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.
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