SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0515-18T3

IN RE BID SOLICITATION 

#18DPP00205, CENTRAL JERSEY

LANDSCAPING T0777 SNOW 

PLOWING AND SPREADING

SERVICES PROTEST OF NOTICE

OF INTENT TO AWARD.

______________________________

Argued June 4, 2019 – Decided June 26, 2019

Before Judges Fisher, Suter and Enright.

On appeal from the New Jersey Department of the 

Treasury, Division of Purchase and Property, RFP No. 

18DPP00205.

Richard Wayne Hunt argued the cause for appellant 

Central Jersey Landscaping, Inc. (Parker McCay, PA, 

attorneys; Richard Wayne Hunt and Ashley Hope

Buono, on the brief).

Rebecca Pluckhorn, Deputy Attorney General, argued 

the cause for respondent Department of Treasury, 

Division of Purchase and Property (Gurbir S. Grewal, 

Attorney General, attorney; Beth L. Mitchell, Assistant 

Attorney General, of counsel; Rebecca Pluckhorn, on 

the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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Central Jersey Landscaping (CJL) appeals from two decisions made by 

the Department of Treasury, Division of Purchase and Property (the Division), 

initially rejecting CJL's bid for salt-spreading services and later denying CJL's 

request for a stay of that decision. We affirm. 

The record reveals that on January 30, 2018, the Division issued an online 

Bid Solicitation, also known as a Request for Proposal (RFP). In its RFP, the 

Division sought bids from contractors experienced in snow plowing and saltspreading services. However, potential vendors could choose to limit their bids 

to either plowing or spreading services. The Division specifically solicited bids 

for over three hundred "price lines," also known as "snow sections" for 

approximately 13,000 miles of federal, state and interstate roads under its 

jurisdiction. Snow sections are fixed sections of the highway requiring snow 

plowing and salt spreading. The Division intended to award each contract to the 

bidder with the lowest hourly rate. 

The RFP informed bidders of the criteria the Division might use to 

evaluate proposals, including: the firm's experience, which was to be detailed 

in a form known as "Attachment Two"; the vendor's equipment, which was to 

be detailed in a form known as "Attachment One"; and the vendor's hourly rate. 

Regarding a vendor's level of experience, the RFP specifically required that 
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bidders show "at a minimum, two years' experience performing snow plowing 

or spreading services on public roadways." The proposal further advised 

vendors that the stated criteria "may be used to evaluate Quotes . . . received 

in response to this Bid Solicitation . . . . The evaluation criteria categories 

may be used to develop more detailed evaluation criteria to be used in the 

evaluation process." The RFP further instructed that bidding vendors "must 

furnish all information required by completing the forms accompanying the 

[RFP]." Additionally, vendors were cautioned that failure to submit the forms, 

which included Attachments One and Two, "will result in rejection of the 

Quote." 

On March 16, 2018, CJL electronically submitted its bid for salt-spreading 

services on several price lines. The same day, the State publicly announced the 

names of one hundred and sixty-four firms who submitted quotes for the first 

round. After reviewing the bids, the State rejected at least thirty-two vendors 

for failure to conform to the mandatory administrative requirements for Quote 

submission. Eight vendors, including CJL, were deemed non-responsive 

because they failed to submit Attachment Two. 

Just two days after learning of its rejection by the Division, CJL emailed 

the Division informally asking it to reconsider its decision. CJL advised it had 
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"been a vendor with the DOT for the past five years" and had interpreted a 

section of the RFP to apply only to snow removal vendors because the clause 

stated "The Vendor (Bidder) must furnish all information required by 

completing the forms accompanying this Bid Solicitation (RFP) for one (1) or 

more Snow Sections and offering optional graders and loaders." 

