The New Jersey Division of
Purchase and Property “Division” has
agreed to rebid two significant
State contracts on the basis of
administrative protests prepared and
submitted by Hill Wallack LLP
government procurement attorneys,
reversing earlier decisions
regarding these awards.
RFP Supplementation
Affordable Interior Systems, Inc. (“AIS”) won a re-bid on RFP 09-X-39551, Furniture,
System, Open Plan/Landscape following a bid protest drafted by Patrick D. Kennedy,
Esq., Maeve E. Cannon, Esq. and Megan McGeehin Schwartz, Esq.
Hill Wallack LLP protested the award of the furniture, system, open plan/landscape
contract on the following bases:
- The Division impermissibly supplemented the RFP, post-bid, through the best and final offer (“BAFO”) process to include higher-tiered price lines.
- 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 Hill Wallack LLP’s 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contract through the BAFO process was inappropriate, rescinded all recommended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 AIS’ contract, were extended pending the re-bid.
Price Negotiations
Pollard Banknote Limited (“PBL”) won a re-bid on RFP
09-X-20136, Printing: Instant Lottery Tickets – Standard and Proprietary Games –
New Jersey Lottery (“NJL”) following a bid protest prepared by Hill Wallack LLP’s
government procurement team.
On behalf of PBL, Hill Wallack LLP protested the award of the
instant lottery ticket printing contract on the following bases:
- The Division’s post-bid opening price negotiation violated New Jersey public procurement law because such authority was not set forth in the specifications.
- The Division’s determination to overrule the Evaluation Committee’s unanimous recommendation of the Primary Contract award to PBL on the basis of a perceived price benefit in the competitor’s proposal required reconsideration and reversal.
- The short term price savings that formed the basis of the award to the competitor was illusory; the economic analysis which must be undertaken identified a real economic advantage of the PBL bid and commensurate economic risk in an award to the competitor.
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.
Patrick D. Kennedy, Esq. is partner-in-charge of Hill Wallack LLP’s Government Procurement/Administrative Law Practice Group.
Maeve E. Cannon, Esq. is a partner in the group, and
Megan McGeehin Schwartz, Esq. is an associate in the group. Further information about these matters and/or any public bidding issues, please contact Patrick, Maeve or Megan at (609) 924-0808 or visit
www.hillwallack.com.
About Hill Wallack LLP
Hill Wallack LLP is a leading law firm in central New Jersey and eastern Pennsylvania, with offices in Princeton and Atlantic City, NJ, and Yardley, PA. The firm has built a reputation for comprehensive problem-solving and aggressive advocacy. The firm has broad-based commercial capabilities and deep experience in a number of industry sectors, including community associations. With extensive government experience, Hill Wallack LLP represents businesses and public entities in many areas in which public and private interests intersect. Our attorneys are called upon to tackle some of the toughest legal and business challenges. We do more than advise on the law—we craft real-world solutions.
