Complaint In Lieu of Prerogative Writs2

8/7/2019 Complaint In Lieu of Prerogative Writs2

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JAMES P. BRADY

200 Main Street

P.O. Box 816

Toms River, NJ 08754-0816

(732) 286-9500

Attorney for Plaintiff(s): Associated Data Processing Consultants, Inc.

____________________________________)

Plaintiff ) SUPERIOR COURT OF

) NEW JERSEY

ASSOCIATED DATA PROCESSING )

CONSULTANTS, INC.) LAW DIVISION

) MERCER COUNTY

v. )

) A Civil Action

)

Defendants ) DOCKET NO.:

)

CITY OF TRENTON and LYNX ) VERIFIED COMPLAINT IN LIEU OF

TECHNOLOGY PARTNERS, INC. ) PREROGATIVE WRITS

____________________________________)Plaintiff, Associated Data Processing Consultants, Inc., a

corporation of the State of New Jersey, with offices at 116 Village

Boulevard, Suite 200, Princeton, County of Mercer and State of New

Jersey, complaining of the defendant says:

1. Plaintiff is a corporation of the State of New Jersey, with

offices at 116 Village Boulevard, Suite 200, Princeton, County of Mercer

and State of New Jersey.

2. Plaintiff is in the business of providing information technology

information services.

3. Plaintiff is presently under contract with the Defendant City of

Trenton (hereafter the City) to provide technical support services for

the Citys Department of Administration, Division of Information Services,which contract was due to expire on June 30, 2011, unless the Defendant

City extended same pursuant thereto. Further, Plaintiff has been under

contract to provide such services to defendant for the past 23 years.

Several of Plaintiffs employees are dedicated to performing services forthe City of Trenton to the exclusion of all other work for Plaintiff.

4. At present, Plaintiff provides IT (information technology) services to the City ofTrenton pursuant to a contract dated June 24, 2009. That contract provides for its extension foran additional year (through June 30, 2011) and another additional year (through June 30, 2012)at the option of the Defendant City of Trenton. The aforesaid first option was exercised by theDefendant City of Trenton by virtue of Purchase Orders dated July 14, 2010 and September 15,2010 pursuant to the Resolutions extending said contract noted in the body of said Purchase

Orders. (Copy of Resolution, Contract and Purchase Orders attached as


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Exhibit A).

5. On or about September, 2010, defendant issued and published a

Request For Proposals - Competitive Contracting Number 38,(hereafter

RFP), pursuant to the Local Public Contracts Law,N.J.S.A. 40A:11-1, et

seq., seeking contracting proposals To provide technical support services

for the City of Trentons Department of Administration, Division of

Information Services. Said services were to be pursuant to an annualcontract with optional extensions. (Copy of the RFP (without detachable

forms to be submitted with bid proposal) is attached as Exhibit B).

6. The deadline for the submission of proposals pursuant to said

RFP was October 27, 2010 at 2:00 p.m.

7. Three (3) vendors submitted bids with regard to the RFP in

question: Plaintiff, The Breaker Group (hereafter Breaker) andDefendant Lynx Technology Partners, Inc. (hereafter Lynx).

8. The bids were opened and publically read on October 27, 2010.

The bids as to price were as follows: Breaker - $894.000 (first year); Plaintiff -$882,600; and Lynx - $875,000.

9. The RFP in question states, in pertinent part: Proposals will be evaluated bycommittee using criteria based on completeness of the proposal, the quality of the technicalsolution, price and references. (See RFP, page 22 - Exhibit B).

10. At all times relevant hereto, James Damron was the Director of InformationTechnology for the City of Trenton until such employment terminated on or about November 5,2010.

11. At all times relevant hereto, Andrew McCrosson was Acting Business Administratorfor the City of Trenton until such employment terminated in November, 2010 after thetermination of James Damron.

