Opinion
DOCKET NO. A-0027-13T1
01-15-2016
IN THE MATTER OF NOTICE OF PROTEST PURSUANT TO N.J.S.A. 19:9-2.12 REJECTION OF PREQUALIFICATION SUBMISSION OF ROUTINE TOWING.
Darryl T. Garvin argued the cause for appellant Thomas Makuch, L.L.C. d/b/a Accurate Towing Service. John F. Casey argued the cause for respondent New Jersey Turnpike Authority (Chiesa Shahinian & Giantomasi, PC, attorneys; Mr. Casey, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Carroll. On appeal from the New Jersey Turnpike Authority. Darryl T. Garvin argued the cause for appellant Thomas Makuch, L.L.C. d/b/a Accurate Towing Service. John F. Casey argued the cause for respondent New Jersey Turnpike Authority (Chiesa Shahinian & Giantomasi, PC, attorneys; Mr. Casey, on the brief). PER CURIAM
Appellant Thomas Makuch, L.L.C., d/b/a Accurate Towing Service (Accurate), appeals from a final agency decision of the New Jersey Turnpike Authority (the Authority) rejecting Accurate's untimely prequalification application to perform routine towing services on the Garden State Parkway (Parkway). After reviewing the record in light of the contentions and applicable law, we affirm.
The Authority is a State agency responsible for the operation of the Parkway and the New Jersey Turnpike. In that capacity, it awards contracts to qualified towing companies to tow cars from those highways. Towing companies are selected pursuant to a two-step process. First, interested towing companies must obtain prequalification status by demonstrating that they possess, among other things, the requisite reliability, experience, equipment, and storage facilities. N.J.A.C. 19:9-2.13(d). Second, once the prequalification process is complete, the Authority issues a request for bids to provide towing services, which it then awards to the lowest prequalified bidders for particular zones of the Parkway and Turnpike. N.J.A.C. 19:9-2.13(b).
Pertinent to this appeal, the Authority issued detailed specifications as part of its prequalification process. The prequalification application informed interested towing companies that the deadline for submitting their completed application was 4:00 p.m. on Wednesday, March 13, 2013. It also contained a notice that "[q]ualifications not delivered by the stated time and date shall not be considered unless the time is extended by the Authority pursuant to a written Addendum." Several addenda were thereafter issued by the Authority revising the specifications and ultimately extending the filing deadline until Friday, June 21, 2013, at 4:30 p.m.
Accurate has over twenty-five years of experience towing cars on various New Jersey roadways and highways. It sought prequalification to bid on towing contracts for zones four, five, and six on the Parkway, and retained counsel to assist it with the prequalification process. It is undisputed that an employee of the law firm that previously represented Accurate was responsible for personally delivering the prequalification applications to the Authority on June 21. Unfortunately, due to a death in her family, the employee left work early and neglected to deliver the applications.
Accurate's prequalification applications were delivered to the Authority on Monday, June 24. They were accompanied by a letter from Accurate's former counsel explaining the reason for their untimely submission and requesting their acceptance. On June 25, the Authority rejected the late filings. It advised that, while sympathetic to the employee's circumstances, nonetheless "[t]he Authority . . . provided ample time for submission of the Prequalification Applications and is not extending the receipt date."
Accurate filed a Notice of Protest. In a letter brief dated July 1, 2013, Accurate's former counsel again explained the unfortunate circumstances that led to the late filing. Counsel asserted that Accurate's ability to perform and to meet the prequalification specifications "should encourage the Authority to use its discretionary authority to waive the deadline, . . . not for the benefit of [Accurate], but for the benefit of the public" and "to encourage fair and open competitive bidding." Counsel also requested "that the Authority exercise its discretion to conduct a hearing" "[i]f this letter brief is not enough for reconsideration" of the Authority's decision to reject Accurate's application.
On July 24, the Authority's Executive Director, Veronique Hakim, issued a final written decision denying Accurate's protest as without merit. Hakim explained:
We understand that there were extenuating circumstances that occurred on the date submissions were due, Friday, June 21, 2013, which prevented the submission of the prequalification application by the 4:30 [p.m.] deadline. However, pursuant to case law, the Authority is unable to waive the submission deadline as it would provide an unfair advantage to Accurate Towing by affording it more time than other potential bidders to prepare and submit its application. In fact, you expressly acknowledge this deadline was set pursuant to Addendum #8, issued on May 16, 2013, more than one month prior to the deadline date. There was sufficient time prior to the deadline date for Accurate Towing's application to be submitted. Indeed the Authority received other applications prior to the deadline date.Hakim further stated that she consulted with the Authority's Director of Procurement and Materials Management and determined that it was necessary to "proceed without delay in order to protect the interest of the Authority and the public-at-large." Finally, citing the absence of any disputed factual issues, the Authority denied Accurate's request for a further hearing. This appeal followed.
Our role in reviewing an administrative agency's decision is limited. In re Carter, 191 N.J. 474, 482 (2007) (citations omitted). An agency determination will not be vacated "'in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence.'" Ibid. (quoting Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). Under this standard, appellate review is limited to four inquiries:
(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors."The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the person challenging the administrative action." Seigel v. N.J. Dep't of Envtl. Prot., 395 N.J. Super. 604, 613 (App. Div.), certif. denied, 193 N.J. 277 (2007).
