NH DOT Had Authority to Procure Electronic Tolling Services Through Best-Value Process

The New Hampshire Department of Transportation, using a best-value process, awarded the EZ-Pass electronic tolling system back office work to a new vendor. The original vendor challenged both the authority of the DOT to conduct this procurement (arguing that only the NH Dept. of Administrative Services had this authority), and the DOT’s ability to award on the basis of best value instead of low bid. From that description, readers will realize that the original vendor had the low price, but didn’t prevail when other factors were evaluated.

The procurement was advertised with the technical proposal being worth up to 70 points, and the price proposal worth up to 30 points. The original vendor’s total score was 80.12, and the new vendor’s score was 80.76. The incumbent competed for the bid, but once it lost decided to challenge the DOT’s authority to conduct the procurement.

The NH Supreme Court came to the point quickly. First, the authority of DAS to procure services was not exclusive. DAS was responsible for procurement of “all materials, equipment, supplies, and services for all departments and agencies of the state . . . except as otherwise provided by law.” Procurement laws for DOT required construction contracts to be awarded to the lowest bidder, but other sections of those laws also authorized DOT to “enter into contractual relations on behalf of the state” in operating the state turnpike system. This latter statute provided the authority for DOT both to solicit and engage a back office vendor, and to do so on a best-value procurement.

Although the original vendor had the lowest price, it did not have the best overall score on the procurement, and the NH DOT was statutorily empowered to accept the best value. The case is Conduent State & Local Solutions v. N.H. DOT, 2018 N.H. LEXIS 199 (Oct. 16, 2018).