On August 29, CJL formally asked the Division to either provide CJL an 

in-person hearing or reconsider its decision, again noting it had five years of 

experience on other State contracts. CJL completed and submitted Attachment 

Two with its protest. CJL argued it was not afforded the same flexibility as 

other vendors (who also had been deemed deficient) to cure deficiencies. CJL 

further complained the online bidding system had malfunctioned. Additionally, 

CJL contended Attachment Two only applied to vendors bidding on snow 

plowing contracts, whereas CJL limited its bids to salt-spreading contracts. 

Without holding a hearing, the Division denied CJL's request for 

reconsideration on September 5, 2018. The Acting Director issued a twelvepage decision in which it found CJL's bid materially deviated from the bid 

requirements, that the Division could not consider experience which was not 

detailed in CJL's bid, that instructions on the bidder solicitation form were not 
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materially misleading and that no system issues impacted the bidding process 

when the bidding opened. 

CJL filed a notice of appeal on October 3, 2018, and on the following day, 

it asked the Division to stay the award of the disputed salt-spreading contracts 

until the appeal was heard. The Acting Director denied CJL's request for a stay 

on October 16, 2018, whereupon CJL moved for emergent relief before us. We 

denied CJL's application and this appeal followed. 

CJL raises the following arguments for our consideration: 

POINT I

THE DIVISION'S DECISION TO REJECT 

[APPELLANT'S] BID WAS ARBITRARY, 

CAPRICIOUS, AND UNREASONABLE BECAUSE 

ATTACHMENT [TWO] WAS NOT A MATERIAL 

TERM OF THE SOLICITATION AND THEREFORE, 

THE DIVISION'S REJECTION SHOULD BE 

REVERSED.

POINT II

THE DIVISION'S PROCUREMENT METHOD AND 

AUTOMATIC REJECTION OF [APPELLANT'S] BID 

WAS IMPROPER, UNFAIR, AND DID NOT 

PROVIDE UNIFORMITY TO ALL BIDDERS. 

THUS, [APPELLANT'S] BID SHOULD BE 

REMANDED TO THE DIVISION FOR 

EVALUATION AND CONSIDERATION ON THE 

REMAINING CONTRACT YEARS. 
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Our role when reviewing administrative agency determinations is limited. 

In re Stallworth, 208 N.J. 182, 194 (2011). Courts can intervene only in rare 

instances when "an agency action is clearly inconsistent with its statutory 

mission or with other State policy." George Harms Constr. v. N.J. Tpk. Auth., 

137 N.J. 8, 27 (1994). A reviewing court "may not substitute its own judgment 

for the agency's, even though the court might have reached a different 

result." Stallworth, 208 N.J. at 194 (citations omitted). Generally, a reviewing 

court "will not interfere with a Final Agency Determination which pertains to 

contract awards or rejecting a bid or bidders unless there is a finding of 'bad 

faith, corruption, fraud or gross abuse of discretion.'" In re Jasper Seating Co., 

Inc., 406 N.J. Super. 213, 222 (App. Div. 2009) (quoting Commercial Cleaning 

Corp. v. Sullivan, 47 N.J. 539, 549 (1966)). 

An agency action is only reversed when it is "arbitrary, capricious, or 

unreasonable, or [] not supported by substantial credible evidence in the record 

as a whole." Stallworth, 208 N.J. at 194 (alteration in original) (quoting Henry 

v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). A challenger must prove 

an agency's action breached this standard. Bueno v. Bd. of Trs., 422 N.J. Super. 

227, 234 (App. Div. 2011).
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CJL initially contends Attachment Two was an immaterial requirement 

for its bid and therefore, a waivable defect. It also asserts the Division's final 

decision is incompatible with the two-part materiality test, noting Attachment 

Two was used in the evaluation process as a tiebreaker for certain price lines. 

We do not find these arguments persuasive. 

