On appeal from the Division of Property Management and Construction, Department of Treasury, Docket No. SPR-08087.
The opinion of the court was delivered by: Axelrad, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: April 17, 2013 --
Before Judges Axelrad, Sapp-Peterson and Happas.
The opinion of the court is delivered by AXELRAD, P.J.A.D.
Plaintiff Matthew J. Barrick, Jr., the second lowest bidder, appeals from a final decision of the Director, Division of Property Management and Construction (the DPMC), recommending the award of a contract to RMD Properties, LLC, the lowest bidder, to lease office space for a State agency, and denying reconsideration. Plaintiff primarily contends the bid award to RMD and the rejection of his challenges were arbitrary and capricious because RMD's bid was non-conforming as materially deviating from the non-waivable requirement that the site be within a specific distance from accessible public transportation. We agree the agency erred in failing to perform an accessibility analysis when the bids initially reflected that neither bidder complied with the distance requirement of the scope of work (SOW), and in failing to perform a materiality and waiver analysis of the distance requirement on reconsideration when it ascertained that only RMD's bid was noncompliant. As RMD's bid materially deviated from the SOW, we reverse the DPMC's determination that the bid was conforming and the recommendation to award the lease to it, and remand the case to the agency to decide whether to award the lease to plaintiff or to rebid it.
The DPMC, a unit of the Department of Treasury that handles leases for the State, sought to lease space in Morris County for a Department of Labor (DOL) One-Stop Career Center. On April 24, 2009, the DPMC posted an advertisement on its website seeking requests for proposals (RFP) to lease 15,500 to 16,500 square feet of office space, for ten years with an option to cancel after the fifth and seventh years, plus two five-year-renewal options. On September 28, 2010, the DPMC revised the advertisement to expand the SOW. Interested bidders were sent a proposal package.
The proposal package included response forms, the SOW, and a sample lease. The "basic information" statement advised of "special requirements" of "85 parking spaces & public transportation nearby." According to the SOW, the DOL was seeking office and support space for forty-eight employees in the Denville Township or Rockaway Township areas of Morris County, with a preference for eighty-five lighted parking spaces. Among other requirements, the SOW stated that "[t]he office shall be located within 1/4 mile of a mode of accessible public transportation (bus route or other means)." (emphasis added). Proposals were timely submitted by plaintiff, the landlord of DOL's current One-Stop Career Center (for 107-109 Bassett Highway, Dover), RMD (for 13 Emery Avenue, Randolph), Highway Enterprises, Inc. (for 350 Route 46, Rockaway), and Mynt Properties, LLC (for 220 Franklin Road, Randolph).
By letter of May 12, 2011, the DPMC rejected Mynt's proposal, concluding its facility was not well suited for DOL purposes because there were no sidewalks or walkways from public transportation to its facility and tractor trailer traffic traversed the common parking lot. The letter stated:
These issues are very important for this requirement as it is for a One-Stop Career Center. These Career Centers play an important part in the community because they assist the public with obtaining employment or the training needed to meet the demands of our present workforce and also offer educational training programs on-site. Most of the patrons who require these needs are dependent upon public transportation and therefore need to be provided with the safest environment to meet these goals while ensuring a safe environment for our employees as well.
Please be aware that this declaration of ineligibility is for this requirement only. [(Emphasis added).]
The DPMC sent the remaining bidders a letter requesting their best and final offers (BAFO). Plaintiff offered $443,926/year (17,140 sq. ft. x $25.90 per sq. ft.), RMD offered $490,921.20/year (19,404 sq. ft. x $25.30 per sq. ft.), and Highway Enterprises, ...