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In the Matter of Protest

August 24, 2012

IN THE MATTER OF PROTEST OF B&L TIRE SERVICE, INC. WITH REGARD TO APPROVAL OF PREQUALIFICATION OF TUMINO'S TOWING, INC. FOR THE PERFORMANCE OF EXTRA HEAVY DUTY TOWING SERVICES ON THE NEW JERSEY TURNPIKE.


On appeal from the Executive Director of the New Jersey Turnpike Authority.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 20, 2012 -

Before Judges Yannotti and Espinosa.

Tumino's Towing, Inc. (Tumino) appeals from a final decision of the New Jersey Turnpike Authority (the Authority) that rescinded approval of its prequalification to bid for a towing contract. For the reasons that follow, we affirm.

On October 28, 2008, the Authority issued a public notice soliciting responses to a Request for Prequalification (RFP) of contractors for extra heavy duty towing and recovery services*fn1 for six service provider locations, Zones A through F, on the Turnpike. The RFP identifies criteria, including, but not limited to, experience and location of garage facilities, that a contractor must satisfy to become "prequalified" and therefore, permitted to submit a bid for the towing contract. See N.J.A.C. 19:9-2.13.

Subsection A of the RFP sets forth the following experience requirements:

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-195, I-78, as an approved extra heavy duty towing and recovery services provider for the New Jersey State Police, and/or five (5) years of such experience on the Authority Roadways*fn2 as an approved extra duty towing and recovery services provider for the Turnpike Authority. Applicant must have completed at least seven (7) verifiable [] extra heavy duty recoveries on the above-mentioned Interstates or Turnpike Authority Roadways within the past five (5) years. Extra heavy duty towing and recovery services experience for county, local or other law enforcement (other than the New Jersey State Police) will not be considered. At least three (3) of the five (5) years of extra heavy duty towing and recovery services experience must have been performed from the present location of Applicant's Principal Garage Facility. At the discretion of the Authority, the requirement of three (3) years of towing experience at present location may be satisfied by time spent at another location. [(Emphasis added).]

An applicant was required to identify in each application the location of the "Principal Garage Facility" for which the application was being submitted. "Garage Facility" is defined as "[t]he facility from which the applicant operates the towing business including the main storage facility and administrative offices[.]"

An applicant was permitted to seek prequalification for more than one zone. But to do so, the applicant had to complete and submit a separate prequalification application for each zone. The RFP explicitly stated that each application had to stand on its own to meet all criteria to warrant prequalification:

If a towing contractor has a Garage Facility located in one Zone and a separate Garage Facility located in another Zone and seeks to be prequalified in each Zone, each Garage Facility shall meet the requirements hereunder independent of the other; that is, there can be no sharing of equipment between Garage Facilities, but each shall meet the required minimums hereunder as to vehicles and equipment and all other criteria. [(Emphasis added).]

Any possible confusion as to the need for each Principal Garage Facility to independently satisfy the experience criteria or the likelihood that the Authority might exercise its discretion to waive this requirement was resolved by the Authority's response to a question regarding the three-year experience requirement at a mandatory prequalification conference:

Absent the occurrence of an uncontrollable circumstance, the Authority will not exercise its discretion and permit an Applicant to rely upon experience at another location as a substitute for three (3) years of experience at the location utilized as the basis for the Application for a particular Zone. The fact that an Applicant had significant experience at another location and has chosen to move its operations or open a second garage in ...


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