In the Matter of Higbee Beach Restoration Project, Etc. ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1048-22
IN THE MATTER OF HIGBEE
BEACH RESTORATION
PROJECT, TOWNSHIP OF
LOWER CAPE MAY COUNTY,
NEW JERSEY, OFFICE OF
COASTAL ENGINEERING
PROJECT NO. 4299-20.
Argued October 4, 2023 – Decided January 5, 2024
Before Judges Currier, Firko and Susswein.
On appeal from the New Jersey Department of
Environmental Protection.
William J. O'Kane, Jr., argued the cause for appellant
Mount Construction, Inc. (Archer & Greiner, PC,
attorneys; William J. O'Kane, Jr., and Christopher M.
Terlingo, on the briefs).
Kathrine Motley Hunt, Deputy Attorney General,
argued the cause for respondent New Jersey
Department of Environmental Protection (Matthew J.
Platkin, Attorney General, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel; Kathrine
Motley Hunt and Jason Brandon Kane, Deputy
Attorney General, on the brief).
Richard Wayne Hunt argued the cause for respondent
A.P. Construction, Inc. (Parker McCay, PA, attorneys;
Richard Wayne Hunt and Sean T. Fannon, on the brief).
PER CURIAM
Unsuccessful bidder Mount Construction, Inc. (Mount) appeals from the
final decision of the New Jersey Department of Environmental Protection (DEP)
denying Mount's protest of DEP's decision to award a contract for a complex
project (Project) to A.P. Construction, Inc. (A.P.). The Project involves
construction of a berm with stormwater control structures, restoration of dunes ,
and construction and installation of certain public amenities in the Higbee Beach
area of Lower Township in Cape May County. Mount contends that DEP's
evaluation of the bid prices was subjective and the decision to award the Project
contract to A.P. was arbitrary, capricious, and unreasonable. After a review of
the contentions in light of the facts and applicable principles of law, we affirm.
In May 2022, DEP's Office of Coastal Engineering (OCE) issued an
advertisement for bids for the Project. According to the bid specifications, the
Project was intended to "restore[]" an "area of the Higbee Beach Wildlife
Management Area"; the work encompassed "earthwork, grading, dynamic
compaction, seeding and planting, trail enhancement and creation, construction
of water control structures, pedestrian bridge construction, boardwalk
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construction, wildlife viewing blinds[,] and other incidentals associated with the
work." The bid package included 140 pages of design plans for the construction
to which bidders were required to conform.
All bidders required pre-qualification by the OCE and Department of
Treasury, Division of Property Management and Construction (DPMC) . In
addition, bidders were required to substantiate their construction experience,
including proof they had previously accomplished "at least two (2) projects each
entailing berm construction" and "at least two (2) projects each with a minimum
of twenty (20) acres in size within wetlands or tidal waters entailing wetland
restoration or construction and required plantings." According to the
advertisement, bidders could submit resumes of bidder and subcontractor
representatives, "but only the most experienced as demonstrated through the
number and type of previous similar projects overseen, will be scored, and be
considered in the evaluation." Bidders were also required to provide an "overall
sequencing/site management plan" including "detail of action, order of
operations, and management" for "the major facets of the Project," such as berm
construction, wetland restoration and planting, and "Plant Contingency."
The advertisement informed bidders that "the winning bid" would be
determined by an "Evaluation Committee" and the Director of the Division of
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Resilience Engineering and Construction (DREC Director). The DREC Director
"reserve[d] the right to waive minor irregularities or omissions in a bid" and to
waive a non-material requirement. The DREC Director also "reserve[d] the
right to reject any or all bids, or to award whole or in part if deemed to be in the
best interest of the State to do so."
Section 1:08 of the advertisement stated that "[b]ids shall be compared
and awarded based on the 'price and other factors' determination of the
Evaluation Committee, which w[ould] consider the cost proposals" and "the
[b]idder's construction experience" including its "berm construction
experience," "wetland restoration and planting experience," "dewatering
experience," and "site remediation experience and qualification" as well as the
bidder's "overall sequencing/site management plan" and "overall presentation
. . . of the [b]id." With respect to the evaluation of bidders' cost proposals,
Section 4:06.1 of the advertisement stated that:
The pricing evaluation methodology will be date-
stamped and entered into the record system along with
the rest of the grading system and weighted maximum
point totals before solicitation. If any changes or
revisions are to be made to the evaluation process, it
will occur during the solicitation phase and will be
recorded in an Addendum. No changes are to be made
upon receipt of bids on the bid opening date.
