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Conduent State & Local Solutions, Inc. v. New Hampshire Department of Transportation

Supreme Court of New Hampshire, Merrimack

October 16, 2018

CONDUENT STATE & LOCAL SOLUTIONS, INC.
v.
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.

          Gordon J. MacDonald, attorney general (Jessica King, attorney, on the brief and orally), for defendant New Hampshire Department of Transportation.

          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.

          HICKS, J.

         The 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.

         The 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 transponder.

         The 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.

         Conduent has had a contract with DOT to provide these services since 2004.[1] 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."

         The RFP 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.

         DOT 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."

         Conduent 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.

         I. Conduent's Standing

         Before 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 ...


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