                                                     SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

                       Matthew J. Barrick, Jr. v. State of New Jersey (A-8/9-13) (072795)

Argued May 6, 2014 -- Decided July 23, 2014

LaVECCHIA, J., writing for a unanimous Court.

        In this appeal, the Court considers whether the New Jersey Division of Property Management and
Construction (the Division) acted arbitrarily in awarding a contract for the lease of office space to the lowest bidder.
The Court also considers whether the matter was rendered moot by the expenditure of State resources in
performance of the contract after the unsuccessful bidder failed to seek a stay of the award pending appeal.

          On September 28, 2010, the Division, which procures and manages leases for the State, posted a request for
proposals (RFP) seeking bids from property owners in Morris County for a ten-year lease of office space to be used
by the Department of Labor (DOL) as a one-stop career center. The Division also sent a leased space proposal
package to four property owners who had requested to be maintained on the agency’s files, including respondent,
Matthew Barrick, Jr., and RMD Properties, LLC (RMD). A detailed scope of work (SOW) set forth several
requirements for the prospective location, including that the property be within one-quarter mile of accessible public
transportation. At the close of the RFP period in November 2010, the Division had received four bids, among them
Barrick’s and RMD’s. The bidders submitted best and final offers (BAFOs), and Barrick’s bid was determined to be
the most cost-effective, followed by RMD’s. However, after a second round of BAFOs, the Division determined
that RMD, which had reduced its BAFO, had submitted the most cost-effective bid, followed by Barrick, who had
not altered his BAFO. On October 20, 2011, the Division issued a notice of intent to award the lease to RMD.

           Barrick challenged the award, arguing that RMD’s proposal failed to satisfy the distance-to-public-
transportation requirement because its property was located .58 miles from the nearest bus stop. The Division
determined that none of the bid properties, including Barrick’s, were located within one-quarter mile of public
transit. After consultation with the DOL, the Division decided that the proposals would not be deemed non-
conforming based on the distance requirement since it was not imposed by statute or regulation and each property
was close enough to public transportation to meet the DOL’s needs. On March 30, 2012, the Director of the
Division issued a final agency decision recommending award of the lease to RMD. He noted that cost-effectiveness
was of paramount importance in his decision and the distance requirement was not a determinative factor. Barrick
sought reconsideration and to supplement the record to reflect that there is a bus stop just within one-quarter mile of
his property, which he had failed to identify in his original proposal. The Division upheld the award to RMD,
explaining that, although Barrick’s property satisfied the distance requirement, it had determined prior to awarding
the lease that the requirement was not outcome-determinative.

          Barrick appealed without seeking a stay of the agency’s decision. The Appellate Division panel reversed
the award and remanded the matter to the Division either to award the lease to Barrick or rebid the project. Barrick
v. State, Dep’t of Treasure, Div. of Prop. Mgmt. & Constr., 430 N.J. Super. 377, 391 (App Div. 2013). The panel
determined that the distance requirement was not waivable and that the monetary difference between RMD’s and
Barrick’s bids was insignificant. In light of Barrick’s supplemental information, the panel determined that his was
the only compliant bid and the Division abused its discretion by awarding the lease to RMD. The Division and
RMD moved for reconsideration, contending that the appeal was moot since the lease had been executed and
significant resources expended to render RMD’s property compliant with the SOW. The panel denied the motion
and refused to address the mootness issue because it was not raised on direct appeal. This Court granted the
Division’s and RMD’s petitions for certification. 215 N.J. 487 (2013).

         HELD: The Director’s determination that the distance requirement was not material to the RFP was
unassailably reasonable and the decision awarding the lease contract to RMB was not arbitrary, capricious, or


                                                                1
unreasonable. Under the circumstances, the Court declines to consider the mootness issue, but warns future
unsuccessful bidders that sitting on the right to seek a stay may imperil any opportunity for a merits review.

