On appeal from the Department of Military and Veterans Affairs.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 11, 2012
Before Judges Sapp-Peterson and Haas.
Appellant, Absolute Protective Systems, Inc. (Absolute), appeals from the February 13, 2012 final decision of the Department of Military and Veterans Affairs (DMAVA) upholding the award of a contract to Oliver Fire Protection and Security (Oliver) for the maintenance, repair and inspection of fire protection systems at various DMAVA facilities. After reviewing the record in light of the contentions advanced on appeal, we affirm.
DMAVA is responsible for maintaining New Jersey National Guard armories and other military and veterans' facilities. N.J.S.A. 38A:3-6(g). It is authorized to advertise for bids and enter into contracts for the performance of services necessary to maintain these facilities. N.J.S.A. 38A:12-3.
In 2011, DMAVA issued a request for proposals (RFP) on a contract to provide fire protection systems inspection, maintenance, and repair services at approximately fifty-seven DMAVA facilities located throughout New Jersey. The RFP set forth detailed instructions for the bidders on the bidding process, the information and documentation to be submitted in the bids, and the manner in which the bids would be evaluated. The contract would be for a one-year period although, at DMAVA's option, there could be up to four, one-year extensions of the contract.
Under the terms of the RFP, the contractor would be required to perform both "scheduled" and "on call" services in order to "maintain proper function of equipment in all designated locations." Bidders were required to visit each DMAVA facility, inspect the character and condition of the equipment to be serviced, and complete a "facility site visit worksheet" for each facility. The worksheet contained spaces for the name of the facility visited, the signature of the "facility representative" and the different categories of equipment that could be found at each site. Bidders were asked to report the number of fire protection systems located in each facility on the worksheet and submit the worksheet with their bid.
The bidders were required to provide their proposed costs for eighteen different aspects of the project. Thus, for example, bidders were asked to include the costs for scheduled work, such as annual inspections of wet and dry sprinkler systems, fire hydrants, deluge sprinkler systems and other equipment tests. For these specific systems and equipment, a fixed price estimate was required. There was also an "on call" component of the contract, where services were not scheduled in advance. For these "on call" maintenance and repair services, the bidders were required to submit the hourly rates to be charged when these services were provided during, and after, regular business hours.
On September 15, 2011, DMAVA conducted a mandatory pre-bid meeting with prospective bidders. The agency's final decision states that, at this meeting, the bidders were advised it was not necessary for them to give "actual quantities" on the worksheet of all of the systems found during the pre-bid site inspections. Instead, DMAVA was merely "looking for an affirmation that the bidding contractor had visited the facility and conducted an inspection."
On October 3, 2011, DMAVA issued the first of two addenda to the RFP. The first addendum advised bidders the Consolidated Logistics Training Facility (CLTF) at Joint Base Lakehurst was to be included in the pre-bid site inspections and that the facility's deluge systems and pumps were to be included in their estimate, even though these systems were not currently operating. The second addendum, issued on October 12, 2011, answered bid questions the agency had received from various potential bidders.
On October 20, 2011, DMAVA opened the four bids it had received in response to the RFP. The four bidders were Oliver, Absolute, Kratos and Seaboard Fire. The Seaboard Fire bid was determined to be non-responsive and it was rejected. The remaining three bids were found to be complete and responsive.
A three-member committee of DMAVA project managers independently reviewed and scored the bids. Among other things, the committee members compared the bidders' quoted prices. For the fifteen fixed price items, Oliver's base contract price was $83,635.90, while Absolute's price was $118,850, with Kratos at $234,500. DMAVA stated that the hourly rates submitted for the remaining categories were also considered, but noted the RFP "specifically identified a minor maintenance work limitation of $2,000" and that "a written proposal would be required . . . for any proposal in excess of" that amount. Oliver's hourly rate was $140 for service calls during regular business hours and $205 for after hours calls. Absolute's hourly rates were $80 and $120, respectively. The bidders' costs for maintaining portable fire extinguishers had only minimal differences. The three committee members all found that "Oliver has the most cost effective proposal to the State."
The committee also considered the bidders' specialized experience and technical competence in fire protection maintenance, experience with conducting fire inspections in older buildings, available manpower, and ability to work cooperatively with government military and civilian personnel. Two committee members "rated Oliver as the best technical proposal," while one rated Absolute as the best. Based upon the ...