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I/M/O Protest of Nick's Towing

December 23, 2010

I/M/O PROTEST OF NICK'S TOWING SERVICE, INC., REQUEST FOR PREQUALIFICATION FOR EXTRA HEAVY DUTY TOWING SERVICES, JULY 14, 2009 HEARING


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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: December 8, 2010

Before Judges Axelrad, R. B. Coleman and Lihotz.

Nick's Towing Service, Inc. ("Nick's") appeals from a final determination of the New Jersey Turnpike Authority ("Authority") that Nick's did not meet the experience requirements to be pre-qualified to submit a bid for extra heavy duty towing and recovery services on the New Jersey Turnpike and the Garden State Parkway (individually referred to as "Turnpike" or "Parkway" or collectively referred to as "Authority Roadways").*fn1

We affirm.

On October 28, 2008, the Authority issued a Request for Prequalification (RFP) of contractors for extra heavy duty towing and recovery services on the Turnpike and Parkway. Nick's submitted a timely application on December l9, 2008. Nick's application was denied on March 23, 2009. It protested the denial and requested a hearing. A protest hearing was conducted on July l4, 2009. The hearing officer denied Nick's protest on September 9, 2009. On September l4, 2009, the Authority's Executive Director adopted the hearing officer's findings and recommendation as the final agency decision. This appeal ensued.

I.

Following the issuance of the RFP, a mandatory pre-application conference was held on November l4, 2008. As a result, three addenda were issued modifying provisions of the RFP and responding to questions from potential applicants. Nick's submitted a timely prequalification application to provide extra heavy duty towing and recovery services for Zone F on the Turnpike and Zone l5 on the Parkway. The Authority rejected Nick's application based on its failure to meet the prequalification criteria set forth in Section III.A.1 of the RFP ("experience requirement"), which states, as follows:

Applicant must have a minimum of five (5) years of extra heavy duty towing and recovery services experience on the following Interstate highways within New Jersey: I-80, I-280, I-287, I-295, I-l95, I-78, as an approved extra heavy towing and recovery services provider for the New Jersey State Police, and/or five (5) years of such experience on the Authority Roadways as an approved extra heavy duty towing and recovery services provider for the Turnpike Authority.

Addendum No. 2 added the Atlantic City Expressway to the enumerated list of roadways on which an applicant could gain the requisite years of service experience.

At the hearing on July l4, 2009, the Authority presented the testimony of its case manager, Patrick Cicchetti, and its manager of emergency services and operations, John Sutcliffe. Nick's presented the testimony of its owner, Nicholas Testa. Nick's position was that both the prequalification criteria and the denial of its application were arbitrary and capricious. Nick's had explained to the Authority in a November l8, 2008 letter, referenced by the Authority witnesses, that it did not have the requisite experience on the enumerated roadways because it was not located close enough to those roadways to meet the applicable time and distance criteria and there had not been an opportunity to be added to the list of approved towers for the last ten years. Nick's claimed it did, however, have thirty-five years of experience providing extra heavy duty towing services on state highways such as Routes 3 and l7, which it deemed comparable to the enumerated interstate roadways, and to have performed extra heavy duty towing services on Authority Roadways on an emergency basis in connection with its capacity as an approved routine tower.

Cicchetti testified about the importance of the Authority's requirement for extra heavy duty towing experience on the particular, enumerated interstate roadways as opposed to other state and local roadways. He explained that additional expertise was required based on the differences between the Turnpike and other roadways, such as Routes 3 and 46. Cicchetti acknowledged that on one or two occasions the services provided by Nick's had risen to the level of extra heavy duty towing but was of the opinion that Nick's limited exposure did not demonstrate the level of experience necessary to meet the RFP requirements.

Testa took issue with the Authority's position that performing extra heavy duty towing services on the state roads on which he had experience was not comparable to providing the same services on the enumerated or Authority Roadways. He emphasized that Route 3 is a major artery leading into Manhattan and also serves the sports complex at the Meadowlands. He further contended the towers get "the same pressures about lane closure" from the local and county police as from the Authority. Testa also claimed to have provided extra heavy duty towing services on Authority Roadways on more than just a few occasions ...


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