          1. Public bidding statutes exist for the taxpayers’ benefit and are construed with sole reference to the
public good. The statutes are intended to guard against favoritism and corruption, while securing the benefits of
unfettered competition. N.J.S.A. 52:34-12(a)(g), which governs the advertisement for bids concerning leases,
requires agencies to act with reasonable promptness in awarding the contract to the conforming bid that is most
advantageous to the State. Discretion is vested in the Director of the Division, and the decision is reviewed under
the gross abuse of discretion standard. In order to maintain a level playing field for all bidders, requirements that are
material to the RFP may not be waived and the Division may not award a contract to a bidder whose proposal
deviates materially from those requirements. Agency determinations as to whether a requirement is material, or
whether a bid conforms to an RFP’s requirements, are not disturbed unless the decision is arbitrary, capricious,
unreasonable, or unsupported by credible evidence. In applying that standard of review, an appellate court may not
substitute its judgment for that of the agency. (pp. 11-14)

         2. The threshold step in determining whether an RFP requirement is material and, consequently, non-
waivable is to determine whether there is a deviation from the RFP. In order to ensure a fair and impartial public
contract award process, that determination must be made by the Director at the time the bids are opened. The
correctness of the Director’s determination is reviewed on the basis of the information available at that time. If a
deviation occurs and an award is made, a reviewing court must first assess whether the effect of a waiver would be
to deprive the public entity of its assurance that the award will be based on the specified requirements. It must then
determine whether waiver would adversely affect competitive bidding by placing a bidder in a position of advantage
or by otherwise undermining the necessary common standard of competition. (pp. 14-16)

          3. Here, at the time bids were opened, the Director properly determined that all qualified bidders had
submitted proposals that deviated from the RFP by exceeding the distance-to-public-transportation requirement.
The Director also correctly refused to consider Barrick’s belated attempt to supplement his original proposal. The
Appellate Division’s determination that this amendatory material rendered Barrick’s bid conforming constituted an
improper substitution of the court’s judgment for the Director’s. Turning next to the question of whether the
deviation from the distance-to-public-transportation requirement was material, the Court finds that the Director
reasonably determined that it was not, based on his consultation with the DOL, recognition that the requirement was
not legally mandated, and determination that the distances by which the bids exceeded the requirement were de
minimis. Thus, the Director’s award decision was unassailably reasonable and consonant with the statutory process
he is tasked with administering. Consequently, his determination that cost-effectiveness was the factor of paramount
importance and his subsequent award to the lowest bidder was entitled to deference. The decision was neither
arbitrary, capricious, nor unreasonable. (pp. 16-18)

         4. In light of the Court’s decision finding error in the Appellate Division’s reversal of the Division’s award
to RMD, it declined to address the parties’ arguments for a bright-line rule in favor of mootness when an
unsuccessful bidder fails to seek a stay in order to appeal a bid award. However, the Court notes that an
unsuccessful bidder, who does not promptly seek a stay of a lease bid award under Rule 2:9-8 when appealing an
award determination, acts at his, her, or its peril. The Court cautions against any expectation that a merits review
will be available to unsuccessful bidders who sit on their right to seek a stay. The appellate process is equipped for
stay applications in bidding disputes and such relief ought to be pursued as a matter of course. Rule 2:9-8 provides
an avenue to accommodate the interests of the public and all parties in a swift and fair review of alleged
improprieties in the bid award process. (pp. 18-20)

         The judgment of the Appellate Division is REVERSED.

      CHIEF JUSTICE RABNER, JUSTICES PATTERSON and FERNANDEZ-VINA, and JUDGES
RODRÍGUEZ and CUFF (both temporarily assigned) join in JUSTICE LaVECCHIA’s opinion. JUSTICE
ALBIN did not participate.




                                                           2
                                     SUPREME COURT OF NEW JERSEY
                                      A-8/9 September Term 2013
                                                072795

MATTHEW J. BARRICK, JR.,

    Appellant-Respondent,

         v.

STATE OF NEW JERSEY,
DEPARTMENT OF TREASURY,
DIVISION OF PROPERTY
MANAGEMENT AND CONSTRUCTION,

    Respondents-Appellants.


         Argued May 6, 2014 – Decided July 23, 2014

         On certification to the Superior Court,
         Appellate Division, whose opinion is
         reported at 430 N.J. Super. 377 (2013).

