Judge sends commuter bus contract back to twp.
Wording of contract request said to be
too vague
By vincent todaro
Staff Writer
EAST BRUNSWICK — A state Superior Court judge has granted a permanent injunction against the awarding of the township’s commuter busing contract to the Academy bus company, sending the township back to the drawing board.
In a decision issued Friday, Judge Alexander Waugh Jr. said the language used by the township when it worded its contract request last year was too vague, and thus was unfair to its current bus service provider, Suburban Transit Corp. After the Township Council voted in August to award a three-year contract to Academy, Suburban immediately filed a lawsuit, arguing that Academy did not properly meet the bid specifications and, therefore, cannot receive the contract.
Suburban has been providing bus service to East Brunswick since the 1970s. It transports more than 2,000 commuters from the Neilson Parking Plaza and the East Brunswick Transportation and Commerce Center to New York City and back.
After the contract was awarded, Suburban sought an injunction from Superior Court Judge Robert Longhi, who denied the request. The company was then successful, however, in getting a temporary injunction from a state Appellate Court pending a trial. That injunction stopped the contract with Academy from taking effect as scheduled Oct. 1.
Waugh’s decision, which came after a plenary hearing, sends the issue back to the township. Although Waugh agreed with some of Suburban’s arguments as to why the contract should not go to Academy, he disagreed that it should automatically be awarded to Suburban. He found problems with both bids.
"This court would not preclude East Brunswick from deciding for itself whether it wants to accept Suburban’s proposal or redo the entire process so that an RFP (Request For Proposal) is issued that adequately conveys its actual content," Waugh said.
He said the township’s RFP requirements were not clearly presented, and, therefore, it was understandable that Suburban did not know exactly what the township was looking for in the bid specifications.
East Brunswick Mayor William Neary responded to the judge’s decision during Monday night’s Township Council meeting, saying he was appalled by the fact that the township spent so much time working on the bid specifications only to have them thrown out by the judge.
"We believed the bid specifications were clear and understandable," Neary said, reading from a statement. "However, we knew that the potential for a challenge by the losing party was almost a certainty.
"Now, after a year and a half, we are being told by the judge to go back to the drawing board, because if someone says they were confused or that the questions were unclear, it must be so," Neary said.
The mayor added that he does not believe the township was unfair to Suburban, but that officials instead wanted to simply obtain the best service at the lowest price for commuters.
"I’m frustrated with this process," he said. "I’m appalled at the costs the taxpayers were required to spend, when we are virtually back where we started."
The council later discussed the issue in closed session.
The township began developing the criteria in late 2000, that would become the RFP. Township Finance Director L. Mason Neely oversaw the process, and along the way input was generated from the East Brunswick Commuter Advisory Committee, the council, and from attorney Bertram Busch.
Before taking bids on the bus contract, the township also conducted a survey and received 763 responses from bus riders. The survey indicated that 72.5 percent of the riders were extremely or very satisfied with Suburban’s service. About 50 percent said the "frequency of rush hour service" was most important to them, while only about 25 percent said the cost was most important.
After seeing Academy’s bid, one of Suburban’s main contentions was that a provision in the RFP called for buses to depart at regular 10-minute intervals and that Academy disregarded that provision.
Suburban said Academy had thus not scheduled enough bus trips, and did not space them closely enough together.
The township, which was a defendant in the case, along with Academy, claimed the RFP did not require the 10-minute intervals.
John Emberson, general manager for the southern district of Coach USA, the parent company of Suburban, said in September, Academy was missing 48 required trips per week.
Academy countered that Suburban’s contract was deficient because it did not include enough hours of service at Neilson Plaza, as well as a 7 a.m. departure to downtown Manhattan.
Both companies made those challenges known to the township before the contract was awarded in late August.
Regarding the frequency of service, Suburban argued, and Waugh agreed, that the RFP should be interpreted as requiring that, between the hours 6:30 and 9:30 a.m., and 4:30 and 6:30 p.m., buses must leave every 10 minutes. The morning hours deal with buses leaving from East Brunswick, and the afternoon hours are for buses leaving New York.
Academy and the township argued that the RFP actually required that customers should not have to wait more than 10 minutes for a seat when there are more than 25 passengers waiting for a bus. They also argued that the specifications required that "extra buses" be sent out when more than 25 commuters were waiting at either of the township’s lots or at Port Authority. It also gave dispatchers the ability to send out buses in those situations.
The township included the clauses about seat availability and frequency of trips in response to complaints from commuters who said they had to wait too long for a bus.
Last year, Neary said both companies met the requirements of the township’s RFP and that both offered adequate service, but the council chose Academy because the rates it offered to commuters were less expensive than Suburban’s. He said the cost of riding Academy was about $6 less per week.
While Academy ensured better prices in future years, Suburban would have been paying more money per month to the township for use of its commuter lots. Academy would have paid $28,000 per month to the township for garage, maintenance, security and other costs, while Suburban would pay $56,000. Those payments, Neary said, are derived from the monthly payments made to the bus companies by its riders.
The council award the contract to Suburban in August by a vote of 3-0 with two abstentions.
Waugh said the action is now "remanded to East Brunswick for further action consistent with this opinion."