12. Upon information and belief, after the opening of bids, but prior to the terminationof his employment, James Damron preliminarily evaluated the bid proposals of the three vendorsaforesaid and recommended to Andrew McCrosson that the award of a contract pursuant to RFP38 be to Plaintiff. After the opening of bids, but prior to his termination, Andrew McCrossonadvised Joseph R. Harris, President of Plaintiff, that he, McCrosson, intended to recommend tothe Mayor and Council that the award pursuant to RFP 38 be to Plaintiff.

13. Sometime prior to December 2, 2010, the City Clerk prepared a Resolution forconsideration by the Council awarding the contract referenced by the aforesaid RFP to Lynx.The matter was tabled.

14. Said Resolution was placed on the agenda for the meeting of the Council onDecember 16, 2010.

15. By letters dated December 9, 2010, Plaintiff protested to the Mayor and members of


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the City Council regarding such an award to Lynx. (Copies attached as Exhibit C).16. By letter dated December 14, 2010, counsel for Plaintiff challenged the proposed

award on the basis that Plaintiff was the lowest responsible bidder and that proposal of Lynx wasdeficient and fatally defective, as per the RFP andN.J.S.A. 40A:11-23.2( c) & (d), such that theproposal of Lynx should have been rejected. (Copy of said correspondence [enclosures omitted]is attached as Exhibit D). The aforesaid documentary deficiencies in the proposal submitted byLynx (attached as Exhibit E), included, but are not necessarily limited to the following:

A. Acknowledgment of Receipt of Addenda. There was one addendum to the RFP.Defendant Lynx submitted the form in blank, albeit signed, - failure to provide this documentcorrectly completed is afatal defectrendering the bid unresponsive and not subject to cure bythe governing body according toN.J.S.A. 40A:11-23.2(e)] (See last page of Exhibit E);

B. Required Evidence - Affirmative Action Regulations. This appears to have beensigned by Lynx stating that it has an Affirmative Action Employee Information report (FormAA302), but no such form was supplied in accordance with the bid specifications; instead, such aform for BCT Partners, LLC (which was not a bidder) was provided. See RFP Section VI,

subsection A (See the two pages before the last page of Exhibit E);

C. Affirmative Action Employee Information Report AA-302." No such documentwas submitted by Lynx; instead such a report signed by the office manager of BCT Partners,LLC (which is not a bidder) was submitted. See RFP Section VI, subsection A (See the twopages before the last page of Exhibit E);

D. Certificate of Employee Information Report." No such document was submittedby Lynx; instead such a report was issued and submitted in the name of BCT Partners, LLC(which is not a bidder). (See the fourth from last page of Exhibit E);

E. Stockholder Disclosure Verification. No such document was submitted by Lynx;instead such Verification was submitted on behalf of BCT Partners, LLC (which is not abidder [the persons named in same being members/owners of BCT Partners]), and is not inproper form in any event as it is not signed by an Officer of BCT, and the printed name of theperson authoring and signing the Verification (if this can be considered a signature) isnotarized by the same person (one cannot notarize ones own signature) - It should be noted thatthe failure of Lynx to provide a statement of corporate ownership is a fatal defectrenderingthe bid unresponsive and not subject to cure by the governing body according toN.J.S.A.40A:11-23.2( c). See also, RFP, Section VI, subsection D [If BCT Partners is a subcontractorof Lynx, this was not disclosed in the bid documents, and failure to so disclose is a fatal defectrendering the bid unresponsive and not subject to cure by the governing body according to

N.J.S.A. 40A:11-23.2(d)] (See the fifth from last page of Exhibit E);

F. Business Registration Certificate. No such document was submitted by Lynx;instead such a Certificate was submitted by BCT Partners, LLC (which is not a bidder). SeeN.J.S.A. 52:32-44 & RFP, Section VI, subsection I (See the ninth from last page of Exhibit E);

G. Non-Collusion Affidavit. No such Affidavit was submitted by Lynx; instead sucha document, purporting to be an Affidavit, was submitted by BCT Partners, LLC (which is not