         Christine Cartwright Baker, Deputy Attorney
         General, argued the cause for appellants
         State of New Jersey, Department of Treasury,
         Division of Property Management and
         Construction (John J. Hoffman, Acting
         Attorney General, attorney; Beth Leigh
         Mitchell, Assistant Attorney General, of
         counsel; Thomas A. Edenbaum, on the briefs).

         Karen A. Confoy argued the cause for
         appellant RMD Properties, LLC (Fox
         Rothschild, attorneys; Ms. Confoy and Joseph
         Schramm, III, on the briefs).

         Vito A. Pinto argued the cause for
         respondent (Lindabury, McCormick, Estabrook
         & Cooper and Brierley & Humick, attorneys;
         Douglas S. Brierley, of counsel; Francis G.
         Grather of Daly & Associates, on the
         briefs).



                                 1
     JUSTICE LaVECCHIA delivered the opinion of the Court.

     At issue in this appeal is whether the New Jersey Division

of Property Management and Construction (the Division) acted

arbitrarily when it awarded a contract for the lease of office

space for use as a one-stop career center to RMD Properties, LLC

(RMD), the lowest bidder.   The award was made to RMD after the

Director of the Division,1 in consultation with the Department of

Labor (DOL), the agency for which the space was to be used,

determined that an advertised requirement that the site location

be within one-quarter mile of public transportation could be

waived.   The distance requirement was not compelled by law and,

at the time of the bid opening, no bid submitted by a qualified

bidder satisfied the original distance requirement.   After the

Director awarded the bid, respondent, Matthew J. Barrick, Jr.,

an unsuccessful bidder, appealed.    However, he failed to seek a

stay.   Accordingly, also at issue is whether the matter was

rendered moot by the expenditure of State resources in

performance of the contract after Barrick’s failure to seek a

stay of the award.

     The Appellate Division held that the waiver of the

advertised distance requirement was improper, reversed the

Director’s award of the lease, and remanded the matter to the

1
  The terms “Director” and “Division” are used interchangeably
throughout this opinion.



                                 2
Division to award the lease to Barrick or to rebid the project.

We granted the Division’s and RMD’s petitions for certification

and now reverse the judgment of the Appellate Division.    We

conclude that the agency determination was not arbitrary or

capricious and that it was error for the appellate panel to have

substituted its judgment for that of the Director.

                                I.

    The Division is tasked with procuring and managing leases

for the State.   On September 28, 2010, the Division posted a

request for proposals (RFP) on its website seeking bids from

property owners in Morris County for the ten-year lease of

office space to be used by the DOL as a one-stop career center.

The center provides career and occupational skills training

services to unemployed, disadvantaged, displaced, and disabled

persons.   The Division also sent a leased space proposal package

to four property owners that previously had requested to be

maintained on the agency’s files:    respondent, Matthew Barrick;

RMD; Highway Enterprises, Inc.; and Mynt Properties, LLC (Mynt).

The one-stop career center had been located on Barrick’s

property for many years prior to the RFP but the State, citing

public safety concerns, had decided to seek bids for a new

lease.

    A detailed scope of work (SOW), incorporated by reference

into the RFP, set forth several requirements for the prospective


                                 3
location.   Among those requirements was that “[t]he office shall

be located within 1/4 mile of a mode of accessible public

transportation (bus route or other means).”

     At the close of the RFP period on November 10, 2010, the

Division had received four bids.       Barrick, RMD, Highway

Enterprises, and Mynt each submitted bids.        Mynt’s bid

subsequently was rejected as nonresponsive.2       On May 12, 2011,

the Division requested a best and final offer (BAFO) from each

of the remaining three bidders.        Barrick’s bid was determined to

be the most cost effective, followed by RMD’s and then Highway

Enterprises’.   On September 22, 2011, because over ninety days

had elapsed since the submission of bids, the Division requested

a second round of BAFOs.   See N.J.A.C. 17:11-6.4 (“Unless the

RFP states otherwise, the prices submitted shall remain

effective for 90 days after the opening date . . . .”).        After

receiving the second round of BAFOs, the Division determined

that RMD -- which had reduced its BAFO, resulting in a net

present value of $3,022,596 for the life of the lease -- had

submitted the most cost-effective bid, followed by Barrick and

Highway Enterprises, whose BAFOs had not changed.        The Division

2
  In a letter dated May 12, 2011, the Division rejected Mynt’s
bid out of concern that disabled clients would not be able to
access the property safely because of the lack of sidewalks to
and from public transportation and heavy tractor-trailer traffic
in the proposed site’s common parking lot.