"[T]he bidding statutes are [intended] to benefit the taxpayers and they 

'are construed as nearly as possible with sole reference to the public good.'" In 

re Jasper, 406 N.J. Super. at 222 (quoting Terminal Constr. Corp. v. Atl. County 

Sewerage Auth., 67 N.J. 403, 409 (1975)). "Their objects are to guard against 

favoritism, improvidence, extravagance and corruption; their aim is to secure 

for the public the benefits of unfettered competition." Terminal Constr. Corp., 

67 N.J. at 410. The statute governing the specifications, invitations and award 

of public contracts, N.J.S.A. 52:34-12, reflects that an award of a public 

contract: "shall be made with reasonable promptness . . . by written notice to 

that responsible bidder whose bid, conforming to the invitation for bids, will be 

most advantageous to the State, price and other factors considered." State v. 

Ernst & Young, L.L.P., 386 N.J. Super. 600, 618-19 (App. Div. 2006) (quoting 

N.J.S.A. 52:34-12(g)). "Any or all bids may be rejected when the State 
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Treasurer or the Director of the Division of Purchase and Property determines 

that it is in the public interest so to do." N.J.S.A. 52:34-12(a). 

The Director of the Division is vested with the discretion to determine 

"which bid will be most advantageous to the State." Commercial Cleaning Corp. 

v. Sullivan, 47 N.J. at 548. Although the Director enjoys broad discretion, that 

discretion is not limitless. Barrick v. State Dept. of Treasury, Div. of Property, 

218 N.J. 247, 258 (2014). For example, the Division is prohibited from 

awarding a contract to a proposal that materially deviates from RFP 

requirements. Id. at 259. In determining whether a deviation is material and 

not waivable, our Supreme Court articulated a two-prong test. 

[F]irst, whether the effect of a waiver would be to 

deprive the [contracting party] of its assurance that the 

contract will be entered into, performed and guaranteed 

according to its specified requirements, and second, 

whether [the defect] is of such a nature that its waiver 

would adversely affect competitive bidding by placing 

a bidder in a position of advantage over other bidders 

or by otherwise undermining the necessary common 

standard of competition.

[Meadowbrook Carting Co. v. Borough of Island 

Heights, 138 N.J. 307, 315 (1994).] 

We are satisfied the Division performed an appropriate Meadowbrook 

analysis and properly concluded the subject specification involving Attachment 

Two was a material, non-waivable condition. 
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As to the first prong of the Meadowbrook test, the Acting Director 

concluded that without Attachment Two, the Division could not be assured the 

spreading services would be done appropriately. There was nothing arbitrary or 

capricious in finding a deviation from disclosing CJL's level of experience 

deprived the State of its "assurance that the contract will be entered into, 

performed and guaranteed according to its specified requirements." 

Meadowbrook, 138 N.J. at 315. The Acting Director noted RFP section 3.2 

specified that vendors must "[p]ossess, at minimum, two (2) years' experience 

performing snow plowing or spreading services on public roadways." Next, 

RFP section 4.4.3 advised bidders that Attachment Two was a necessary 

submittal and RFP section 6.7 confirmed that experience was a factor upon 

which awards would be made. Additionally, N.J.A.C. 17:12-2.2(a) states that 

in order for a bidder to be eligible for a contract award, its proposal must contain 

all attachments required by the RFP's terms. Since Attachment Two was the 

only bid form that covered a bidder's experience as required by the RFP, it meets 

the first prong of the materiality test. 

Prong two of the Meadowbrook test also is satisfied, as waiver of CJL's 

completion of Attachment Two would have placed CJL in a position of unfair 

advantage over other bidders. In Meadowbrook, 138 N.J. at 311-12, a 
10 A-0515-18T3

government entity waived the requirement for a consent of surety on a garbage -

removal contract for one of the bidders. Addressing the second prong of the 

materiality test, the Meadowbrook Court ruled this consent was non-waivable, 

in part, because the waiver gave the vendor an unfair advantage over other 

bidders. Id. at 322-23. The Court expressed concern that other bidders unable 

to meet the requirement for a consent of surety may have been dissuaded from 

bidding at all. Id. at 323. Likewise, had other vendors known the requirement 

was waivable, they may have entered bids and increased competition for the 

contract. Id. at 323-24. The Meadowbrook Court cautioned that providing a 

waiver for a defective bid "had the capacity to affect the fairness of the bidding 

process," even though it was evident there was no corruption or actual adverse 

effect on the process. Id. at 322-23. In voiding the bid, the Court recognized 

its decision might occasionally result in additional cost to the public, but found 

the integrity of the bidding process is paramount. Id. at 325.