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After receiving questions from bidders, OCE issued an addendum and
clarification. In response to a request to provide the "grading system and
weighted maximum point totals," OCE declined to provide additional
information, and referred bidders to the language in Sections 1:08 and 4:06 of
the bid advertisement. The bid submission deadline was also extended.
On June 28, 2022, OCE received bid proposals for the Project from four
contractors: Mount, A.P., Abbonizio Construction, Inc. (Abbonizio) and JPC
Group, Inc. (JPC). The total cost proposals of each of the bidders, from highest
to lowest, were as follows:
A.P. $37,503,858
JPC $29,962,365
Mount $29,352,731
Abbonizio $28,717,058
The "four proposals were deemed responsive" by the DEP Project Manager and
"forwarded to the [E]valuation [C]ommittee."
Mount was prequalified by OCE and DPMC. Its bid proposal listed three
previous projects under "Wetlands Restoration and Planting Construction
experience and qualifications"—one project involved eighty acres, the second
project involved eight acres and the third project entailed six acres of wetlands
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restoration. Mount also provided four pages of tables with information about its
previous construction projects, including berm and dewatering construction, and
site remediation. Although Mount included the names of contractor
representatives, it did not provide resumes for the representatives. Mount did
not provide a sequencing or site management plan.
A.P. was also prequalified. Its bid proposal provided descriptions of two
previous berm construction projects and four previous wetlands projects it or its
named subcontractors had completed, all of which were more than twenty acres.
A.P. also listed previous dewatering projects and site remediation projects it had
performed and provided resumes of its contractor representatives for all the
listed projects. A.P. submitted an overall sequencing/site management plan as
well as sequencing/site management plans for the individual aspects of the
Project.
The Evaluation Committee consisted of seven members, all DEP
employees—with two members from OCE, two members from the Office of
Dam Safety, and one member each from the Office of Natural Resources
Restoration (ONRR), the Division of Fish and Wildlife, and the Bureau of Site
Management. Evaluators were instructed that communication between
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committee members or with bidders about the bids or the Project was "strictly
forbidden."
Prior to review, the bidders' names were redacted from the proposals and
the cost portion of each proposal was separated from the experience portion, to
be evaluated separately. Evaluators were instructed to score each bid proposal
based on a maximum possible 150 points, with the cost proposal scored as a
maximum of 100 points, and the bidders' experience and other factors scored as
a maximum of fifty points. Cost proposals were assigned a number (one through
four) and the experience portions were assigned a letter (A through D), so that
evaluators did not know the relationship between the cost proposal and the
amount of experience listed in the particular bid.
With respect to the cost proposals, evaluators were instructed that, out of
the 100 possible points, a maximum of seventy points could be awarded for the
total bid price; a maximum of ten points each could be awarded for the bid prices
for berm construction and "General Work"; and a maximum of five points each
could be awarded for the bid prices for upland and marsh plantings and
foundational dewatering. The evaluators were given detailed instructions on
how to evaluate the different cost categories. For example, the instructions for
evaluation of the "General Work" category stated:
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General work is included in the total bid price, but it is
also crucial to evaluate this independently. This is
because Contractors have been known to "front-load"
their General Work bid since it is a lump sum item. A
heavy General Work bid price can be unfavorable to
OCE due to the amount of money that must be initially
paid to the Contractor and will increase the likelihood
for disputes on other items as the job progresses.
With respect to the fifty possible points for bidder experience and other
factors, evaluators were instructed to award a maximum of sixteen points for the
bidder's berm construction experience; a maximum of ten points each for the
bidder's wetland restoration and planting experience, and dewatering
experience; a maximum of eight points for the bidder's overall sequencing/site
management plan; a maximum of four points for the bidder's site remediation
experience; and a maximum of two points for the bidder's "Overall
Presentation."
All four bids were evaluated under the identified scoring criteria. The
committee awarded A.P. a total score of 758 (447 price, 311 experience);
Abbonizio received a total score of 704.25 (547 price, 157.25 experience);
Mount had a total score of 661 (500 price, 161 experience); and JPC received a
total score of 632.25 (529 price, 103.25 experience). The overall scoring for the
four bids and the detailed scoring breakdown for A.P. and Mount is attached as
an Addendum to this opinion.