                                   4
calculated the net present value for the life of the lease of

Barrick’s property to be $3,106,638.   On October 20, 2011, the

Division issued a notice of intent to award the lease to RMD.

     Barrick challenged the award pursuant to N.J.A.C. 17:11-8.3

arguing, among other things, that RMD’s proposal failed to

satisfy the distance-to-public-transportation requirement

because its property was located .58 miles from the nearest bus

stop.   After further evaluation, the Division determined that

none of the three bid properties were located within one-quarter

mile of public transit.3   The Division conferred with the DOL and

determined, first, that no statute or regulation imposed the

quarter-mile requirement and, further, that each of the proposed

properties were close enough to public transportation to meet

the DOL’s needs because none of the distance overages were

significant.   Based on those determinations, the Division

determined that the proposals would not be deemed nonconforming

based on the distance requirement and accepted all three bids.

     On March 30, 2012, the Director issued a final agency

decision that recommended the award of the lease to RMD.4    In his


3
  The Division’s investigation revealed that Barrick’s property
was .319 miles from the bus stop that Barrick identified in his
bid submission as the nearest to his property.
4
  Following the Director’s determination, the Division is
required to publish a notice of proposed lease, which is
submitted to the State Leasing and Space Utilization Committee
(SLSUC) for approval. N.J.A.C. 17:11-7.1 to -7.4. The SLSUC is



                                 5
decision, the Director declared that the extent to which each

proposed property exceeded the public transportation distance

requirement was de minimis and not a determinative factor in the

Director’s bid award.   Cost-effectiveness was identified as of

paramount importance in the Director’s decision to whom to award

the bid.

    On April 9, 2012, Barrick sought reconsideration and

contended that the record should be supplemented to reflect that

there is a bus stop .2498 miles from his property.   He argued

that he had incorrectly identified in his original proposal a

more distant bus stop as the nearest to his property.   On April

24, the Division upheld the award to RMD.   The Division

acknowledged that Barrick’s property, in fact as supplemented by

the additional new information, did satisfy the distance

requirement by one foot but noted that it had determined prior

to awarding the lease to RMD that the distance requirement would

not be outcome-determinative.

    Barrick appealed the Division’s final determination to the

Appellate Division; however, he did not seek a stay of the



a joint committee of the New Jersey State Legislature comprised
of the “President of the Senate, the Speaker of the General
Assembly and the State Treasurer, or their respective
designees.” N.J.S.A. 52:18A-191.4. On May 24, 2012, the SLSUC
approved the Director’s award of the lease to RMD. Comm.
Meeting of J. Leasing & Space Utilization Comm., 215th Leg., 1st
Sess. 8-11 (N.J. 2012).



                                6
agency’s decision either from the agency or from the Appellate

Division.   As noted, the Appellate Division reversed the

Director’s award of the lease to RMD and remanded the matter

back to the Division either to award the lease to Barrick or to

rebid the project.    Barrick v. State, Dep’t of Treasury, Div. of

Prop. Mgmt. & Constr., 430 N.J. Super. 377, 391 (App. Div.

2013).   The panel determined that the distance-to-public-

transportation requirement in the RFP was not waivable and that

the Division’s “conclusory statement that RMD had the ‘most cost

effective proposal’” was inadequate in light of the

insignificance of the monetary difference between bids relative

to the roughly $3 million total cost of the project.     Id. at

389.    Because the distance requirement was non-waivable, the

panel accepted the supplemental information submitted by Barrick

and concluded that Barrick’s was the only compliant bid and that

the Division abused its discretion when it awarded the lease to

RMD.   Id. at 391.

       The Division and RMD filed a motion for reconsideration

before the Appellate Division, contending that the appeal was

now moot because the lease had already been executed and

significant resources had been expended to bring RMD’s property

into compliance with the SOW.    Specifically, RMD stated that it

had secured a $1.8 million loan and that the renovations needed

to comply with the SOW had begun.     The Division represented that


                                  7
it had also purchased fitted furniture systems designed for

RMD’s property and was paying rent as a holdover tenant at a

temporary location during the renovation.

