Administrative Law and Government Contracts
Contract Award Defense – We successfully opposed an appeal seeking to overturn the New Jersey Division of Property Management and Construction’s award of a multimillion dollar contract for the comprehensive renovation and restoration of the New Jersey Executive State House. In a case of first impression, the New Jersey Appellate Division agreed with our argument, finding that Building Control Systems (C043), a sophisticated, complex and highly technical global mechanism involving the total integration of a building’s various control systems, does not constitute a subset of the Heating Ventilation Air Conditioning Refrigeration (HVACR) (C032) trade, such that it must be disclosed by a prime contractor in its bid pursuant to the subcontractor disclosure statute, N.J.S.A. 52:32-2b. In addition to preserving the proper award of the contract to Daniel J. Keating Company, the Appellate Division’s published opinion will serve as a seminal case for public bidding in New Jersey and the naming of subcontractors. In re Protest of Contract Award for Project A1150-08, N.J. Executive State House Comprehensive Renovation & Restoration, ___ N.J. Super. ___ (App. Div. 2021).
Cannabis License Award Challenge – We successfully overturned the State of New Jersey’s award of medicinal cannabis licenses. The New Jersey Department of Health, the state agency responsible for soliciting and awarding medicinal cannabis licenses, awarded a total of six licenses to six different vendors under which vendors may cultivate, manufacture and dispense medicinal cannabis products to qualified patients throughout the State. We represented an unsuccessful applicant in an appeal of those license awards to the New Jersey Appellate Division, arguing, among other things, that the license awards must be reversed both because the award procedures failed to adhere to tenets of administrative due process and also because the scoring of applicants was highly inconsistent and arbitrary, capricious and unreasonable. In a published opinion, the Appellate Division agreed with our arguments, finding that the award processes administered by the Department of Health were discordant with administrative due process and that its inconsistent scoring of applicants was manifestly arbitrary, capricious and unreasonable. The Court therefore overturned the Department of Health’s license award decisions and ordered further remand proceedings for the issuance of licenses. In the Matter of the Application for Medicinal Marijuana Alternative Treatment Center for Harvest of New Jersey, LLC, __ N.J. Super. __ (App. Div. 2020)
Contract Award Challenge – We represented an unsuccessful bidder in a $6.5 billion contract for pharmacy benefits management services. We appealed the award decision by the New Jersey Division of Purchase and Property, arguing that the successful bidder included an improper pricing reservation in its bid proposal that rendered it fatally defective. In a published decision, the New Jersey Appellate Division agreed with our argument, finding the successful bidder’s pricing exception to be a material, non-waivable deviation from the bid specifications. The Court therefore reversed the State’s contract award to the low bidder and ordered a rebid. (In the Matter of Request for Proposals #17DPP00144, 454 N.J. Super. 527 (App. Div. 2018))
Contract Award Challenge – Our client had submitted the third lowest bid price in a multi-million dollar solid waste collection contract in Camden, NJ. Through two successive lawsuits, we successfully defended our client’s bid while obtaining judgments removing the two lowest bidders. The Superior Court Law Division agreed with our argument that the low bidder was fatally defective for its omission of certain required credit references. Further, the court agreed with our argument that the bid of the second-lowest bidder was fatally defective because of its reliance on information from its corporate affiliate companies without providing an appropriate explanation to its legal relationship to those affiliate companies. The court also agreed with our argument that the second-lowest bidder failed to submit a financial statement certified by a CPA as required by the bidding specifications. The court also rejected both lawsuits against our client. As a result, the contract was awarded to our client as the lowest responsive bidder. (Suburban Disposal, Inc. v. City of Camden, Docket No. CAM-L-181-15 and Docket No. CAM-L-1781-15 (Superior Court, Law Division 2015))
Post-Award Representation – We represented the operator of the State of New Jersey’s privatized automobile inspection stations in connection with its state contract since its inception in August 1998. We have represented them in connection with the negotiation of numerous contract amendments and the response to various subpoenas and appearances before the State Commission on Investigation in its review of the contract. Additionally, we have represented the operator in numerous administrative proceedings involving the interpretation of the contract as applied to the operator and its managers in various contexts and in many contract interpretation disputes.
