Town, Academy lose appeal in bus contract Court affirms that 2001 request for bids was flawed BY VINCENT TODARO Staff Writer EAST BRUNSWICK — The township has been sent back to the drawing board to determine which bus company can have its commuter bus contract. A panel of three state Appellate Division judges recently upheld a Superior Court decision that the request for proposal (RFP) used by the township to seek bids from commuter bus services in 2001 was ambiguous and therefore not a valid way of soliciting a new bus contract. Academy Express, of Hoboken, and Suburban Transit, of New Brunswick, which has provided commuter service for East Brunswick since the 1970s, both submitted bids in 2001 and the township awarded the contract to Academy. However, Suburban took legal action and stopped the new contract from being executed. In February 2002, Superior Court Judge Alexander Waugh Jr. ruled that the RFP contained specifications that were "sufficiently ambiguous" and that the two companies "bid based on two very different understandings of the minimum service required." Both the township and Academy appealed Waugh’s decision, still hoping the court would allow the contract to be granted to Academy. Suburban also appealed part of the decision, arguing the court was wrong in determining the company’s own bid included a material defect. However, the Appellate Court affirmed Waugh’s ruling that both bids contained serious flaws. Suburban has continued to provide commuter service to East Brunswick through the course of the legal proceedings. The three-year $14.3 million contract is to provide bus service for more than 2,000 commuters daily between East Brunswick’s two park-and-ride facilities and New York City. Appellate Court judges Helen Hoens, Anthony Parillo and Robert Fall, in a Feb. 17 decision, wrote, "The record on appeal fully supports [Judge Waugh’s] conclusions that the RFP was fatally ambiguous. "It is undisputed that both vendors interpreted the language of the RFP differently and thus structured their proposals based upon what they perceived represented the township’s intention," the appellate judges wrote. Part of the ambiguity was in the RFP’s wording regarding seat availability and frequency of service. Suburban said it interpreted the RFP to require both seat avail­ability and a listing of frequency of service. Academy, on the other hand, argued that the RFP only called for seat availability infor­mation from bidders. The RFP did not include a sec­tion requiring bidders to supply in­formation regarding frequency of service. However, the judges noted in their written decision that a section of the RFP states that "seat availability means that a passen­ger must wait no longer than 10 minutes for a seat on a scheduled bus." The judges emphasized the end of that statement. "The RFP did not contain a spe­cific section requesting vendors to provide a frequency of hours of service," the judges pointed out. "However, the RFP made refer­ence to that when it discussed the seat availability requirements. Hence the RFP was not clear as to what it mandated and, read on its face, was ambiguous. "It is evident that the RFP is ambiguous, and placed the vendors on unequal footing when submit­ting their proposals," the judges also said. The RFP was the product of dis­cussions between township profes­sionals and members of the East Brunswick Commuter Advisory committee, an ad hoc commuter group. Bertram E. Busch and Township Administrator James White prepared a report that eval­uated the two bids and made a recommendation that the council award the contract to Academy. The pending contract was dis­cussed at an August 2001 council meeting, which drew a large crowd and was held at the East Brunswick Public Library. After much input from the public, the Township Council voted to award the contract to Academy. Officials at the time cited lower rider rates and price stability as one reason they chose Academy. Township officials were not commenting on the Apellate Division ruling this week. Mayor William Neary said he expected to meet with John F. Casey, an attorney who represented the township in the case, on Thursday. The township and the commuter bus companies have a history of lit­igation. In 1994, East Brunswick tried to award Academy the bus contract, but Suburban filed suit at that time as well. Denied an injunction in District Court, Suburban went to the Third District of the United States Court of Appeals, which forced the township to reject all bids and resulted in Academy fil­ing suit. A settlement was reached in the fall of 1997, with Suburban paying Academy an "undisclosed consid­eration" of money but retaining the contract.