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Gold Type Business Machines, Inc. v. Division of Purchase and Property, Department of the Treasury

A-1419-06T5 (N.J. Super. App. Div. 2007) (Unpublished)

PUBLIC BIDDING — Where there is no statutory restriction and the Request for Proposal explains that the purchasing agency would reveal the initial bids its receives at the same time it sends a request to certain bidders to submit a Best and Final Offer, revealing those initial bids is proper.

The New Jersey Division of Purchase and Property issued a Request for Proposal (RFP) seeking bids for contracts to provide the State with “rugged” computer hardware, including vehicle-mounted computers, portable computers, printers, and related peripherals and services. A supplier who sold computer hardware, software, and related equipment submitted a bid. It was among the bidders that the Division asked to submit a Best and Final Offer (BAFO). The letter making this request included a spreadsheet listing all of the other bidders’ bids. The bidder submitted a BAFO. The Division later awarded the contract to a different bidder.

The disappointed bidder then appealed to the Director of the Division, bringing four points of protest. The Director affirmed the Division’s decision on three of these points. Each of the three related to specific items for which this bidder had submitted bids. The bidder’s fourth point of protest was that the Division had violated the terms of the RFP and N.J.S.A. 52:34-12a(f) by communicating the other bidders’ bids in its letter seeking BAFOs. The Director found that the language of the RFP prohibited only revealing the revised pricing and did not mention initial pricing. According to the Director, since the BAFO had only revealed initial pricing from the other bidders, it did not violate the RFP. The Director also found that the language of the statute at the time the Division sent out the BAFOs did not prohibit disclosure of the others’ bids. The disappointed bidder appealed the Director’s decision to the Appellate Division.

On appeal, the Appellate Division held that a court reviewing an agency’s decision can only overturn it if it is arbitrary, capricious, or unreasonable, violates legislative policy, or the factual findings are not supported by evidence. Since none of these conditions were found by the Court, it affirmed the Director’s decision.

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