Re-Bid Won – We represented the third lowest bidder in its protest of a multimillion dollar solid waste transfer station contract in Morris County, NJ. After the trial court denied our application for a stay of the contract award, we appealed to the Appellate Division, which reversed the trial court’s decision denying injunctive relief. In ruling in our favoring, the Appellate Division also clarified the standard of review for the imposition of temporary restraints in all New Jersey public bidding cases. On remand, the trial court agreed with our argument that the award to the lowest bidder should be reversed because of its improper reliance on truncated financial statements and ordered a rebid. (Waste Management of New Jersey v. Morris County Utility Authority, 433 N.J.Super.445 (App.Div. 2013))
Contract Award Challenge – As a result of a protest drafted by our attorneys, a local golf course was granted its request to rescind an award for the management and operation of its facility. The Department of Environmental Protection, Natural and Historic Resources Division, agreed with our arguments regarding materially deficient financial statements and incorrect scoring calculation and, therefore, rescinded the contract award. The Department specifically found there was a failure to submit the required certified, reviewed or compiled financial statements and that this failure was material and not waivable, thereby requiring the intended award to be withdrawn.
Contract Award Challenge – Our attorneys obtained an emergent stay of the opening of bids in response to an RFP while the contract award was challenged. Our client challenged the improper limitation of competition on the RFP to six brand-name original equipment manufacturers. We successfully secured a stay of the opening of the bids in response to the RFP while the Appellate Division heard the merits of the challenge. (In the Matter of Request for Proposals 00-X-25950 For Minicomputer, Microcomputer, Word Station and Associated Products Term Contract, A-4110-98/5)
Contract Award Reversal – Our attorneys secured reversal of a contract award for our client, an unsuccessful bidder on an RFP to supply reflective sheeting and support services required to produce license plates. We challenged the contract award, arguing that the successful bidder made a conditional bid. The Appellate Division held that the successful bidder’s response to a line item in the RFP constituted a non-waivable deviation from the RFP and reversed the contract award. (In the Matter of Request for Proposals No. 98-X-29314 Reflective Sheeting License Plates, 315 N.J.Super. 226 (App.Div. 1998))
Re-Bid Won – Our attorneys protested the award of the instant lottery ticket printing contract, arguing that the Division of Purchase and Property’s post-bid opening price negotiation violated New Jersey public procurement law. In a Dec. 2, 2009, written decision, the Division ordered a complete re-bid of the instant lottery tickets printing contract, finding that its post-bid opening actions to secure price concessions were in direct contravention to the unambiguous provision of N.J.S.A. 52:34-12(f), which requires the Division’s ability to negotiate be expressly set forth in the invitation to bid. (RFP 09-X-20136, Printing: Instant Lottery Tickets – Standard and Proprietary Games – New Jersey Lottery (“NJL”))
Re-Bid Won – Our attorneys won a re-bid after we protested the award of a furniture, system, open plan/landscape contract. We argued that the Division impermissibly supplemented the RFP post-bid through the best and final offer (“BAFO”) process to include higher-tiered price lines, and that the Division’s prime award was based on an internal brand standard not defined in the RFP. In a written decision dated Feb. 22, 2010, the Division agreed with our arguments that the expansion of the scope of this contract through the BAFO process was inappropriate, rescinded all recommended awards and ordered a re-bid. As a result of this decision, the current incumbents’ contracts (including our client’s contract) were extended pending the re-bid. (RFP 09-X-39551, Furniture, System, Open Plan/Landscape following a bid protest.)
Stay of Contract Termination – We secured an emergent stay pending disposition of the appeal of the award of a contract for which our client was the intended recipient after the contract award was terminated without a hearing upon the protest of another company. We sought and obtained a stay of the termination pending our appeal of the matter. (In the Matter of Charity Care On-Line Management and Eligibility Verification Services Contract RFP No. 97-X-29685)