its letter, B&C stated its facility was directly adjacent to the Turnpike and complained that portions of the fence had been removed by Authority representatives to gain access through the B&C facility to perform work on the Turnpike. According to B&C, such conduct had occurred "from time to time over the last l0 years," and most recently approximately six months prior. Thus, B&C urged it was inappropriate for the Authority to deny its application based on the Authority's own conduct in creating the problem. B&C noted the fence posts were still intact and offered to promptly install new fencing.
Alan Young, B&C's owner, testified at the protest hearing. Young contended the City of Newark, which had a similar secure storage area requirement, had hired B&C as an official tower despite the missing portion of the fence and urged the Authority to do likewise. He testified that, despite the gap in the fence, "there's virtually no access from the rear of [B&C's] property" because of a ten-foot wide creek running along the rear of the property outside the fence and a twenty-to thirty-foot wall across the creek that supports an elevated portion of the Turnpike.
Later in the hearing, however, B&C's counsel acknowledged there was access from a road in the back of B&C's property through the fenced area and that an individual would be able ...