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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 - Decided:
Before Judges Axelrad, R. B. Coleman and Lihotz.
John's Main Auto Body (John's) appeals from a final determination of the New Jersey Turnpike Authority (Authority) that it did not meet the prequalification requirements to submit bids for routine towing and emergency services and for extra heavy duty towing and recovery services on the New Jersey Turnpike (Turnpike). These appeals were calendared back-to-back and for ease are dealt with in one opinion. We affirm both appeals.
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. John's submitted timely applications for two facilities, which were denied on January 30, 2009. On February 4, 2009, John's appealed the prequalification denials as to both its facilities. A protest hearing was conducted on April l, 2009, after which the hearing officer denied John's protest regarding its prequalification applications for both facilities. On June 5, 2009, the Authority's Executive Director adopted the hearing officer's findings and recommendations as the final agency decision.
On July l3, 2009, John's filed a complaint in lieu of prerogative writs in the Superior Court, Law Division, challenging the Authority's denial of its prequalification applications and seeking to temporarily restrain the Authority from proceeding with the procurement process. By written decision and order of August 5, 2009, Judge Maurice J.
Gallipoli, A.J.S.C., transferred this matter to the Appellate Division. By order of October l, 2009, we denied John's emergent application for a stay pending appeal and temporary restraining order.
Following the issuance of the RFP, a mandatory pre-application conference was held on August 5, 2008. As a result, six addenda were issued modifying provisions of the RFP and responding to questions from potential applicants. The return date for completed applications was set for October 29, 2008. John's submitted timely prequalification applications to provide routine towing and emergency services at Interchanges l5E, l5W, and l8W on the Turnpike for each of its facilities in North Bergen -- l4l5 Union Turnpike (Union Turnpike facility) and 4209-430l Dell Avenue (Dell Avenue facility).
The following prequalification criteria contained in the RFP are relevant to this matter:
D. Principal Garage Facility
1. All repairs performed at the request of a patron must be performed by the Contractor at the Garage Facility . . . [which] must be neat, clean, orderly, and well maintained. The Garage Facility must contain at least one (l) major permanent structure, and must contain at least one (l) clean and well-maintained restroom for patrons available 24 hours. There must be clean and comfortable administrative offices and waiting area for patrons with a public and/or private telephone available 24 hours for patrons' use. The restroom must have a working toilet, a sink with hot and cold water and with paper or mechanical means for drying hands. ALL PUBLIC AREAS MUST BE CLEAN, SANITARY AND IN GOOD REPAIR.
2. Applicant represents that the Garage Facility meets all applicable municipal, county and state codes and/or regulations. These include, but are not limited to, a) plumbing, b) electrical, c) fire, d) hazardous waste disposal, e) zoning requirements, f) parking, g) health and h) fire prevention. Applicant must provide a copy of a certificate of occupancy for garage facility.
The RFP also provides, as part of the prequalification process, that each applicant's equipment, facilities and employees are subject to inspection by Authority personnel. It further states that garage inspections will be unannounced and it is the applicant's responsibility to demonstrate to Authority personnel during the inspection that the prequalification application requirements are satisfied. In addition, the RFP requires applicants to submit detailed driving directions to the Turnpike from its garage facility.
John's was notified by letter of January 30, 2009 that its applications for the Union Turnpike facility were denied prequalification because of "(a) no electricity in the trailer (office); (b) no running water; (c) no phone; [and] (d) no working restroom." Prequalification for Interchange l5W was also denied on the ground that John's provided incorrect driving directions from its facility to the interchange. On the same date, John's was notified that its applications for the Dell Avenue facility were also denied prequalification because of "no operating facility; [and] (b) unable to inspect." On February 4, 2009, John's appealed the denials for both facilities.
At the protest hearing on April l, 2009, the Authority presented the testimony of its case manager, Patrick Cicchetti, and its manager of emergency services and operations, John Sutcliffe. John's presented the testimony of its supervisor of daily operations, Robert Heiser. For ease of ...