    On May 24, 2013, the panel denied the motion for

reconsideration and refused to address the mootness issue

because the parties had failed to raise it on direct appeal.       We

granted the Division’s and RMD’s petitions for certification.

215 N.J. 487 (2013).

                                II.

                                A.

    The Division argues that the Appellate Division erred by

interfering with a legitimate decision by the Director to award

the bid to RMD.   It stresses the broad discretion vested in the

Director by N.J.S.A. 52:34-12 to protect the public interest and

obtain for the State the most advantageous contract, “price and

other factors considered.”   That discretion was not abused,

according to the Division; rather, the Appellate Division

misstepped by not allotting the agency’s final determination the

deference that is owed to an administrative agency acting within

its field of expertise.

    Moreover, focusing on its argument that Barrick’s claim

should have been held to be moot, the Division contends that the

Appellate Division failed to consider analogous decisions

involving construction contracts.     The Division contends that


                                 8
those cases militate against review of an agency’s contract

award decision if, when review is sought, the project is

substantially complete or if considerable funds have been

expended in preparation for performance of the contract.     The

Division maintains that Barrick’s failure to seek a stay or

otherwise “restrain the State from acting for over one year”

contributed to the expenditure of substantial resources and

that, as a result, Barrick should not have been entitled to

appeal the contract award to RMD.   Further, the Division argues

that the Appellate Division’s decision to award relief in the

posture of this contract award dispute is counter to the

interests of justice and results in “a waste of the substantial

public monies spent and efforts by public employees taken and

thwarts [the Division’s] careful planning for cost savings

anticipated from planned staff relocations.”

    Relatedly, the Division submits that the Appellate

Division’s failure to consider and apply equitable principles in

this case will have a chilling effect on future lease

procurement because requiring the State to wait until the

resolution of all appeals before moving forward under awarded

contracts will frustrate government leasing operations.

                               B.

    Petitioner RMD contends that the Appellate Division

improperly disregarded the Division’s decision–making process.


                                9
Specifically, RMD submits that the appellate panel misapplied

the test for determining whether a requirement listed in the SOW

is material and, as a result, non-waivable.   RMD further argues

that the Director properly assessed the waivability of the

distance specification as of the time of the bid opening and

that the Appellate Division erred in accepting Barrick’s

supplementation of his bid submission.

    In addition, according to RMD, the Appellate Division

should have dismissed Barrick’s appeal as moot because Barrick

did not seek a stay of the contract’s award, and RMD and the

Division reasonably proceeded with and completed renovations in

accordance with the SOW while the appeal was pending.    RMD

contends that upholding the panel’s decision will discourage

future bidders from entering into public contracts in New

Jersey.

                                 C.

    Barrick argues that the Appellate Division properly

reversed the Director’s award of the lease to RMD.   Barrick also

contends that petitioners are barred from raising the mootness

argument now because they failed to properly raise the argument

below.    According to Barrick, the cases cited by petitioners to

support their mootness argument concerned nearly completed

construction contracts and are therefore irrelevant to the

instant action involving a lease for space.   Barrick argues


                                 10
that, even if those cases were relevant, the ten-year lease

period has yet to begin and, therefore, the disputed contract is

not substantially complete, as in the construction cases.     He

contends that the instant appeal is therefore distinguishable.

                               III.

     The public interest underlies the public-bidding process in

this State.   This Court has several times recognized that well-

known purpose, stating that public bidding statutes exist

          for the benefit of the taxpayers and are
          construed as nearly as possible with sole
          reference to the public good. Their objects
          are    to    guard     against    favoritism,
          improvidence, extravagance and corruption;
          their aim is to secure for the public the
          benefits of unfettered competition.

