On appeal from the Division of Purchase and Property, Department of Treasury.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 3, 2011
Before Judges A. A. Rodriguez and Fasciale.
Central Jersey Landscaping, Inc. (Central) appeals from a December 17, 2010 final decision of the Division of Purchase and Property (DPP) rejecting its bid protest and awarding a bid to Garden State Sealing (GSS). We affirm.
In August 2010, DPP issued a request for proposals (RFP) for a three-year contract for statewide snow removal and salting services throughout New Jersey. Central and GSS, both of which have performed services pursuant to prior state contracts, submitted bids for the same location.*fn1 On November 3, 2010, Central submitted its bid - along with a source disclosure form - and, after responding to the DPP's invitation to submit a best and final offer (BAFO), lowered its final bid price to $69,390. On November 4, 2010, GSS submitted its bid, which totaled $69,025 - $365 less than Central's bid. GSS did not include a source disclosure form in its bid.
On December 2, 2010, the DPP's Purchase Bureau recommended to the DPP's acting director that the DPP award GSS the price line 00005 contract. The Purchase Bureau noted that "Central . . . submitted a responsive bid which is not considered to be the lowest cost" and further, that "[GSS] is considered to be the lowest cost, responsive, responsible bidder." On December 9, 2010, GSS submitted its source disclosure form. On December 13, 2010, Central filed a notice of bid protest with the acting director, contending that GSS's bid was nonconforming for not having included the source disclosure form, and that the Purchase Bureau did not consider the appropriate bid evaluation criteria.
On December 17, 2010, the acting director issued its final agency decision denying Central's bid protest. The director stated:
With respect to [Central's argument regarding nonconformity], RFP Section
184.108.40.206, Services Source Disclosure Form, as referenced in your protest, is one of several subsections within the RFP under RFP Section 4.4.2 setting forth certain specific standard forms of the RFP "required before contract award and that should be submitted with the bid proposal[,]" including . . . the Services Source Disclosure Form. RFP Section 2.1, General Definitions, expressly defines "should" as "denot[ing] that which is recommended, not mandatory. . . ." The Services Source Disclosure Form is not a mandatory submission item, such that the failure to include this form within the bid proposal is not a basis to characterize [GSS's] bid proposal non-responsive.
I note that in contradiction with RFP Section 4.4.2 setting forth certain specific standard forms of the RFP "required before contract award . . .," RFP [s]ubsection
Pursuant to N.J.S.A. 52:34-13.2, the bidder is required to submit with its bid proposal a completed source ...