Barrick v. State
| Decision Date | 01 May 2013 |
| Citation | 430 N.J.Super. 377,64 A.3d 1004 |
| Parties | Matthew J. BARRICK, Jr., Appellant, v. STATE of New Jersey, DEPARTMENT OF TREASURY, DIVISION OF PROPERTY MANAGEMENT AND CONSTRUCTION, Respondent. |
| Court | New Jersey Superior Court |
OPINION TEXT STARTS HERE
Francis G. Grather, Morristown, argued the cause for appellant (Daly & Associates, LLC, attorneys; Alan J. Baldwin, Morristown, and Mr. Grather, on the brief).
Thomas A. Edenbaum, Deputy Attorney General, argued the cause for respondent State of New Jersey, Department of Treasury, Division of Property Management and Construction (Jeffrey S. Chiesa, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Edenbaum, on the brief).
Joel M. Miklacki argued the cause for respondent RMD Properties, LLC.
Before Judges AXELRAD, SAPP–PETERSON and HAPPAS.
The opinion of the court is delivered by
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 advertisementto 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, Inc. offered $528,291.72/year (19,764 sq. ft. x 26.73 per sq. ft.).
The DPMC's decision to award the bid was delayed due to the complexity of the reviews, and the DPMC's regulations only require bidders to hold their prices for ninety days. N.J.A.C. 17:11–6.4. Accordingly, on September 22, 2011, the DPMC sent the bidders a letter requesting they re-certify compliance with the requirements of the lease and SOW, and submit a second BAFO. Plaintiff's second BAFO contained no changes from the first, including the price of $443,926/year. The BAFO of RMD was $436,007.70/year (18,243 sq. ft. x $23.90 per sq. ft.) minus $60,476 in concessions. Highway Enterprise's BAFO was significantly higher.
On October 20, 2011, the DPMC issued a notice of intent to award the lease to RMD and outlined the proposed terms and conditions. The DPMC also informed the bidders that any challenge to the recommendation was to be made by November 3, 2011. On October 24, 2011, RMD's vice president emailed the DPMC that he was “getting [his] ducks in order in case anyone appeals” and advised that “[t]he one issue that might be brought up is public transportation.” He conceded the closest bus stop to his property was .6 mile away, but he offered to contract with a taxi service from Dover to pick up and drop off patrons and employees at no cost to them.
Plaintiff timely challenged the DPMC's decision by letter, claiming RMD's proposal did not meet the mandatory site requirements because the proposed space was not accessible to public transportation. He explained that “the distance and course a pedestrian has to travel to and from the site to public transportation removes the public transportation from the realm of ‘accessible.’ ” He asserted that the bus route closest to RMD's property is not easy to approach, there are no sidewalks or defined road shoulders on Emery Avenue or Route 10, and the shoulders of Emery Avenue and Route 10 are occupied by trees, shrubs, poles, and signs that would require pedestrians to walk in the lane of traffic. Plaintiff also asserted other challenges to RMD's proposal that are not relevant to this appeal.
RMD responded by letter of December 19, 2011, noting that neither its nor plaintiff's properties complied with the distance requirement. RMD claimed, however, that it was under contract to secure a right of way easement and planned to install a paved concrete walkway along this easement which would make the distance from the property to the existing bus stop 700 feet. Alternatively, RMD claimed it was in communication with New Jersey Transit's bus service planner for Morris County “to determine if an additional bus stop can be placed at the intersection of High Avenue and Quaker Church Road, which, if approved, would be less than 200 feet from the building.” 1
On March 30, 2012, the DPMC's assistant deputy director issued the final agency decision, concluding the most cost-effective proposal meeting the DOL's needs was submitted by RMD and the DPMC would recommend the award of RMD's lease proposal to the State Leasing and Space Utilization Committee. He explained that the net present value for the life of the lease proposed by RMD was $3,022,596, while plaintiff's proposal was $3,106,638.
The assistant deputy director noted the undisputed fact that RMD's property was approximately .58 miles from the nearest public transportation. The DPMC rejected plaintiff's contention, based on a New Jersey Transit website trip planner, that his site was only .24 miles from the nearest bus stop, which he had identified as the corner of W. Blackwell Street and Randolph Avenue in Dover, as the DPMC's site visit and measurement revealed the distance was .319 miles. Accordingly, the DPMC found none of the bidders met the one quarter of a mile requirement specified in the SOW. Nevertheless, both the DOL and the DPMC “agree[d] that the distance by which both [plaintiff] and RMD exceed the 1/4 mile requirement is de minim[i]s and certainly should not trump the more important and overriding consideration which is identifying the most cost effective proposed lease agreement which will best serve the interests of the state.” The assistant deputy director never addressed plaintiff's accessibility challenge to RMD's site.
By letter of April 9, 2012, plaintiff asked the DPMC to reconsider its decision, contendingthe agency made an “incorrect factual determination” that his property was beyond the distance requirement. Plaintiff submitted a certification and exhibits to demonstrate that he was the only bidder whose property met the material distance and accessibility requirements of the SOW. Plaintiff explained that in his proposal he correctly identified the bus line, but misidentified the bus stop on the line that was within one quarter of a mile from public transportation. He conceded the bus stop listed in his proposal, at the corner of W. Blackwell Street and Randolph Avenue, was beyond one quarter of a mile of his property; however, he certified that the bus stop at Blackwell and North Warren Streets was only .2498 of a mile away. Plaintiff argued that RMD's bid, however, should...
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Barrick v. State, Dep't of Treasury
...SEPT.TERM 2013, 072795Supreme Court of New JerseySeptember 11, 2013 OPINION TEXT STARTS HERE Lower Court Citation or Number: 430 N.J.Super. 377, 64 A.3d 1004 Disposition: ...