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In the Matter of the

May 15, 2012

IN THE MATTER OF THE APPEAL OF LANGAN ENGINEERING & ENVIRONMENTAL SERVICES, INC.


On appeal from the Division of Purchase and Property, Department of the Treasury. Angelo J.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued April 24, 2012

Before Judges Baxter, Nugent and Carchman.

The opinion of the court was delivered by BAXTER, J.A.D.

Langan Engineering & Environmental Services, Inc. appeals from a final agency decision of the Department of Treasury (Treasury), Division of Purchase and Property (Division), determining that, as of the due date for bids, August 2, 2011, appellant was disqualified from being awarded State contracts because appellant had made a political contribution within the eighteen-month period preceding appellant's submission of a bid. As a result of that determination, Treasury deemed appellant disqualified from the October 5, 2011 New Jersey Schools Development Authority (SDA) procurement. We reject appellant's challenge to the final agency decision. We conclude that: 1) Treasury's ineligibility determination was correct; 2) the inclusion of contributions to legislative leadership committees in Executive Order Number 117 (EO 117) is not unconstitutional; and 3) pursuant to the governing statute, N.J.S.A. 19:44A-20.14, Treasury properly concluded that the eighteen-month look-back period commences when bids are due. We affirm.

I.

On April 7, 2010, appellant made a $500 contribution to Assembly Republican Victory 2011, a legislative leadership committee. Some fourteen months later, on June 23, 2011, SDA issued a request for proposals (RFP), seeking bids for a two-year contract for site environmental consulting services in the planning and construction of school facilities projects. Appellant submitted a bid on August 2, 2011, the date bids were due. After the bids were received, SDA evaluated each submission, ranked the bidders and negotiated uniform pricing with each of them.

The SDA Board of Directors adopted a resolution awarding the site environmental consulting contract to fifteen firms, including appellant, pending "approval of all contract and related documentation" by Treasury. At SDA's request, the Division's Chapter 51*fn1 Unit*fn2 reviewed all fifteen firms for Chapter 51/EO 117 clearance. Thirteen firms were approved; appellant and another firm were rejected.

SDA's Procurement Director notified appellant that Treasury had ruled that appellant could not be awarded a contract that exceeded $17,500 in value with a State department, agency or authority, and, as a result, appellant was disqualified from the current SDA procurement. On December 1, 2011, appellant sent Treasury a detailed letter of protest, challenging Treasury's assertion that the statutory disqualification began on the date the bids were due, and then encompassing the preceding eighteen months. Appellant instead contended that the disqualification period began on the day the political contribution was made, and continued for the next eighteen months. On December 20, 2011, Treasury issued the final agency decision that is the subject of this appeal, rejecting appellant's argument. Treasury notified appellant that, in the context of a publicly advertised contract, the statutory phrase in N.J.S.A. 19:44A-20.14 --"within the eighteen months immediately preceding the commencement of negotiations for the contract or agreement" --refers to the eighteen months immediately preceding the date when bids are due to the State contracting agency. Because appellant was disqualified on August 2, 2011, the date when proposals for the contract were due to SDA, appellant was not, according to Treasury, eligible for the award of the SDA contract.

Appellant appealed, and on January 25, 2012, we denied its motion for a stay of the disqualification pending appeal.

II.

The principles governing judicial review of administrative agency actions are well known. As the Court recently observed:

Although in reviewing the decision of an administrative agency, we must give deference to the agency's findings of facts, and some deference to its interpretation of statutes and regulations within its implementing and enforcing responsibility, we are in no way bound by the agency's ...


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