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a bidder), and is not in proper form in any event as it is not signed by an Officer of BCT, and theprinted name of the person signing the Affidavit (if this can be considered a signature) isnotarized by the same person (one cannot notarize ones own signature). See RFP, Section VI,subsection D (See the sixth from last page of Exhibit E);

H. Lynx proposes that its Cisco Network Engineer, Senior Network Engineer, andSenior Network Administrator will work on-site until 4:30 p.m. five days per week. Sincealmost all network changes and server administrative duties must be performed on off hours,after 4:30 p.m. and week-ends, it is anticipated that there will be extra charges for such servicescalculated on an overtime basis. (N.B. ADPC personnel provide over 900 hours of network andserver support per yearafternormal business hours at no additional charge to the City.)

I. Lynx will provide consultants in the event of an emergency at 1 xthe consultantsnormal hourly rate (normal rate being unstated). SeeRFP, Section I, subsection H. regardingthis. (N.B. It should be noted that although actual emergencies are rare, frequently ADPC hasbeen requested to provide support in non-emergency situations, after normal working hours,i.e., assisting in audio visual presentations, equipment set-up for presentations, after hours

relocations or installations, software set-up, etc., and has done so without charge.)

17. The aforesaid deficiencies eliminate Defendant Lynx as a bidder and thus, Plaintiffherein is the lowest responsible bidder.

18. The RFP, at page 22 thereof (Exhibit B), states,Proposals will be evaluated bycommittee using criteria based on the completeness of the proposal, the quality of the technicalsolution, price and references.

19. As far as being a responsible bidder, it is noted that DefendantLynx responded to the RFP questionnaire regarding Experience in Required Areas as No to

19 of the 32 items regarding experience in requiredareas, i.e., most of the Citys major softwareapplication products, including, Finance Applications (Budget, Financial Accounting, andPurchasing), Tax Assessment & Collection, Licensing & Permits, Legal, and Fleet Management.No experience with any of the software applications used by the Trenton Public Library.Further, defendant Lynx does not currently provide technical support services for any NewJersey municipality. Also, many of the references supplied in the bid proposal are not those ofDefendant Lynx, but those of BCT Partners. (See Exhibit E).

20. No evaluation report of the bids for the RFP in question was made public, at least48 hours before the vote by the Council on December 16, 2010 in violation ofN.J.S.A. 40A:11-4.5(d). No evaluation report of the bids for the RFP in question was made public, at least 48

hours before the vote by the Council on January 18, 2011. In point of fact, there has been noevaluation of the aforesaid bid proposals at all as per the RFP. Further, apart from fatal defectsdisqualifying Defendant Lynx, upon consideration of sub-paragraphs 16 H & Iand Paragraph19 above, Plaintiff is the lowest responsible bidder, not Defendant Lynx. See Certification ofJoseph Harris.

21. On December 16, 2010, the aforesaid Resolution awarding the contract referenced bythe aforesaid RFP to Lynx was presented to the Council for a vote. The aforesaid resolution wasdefeated. Those Council members voting against the Resolution generally expressed concerns,


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inter alia, regarding the experience of Lynx servicing municipal operations on the same orsimilar scale as the City of Trenton. (Copy of proposed Resolution attached as Exhibit F).

22. On January 4, 2011, representatives of Defendant Lynx were invited to make apresentation to the Council, which presentation was conducted.

23. Thereafter, on January 18, 2011, representatives of Plaintiff were permitted to makea presentation to the Council pursuant to plaintiffs request and such presentation was conducted,during which Plaintiff contended that it was the lowest responsible bidder on account of theissues, inter alia, of overtime, lack of experience and familiarity with the software applicationsof Defendant City and the disqualification of Defendant Lynx.

24. On January 18, 2011, by Resolution 11-41, the Council awarded the contractreferenced by the aforesaid RFP to Lynx. (Copy attached as Exhibit G). The aforesaidResolution states that is for the period commencing on March 1, 2011 to March 1, 2012. But ineffect, the Resolution awarded funding from January 1, 2011 through June 30, 2011 (six (6)months), even though the contract (and work) will not commence until March, a period of four

(4) months.

