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In Re Protest of John’s Main Auto Body Requests for Prequalification

A-6118-08T3 and A-0922-09T2 (N.J. Super. App. Div. 2011) (Unpublished)

PUBLIC BIDDING — Where a public bid requires the bidder to have a certain minimum level of experience, the bidding authority may use its judgment to determine the comparability of a particular bidder’s experience to that required for the project, providing that the bidding authority has appropriate expertise regarding what is required to perform under the proposed contract.

An auto body shop submitted prequalification applications to the New Jersey Turnpike Authority in response to a Request for Prequalifications (RFP) for both routine towing and emergency services and for extra heavy duty and recovery services on various sections of the New Jersey Turnpike.

As to the RFP for routine towing and emergency services, the shop submitted timely applications for two of its facilities. The applications were denied. An investigation by the authority revealed that one facility’s office lacked electricity, running water, a phone, and a working bathroom or working office. Three separate times, the Authority attempted to inspect the other facility; however, the entrance was blocked by chained fences and there was no evidence the facility was in operation. Both facilities were deemed out of compliance with the clearly unambiguous prequalification criteria requiring minimum standards for working offices and access to facilities for unannounced inspections by the Authority. At a protest hearing requested by the shop, the hearing officer found the investigator’s testimony to be credible and concluded the protest should be denied.

The shop challenged the denial, and ultimately the denial was affirmed by the Appellate Division. It found the shop had been afforded a fair opportunity to present its protest to the Authority’s denial of its prequalification applications. The Court did not find the decision to be arbitrary or capricious, as the hearing officer issued a detailed written decision and the Authority’s Executive Director adopted the recommendation as a final agency decision. It added that it would not interfere with an agency’s discretion in awarding a contract or rejecting a bidder in the absence of bad faith, corruption, fraud or gross abuse of discretion, and it said the RFP clearly set forth the requirement for a working office and required complete access to a facility, and that it was upon the applicant to demonstrate compliance.

As to the RFP for heavy duty towing and emergency services, the Authority rejected the shop’s prequalification application because the shop was not already an approved service provider for the New Jersey State Police on enumerated State interstate highways or on Authority roadways, as listed in the prequalification application. At a protest hearing, the Authority representative testified that experience in performing merely routine towing services would not qualify a bidder to provide extra heavy duty towing services. The hearing officer found the Authority was in the best position to determine what qualifications were necessary to provide heavy duty towing services on the Turnpike, and therefore deferred to the expertise of the agency in establishing the requirements. He also concluded that towing experience on State highways and local roads was not comparable with the experience needed for heavy towing. The Appellate Division affirmed this decision, which had been made final by the Authority. The Court found the decision was not arbitrary, unreasonable or capricious, and deferred its own judgment to the Authority’s determination of appropriate prequalification specifications because of the Authority’s expertise regarding what was needed to perform extra heavy duty towing services on the Turnpike.

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