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Matter of Proposals No. 98-X-29314 Reflective Sheeting License Plates

315 N.J. Super. 266, 717 A.2d 998 (App. Div. 1998)

CONTRACTS; PUBLIC BIDDING—If a bid specification does not allow a bidder to make the acceptance of a bid on one line item contingent on acceptance of a different line item, a bid made on that basis is a non-conforming deficiency that can not be waived.

The State of New Jersey solicited bids for the supply of reflective sheeting materials and support services necessary to produce finished license plates. A mandatory pre-bid conference was held. After the bid conference, an addendum was issued clarifying the four line items to be bid on by vendors. This case concerned itself with the second and fourth items. The second line item provided for “pre-clear” graphic, reflective sheeting license plate material and support services only. The conditions for servicing the fourth line item were as follows:

Price of supplying and installing stretch and registry equipment needed to produce graphic reflective license plates. Price to include full warranty (1 year minimum) on all equipment… This equipment must be compatible with and allow the use of existing stock of reflective sheeting in possession of DEPTCOR. It should meet or exceed the performance standards outlined in the specifications with all brands of reflective sheeting judged as acceptable equals by the State of New Jersey.

On June 16, 1997, Avery Dennison (Avery), submitted a bid of $204,000 under line item four. This bid was contingent upon the award of line item two to the Avery so that it could also provide the “pre-clear” graphic, reflective sheeting license plate material and support services at $.75 per square foot. Another bidder, 3M Corporation (3M), bid for line four at a price of $260,000. Avery’s bid was accepted for both item lines 2 and 4, while only 3M’s bid for line one was accepted. 3M objected to the award of line item four as a nonconforming bid.

The State’s Director for this project ultimately rescinded the award and notified all bidders of the state’s intention to re-bid line items two and four. Avery then filed a motion to intervene. The Court concluded that the Director’s termination of line item four was required under the Request for Proposal specifications (RFP), because Avery failed to submit an independent price for each line item. The Court reasoned that if the state had accepted Avery’s bid for line item four, but not for line item two, the state would have been deprived of its assurance that the line item four contract would have been performed and guaranteed according to its specific requirements. Avery also received a competitive advantage over the other bidders, because the other bidders would have been unaware that they could subsidize their equipment bid with an award of the other line items. The Court further explained that by accepting Avery’s bid, the state changed the specifications without giving all the bidders an opportunity to change their own bids. As a consequence, Avery’s line item four bid was a material deviation from RFP specifications.


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