[Karins v. City of Atl. City, 152 N.J. 532, 540 (1998) (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).]
We accord the agency's decision "substantial deference . . . even if [we] would have reached a different result in the first instance." In re Hermann, 192 N.J. 19, 28 (2007) (citations omitted). Moreover, "[d]eference to an agency decision is particularly appropriate where interpretation of the Agency's own regulation is in issue." I.L. v. Div. of Med. Assistance & Health Servs., 38 9 N.J. Super. 354, 364 (App. Div. 2006); see H.K. v. Div. of Med. Assistance & Health Servs., 379 N.J. Super. 321, 327 (App. Div.), certif. denied, 185 N.J. 393 (2005); see also Estate of F.K. v. Div. of Med. Assistance & Health Servs., 374 N.J. Super. 126, 138 (App. Div.) (indicating that we give "considerable weight" to the interpretation and application of regulations by agency personnel within the specialized concern of the agency), certif. denied, 184 N.J. 209 (2005). This same deferential standard applies to our review of a determination challenging a bid's conformity with State requirements. DGR Co. v. State, Dep't of Treas., Div. of Prop. Mgmt. and Constr., 361 N.J. Super. 467, 474 (App. Div. 2003) (citing In re On-Line Games Contract, 279 N.J. Super. 566, 593 (App. Div. 1995)).
On appeal, Accurate argues in a multitude of point headings that the Authority erred in rejecting its prequalification application and in refusing to waive or extend the filing deadline. We have considered Accurate's arguments in light of the applicable standard of review and the facts developed in the record, and find they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by the Authority in its July 24, 2013 final administrative determination. R. 2:11-3(e)(1)(D). We add the following comments.
The Authority emphasizes the mandatory nature of its filing deadline and its notice to interested towing companies that untimely prequalification applications "shall not be considered." We have recognized that, "[w]here an asserted defect in a bid is material, i.e., when a specific noncompliance constitutes a substantial and hence non-waivable irregularity, the public entity to which it has been submitted is without discretion in dealing with it. The bid must be rejected." Serenity Contracting Group, Inc. v. Borough of Fort Lee, 306 N.J. Super. 151, 156 (App. Div. 1997), certif. denied, 153 N.J. 214 (1998).
Accurate cites to our decision in Turner Construction Company v. New Jersey Transit Corporation, 296 N.J. Super. 530 (App. Div. 1997), for the proposition that an administrative agency has the discretion to waive minor defects in the bidding process. In Turner, three bidders arrived prior to the 3:00 p.m. bidding deadline but were directed by the security guard to a wrong location in the building. Id. at 533. As a result, they arrived moments after the deadline, but before the bids were opened. Id. at 534. After consulting with a Deputy Attorney General, the New Jersey Transit (NJT) representative decided to accept the three bids, one of which proved to be the lowest. Id. at 533-34. On appeal, we affirmed the agency's decision to award the contract to the lowest bidder. Id. at 538. We noted that:
The delay was very short. The other bids had not been opened and read. The delay was not intentional or for the purpose of obtaining any competitive advantage. NJT properly exercised its discretion by waiving this minor deviation in order to protect the public interest in obtaining the lowest bid.
[Id. at 536.]
In Turner, we also cited with approval two similar situations involving minor delays where the award of a contract to a late bidder was approved. Ibid. See William M. Young & Co. v. West Orange Redevelopment Agency, 125 N.J. Super. 440, 444-45 (App. Div. 1973) (bidder was held up by inclement weather; the court found no disadvantage to the other bidders); Kingston Bituminous Prods. Co. v. N.J. Tpk. Auth., 80 N.J. Super. 25, 36 (App. Div. 1963) (holding that the Authority properly exercised its discretion when it granted a twenty-minute delay in opening the bids caused by a bidder being held up in traffic).
Even if we accept Accurate's contention that the delay in submitting its prequalification application was minor, it does not follow that the Authority must accept it. See Serenity Contracting Group, supra, 306 N.J. Super. at 156.
Discretion exists to accept or reject, for valid reasons, a bid that does not conform with specifications or formal requirements in non-material respects. Such reasons, in order to be considered valid, must be non-pretextual. They must reflect sound business judgment, and may not bespeak any avoidance of the underlying purposes of public bidding requirements.
[Id. at 156-57].
Reduced to their essence, Accurate's panoply of arguments present a single issue for our consideration, i.e., whether the Authority acted arbitrarily and capriciously in refusing to waive the filing deadline for Accurate's untimely prequalification application. At oral argument, both parties acknowledged the length, complexity, and detailed nature of the prequalification process. The Authority's final decision reflects that the Executive Director conferred with the Authority's Director of Procurement and Materials Management and determined that it was necessary to "proceed without delay in order to protect the interest of the Authority and the public-at-large." The Authority's rejection of Accurate's untimely applications reflects a valid discretionary exercise of its business judgment. Additionally, Accurate clearly had ample advance notice of the filing deadline and the mandatory nature of that deadline. Accordingly, Accurate has failed to demonstrate that the Authority's decision to reject its prequalification applications was arbitrary or capricious.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION