N.J. Admin. Code § 17:12-3.3

Current through Register Vol. 56, No. 11, June 3, 2024

Section 17:12-3.3 - Protest procedures; challenge to proposal rejection, notice of intent to award, or RFP cancellation

(a) A bidder, having submitted a proposal in response to an advertised RFP administered pursuant to N.J.S.A. 52:34-6 et seq., may submit a written protest to the Director concerning the:

1. Rejection of its proposal, or a portion thereof, when such rejection arises as a consequence of failure to comply with any of the prerequisites set forth in N.J.A.C. 17:12-2.2, Requirements for bidding and contract award. Such a protest may not challenge the existence of the prerequisite(s) cited as cause for the rejection but may assert that the facts of a particular case are sufficient to satisfy or conform to the cited prerequisite(s);

2. Notice of intent to award contract(s) pertaining to the subject procurement; and/or

3. Cancellation of an RFP after the opening of proposals.

(b) A bidder, having submitted a proposal in response to an advertised RFP and finding cause to protest pursuant to (a) above, shall make a written request to the Director, setting forth, in detail, the specific grounds for challenging the rejection of its proposal or for challenging the scheduled contract award, as applicable. The protest shall be filed within 10 business days following the bidder's receipt of written notification that its proposal is non-responsive or of notice of the intent to award, as applicable, or, pursuant to (e) below, prior to the deadline specified in the Division's notice of intent to award communication to the bidder, whichever date is earlier.

1. A protest shall contain the following items:

i. Identification of the Division's solicitation number for the particular procurement;

ii. The specific grounds for challenging the proposal rejection, the notice of intent to award, or the cancellation, including all arguments, materials, and/or other documentation that may support the protester's position; and

iii. A statement as to whether the protester requests an opportunity for an in-person presentation and the reason(s) for the request.

2. The Director may disregard a protest not containing all of the items set forth in (b)1 above.

3. The Director may disregard any protest filed after the 10-day-protest period and proceed with the award of contract(s).

4. The Director may request that a bidder file a response to a protest. Responses and replies are at the Director's discretion; the Director may disregard any unsolicited response or reply.

(c) The Division shall, except as set forth in (e) below, hold all contract awards for 10 business days, pending potential protests from bidders. For publicly advertised procurements, the Division shall notify all bidders of the outcome of the competition by issuance of a notice of intent to award. If the contract award is protested pursuant to (a)2 above, the Division shall not award the contract in question until a final decision is rendered by the Director on the merits of the protest. The Director may award the contract, notwithstanding the receipt of a protest pursuant to the above provisions, if the failure to award the contract will result in substantial cost to the State or if public exigency so requires. In such event, the Director shall notify all interested parties.

(d) The protest accepted by the Director shall be resolved by written decision on the basis of the Director's review of the written record including, but not limited to, the written protest, the terms, conditions and requirements of the RFP, the proposals submitted in response to the RFP, the evaluation committee report and/or the award recommendation document, pertinent administrative rules, statutes, and case law, and any associated documentation the Director deems appropriate. In cases where no in-person presentation is held, such review of the written record shall, in and of itself, constitute an informal hearing.

(e) The Director has sole discretion to determine if an in-person presentation by the protester is necessary to reach an informed decision on the matter(s) of the protest. In-person presentations are fact-finding for the benefit of the Director. The Director has the discretion to limit attendance at an in-person presentation to those parties likely to be affected by the outcome of the protest.

(f) The Director, or the Director's designee from within or outside the Division, may perform a review of the written record or conduct an in-person presentation directly. In the case of a review or in-person presentation being handled by a hearing officer designee from outside the Division, the determination of such designee shall be in the form of a report to the Director, which shall be advisory in nature and not binding on the Director. All parties shall receive a copy of the hearing officer's report and shall have 10 business days to provide written comments or exceptions to the Director. Subsequent to the 10-business-day period for comments/exceptions, the Director shall make a final written decision on the matter. In the case of a review or in-person presentation being handled by a designee from within the Division, the determination shall be issued by the Director, or the Director's designee, and such determination shall be a final agency decision pursuant to 17:12-3.1(b).

(g) The Director may, in instances where public exigency exists or where there is potential for substantial cost benefit or other such advantage to the State, modify or amend the time periods noted in this subchapter. In these instances, the Director shall give adequate notice to the parties involved.

N.J. Admin. Code § 17:12-3.3

Amended by 51 N.J.R. 141(a), effective 1/22/2019