NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodriguez, Ashrafi and Fasciale.
On appeal from the Division of Purchase and Property, Department of Treasury.
Arthur L. Porter, Jr. argued the cause for appellant South Jersey Regional Airport, LLC (Fischer Porter Thomas & Reinfeld, P.C., attorneys; Mr. Porter, of counsel; Aaron E. Albert and Albert O. Kwon, on the brief). Kimberly A. Sked, Deputy Attorney General, argued the cause for respondent Division of Purchase and Property, Department of the Treasury (Paula T. Dow, Attorney General, attorney; Beth Leigh Mitchell, Assistant Attorney General, of counsel; Ms. Sked, on the brief).
South Jersey Regional Airport, LLC, (SJRA) appeals from the June 29, 2010 decision of the Division of Purchase and Property (the Division) to award Cave Flight School, LLC, (Cave) a contract to operate a State-owned airport, and the Division's September 24, 2010 decision rejecting SJRA's protest. We affirm.
In late 2007, the Division published a request for proposals on a long-term contract to operate the State's regional airport located in Lumberton, Burlington County. SJRA was the operator of the airport at the time of the request for proposals. SJRA, Cave, and one other bidder submitted bids in 2007. The Division rejected all three bids based upon a 2008 report by an evaluation committee that found flaws in each bid. The 2008 committee rejected SJRA's bid because it did not conform to the mandatory pricing terms of the request for proposals. It rejected Cave's bid because the committee perceived a potential conflict of interest in Cave's plan to intermingle the State's resources and personnel with those of the Flying W Airport, a private regional airport located two miles from the State's airport and owned by Cave. The 2008 committee found that the two airports were competitors and that the Flying W Airport had increased its aircraft tenants through defections from the State's airport.
In June 2009, the Division again published a request for proposals, calling for bids on a twenty-year contract to operate the State's airport. The 2009 request instructed bidders to propose a plan to increase airport services and improve its infrastructure. Six bids were submitted, including bids by SJRA and Cave.
The new bids were reviewed in 2010 by an evaluation committee of five voting members who had experience either with complex procurement contracts or with airport operations. None of the 2010 committee members were voting members of the 2008 committee. Each committee member was required to assess the merits of a bid in five categories: the general approach of the proposal, a detailed technical plan, the bidder's experience in performing similar contracts, the qualifications of personnel who would operate the airport, and the bidder's ability to mobilize and execute the contract. Unlike 2008, the 2010 assessment weighted the five categories differently, adding importance to the qualified personnel component and deemphasizing the detailed technical plan component.
After opening the bids but before scoring them, the committee allowed two bidders to submit additional documentation. Cave was permitted to submit a missing subcontractor set-aside form and an attachment required with the ownership disclosure form.
Subsequently, the committee scored the bids in accordance with the scoring rubric stated in the request for proposals and concluded that SJRA and Cave had submitted the two best bids. Both were invited to make oral presentations and to submit a best and final offer. The committee then issued a report recommending Cave be awarded the contract because it offered better pricing, personnel, plan to improve services, and track record in operating a regional airport. The report found SJRA's bid was technically sound but offered inferior pricing, personnel, and plan for developing the airport.
The Director issued a notice of intent to award the contract to Cave. SJRA filed a formal protest pursuant to N.J.A.C. 17:12-3.1 and -3.3, arguing that Cave's bid should be rejected because it would be a conflict of interest for Cave to operate simultaneously the State's airport and its privately-owned airport. SJRA also alleged the committee overlooked various technical errors in Cave's bid. It urged the Director to award the contract to SJRA.
The Director issued the final agency decision on September 24, 2010, rejecting SJRA's arguments and awarding the contract to Cave. In a comprehensive letter, the Director explained why Cave's bid conformed to the State's specifications, demonstrated technical superiority, and met the taxpayers' best interests. The Director also found that ...