Meadowbrook guides our analysis here. Had CJL been awarded a contract 

on its bids without furnishing Attachment Two, it would have enjoyed an unfair 

advantage over contractors who chose not to bid due to the requirements set 

forth in Attachment Two. Moreover, the possibility certainly exists that other 

contractors could have put forth a more advantageous bid than CJL if they knew, 
11 A-0515-18T3

in advance, the requirement of Attachment Two was waivable. Thus, we agree 

with the Acting Director that the second prong of Meadowbrook was satisfied 

here. 

As our Supreme Court has observed:

Deviations from material specifications risk 

transgressing the duty to avoid favoritism, corruption, 

and the like. Requiring adherence to material 

specifications maintains a level playing field for all 

bidders competing for a public contract. Thus, 

requirements that are material to an RFP are nonwaivable; the winning bidder's proposal must comply 

with all material specifications. 

[Barrick, 218 N.J. at 259.] 

Essentially, if a vendor's bid fails to satisfy an RFP requirement which is 

determined to be non-waivable, then "the inquiry is over because the bid is nonconforming and a non-conforming bid is no bid at all." In re On-Line Games 

Contract, 279 N.J. Super 566, 595 (App. Div. 1995). 

CJL next argues Attachment Two was not material as it was not itemized 

or included on the Bidder's checklist - which was appended to the solicitation. 

Moreover, CJL argues against materiality, claiming the language of Attachment 

Two does not inquire about salt-spreading experience. We find no merit in these

arguments. 
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The Procurement Program Checklist states it was created "as a guide to 

assist Vendors . . . in preparing a complete and responsive Quote . . . ." The 

checklist confirms "[i]t is the Vendor's . . . responsibility to ensure that all

requirements of the Bid Solicitation . . . have been met." This warning appears 

in bold font at the top of the page with the word, "all," underlined. At the bottom 

of the checklist, the form also advises "[v]endors . . . must ensure that all 

requirements of the Bid Solicitation . . . have been met as the Bid Solicitation 

. . . language supersedes this advisory checklist in the event of an error or 

omission." In an effort to highlight this language, the words are in a slightly 

larger font than those on the rest of the form and the word, "supersedes," is 

underlined. These statements on the checklist, taken together with the 

mandatory language in other parts of the RFP, provided notice it was the bidder's 

responsibility to ensure all the required forms were submitted and that the 

checklist might not list all necessary paperwork. CJL's failure to heed the 

warnings outlined in the checklist does not make Attachment Two any less 

material. 

As to CJL's argument that Attachment Two does not pertain to saltspreading experience, we refer to question three on the form, which states: "[i]f 

you do not possess experience plowing public roadways, please document any 
13 A-0515-18T3

plowing or spreading experience you possess." Although the other questions 

predominately relate to snow plowing, question three clearly asks the vendor 

about its spreading experience. Additionally, the RFP defines a "snow section" 

as "[a] predetermined section of highway requiring snow plowing and/or 

spreading services." Thus, CJL's argument regarding the materiality of 

Attachment Two as to spreading experience is flawed. 

We also find CJL's contention that Attachment Two was not material 

because the Division used the form as a "tiebreaker" in certain instances just as 

unavailing. As the State points out, Attachment Two was used in the evaluation 

process as a tiebreaker for certain price lines. A tie could surface if vendors 

submitted identical hourly rates. Such a situation would not make Attachment 

Two any less material. 