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On August 22, 2022, Erick Doyle, OCE Bureau Chief, and David Bean,
ONRR Bureau Chief, sent a memorandum to the DREC Director attaching the
bid evaluation results for the Project. The memorandum stated that five of the
seven Evaluation Committee members ranked A.P. as having "the highest
overall score . . . based on the criteria set forth." It further stated that although
A.P.'s
proposal was the costliest of those evaluated, [A.P.]'s
contractor representative and contractor experience
regarding earthen berm construction, wetlands and
planting, dewatering, and site remediation consistently
outranked all other bid submissions. [A.P.] provided
detailed experience documentation in a concise manner
consistent with the requirements detailed in Section
1:08. Furthermore, the three other bid proposals were
not concise bid packages demonstrating sufficient
quality of experience that was specifically outlined
within the bid specification which was essential for the
evaluation process. To this, proposal packages lacked
detailed information, such as previous project
experience for Contractors or Subcontractors, or
sequencing plans and affidavits. These issues were
reflected in the Committee Evaluations scoring for
experience and qualifications.
Thus, in accordance with N.J.A.C. 17:12-2.7, the
evaluators recommended [A.P.]'s bid as the "most
advantageous to the State, price and other factors
considered."
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Doyle and Bean "concur[red] with the . . . [E]valuation [C]ommittee's results"
and recommended DREC award A.P. the contract for the Project. 1
On September 1, 2022, the DREC Director issued a memorandum to all
bidders, advising the OCE had concluded its evaluation of the bids received for
the Project, and that "[f]ive of the seven evaluators granted A.P. . . . the highest
overall score . . . ." The DREC Director stated his review of the bid packages
and committee members' evaluations and recommendations reflected the
"analysis and ranking of the four bids" was "appropriate" and he concurred with
the evaluation committee's recommendation. The DREC Director informed the
bidders of "OCE's decision . . . to award" the Project contract to A.P.
Mount filed a formal protest of the award of the Project contract , arguing
the award to A.P. was "arbitrary, capricious and/or unreasonable due to th[e]
exorbitant cost of [A.P.]'s bid," which was $8.2 million more than Mount's bid.
Mount also challenged the evaluation committee's determination that it had not
demonstrated sufficient experience in its bid documents. Mount later
supplemented its bid protest, asserting that A.P.'s bid was materially defective
1
Abbonizio subsequently withdrew its bid from consideration because its
"suppliers and subcontractors ma[de] several price increases [after] their
original quotation."
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because A.P. was not prequalified to perform "Special Miscellaneous Work" and
A.P. had not submitted certain financial forms.
On November 18, 2022, DEP issued a final agency decision denying
Mount's bid protest and affirming the award of the contract to A.P. DEP stated
it had the authority to award the Project contract under N.J.S.A. 12:6A -1 and
-2, which authorizes DEP "to repair, reconstruct, or construct bulkheads,
seawalls . . . dunes and any or all appurtenant structures" on the Atlantic Ocean
"shore front" in New Jersey.
DEP explained that "[t]o ensure the selected contractor met the specific
qualifications and experience necessary to conduct the highly specialized work
for this Project, OCE issued the solicitation under a 'most advantageous to the
State, price and other factors' award standard instead of a 'lowest responsive
bidder' standard," citing to N.J.S.A. 52:34-12(a)(g). DEP stated that factors such
as "the bidder's demonstrated earthen berm construction experience, wetland
restoration and planting experience, dewatering experience, and site remediation
experience, and overall sequencing/site management planning"
were selected for evaluation because successful
implementation of this Project of this size and scope
requires that a contractor have demonstrated experience
successfully implementing a dewatering system in
tidally influenced areas, constructing an earthen berm
or dike in similar conditions, managing the overall
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sequencing/site management and phasing of such a
large project while adhering to all permit restrictions
and requirements, have the experience and expertise
regarding the various wetland restoration, planting, and
seeding requirements and timing restrictions, and
managing a large-scale project in both cost and overall
size.
DEP disputed Mount's claims that A.P. was not prequalified, noting that
"both [A.P.] and Mount met the prequalification requirements" set forth in the
bid advertisement. DEP also rejected Mount's claims that A.P. had not
submitted certain required forms, finding that the two forms A.P. did not submit
were not required to be provided with its bid. Therefore, "the fact that neither
was included did not constitute a defect—material or not—that the DEP
waived."
DEP found the evaluation committee gave A.P. "the highest score, price
and other factors considered" and had given Mount "fewer points in two
categories, largely because it did not meet two material components of the
solicitation: wetlands experience and sequencing plans." Specifically, Mount
only provided information about one previous wetlands project that met the
minimum-required twenty-acre size, while A.P. "submitted two projects in this
category, one of which included [twenty-five plus] acres of wetland construction
while the other project contained over [twenty-one] acres of newly constructed
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wetlands." In addition, DEP stated "[E]valuation [C]ommittee members also
consistently found that Mount did not supply any sequencing/phasing plans as
required by the specifications, and the committee members scored Mount 's bid
accordingly." A.P. had included the required sequencing plans.
