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In Re Bid Solicitation #04-X-35086 Tower Maintenance

A-1249-04T3 (N.J. Super. App. Div. 2005) (Unpublished)

PUBLIC BIDDING—A post contract award request for clarification from the awarding agency to the successful bidder does not necessarily make the original bid non-conforming where the items being questioned do not constitute material defects.

Two vendors submitted bids to the State of New Jersey for equipment, materials and services. After the bids were opened, they were submitted to an evaluation committee. About two months later, the evaluation committee sought clarification from one of the bidders “about certain aspects of its bid.” After receiving a response, the evaluation committee recommended awarding the contract to that bidder and the purchasing agency accepted. The other bidder protested, contending that the successful bid “was not non-conforming as evidenced by the request for clarifying information.” The purchasing agency rejected that assertion. The Appellate Division agreed. It found that “the particular items in question did not constitute material defects” in the bid. Instead, according to the Court, they were “requests for information to explain certain aspects” of the bid. It felt that the successful bidder’s “responses in no way changed the substance of its bids and did not afford it a competitive advantage.” The Court also noted that the contract had been awarded and that the appeal did not involve an issue of “public interest, capable of repetition, yet evading judicial review.”

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