New Jersey Bidders Beware – If in Doubt, Challenge the Specifications!

A New Jersey public entity has just issued a request for bids falling within the scope of products or services your company provides. Although interested in submitting a responsive bid, the specifications give you pause. Your company may offer a product that performs as well or better than the product solicited by the public entity, but it does not fall exactly within the characteristics described in the specifications. Similarly, the general terms and conditions for the services you offer—such as insurance, warranty, delivery, or other similar terms—may be reputable, but nevertheless differ from those required under the specifications. The next step you take is critical and could make or break your chances to be successful. Before you bid, consider seeking revision of the specifications.

In New Jersey, a public entity—whether state, county or local—may not require the furnishing of a “brand name” product. The specifications may, however, require “brand name or equivalent.” For example, a municipality cannot issue a request for bids seeking only “XYZ Brand” lawn mowers, but it could require “XYZ Brand or equivalent” lawn mowers. If you offer a product or service that does not exactly match the product descriptions or performance characteristics outlined in the specifications, but believe your product performs just as well to be deemed an “equivalent,” you may still submit a bid. If rejected, however, you will need to establish that your product is in fact a brand name equivalent. This course of action is risky. The better action is to file a specification challenge and argue your case before submitting your bid.

Similarly, under New Jersey law, a public entity is without authority to accept a bid containing a material deviation from the bid specifications. Unless expressly permitted under the bid specifications, a bidder should not attempt to negotiate the terms and conditions of the contract by submitting their own terms and conditions as part of their bid proposal. The public entity may find your exceptions constitute a material deviation from the bid specifications and reject your bid. Even if the bid specifications allow for exceptions, a bidder should think twice about submitting contrary terms and conditions. Instead, the better course of action is to challenge the specifications as to those controversial terms and conditions, or accept the bidding entity’s terms as requested, if you can.

Prospective bidders seeking to challenge bid specifications must do so no less than three (3) business days prior to the opening of the bids for county and local contracts, and seven (7) business days for state contracts. For this reason, it is important that bidders carefully read and understand the bid specifications, and duly consider all its information in preparing their bid proposal.

For any questions or concerns, please contact either of the Co-Chairs of Stevens & Lee’s Administrative Law and Government Contracts Group, Patrick D. Kennedy or Maeve E. Cannon, or the Stevens and Lee attorney with whom you regularly work.

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