          [Keyes Martin & Co. v. Dir., Div. of
          Purchase & Prop., 99 N.J. 244, 256 (1985)
          (quoting Terminal Constr. Corp. v. Atl.
          Cnty. Sewerage Auth., 67 N.J. 403, 409-10
          (1975)) (internal quotation marks omitted)
          (citing Trap Rock Indus., Inc. v. Kohl, 59
          N.J. 471, 479 (1971), cert. denied, 405 U.S.
          1065, 92 S. Ct. 1500, 31 L. Ed. 2d 796
          (1972)); see also In re DBC Project No.
          A0716-00, 303 N.J. Super. 384, 396 (App.
          Div. 1997) (noting same).]

     N.J.S.A. 52:34-12(a)(g)5 governs the advertisement for bids

concerning leases and states that “award[s] shall be made with

reasonable promptness, after negotiation with bidders where


5
  Formerly codified at N.J.S.A. 52:34-12(d), amended by L. 1986,
c. 72, and N.J.S.A. 52:34-12(f), amended by L. 1999, c. 440,
§ 96.



                                11
authorized, by written or electronic 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.”   The public bidding statutory scheme vests

discretion in the Director of the Division to select which of

the responsive bids is “most advantageous to the State.”

N.J.S.A. 52:34-12(a).    An agency’s choice from among responsible

bidders under N.J.S.A. 52:34-12(a)(g) is reviewed under the

gross abuse of discretion standard.    See Keyes Martin & Co.,

supra, 99 N.J. at 252-53; Commercial Cleaning Corp. v. Sullivan,

47 N.J. 539, 548-49 (1966); In re Protest of Award of On-Line

Games Prod. & Operation Servs. Contract, 279 N.J. Super. 566,

592-93 (App. Div. 1995).

    Although broad, the grant of discretion to the Director to

administer the public bidding process is not limitless.     In line

with the policy goal of thwarting favoritism, improvidence,

extravagance, and corruption, the Division may not award a

contract to a bidder whose proposal deviates materially from the

RFP’s requirements.     See In re On-Line Games Contract, supra,

279 N.J. Super. at 594-96, 602 (adopting test from Meadowbrook

Carting Co. v. Borough of Island Heights, 138 N.J. 307, 315

(1994), and defining materiality as “whether waiver of the

deviation would thwart the aims of the public bidding laws”).

Deviations from material specifications risk transgressing the


                                  12
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 non-waivable; the

winning bidder’s proposal must comply with all material

specifications.   See In re Jasper Seating Co., 406 N.J. Super.

213, 219 (App. Div. 2009); In re On-Line Games Contract, supra,

279 N.J. Super. at 594.

    Determinations as to whether a requirement is material, or

whether a bid conforms to the requirements of an RFP, are

reviewed under the ordinary standard governing judicial review

of administrative agency final actions.    See In re On-Line Games

Contract, supra, 279 N.J. Super. at 593.   Under that standard of

review, an appellate court will not upset an agency’s ultimate

determination unless the agency’s decision is shown to have been

“arbitrary, capricious, or unreasonable, or [] not supported by

substantial credible evidence in the record as a whole.”    In re

Stallworth, 208 N.J. 182, 194 (2011) (alteration in original)

(quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80

(2007)) (internal quotation marks omitted); accord In re

Proposed Quest Acad. Charter Sch. of Montclair Founders Grp.,

216 N.J. 370, 385-86 (2013).   That standard is applicable on

appellate review of an administrative agency’s actions

regardless of whether that action followed a quasi-adjudicative


                                13
hearing or, as in this case, an assessment of the relevant

submissions and standards by an administrative head.   Cf. In re

Proposed Quest Acad. Charter Sch., supra, 216 N.J. at 386.

    In applying that standard of review, “an appellate court

does not substitute its judgment . . . for that of [the]

administrative agency.”   In re Young, 202 N.J. 50, 70 (2010)

(internal quotation marks omitted).   Instead, a court’s inquiry

is limited to:   (1) whether the agency’s action violated the

legislative policies expressed or implied in the act governing

the agency; (2) whether the evidence in the record substantially

supports the findings on which the agency’s actions were

premised; and (3) “whether in applying the legislative policies

to the facts, the agency clearly erred in reaching a conclusion

that could not reasonably have been made on a showing of the

relevant factors.”   In re Carter, 191 N.J. 474, 482 (2007)

(quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)) (internal

quotation marks omitted); accord Circus Liquors, Inc. v.

