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In Re Protest of the Award of the Live Scan Fingerprinting Service Contract

A-3441-01T2 (N.J. Super. App. Div. 2003) (Unpublished)

PUBLIC BIDDING—Reversal of a bid after the work has been substantially performed would have a chilling effect on bidders for public projects and could disrupt the public agency’s achievement of its public goals.

Following public bidding, a one year contract was awarded to a company to do live scan fingerprints. The contract had four one-year extensions upon mutual consent of the parties. Five bids were received. Two of the bidders were disqualified. Of the remaining three, a selection committee picked one as “the lowest responsive and responsible bidder.” A losing bidder filed a formal protest claiming that the successful bidder did not fully address the original bid requirements. The agency director rejected the claim on a point-by-point basis. A month later, the disappointed bidder filed a notice of appeal, but did not seek a stay from the awarding agency or from the court. In addition, it did not seek acceleration of the appeal. Therefore, the contract award was made. Before the Appellate Division decided the matter, the original one-year term had expired and the contract was renewed for another year. With all of that in mind, the Court dismissed the appeal as moot, holding that the complaint was not of substantial importance and not likely to reoccur. “Typically, when a bidder disputes the grant of a state contract to another bidder, the bidder will apply for immediate relief such as a stay of the contract pending appeal.” Here, if the contract were nullified, all of the systems set up by the successful bidder would have to be dismantled and new systems installed. The agencies using the fingerprinting services would have their operations substantially disrupted “which would be contrary to the State’s goal[s].” Further, according to the Court, “reversal of the bid award at this stage would have a detrimental and chilling effect on public bidding. While vendors may anticipate a stay of the bid award before work begins, the likelihood that a contract award may be reversed substantially into the successful bidder’s performance may cause a vendor to think twice about committing time and expense to a project that may be terminated after it has expended start-up costs, or hired additional personnel.”


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