CJL next complains it was unfairly treated by the Division because other 

vendors were allowed to go outside the "four corners" of their bids to cure their 

bid deficiencies. In its reply brief, CJL also posits the Division should have 

considered CJL's bid because CJL performed spreading work under previous 

State contracts. Additionally, CJL asserts Attachment One contained enough 

information about its experience to warrant further inquiry from the Division, 

and that it was a pre-qualified vendor that had previously provided its experience 
14 A-0515-18T3

to the Division. In essence, CJL suggests the Division improperly rejected its 

bid because it had enough information about CJL's experience from sources 

other than Attachment Two. We find these arguments misplaced. 

As to its claims of disparate treatment, CJL points to the Division's 

Recommendation Report, which identified certain rejections that were 

ultimately rescinded. CJL notes one of the bidders had its bid originally rejected 

because it did not provide pricing information. However, that same bidder later 

contacted the hearing unit stating the pricing information was submitted with its 

bid. The Division soon discovered the correct documentation had been 

submitted, but the format was not compatible with the Division's computer 

software. Unlike CJL, this bidder submitted the required documentation with 

its bid and the Division did not have to go outside the four corners of the bid to 

find it. 

The other three vendors initially found to be noncompliant had not 

submitted Ownership Disclosure forms.1 However, the RFP provided:

[a] current completed Ownership Disclosure Form must 

be received prior to or accompany the submitted Quote 

. . . . A Vendor's . . . failure to submit the completed 

and signed form with its Quote . . . will result in the 

 

1

 This form addresses N.J.S.A. 52:25-24.2, which requires a corporation, 

partnership, or limited liability company to disclose the names and addresses of 

all members or stockholders of the entity who own a ten percent or more share. 
15 A-0515-18T3

rejection of the Quote . . . unless the Division has on 

file a signed and accurate Ownership Disclosure Form

dated and received no more than six (6) months prior to 

the . . . submission deadline for this procurement. 

[Emphasis added.]

This language mirrors N.J.S.A. 52:25-24.2, which requires the disclosure to 

either accompany the bid or occur prior to the bid. Specifically, N.J.S.A. 52:25-

24.2 states that "no corporation, partnership, or limited liability company shall 

be awarded a contract . . . unless prior to the receipt of the bid or accompanying 

the bid . . ." the vendor discloses the required information. Thus, the requisite 

disclosure of ownership, which was missing from three other vendors, could be 

submitted prior to their bids. On the other hand, CJL cites to no statutory 

authority, statute, precedent or any language in the RFP that permitted the 

Division to rely on CJL's previous record with the DOT to satisfy the experience 

criteria. In light of these facts, we are not persuaded other vendors were given 

preferential treatment over CJL to cure their bid deficiencies. Essentially, CJL 

was not similarly situated to the other vendors, as no avenue existed for the 

Division to look outside the four corners of CJL's bid and cure the deficiencies 

pertaining to CJL's prior experience. Our conclusion that CJL was not subjected 

to disparate treatment also is bolstered by the uncontroverted fact that seven 

other bidders who did not submit Attachment Two were deemed non-responsive
16 A-0515-18T3

and were not awarded a contract while two other vendors who did submit 

Attachment Two were also rejected because they did not demonstrate they had 

the requisite experience. 

Next, CJL's suggestion that the Division could have gleaned CJL's level 

of experience from its submission of other paperwork, such as its 

prequalification paperwork, is similarly unpersuasive. Although CJL submitted 

prequalification paperwork to the State, no statute or other authority permitted 

the Division to rely on information CJL had on file with the Division. As the 

State highlights, RFP section 6.7 made clear the experience component of the 

evaluation would be based on the information provided in Attachment Two and 

not information outside of a bidder's proposal. 

As we are satisfied the Acting Director correctly determined Attachment 

Two was material to CJL's bid and that the Division fairly treated all bidders 

who either did not submit Attachment Two or failed to demonstrate the requisite 

experience during the bidding process, we discern no basis to disturb the 

Division's final agency decisions of September 5, 2018 and October 16, 2018. 

The remainder of CJL's arguments do no warrant discussion in a written opinion. 

R. 2:11-3(e)(1)(E).

Affirmed.