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Turner Construction Company v. New Jersey Transit Corporation

296 N.J. Super. 530, 687 A.2d 323 (App. Div. 1997)

CONTRACTS; PUBLIC BIDDING— A public body has the discretion to waive minor, technical noncompliance with its bidding procedures where the noncompliance has no effect upon the quality of the work to be performed, such as when a few minutes tardiness, not caused by a bidder resulted in a late bid submission. The submission of a zero bid on a particular item does not necessarily result in an unbalanced bid.

The second lowest bidder on a project brought this action to invalidate the award of the contract to the lowest bidder. Bidding regulations required that all bids be received not later than 3:00. Because three prospective bidders were misdirected to the place of bidding by the security guard, they arrived a few minutes late, as the New Jersey Transit representative “began to open the first bid.” All three latecomers were allowed to bid. One of them was awarded the contract as lowest bidder. A protest by plaintiff (whose bid was timely submitted) was denied by New Jersey Transit. This appeal ensued.

The Court cited statute and cases permitting New Jersey Transit to accept bids where minor or inconsequential discrepancies or technical omissions: (1) do not “deprive the public body of its assurance that the contract will be ... performed ... according to its specified requirements; and (2) are not of such a nature that wavier would place a bidder in a competitive advantage over other bidders. Comparable criteria were also found in the New Jersey Administrative Code (N.J.A.C. 16:72-2.17). The Court then found that the tardiness of a few minutes, not caused by the bidder and cured before any bid had been opened, was a waivable technical discrepancy.

Plaintiff further claimed that failure to initial a crossout of a lump sum bid price (zero) for one item was a material non-compliance. The Court found this, too, to be a minor waivable deficiency, as the bidder’s intention remained “absolutely clear.”

Finally, plaintiff asserted that the zero bid for one item resulted in an improper “unbalanced” bid (i.e., a bid based on nominal prices for some work and enhanced prices for other work). The Court found that a “zero” bid for a particular item was not inherently improper and could (and, in this case, did) represent the reasonable, proper business judgment of the bidder.


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