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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 City’s 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 Plaintiff’s employees are dedicated to performing services for
the City of Trenton to the exclusion of all other work for Plaintiff.

4. At present, Plaintiff provides IT (information technology) services to the City of


Trenton pursuant to a contract dated June 24, 2009. That contract provides for its extension for
an 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 the
Defendant 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
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 Trenton’s Department of Administration, Division of
Information Services.” Said services were to be pursuant to an annual
contract 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”) and
Defendant 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 by


committee using criteria based on completeness of the proposal, the quality of the technical
solution, price and references.” (See RFP, page 22 - Exhibit B).

10. At all times relevant hereto, James Damron was the Director of Information
Technology 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 Administrator
for the City of Trenton until such employment terminated in November, 2010 after the
termination of James Damron.

12. Upon information and belief, after the opening of bids, but prior to the termination
of his employment, James Damron preliminarily evaluated the bid proposals of the three vendors
aforesaid and recommended to Andrew McCrosson that the award of a contract pursuant to RFP
38 be to Plaintiff. After the opening of bids, but prior to his termination, Andrew McCrosson
advised Joseph R. Harris, President of Plaintiff, that he, McCrosson, intended to recommend to
the 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 for
consideration 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 on
December 16, 2010.

15. By letters dated December 9, 2010, Plaintiff protested to the Mayor and members of
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 was
deficient and fatally defective, as per the RFP and N.J.S.A. 40A:11-23.2( c) & (d), such that the
proposal 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 by
Lynx (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 document
correctly completed is a fatal defect rendering the bid unresponsive and not subject to cure by
the governing body according to N.J.S.A. 40A:11-23.2(e)] (See last page of Exhibit E);

B. “Required Evidence - Affirmative Action Regulations.” This appears to have been


signed by Lynx stating that it has an Affirmative Action Employee Information report (Form
AA302), but no such form was supplied in accordance with the bid specifications; instead, such a
form 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 document


was 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 two
pages before the last page of Exhibit E);

D. “Certificate of Employee Information Report." No such document was submitted


by 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 a
bidder [the persons named in same being members/owners of BCT Partners]), and is not in
proper form in any event as it is not signed by an Officer of BCT, and the printed name of the
person authoring and “signing” the “Verification” (if this can be considered a signature) is
notarized by the same person (one cannot notarize one’s own signature) - It should be noted that
the failure of Lynx to provide a “statement of corporate ownership” is a fatal defect rendering
the bid unresponsive and not subject to cure by the governing body according to N.J.S.A.
40A:11-23.2( c). See also, RFP, Section VI, subsection D [If BCT Partners is a subcontractor
of Lynx, this was not disclosed in the bid documents, and failure to so disclose is a fatal defect
rendering 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). See
N.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 such


a document, purporting to be an “Affidavit,” was submitted by BCT Partners, LLC (which is not
a bidder), and is not in proper form in any event as it is not signed by an Officer of BCT, and the
printed name of the person “signing” the “Affidavit” (if this can be considered a signature) is
notarized by the same person (one cannot notarize one’s 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, and
Senior Network Administrator will work on-site until 4:30 p.m. five days per week. Since
almost 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 services
calculated on an overtime basis. (N.B. ADPC personnel provide over 900 hours of network and
server support per year after normal business hours at no additional charge to the City.)

I. Lynx will provide consultants in the event of an emergency at 1 ½x the consultant’s


normal hourly rate (normal rate being unstated). See RFP, Section I, subsection H. regarding
this. (N.B. It should be noted that although actual “emergencies” are rare, frequently ADPC has
been 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, Plaintiff
herein is the lowest responsible bidder.

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

19. As far as being a “responsible” bidder, it is noted that Defendant


Lynx responded to the RFP questionnaire regarding “Experience in Required Areas” as “No” to
19 of the 32 items regarding experience in required areas, i.e., most of the City’s major software
application products, including, Finance Applications (Budget, Financial Accounting, and
Purchasing), 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 New
Jersey municipality. Also, many of the references supplied in the bid proposal are not those of
Defendant 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 least
48 hours before” the vote by the Council on December 16, 2010 in violation of N.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 no
evaluation of the aforesaid bid proposals at all as per the RFP. Further, apart from fatal defects
disqualifying Defendant Lynx, upon consideration of sub-paragraphs 16 H & I and Paragraph
19 above, Plaintiff is the lowest responsible bidder, not Defendant Lynx. See Certification of
Joseph Harris.
21. On December 16, 2010, the aforesaid Resolution awarding the contract referenced by
the aforesaid RFP to Lynx was presented to the Council for a vote. The aforesaid resolution was
defeated. Those Council members voting against the Resolution generally expressed concerns,
inter alia, regarding the experience of Lynx servicing municipal operations on the same or
similar 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 a


presentation to the Council, which presentation was conducted.

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

24. On January 18, 2011, by Resolution 11-41, the Council awarded the contract
referenced by the aforesaid RFP to Lynx. (Copy attached as Exhibit G). The aforesaid
Resolution states that is for the period commencing on March 1, 2011 to March 1, 2012. But in
effect, 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 Defendant
Lynx as to whether the bid proposal of Defendant Lynx is legally sufficient and the defects
contained therein capable of waiver by Defendant City.

26. As stated before, Plaintiff submitted a bid proposal to the Defendant City proposing a
bid 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 the
RFP 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 the Local 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 an
award, unless the bids of the bidders, who consent to it are, at the request of the City, held for
consideration for such longer period as may be agreed.

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

31. The failure of Defendant City to make an award within the time provided by
N.J.S.A. 40A:11-24 constitutes 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 and
whether the City’s rejection was arbitrary, capricious or negligent.

32. Defendant City has not scheduled a hearing with regard to the bid of Plaintiff.
33. Defendant City has not provided Plaintiff with any reason(s) why its bid was rejected
pursuant to N.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 deemed
to be “no bid;”

B. Declaring that the bid of defendant Lynx is fatally defective, and therefore, such
defects 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 the
lowest 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. BRADY
Attorney for Plaintiff

DESIGNATION OF TRIAL COUNSEL

Pursuant to Rule 4:25-4, notice is hereby given that James P. Brady, Esq. is designated
as 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 a
court or of a pending arbitration proceeding.

2. No other action or arbitration proceeding is contemplated. No other party


should be joined.
I certify that the foregoing statements made by me are true to the best of my
knowledge, information and belief. I am aware that if a of the foregoing statements made by me
are 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, Notary
Notary Public of NJ
Commission Expires 07/08/2013