IN RE B&C TOWNING INC., 527 AVENUE P, NEWARK, NEW JERSEY, 07105 â€" PROTEST HEARING FOR DENIAL OF PRE-QUALIFICATION APPLICATION, ETC. (NEW JERSEY TURNPIKE AUTHORITY) ( 2019 )

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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4983-16T4
IN RE B&C TOWING, INC., 527
AVENUE P, NEWARK, NEW JERSEY,
07105 – PROTEST HEARING FOR
DENIAL OF PRE-QUALIFICATION
APPLICATION FOR ROUTINE
TOWING SERVICES FOR ZONE
15E ON THE NEW JERSEY
TURNPIKE.
_____________________________
Argued November 29, 2018 – Decided May 6, 2019
Before Judges O'Connor and DeAlmeida.
On appeal from the New Jersey Turnpike Authority.
Gabriel H. Halpern argued the cause for appellant
B&C Towing, Inc. (Pinilis Halpern LLP, attorneys,
Gabriel H. Halpern, of counsel and on the briefs).
Christopher R. Paldino argued the cause for
respondent New Jersey Turnpike Authority (Chiesa
Shahinian & Giantomasi PC, attorneys; John F. Casey,
on the brief).
PER CURIAM
B&C Towing, Inc. (B&C) appeals from a final agency decision of the New
Jersey Turnpike Authority (Authority) denying its request to be prequalified to
bid on contracts for towing services on the New Jersey Turnpike (Turnpike) and
Garden State Parkway (Parkway). We reverse and remand for further
proceedings.
The Authority is a State agency responsible for the operation of the
Turnpike and Parkway. The Authority uses a two-step process to award towing
contracts to those who wish to tow vehicles from the Turnpike and Parkway.
Before they may bid, prospective towers must be prequalified by the Authority
by demonstrating they have the reliability, experience, equipment, and storage
facilities the Authority requires. N.J.A.C. 19:9-2.13(d). After the
prequalification process is complete, the Authority issues a request for bids to
the prequalified towers. After the bid submission deadline passes, the Authority,
which awards multiple contracts for the Turnpike and Parkway, issues contracts
to the lowest bidders. N.J.A.C. 19:9-2.13(b).
In this matter, the Authority issued specifications for those towers who
sought to be prequalified. We were not provided with a copy of the
specifications, but it is not disputed that one of them stated as follows:
Contractor shall offer general passenger vehicle repair
service ("general repairs") at the garage facility. This
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includes, but is not limited to, towing to other locations
and repair work. Garage facilities shall have adequate
tools, bay space and inventory or parts to perform
general repairs on an assortment of passenger vehicles
....
[(Emphasis added).]
B&C submitted an application for prequalification to the Authority. As
part of the prequalification process, Authority personnel made an unannounced
site visit to B&C's facility to determine whether it met the Authority's
specifications. As a result of that inspection, the Authority rejected B&C 's
application for prequalification on the grounds it lacked sufficient lighting,
fencing, and security at its facility. B&C promptly filed a protest, see N.J.A.C.
19:9-2.12(b), and a hearing was held. During the hearing, B&C presented
evidence that it met the Authority's specifications for lighting, fencing and
security at its site.
Although the hearing was limited to these three issues, B&C's
representative testified as follows in response to two of the Authority's counsel's
questions:
Counsel: Okay, if you can kind of take me from cradle
to grave, a customer shows up at the door, they want to
pick up a car that's been towed there, for whatever
reason, and you do repairs at the facility as well,
correct?
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Witness: We do not.
Counsel: You do not, okay.
Witness: Self repairs, not to the public. We only do
our self maintenance and stuff like that, we do not do
repairs for the public.
The hearing officer issued a written decision finding B&C did in fact have
the requisite lighting, fencing, and security; however, because of the above
testimony, the hearing officer upheld the rejection of B&C's prequalification
application on the ground that, although B&C maintained a repair shop, it
repaired only its own and not its patrons' vehicles. The hearing officer stated it
is mandatory towers have the ability to repair vehicles because
[t]he precise reason that a patron is being towed is often
the result of a minor repair issue . . . . In specifying
such requirements in its prequalification package, the
Authority has made an affirmative decision that it is
both inconvenient, and an unwarranted additional cost,
for patrons to necessarily have a car towed to a second
location after a routine tow, only to have such minor
repairs performed.
The hearing officer also commented the Authority could not waive the
requirement a tower have the capacity to provide certain minor repairs. Pursuant
to N.J.A.C. 19:9-2.12(d), the hearing officer's written decision became a final
agency decision. On appeal, B&C contends the Authority erred when it rejected
B&C's pre-application on the ground B&C does not provide repairs to the
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owners of the vehicles it towed. B&C argues that because its pre-application
was not rejected by the Authority on the latter ground, B&C could not have
reasonably anticipated such issue would arise during the hearing and, thus, it
was not prepared to address this issue. B&C does not contest that at the time of
the hearing it was providing repairs to only its own vehicles. What it does
contend is that it can provide repairs to its patrons and could have provided
evidence of its capacity to do so had it been provided with notice the hearing
officer was going to hear and decide such issue.
Generally, our review of a final administrative determination is limited.
In re Carter, 191 N.J. 474, 482 (2007). 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)).
However, it is essential a contracting authority afford "a fair opportunity,
consistent with the desideratum of a fair and expeditious conclusion of the
procurement process, for the protesting bidder to present the facts and law
supporting the protest." Nachtigall v. N.J. Tpk. Auth., 302 N.J. Super. 123, 143
(App. Div. 1997). Certainly, "an agency is never free to act on undisclosed
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evidence that parties have had no opportunity to rebut." High Horizons Dev.
Co. v. State, 120 N.J. 40, 53 (1990).
During the hearing, B&C had a fair opportunity to and did introduce
evidence about the quality of the lighting, fencing, and security at its facility.
B&C knew those issues were going to be addressed and was prepared to
introduce evidence about them. However, there was no indication before the
hearing the Authority was dissatisfied with B&C's ability to repair the vehicles
of its patrons. B&C was unaware this issue was going to be addressed and was
unprepared to meet it.
In our view, the fact B&C was not providing such service to patrons at the
time of the hearing was not fatal to its pre-application. The subject specification
did not state a contractor had to be providing such service when it submitted its
prequalification application; the specification stated a contractor "shall offer"
general passenger vehicle repair services at the contractor's garage facility. The
issue was whether B&C was ready and able to provide that service at the time
the pre-application was submitted. The evidence adduced during the hearing
did not resolve that question.
Therefore, because B&C was not on notice that the issue of its ability to
repair patrons' vehicles was going to be addressed and considered by the hearing
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officer, we reverse the final decision and remand for a new hearing so that B&C's
ability to provide repairs to its patrons can be properly addressed and decided.
Reversed and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
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