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In the Matter of Protest of Scheduled Award of Contract T0711/RFP 10-X-20725

A-6040-09T2 (N.J. Super. App. Div. 2011) (Unpublished)

PUBLIC BIDDING — Where a successful public bidder’s proposal is consistent with the bidding requirements, a later submitted letter that more carefully explains and expands upon previously provided information does not constitute an impermissible correction of the original bid proposal.

The Department of Treasury’s Division of Purchase and Property issued an RFP to solicit bid proposals for a contractor to administer a competency evaluation program for medical staff positions. The RFP included many requirements such as providing: six examination locations throughout the State, specific operating hours, payment options, computer based testing, and quality control measures. Two bidders submitted proposals. Both were sent letters asking them to clarify parts of their own proposal with respect to their testing center locations and hours of operation. Both bidders responded and the Division awarded the contract to one of them. When the Division reviewed the rejected bidder’s proposal, found it non-responsive, and no further evaluation was performed.

The losing bidder filed a protest requesting that the Director rescind the contract award and allow it to make an oral presentation. It attacked the awarded bid, alleging that a few of its specifications failed to meet the RFP. The awarded bidder opposed the losing bidder’s protest and the Division denied the losing bidder’s appeal. As to the losing bidder’s claim that the winning bidder’s proposal did not include proposed operating hours, the Division explained that the RFP did not require bidders to state their exact, proposed operating hours. The losing bidder also argued that the winning bidder’s response to the request for clarification was an impermissible correction of the original proposal. However, the Division responded that the successful bidder’s clarification was consistent with its original proposal, just more carefully explaining and expanding upon already provided information. Next, the losing bidder argued that the winning bidder did not expressly state that it would process checks by phone as required by the RFP. The Division did not find this enough to declare the bid non-responsive. The losing bidder also contended that the winning bidder’s proposal failed to represent that its tests would comply with a sixth grade reading level as required by the RFP. The Division found that the proposal included a statement that declared “each item has been reviewed to ensure that its reading level is appropriate.” This was adequate enough and did not render the winning proposal materially deficient. Lastly, in response to the losing bidder’s argument that the Division’s evaluation Committee used an evaluation form that only paraphrased the Evaluation Criteria in the RFP, the Committee rejected this contention as being without merit. The Committee’s recommendation followed proper protocols set forth in the RFP.

The losing bidder appealed to the Appellate Division, only seeking to set aside the Division’s contract award to the other bidder. The losing bidder again argued that the RFP required each bidder to specify its hours of operations and because the winning proposal did not do so, it should have been considered non-responsive. The Court held that there was no deviation from the proposal or from the bidding requirements. With respect to the losing bidder’s argument that the winning bidder had failed to satisfy three of the RFP’s provisions, the Court held that even though the winning bidder failed to explicitly state that it would accept payments by direct debit, this omission was so immaterial that it was no reason to invalidate the bid.

In response to the losing bidder’s argument that the winning bidder did not specifically mention the sixth grade reading level in its bid, the Court held it to be sufficient that it had agreed to review its test to ensure that its reading level was appropriate.

Lastly, the RFP set out five technical evaluation criteria. The Court found that the Committee members were fully briefed as to the specific factors to consider and that they all thoroughly inspected the scoring sheets. There was no evidence to indicate otherwise. For all these reasons, the Court affirmed the Division’s decision to award the contract to the winning bidder.

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