In a win for our Construction and Procurement practice area, Department Chair Rick Hunt, with help from associate Sean Fannon and counsel Young Yoon successfully argued on behalf of A.P. Construction in the matter of the Higbee Beach Restoration Project for the Township of Lower Cape May County.
In May of 2022, New Jersey’s Department of Environmental Protection (DEP) issued an advertisement for open bids for a construction and restoration project in the Higbee Beach area of Lower Township in Cape May County. The bid was issued through the DEP’s Office of Coastal Engineering, and is a complicated project, involving the construction of a berm with stormwater control structures, restoration of dunes, and construction and installation of public amenities.
All bidders for the project were required to be pre-qualified by the Office of Coastal Engineering (OCE), and substantiate their construction experience, including experience with berm construction and wetlands or tidal waters. The winning bid was determined by an evaluation committee, and bids were compared and awarded based on cost to complete the project as well as specific experience. The seven-member evaluation committee graded each proposal on a point system that separated cost and experience. All bidders’ names were redacted to ensure fair and unbiased evaluation.
The award was made using "most advantageous to the State, price and other factors considered" rather than evaluating which bid was the “lowest responsive bidder.” Despite having the highest bid cost, A.P. Construction was selected as the winning bid, due to their extensive experience and thorough proposal. On August 22, 2022, A.P. was officially named the winning bidder and selected to move forward with the project. All bidders were notified in a memorandum on September 1, 2022, stating that “five of the seven evaluators granted A.P…. the highest overall score…” based on their experience with similar projects.
Mount Construction Inc. filed a formal protest of the award of the project, arguing the award to A.P. was “arbitrary, capricious and/or unreasonable due to the exorbitant cost of A.P.’s bid.” Additionally, Mount challenged the determination that it had not demonstrated sufficient experience in line with A.P.
On November 18, 2022 DEP issued a final decision denying Mount’s protest and affirming the contract to A.P. Subsequently, Mount filed an emergent motion seeking a stay of the project contract award, which was granted on January 6, 2023. In the appeal, the Superior Court of New Jersey, Appellate Division ruled in favor of A.P., stating “We are unpersuaded by and find no precedential support for its argument that an 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.” Additionally, the court determined “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.” The decision to award the contract to A.P. was upheld.
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