25. There is an actual and existing controversy between Plaintiff herein and DefendantLynx as to whether the bid proposal of Defendant Lynx is legally sufficient and the defectscontained therein capable of waiver by Defendant City.

26. As stated before, Plaintiff submitted a bid proposal to the Defendant City proposing abid price of $882,600 for the first year of the contract to be awarded.

27. The bid submitted by Plaintiff was completely responsive to the specifications of theRFP published by Defendant City and complied in all material respects with said bid

specifications.

28. The bid proposal submitted by Plaintiff constituted the lowest responsible bidder.

29. Pursuant to theLocal Public Contracts Law, specifically,N.J.S.A. 40A:11-24,Defendant City had 60 days from the date that the bids were opened within which to make anaward, unless the bids of the bidders, who consent to it are, at the request of the City, held forconsideration for such longer period as may be agreed.

30. Defendant City had not requested any of the bidders to extend the 60 day periodaforesaid.

31. The failure of Defendant City to make an award within the time provided by N.J.S.A. 40A:11-24constitutes a rejection of all bids entitling the lowest responsible bidder,Plaintiff herein, to a hearing as to whether or not Plaintiff was the lowest responsible bidder andwhether the Citys rejection was arbitrary, capricious or negligent.

32. Defendant City has not scheduled a hearing with regard to the bid of Plaintiff.


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33. Defendant City has not provided Plaintiff with any reason(s) why its bid was rejectedpursuant toN.J.S.A. 40A:11-24.

34. Plaintiff is entitled to be awarded the contract in question.

35. The within action has been filed within 45 days of the action of Defendant City,which is the subject of this Complaint.

WHEREFORE, Plaintiff demands judgment as follows:

A. Declaring that the bid of defendant Lynx is fatally defective, and therefore, is deemedto be no bid;

B. Declaring that the bid of defendant Lynx is fatally defective, and therefore, suchdefects may not be waived by Defendant City;

C. Declaring that the bid of Plaintiff was the lowest responsible bid and conformed in all

material respects with the Bid Specifications and bid documents;

D. That Defendant City be ordered to award the contract in question to Plaintiff as thelowest responsible bidder; and,

E. For counsel fees and taxed costs of suit;

F. For such other relief that the Court may deem to be equitable and just.

BY:___________________________

JAMES P. BRADYAttorney for Plaintiff

DESIGNATION OF TRIAL COUNSEL

Pursuant to Rule 4:25-4, notice is hereby given that James P. Brady, Esq. is designatedas trial counsel.

CERTIFICATION IN ACCORDANCE WITH RULE 4:5-1

The undersigned certifies on information and belief as follows:

1. The matter in controversy is not the subject of any other action pending in acourt or of a pending arbitration proceeding.

2. No other action or arbitration proceeding is contemplated. No other partyshould be joined.


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I certify that the foregoing statements made by me are true to the best of myknowledge, information and belief. I am aware that if a of the foregoing statements made by meare willfully false, I am subject to punishment.

BY:______________________DATE: January 20, 2011 JAMES P. BRADY

Attorney for Plaintiff

VERIFICATION OF COMPLAINT

STATE OF NEW JERSEY )

)

COUNTY OF OCEAN )

JOSEPH R. HARRIS, President of Associated Data Processing Consultants, Inc. of full

age, being duly sworn according to law upon my oath deposes and says:

1. I have read the Verified Complaint and, have personal knowledge regarding the matters stated

herein. I hereby incorporate its contents as if set forth herein at length.

2. I certify that the foregoing statements made by me are true. I am/are aware that if any of the

foregoing statements made by me are willfully false, I am/are subject to punishment.

BY: ____________________________JOSEPH R. HARRIS

DATE: January 20, 2011

Sworn and subscribed to before me this 20 th day of January, 2011.

By: ______________________B. Kathleen Taranto, NotaryNotary Public of NJCommission Expires 07/08/2013

Complaint In Lieu of Prerogative Writs2

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