Friday / January 10 , 2020
Bid Challenge Issue
The Cost Of An Alternate Left Blank Or Filling In “N/A”
It happens all of the time. An alternate is listed in the bid documents that you do not think is applicable to your scope of work or which you do not think will change your bid price. You then leave that alternate blank or fill in “N/A” or the like. Your bid may now be subject to challenge, with NJ Supreme Court precedent behind it. In the case of L. Pucillo & Sons, Inc. v. Mayor & Council of Borough of New Milford, 73 N.J. 349 (1977) the Supreme Court held that in a public bid for a garbage scavenger contract where the municipality originally requested bidders to submit proposals for contracts of one, two, three and five years’ duration and where bidding specifications contained warning that all proposals “must” be bid upon and the word “must” was underlined, a bidder’s failure to submit proposal for five-year contract was not a minor irregularity which could be waived but was a substantial departure which could not be overlooked.
Even though the Borough was not going to accept the five year contract, the Court held that for a bidder to place a number on the five-year contract was an undertaking that subject the bidder to more risk than a bidder that left the five year option blank or submitted “N/A”, thereby the ability of that bidder to avoid the risk (because the public body could not award the five year contract to a bidder that did not bid on it), permitted that bidder to avoid risk. The risk avoidance gave the bidder an advantage over bidders that responded to the alternate by filling in a number, any number even if it is zero.
–PRACTICE POINT: The alternate must have an element of risk associated with it; an alternate to change the color of a wall, for example, is not such an alternate.
“Bidding is the lifeblood of a public works contractor. One piece of information can mean the difference between obtaining millions of dollars in revenue and losing the bid along with all of the hours that went into the estimate. STAY INFORMED. BE VIGILANT. DON’T SQUANDER OPPORTUNITIES.”
About the Author:
Steve Berkowitz has been involved in bidding related to public contracts for more than 30 years. First as an engineer for a fortune 200 company, designing, estimating and bidding projects, and then as an attorney. His experience advocating for bidders started in the late 1980s and continues today. Mr. Berkowitz has successfully argued cases in Superior Court, the Appellate Division and the New Jersey Supreme Court. He has been admitted Pro Hac Vices in Federal courts in New York, New Hampshire, Louisiana, Missouri, Florida, Illinois, Pennsylvania and Massachusetts.
Feel free to call 856-350-6060 or email
These materials are intended to provide general information about the subject matter and are presented with the understanding that neither these materials nor the authors have, nor intend to, render any legal or other professional service or opinions. Anyone dealing with a specific legal matter should research any and all matters described generally herein and should not act upon this information without seeking professional counsel. Do not send us confidential information until you speak with one of our attorneys and get authorization to send that information.
The New Jersey, New York and Pennsylvania Construction Attorneys at Steven A. Berkowitz & Associates, P.C. focus exclusively on meeting the legal needs of contractors, architects, engineers and owners in the construction industry. We help clients with the bidding process, claims, contract formation, construction litigation, and labor issues in New Jersey, New York and Pennsylvania.
To discuss your case, call (856) 350-6060 today or fill out our contact form.