According to DEP, "Mount's failure to submit the required sequencing
plans, coupled with its lack of experience regarding wetland restoration and
planting, did not demonstrate to [DEP] that it could successfully complete the
Project." "Thus, since Mount's proposal failed to conform to the bid
solicitation's specifications, [DEP] awarded the contract to [A.P.], the highest-
scoring responsible bidder, price and other factors considered."
On November 22, 2022, Mount requested DEP stay the Project contract
award pending appeal. DEP denied Mount's request. We permitted Mount to
file an emergent motion seeking a stay of the Project contract award and
thereafter granted Mount's motion for a stay pending appeal on January 6, 2023.
On appeal, Mount asserts DEP acted arbitrarily, unreasonably, and
capriciously in relying on the Evaluation Committee's "subjective" scoring; the
evaluators ignored Mount's contractor representatives' experience; and its "bid
was not materially defective." Mount does not challenge the propriety of DEP's
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use of the "most advantageous to the State, price and other factors" standard
under N.J.S.A. 52:34-12(a)(g).
Our review of "administrative actions is severely limited." George Harms
Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994) (citing Gloucester Cnty.
Welfare Bd. v. N.J. Civ. Serv. Comm'n, 93 N.J. 384, 390 (1983)). We "must
defer to an agency's expertise and superior knowledge of a particular field."
Thurber v. City of Burlington, 191 N.J. 487, 502 (2007) (quoting Greenwood v.
State Police Training Ctr., 127 N.J. 500, 513 (1992)). We "intervene only in
those rare circumstances in which an agency action is clearly inconsistent with
its statutory mission or with other State policy." George Harms, 137 N.J. at 27.
An "[a]gency action will not be overturned unless the action is arbitrary,
capricious, or unreasonable." In re State & Sch. Emps.' Health Benefits
Comm'ns' Implementation of Yucht, 233 N.J. 267, 279-80 (2018) (citing Barrick
v. State, Dep't of Treasury, 218 N.J. 247, 259 (2014)). "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 Env't Prot., 395 N.J. Super. 604, 613 (App. Div. 2007).
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"[W]e apply de novo review to an agency's interpretation of a statute or
case law." Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27
(2011) (citing Toll Bros. Inc., v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)).
Our Supreme Court has consistently held that contract awards under
N.J.S.A. 52:34-12(a)(g) should be reviewed under the "gross abuse of discretion
standard." Barrick, 218 N.J. at 258 (citing Keyes Martin & Co. v. Dir., Div. of
Purchase & Prop., Dep't of Treasury, 99 N.J. 244, 252-53 (1985); Com. Cleaning
Corp. v. Sullivan, 47 N.J. 539, 548-49 (1966)). This includes contracts awarded
under N.J.S.A. 52:34-12(a)(g), which permits a contract to be awarded "to that
responsible bidder whose bid, conforming to the invitation for bids, will be most
advantageous to the State, price and other factors considered." N.J.S.A. 52:34-
12(a)(g); Barrick, 218 N.J. at 258; Keyes Martin, 99 N.J. at 252-53. Under this
higher standard, an appellate court "will not interfere in the absence of bad faith,
corruption, fraud or gross abuse of discretion." In re Protest of the Award of the
On-Line Games Prod. & Operation Servs. Cont., Bid No. 95-X-20175, 279 N.J.
Super. 566, 592 (App. Div. 1995) (quoting Com. Cleaning, 47 N.J. at 549).
In turning to Mount's assertions, we are satisfied Mount has not
demonstrated the evaluation of the cost proposals was not objective. We are
unpersuaded by and find no precedential support for its argument that an
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objective evaluation of price requires a higher bid price to receive a lower score
in all instances, or that all bid prices must be scored according to the percentage
differences in price between bids. To the contrary, the Evaluation Committee
was given a structured evaluation template and criteria to score the costs
proposals. Furthermore, the instructions advised that prices for the different line
items could be evaluated differently. For example, a high "General Work" price
even as part of an overall lower bid price could result in a lower score because
"a heavy General Work bid price can be unfavorable to OCE due to the amount
of money that must be initially paid to the Contractor and will increase the
likelihood for disputes on other items as the job progresses." The record is
devoid of any evidence that the evaluators did not assess the proposals
objectively.
Mount next contends DEP ignored its contractor representatives'
experience, pointing to three evaluators' score of zero points (out of a possible
two). However, two evaluators gave Mount the maximum two points, and two
evaluators gave Mount one point for that category. See Addendum Table #3.
