You spent weeks pricing a public project and delivered your bid on time, only to watch the contracting unit set it aside over a clerical slip. Knowing your options can help you move forward.
Compliance standards for public bids
The Local Public Contracts Law sets the rules for construction projects awarded by counties, municipalities and local authorities. When a project exceeds the bid threshold, these agencies must advertise the work publicly, accept sealed bids and award the contract to the lowest responsible bidder.
The bid documents explain what you must include with your proposal. The purchasing agency compares your paperwork with the project specifications, required forms and any addenda. State law also requires bid security, a surety’s consent to furnish a performance bond, an ownership disclosure statement and a subcontractor list for certain trades.
If your bid packet lacks certain requirements, the public entity must reject it under state law. Other issues will depend on the facts of your application.
Material errors versus waivable defects
Not every mistake leads to disqualification. New Jersey courts use a two-part test to decide whether an error is serious enough to reject your submission or minor enough for the contracting unit to overlook.
One question is whether excusing the mistake would reduce the agency’s confidence that you can complete the project as required. The other is whether correcting the error would give you an unfair advantage over the other bidders.
For example, failing to acknowledge an addendum that changed the project scope could allow you to decide after the agency opens the bids if you still want to move forward at your quoted price. By contrast, the contracting unit may correct a simple math error when the unit prices are clear and doing so does not change your offer.
Legal options after disqualification
You may be able to challenge the decision by filing a written protest before the contract is awarded. It should identify the issue and explain why the contracting unit incorrectly treated a minor mistake as a material defect or otherwise misapplied the bidding requirements.
If the protest fails, you can seek judicial review by filing an action in lieu of prerogative writs in Superior Court. While court rules generally provide up to 45 days to file, acting sooner may be important because the contract could be awarded before that deadline expires.
