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Ray Angelini, Inc. v. Jackson Township Board of Education

A-5653-02T3 (N.J. Super. App. Div. 2003), Unpublished (Unpublished)

PUBLIC BIDDING—Where it is clear that a bidder’s submission would bind that bidder to deliver the specified goods or services, a subsequent clarification letter from the bidder affirming its obligation is not an impermissible post-bid amendment.

A board of education advertised for bids and specified a particular fire alarm system to be included within the base bid. It also made it a mandatory condition that each bidder price four alternate fire alarm systems. One of those alternate systems was, in fact, the same fire alarm system that was required to be included within the base bid. After allowing the lowest bidder to withdraw its bid, there were three remaining bidders. The bidder who posted the lowest base bid indicated a substantial price for the alternate fire alarm system, which was, in fact, already included within the base bid. The second lowest bidder indicated that this particular alternate was “Included in Base Bid.” The board of education awarded the contract to the lowest bidder after the lowest bidder explained how it had presented its alternative bids. Its explanation was that the four alternates were shown on a “breakout price” basis, meaning that if one particular alternate were selected, the bid would be increased by the amount shown, but would also be decreased by the price shown for the alternate that was already included within the base bid.

The bidder with the second lowest base bid complained that it should have been awarded the contract because the board of education should have been obligated to rely on the figures in the lowest bidder’s submission as they were actually presented. It argued that the board of education should have added the lowest bidder’s base price to the alternate price that the lowest bidder showed for the fire alarm system even though it was already required to be within the base bid. The board of education disagreed, as did the lower court and the Appellate Division. Each court thought that it was clear that the lowest bidder was obligated to deliver the fire alarm system within its base bid and that the post-bidding communication from the lowest bidder to the board of education only confirmed what the board of education already knew, i.e., that the base bid included the required fire alarm system.

The Appellate Division found this irregularity to be waivable because it was not a material deviation. It did not controvert the purpose of public bidding which is “to guard against favoritism, improvidence, extravagance and corruption.” The Court believed that “the manner in which [the lowest bidder] described its alternate bid did not deprive the Board of its assurance that the specified fire alarm system would be included in the base bid, nor did it adversely affect the competitive bidding process.”

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