Governing Body of Middletown Twp., 199 N.J. 1, 10 (2009); In re

Alleged Improper Practice Under Section XI, Paragraph A(d) of

the Port Auth. Labor Relations Instruction, 194 N.J. 314, 331-

32, cert. denied, 555 U.S. 1069, 129 S. Ct. 754, 172 L. Ed. 2d

726 (2008); In re Herrmann, 192 N.J. 19, 28 (2007).

    With respect to the determination of whether an RFP

requirement must be regarded as material and, as a consequence,


                                14
non-waivable, the threshold step in the analysis is to determine

whether there is a deviation.      See, e.g., In re Challenge of

Contract Award Solicitation No. 13-X-22694 Lottery Growth Mgmt.

Servs., __ N.J. Super. __, __ (App. Div. 2014) (slip op. at 30);

In re On-Line Games Contract, supra, 279 N.J. Super. at 594.

That determination necessarily must be made -- and made by the

Director of the Division responsible for administering the bid

proposal, review, and award process -- at the time that the bids

are opened.   Cf. In re On-Line Games Contract, supra, 279 N.J.

Super. at 591.   The timing requirement assures the bidders of an

even playing field and the public of a fair and impartial public

contract award process.    Ibid.   On review, a court’s role is to

examine the correctness of the Director’s determination based on

the information available to the Director at the time bids are

opened.   See id. at 598 (holding “post-opening commitment to

supply an essential [item] missing from a bid” constitutes

“impermissible supplementation, change or correction”

incompatible with purpose of public bidding scheme).

    If a deviation is found and the Director nonetheless makes

an award, then the analysis on appellate review must include two

inquiries.    First, a reviewing court must assess “whether the

effect of a waiver would be to deprive the [public entity] of

its assurance that the contract will be entered into, performed

and guaranteed according to its specified requirements.”      Id. at


                                   15
594-95 (internal quotation marks omitted) (acknowledging that

analysis set forth in Meadowbrook Carting Co. is “applicable to

both state and local contract cases”); see also Weidner v. Tully

Envtl., Inc., 372 N.J. Super. 315, 325 (App Div. 2004); United

States v. Joint Meeting of Essex & Union Cntys., 997 F. Supp.

593, 600 (D.N.J. 1998).     Second, the court must determine

whether the requirement at issue “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.”   In re On-Line Games Contract, supra, 279 N.J.

Super. at 594-95 (internal quotation marks omitted).

                                 IV.

    Here, the Director’s decision, made at the time bids were

opened, included a determination that all qualified bidders had

submitted proposals involving properties that exceeded the SOW

requirement that the property be located within a quarter mile

of public transportation.    The deviation that was found to exist

when the bids opened existed for all qualified bidders.        We see

no error in the Director’s determination on that issue.        The

Director relied on the submissions of the bidders as he was

required to do.   See N.J.A.C. 17:11-6.7 to -6.10.    Because the

moment that bids are opened is decisive for determining whether

bids are responsive on all or any part of the RFP requirements,


                                  16
that is the point in time at which the Director’s deviation

determination should be judged.    The Director correctly

determined that the bids deviated from the distance requirement.

The Director also correctly refused to consider Barrick’s

belated attempt to supplement his original bid proposal, long

after it had been submitted, or to adjust its method of

measurement of the property’s distance from public

transportation.   The Division correctly judged each of the bid

proposals as deviating from the distance requirement based on

the original information submitted in each proposal.     We

therefore conclude that the Appellate Division erred in

substituting its judgment for that of the Director and

determining Barrick’s bid to be conforming on the basis of its

amendatory material.

    Thus, having determined that the Director correctly

perceived that the Division had received three bids that

deviated from the distance requirement, we turn to examine the

Director’s determination that the deviation was not material.

We thus must review the Director’s actions.    Our review leads to

the conclusion that the Director’s materiality determination and

resultant award decision were unassailably reasonable and

consonant with the statutory process he is tasked with

administering.




                                  17
       Faced with three bids involving properties that exceeded

the quarter-mile specification, the Director properly consulted

with the procuring agency, here the DOL.    In doing so, the

Director learned that the quarter-mile requirement was not a

legal requirement.    It was not found in either a statute or a

regulation.    The Director further determined, in consultation

with the DOL, that the distances by which the three bids

exceeded the distance requirement, were de minimus in nature.