Furthermore, Mount's proposal only included a spreadsheet listing its prior
projects and the names of its contractor representatives. In contrast, A.P.'s
proposal included "detailed resumes and descriptions of the experience of its
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contractor representatives." The divergent submissions provided a reasonable
basis for the difference in individual scores. In any event, Mount's score of six
points (out of a maximum of fourteen) for its contractor representative site
remediation experience was only seven points less than A.P.'s score of thirteen
in that category, but A.P.'s total score of 758 was 97 points higher than Mount's
total score of 661. Even if Mount had received the maximum possible fourteen
points for contractor representative site remediation experience, it would not
have changed the Evaluation Committee's recommendation.
We are satisfied Mount has not demonstrated DEP grossly abused its
discretion in awarding the contract to A.P. as it has not established the
evaluation process was arbitrary, capricious, or unreasonable. On-Line Games,
279 N.J. Super. at 592.
In light of our determination to affirm the bid award, we need not address
Mount's assertion that DEP erred in finding Mount's bid was materially
defective. DEP's materiality determination was made in response to Mount's bid
protest, well after the evaluation of the bids and the bid awards. Since we have
concluded DEP was not arbitrary or capricious in its award of the contract to
A.P., it is immaterial what statements were made following the close of the
bidding process.
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Affirmed. The order staying the award of the contract is vacated.
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Addendum
Table 1
Total Scores for All Bidders
Eval- A.P. (Bidder 2/C) JPC (Bidder 4/A) Mount (Bidder Abbonizio (Bidder
uator (Total Price: (Total Price: 1/B) 3/D)
$37,503,858) $29,962,365) (Total Price: (Total Price:
$29,352,731) $28,717,058)
Pric Exp. Total Pric Exp. Total Price Exp Tota Pric Exp. Total
e e . l e
1 67 41 108 82 16 98 79 28 107 82 17 99
2 58 49.5 107.5 79 2.25 81.25 54 16 70 58 11.75 69.75
3 64 50 114 91 30 121 86 39 125 93 37 130
4 64 47 111 43 8 51 64 17 81 82 23 105
5 42 28 70 54 26 80 49 26 75 45 29 74
6 77 49 126 83 8 91 84 17 101 92 23 115
7 75 46.5 121.5 97 13 110 84 18 102 95 16.5 111.5
Total 447 311 758 529 103.2 632.2 500 161 661 547 157.2 704.2
5 5 5 5
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Table 2
A.P. Score Breakdown
Eval A.P. (Bidder 2/C) (Total Price:$37,503,858)
- Price Experience
uator Tota Ber Plan De- Gen. Ber Plant De- Seq./ Con- Con- Ove
l Bid m t- water Wor m -ing water Site tracto tracto rall
(70 (10 ing -ing k (16 (10 -ing Mgm r Site r (2
max max (5 (5 Exp. max max) (10 t. Reme Rep. max
) ) max max) (10 ) max) Plan d. Site )
) max (8 Exp. Reme
) max) (2 d.
max) Exp.
(2
max)
1 49 10 3 5 0 9 10 10 6 2 2 2
2 41 4 4 5 4 16 10 10 7.5 2 2 2
3 41 10 5 3 5 16 10 10 8 2 2 2
4 40 10 5 2 7 14 9 10 8 2 2 2
5 30 4 2 2 4 8 5 7 4 2 1 1
6 52 10 5 2 8 16 10 10 7 2 2 2
7 55 5 5 3 7 14 9.5 10 7 2 2 2
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Table 3
Mount Score Breakdown
Eval Mount (Bidder 1/B) (Total Price: $29,352,731)
- Price Experience
uato Tota Ber Plant De- Gen. Ber Plan De- Seq. Con- Con- Ove
r l Bid m - water Wor m t-ing water / tracto tracto rall
(70 (10 ing -ing k (16 (10 -ing Site r Site r (2
max) max (5 (5 Exp. max max (10 Mg Reme Rep. max
) max) max) (10 ) ) max) mt. d. Site )
max Plan Exp. Reme
) (8 (2 d.
max max) Exp.
) (2
max)
1 68 6 5 0 0 14 4 6 0 1 2 1
2 33 10 2 3 6 8 2.5 2.5 0 2 0 1
3 68 7 4 1 6 16 8 10 0 2 2 1
4 40 8 5 4 7 5 5 4 0 2 0 1
5 35 5 2 2 5 8 3 7 4 2 1 1
6 57 10 4 5 8 5 3 6 0 1 1 1
7 60 10 4 5 5 6 5 5 0 1 0 1
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