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Garden State Highway Products, Inc. v. State of New Jersey

A-1553-03T3 (N.J. Super. App. Div. 2004) (Unpublished)

PUBLIC BIDDING—Although New Jersey will give preference to New Jersey bidders where competing bidders come from states that prefers their own companies, the law is applied only where the other state’s residency preference applies to the specific item for which bids are being solicited.

Two companies submitted bids to the New Jersey Department of Treasury (Department) in response to a Request for Proposals (RFP) to supply the State with traffic sign stand supports. One company was located in New Jersey; the other was from a New York company. The bids were identical, except that the New York company offered delivery within thirty days, while the New Jersey company offered delivery within thirty to forty-five days. The RFP called for delivery within thirty days but provided for a fifteen day grace period. The Department accepted the New York company’s bid. In response, the New Jersey company filed a protest, alleging that the State of New York had a practice of preferring New York bidders, and that under N.J.S.A. 52:32-1.4 and N.J.A.C. 17:12-2.13 the Department was obliged to give preference to the New Jersey company because it was located within the state.

The Department rejected the protest, asserting that it was not obligated to take reciprocal action to New York’s practice. N.J.A.C. 17:12-2.13 provides that the Department should apply any reciprocal in-State preference in a similar manner and to similar effect as another state does. However, the Department noted that New York’s residency preference was limited to food products grown and processed in New York. This being a contract to supply signs, New York would not have preferred New York sign suppliers over New Jersey sign providers.

The Appellate Division held that if it were to decide the case on its merits, it would have affirmed the Department’s decision, but since the contract already had been awarded, it didn’t need to reach the merits of the dispute because the passage of time rendered the case moot. Although a court will rule on moot cases of substantial importance, such was not the case here. The integrity of the bidding process was not implicated. It was simply a case in which its Department was obliged to decide a close issue between two bidders and one in which the decision fell well within the Department’s discretion.

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