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Manhattan Towing Co. v. New Jersey Turnpike Authority

A-5874-97T5 (N.J. Super. App. Div. 1999) (Unpublished)

PUBLIC BIDDING—A public authority can set short time limits within which a disappointed bidder must make a protest; failure to abide by those limits will bar resort to the courts.

A bidder on a road towing contract believed that it should have been awarded two contracts in place of the award made to higher bidders. When it applied to the Superior Court, the public agency that solicited the bid argued that the bidder did not comply with its published regulations to the effect that: “[a]ny actual or prospective bidder ... who is aggrieved in connection with the solicitation or award of a contract ... may protest to the Authority. The protest shall be submitted in writing within five business days after such aggrieved person knows or should have known of the facts giving rise thereto. Failure to file a timely protest shall bar any further action. The written protest shall set forth in detail the facts upon which the protestant bases its protest.” In fact, the frustrated bidder did not file a protest, request a hearing, or seek documents from the public agency. In face of that failure, the frustrated bidder contended that use of the phrase “may protest to the Authority,” suggested that other avenues to protest the determination were available, including use of the courts. Further, it argued that failure to file a timely protest would bar further administrative action only, thus leaving open its right to proceed in the courts. The Appellate Division disagreed. To it, the “use of the permissive ‘may’ in the sentence, standing alone, is ambiguous.” While it could have meant what the bidder claimed, it could also have meant that an aggrieved party had the option of protesting or not. Nonetheless, the Court found that the ambiguity disappeared when the regulation was read in its entirety. “The requirement that any such protest be submitted within ‘five business days’ of the contested award and that ‘[f]ailure to file a timely protest shall bar any action,’” made it clear that the public agency intended to make its jurisdiction primary. The Court did not find this to be improper. Instead, it opined that a delay in making final awards disrupts the efficient operation of a public agency and also may increase costs to the public. Where an administrative remedy is available, case law requires an aggrieved party to exhaust administrative remedies before resorting to judicial intervention. Consequently, the frustrated bidder’s complaint was dismissed.


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