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In the Matter of the Bid for Contract #A57657

A-4653-03T1 (N.J. Super. App. Div. 2005) (Unpublished)

PUBLIC BIDS—Where including a manufacturer’s published price list with a bid is a material requirement, it is appropriate for the purchasing agency to reject a bid without one even if it is furnished later.

A supplier submitted a bid to supply furniture to a state agency. Bids were required to be received by a date certain and were required to include a manufacturer’s published price list. The supplier submitted two copies of its proposal, one of which was received prior to the deadline and the other was received after the bid deadline. The director of the agency rejected both of the supplier’s bids as untimely. The supplier submitted a written protest to the agency, claiming that one bid was submitted on time. The director reinstated that bid, but in a letter to the supplier, the director noted that the bid did not contain the manufacturer’s published price list, and that the failure to include it might result in the bid not being considered. The agency awarded the contract to the supplier, but later rescinded it based on the supplier’s failure to include the manufacturer’s published price list as part of the bid package. The supplier had an informal hearing with agency employees. When the agency refused to reconsider, the supplier sent a formal letter requesting that the contract be reinstated. In its request for reconsideration, the supplier did not offer any proof that the price list was included with the bid, nor did it request a hearing or an opportunity to make another informal presentation to the agency to reconsider. The agency director determined that the award had to be terminated because it failed to meet a bidding requirement, namely the submission of the price list. The supplier appealed. The Court affirmed for the agency. A court’s power to review a state agency’s decision is limited to determination whether: (a) the decision offends the State or Federal Constitution; (b) the decision violated express or implied legislative policy; (c) there is substantial evidence to support the decision; and (d) the agency, in applying legislative policies to the particular facts, made a determination that could not be determined to be reasonable. The Court noted that prior case law dictated that if a bid contained a material deficiency, that deficiency could not be cured once the bids are opened even if it had been omitted because of an oversight or negligence by the bidder. Submission of the price list was held to be a material bid requirement. It found that the supplier did not submit any evidence that the required price list was included in the package and did not request an additional informal hearing from the agency. The Court held that the director’s determination was reasonable and upheld it.

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