CONDUENT STATE & LOCAL SOLUTIONS, INC.
NEW HAMPSHIRE DEPARTMENT OF TRANSPORTATION & a.
Argued: May 9, 2018
Cleveland, Waters and Bass, P.A., of Concord (Bryan K. Gould,
Philip R. Braley, and Cooley A. Arroyo on the brief, and Mr.
Gould orally), for the plaintiff.
J. MacDonald, attorney general (Jessica King, attorney, on
the brief and orally), for defendant New Hampshire Department
Hinckley, Allen & Snyder, LLP, of Manchester (Daniel M.
Deschenes and Cori P. Palmer on the brief, and Mr. Deschenes
orally), for defendant Cubic Transportation Systems, Inc.
plaintiff, Conduent State & Local Solutions, Inc.
(Conduent), appeals an order of the Superior Court
(Nicolosi, J.) denying Conduent's request for a
declaration that defendant New Hampshire Department of
Transportation (DOT) exceeded its statutory authority, and,
therefore, violated the separation of powers doctrine, by
procuring from defendant Cubic Transportation Systems, Inc.
(Cubic) a new system to support DOT's electronic
collection of tolls, using the "best value" method
for evaluating competing bids. See N.H. CONST. pt.
I, art. 37. On appeal, Conduent argues that DOT had no
statutory authority to procure the new system because
procurement authority is given to the New Hampshire
Department of Administrative Services (DAS). See RSA
ch. 21-I (2012 & Supp. 2017). Alternatively, Conduent
asserts, even if DOT had statutory authority to procure the
new system, it lacked authority to use the "best
value" method for evaluating competing bids. We affirm.
relevant facts follow. DOT collects tolls electronically
through the "E-ZPass" system, which allows a
vehicle with a transponder to pass through toll lanes without
stopping. DOT maintains accounts for all E-ZPass users and,
when a vehicle with a transponder passes through a tollbooth,
a toll is charged to the account associated with the detected
E-ZPass system requires a variety of so-called "back
office" activities, such as developing and maintaining
software, managing E-ZPass accounts, distributing E-ZPass
transponders, interacting with credit card companies,
identifying and enforcing E-ZPass violations, coordinating
with electronic toll collection systems in other states,
staffing E-ZPass service centers, and developing and
maintaining the E-ZPass website.
has had a contract with DOT to provide these services since
2004. In December 2014, DOT issued a request for
proposal (RFP) soliciting bids for "a new back office
system and related operations to support electronic tolling,
video tolling, violation processing and E-ZPass . . .
reciprocity." The RFP required bidders to submit a
technical proposal and a price proposal. The RFP reserved to
DOT the "sole discretion" to "reject any and
all Proposals at any time."
informed prospective bidders that each proposal would be
evaluated with regard to the services proposed, the
qualifications of the contractor and any subcontractor, the
experience and qualifications of "proposed
candidates," and cost. The RFP informed prospective
bidders that the bids would be evaluated on a 100-point scale
with 70 points allocated to the technical proposal and 30
points allocated to the price proposal. The RFP identified
the weights to be applied to the different components of the
technical and price proposals and specified the criteria by
which both the technical and price proposals would be judged.
Once the bids were evaluated, the RFP permitted DOT to enter
into contract discussions with the bidder it determined to be
the best qualified based upon the specified criteria.
scored Conduent higher than it scored Cubic on the price
proposal, but scored Cubic higher than it scored Conduent on
the technical proposal. Conduent's total score for both
its price and technical proposals was 80.12; Cubic's
total score was 80.76. Accordingly, DOT entered into contract
negotiations with Cubic and, ultimately, executed a contract
that the Governor and Executive Council approved in October
2015. We refer to the contract awarded to Cubic as the
"back office system services contract."
subsequently brought the instant action, maintaining in count
IX of its complaint that DOT exceeded its statutory
authority, thereby violating the separation of powers
doctrine, by conducting the procurement at issue.
See N.H. CONST. pt. I, art. 37. Conduent moved for
partial summary judgment on count IX. DOT moved to dismiss
count IX, asserting, in pertinent part, that count IX was
unsupported as a matter of law. Cubic moved to dismiss count
IX on similar grounds and also on the ground that Conduent
lacked standing to bring a claim for violation of separation
of powers. The trial court resolved Conduent's partial
summary judgment motion and the defendants' motions to
dismiss in a single, narrative order in which the court
assumed without deciding that Conduent has standing and ruled
that DOT had authority to procure the back office services
system contract under RSA chapter 237 and to use the
"best value" method under RSA 21-I:22-a and:22-b
(Supp. 2017). Conduent unsuccessfully moved for
reconsideration, and this appeal followed.
addressing the merits of Conduent's appellate arguments,
we consider Cubic's assertion that Conduent has failed to
establish standing to raise them. See Duncan v.
State, 166 N.H. 630, 640 (2014) (explaining that