All other requirements having been reviewed and no other

deviations being found, the Director concluded that cost-

effectiveness was the factor of paramount importance in the ten-

year lease being procured.    Accordingly, the Director awarded

the bid to RMD, the lowest bidder.    We conclude that the

Director’s award was entitled to deference on appellate review.

The decision to award the lease contract to RMD was not

arbitrary, capricious, or unreasonable.    The Appellate Division

erred in setting aside the Division decision awarding the bid to

RMD.

                                 V.

       The State and RMD urge this Court to establish a bright-

line rule that would declare as moot appeals of bid awards where

an unsuccessful bidder fails to seek a stay when pursuing

appellate review of the bid award.    The State and RMD make a

compelling argument that substantial funds were expended in


                                 18
outfitting the property for use by the State.   Further, they

point out that the lease procurement process involves the

expenditure of time and resources in securing the requisite

approval of the Space Utilization Committee that must precede

the State’s commitment to a long-term lease.

    In light of our decision finding error in the Appellate

Division’s reversal of the Division’s award to RMD, we need not

address the parties’ arguments in favor of a bright-line rule in

favor of mootness when an unsuccessful bidder fails to seek a

stay in order to appeal a bid award.   We note only that the

parties’ arguments highlight that an unsuccessful bidder, who

does not promptly seek a stay of a lease bid award under Rule

2:9-8 when appealing an award determination, acts at his, her,

or its peril.

    For example, if the bidder does not seek a stay, by the

time the unsuccessful bidder’s appeal is heard the process of

securing multi-Branch approvals and expenditure of funds on a

building project -- whether it involves a lease or other

construction work -- likely will have proceeded apace and the

equities will be against the provision of relief on the merits.

We caution against any expectation that a merits review will be

readily available to such unsuccessful bidders who sit on their

right to seek a stay and simply hope for a remedy down the road.

The appellate process is equipped for stay applications in


                               19
bidding disputes and that relief ought to be pursued as a matter

of course.

    Contractual matters in which the State and its public

entities engage must proceed with alacrity.    The bidding

administrative process is premised on prompt identification,

review, and correction of any contracting process errors.     See

N.J.A.C. 17:11-6.2 to -6.9.    The State’s business and the public

interest in the State’s contractual endeavors should not be

unreasonably delayed while an unsuccessful bidder seeks another

level of review.    Appellate review should be pursued with

similar alacrity.    Rule 2:9-8 provides an avenue to accommodate

the interests of all parties in a swift and fair review of

alleged improprieties in the bid award process.

                                 VI.

    The judgment of the Appellate Division is reversed.

     CHIEF JUSTICE RABNER and JUSTICES PATTERSON and FERNANDEZ-
VINA, and JUDGES RODRÍGUEZ and CUFF (both temporarily assigned)
join in JUSTICE LaVECCHIA’s opinion. JUSTICE ALBIN did not
participate.




                                 20
              SUPREME COURT OF NEW JERSEY




     NO. A-8/9                                 SEPTEMBER TERM 2013

     ON CERTIFICATION TO               Appellate Division, Superior Court




     MATTHEW J. BARRICK, JR.,

            Appellant-Respondent,

                    v.

     STATE OF NEW JERSEY,
     DEPARTMENT OF TREASURY,
     DIVISION OF PROPERTY
     MANAGEMENT AND CONSTRUCTION,

            Respondents-Appellants.




     DECIDED                July 23, 2014
     Chief Justice Rabner                                      PRESIDING
     OPINION BY                Justice LaVecchia
     CONCURRING/DISSENTING OPINIONS BY
     DISSENTING OPINION BY


       CHECKLIST                     REVERSE
CHIEF JUSTICE RABNER                       X
JUSTICE LaVECCHIA                          X
JUSTICE ALBIN                   -----------------------   --------------------
JUSTICE PATTERSON                          X
JUSTICE FERNANDEZ-VINA                     X
JUDGE RODRÍGUEZ (t/a)                      X
JUDGE CUFF (t/a)                           X
       TOTALS                              6




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