JEN ELECTRIC, INC. v. County of Essex

964 A.2d 790, 197 N.J. 627, 2009 N.J. LEXIS 50
Supreme Court of New Jersey·Decided March 4, 2009·No. A-23 September Term 2008·Published·Cited by 41 cases

Opinions

Justice RIVERA-SOTO

delivered the opinion of the Court.

This appeal arises in the context of a bid specification challenge, a subset of public contracting. The primary issue presented is whether the provisions of the 2000 amendment to N.J.S.A. 40A:11-13 limit the standing of those who wish to challenge a bid specification in a public contract, or whether those provisions represent a limitations period within which such a challenge by an identified party — a “prospective bidder” — must perfect that challenge. The trial court determined that N.J.S.A. 40A:11-13 sets forth the standing requirements for those who wish to challenge a bid specification in a public contract, and that only “prospective bidders” are allowed to advance such a challenge. Importing concepts relevant to contract award challenges, the Appellate [631] Division held that only bidders, prospective bidders and taxpayers could challenge a bid specification.

In light of the unique nature of public contracting and the traditional role the common law has retained in determining standing to contest governmental action, we arrive at a different result. We conclude that the 2000 amendment to N.J.S.A. 40A:11-13 is intended as a statute of limitations, requiring, in its plain language, that “[a]ny prospective bidder who wishes to challenge a bid specification shall file such challenges in writing with the contracting agent no less than three business days prior to the opening of the bids[,]” on pain that “[c]hallenges filed after that time shall be considered void and having no impact on the contracting unit or the award of a contract.” We therefore find nothing in the 2000 amendment to N.J.S.A. 40A: 11-13 that limits, restricts or otherwise substitutes for traditional notions of standing in this context. Applying those traditional notions of standing, we further conclude that, in the circumstances presented, the plaintiff in this action had standing to challenge the bid specifications issued by the governmental contracting entity.

I.

During 2007, defendant the County of Essex, through its Department of Public Works, planned certain infrastructure improvements along Central Avenue in Newark costing a total of approximately six million dollars. A significant part of these improvements consisted of the purchase and installation of new or replacement traffic signal and video detection systems that would establish a closed-loop operating system with central control monitoring; those systems were to be installed at ten separate locations on Central Avenue. As a result, in October 2007, the County issued specifications and bid documents in respect of the proposed traffic signal operations and roadway improvements on Central Avenue. However, by a letter dated October 23, 2007, plaintiff Jen Electric, Inc., a registered public works contractor that supplies, installs and maintains the “Peek Traffic Control” [632] system manufactured by Quixote Corporation, objected to those specifications, claiming that the traffic control equipment listed in the specifications identified a specific manufacturer — Eeonolite— to the exclusion of the manufacturer plaintiff represented, and were distributed exclusively by a single vendor — Signal Control Products — other than plaintiff. Plaintiff, therefore, requested that the County amend the specifications to allow for bids that included equal but alternate traffic control systems.

In response, the County issued addenda to the specifications which allowed for bids using equal, alternate products in lieu of the brands specifically listed in the specifications. The first addendum issued by the County required that any proposed equal, alternate products be pre-qualified, a requirement that also drew a sharp objection from plaintiff. In response, the County issued a revised addendum, removing the requirement of pre-qualification for equal, alternative products. In the main, however, those efforts were for naught: the County ultimately rejected all of the bids received.1

In December 2007, the County issued revised specifications and re-bid the project, with bids due by no later than January 10,2008. In respect of the availability of equal, alternate products, the revised specifications were more restrictive than the original, modified specifications: while the original specifications listed specific manufacturers for the controllers and video detection equipment — a limitation lifted by the addenda later issued by the County — the revised specifications added the ITS cabinet enclosures, the battery back-up systems, the signal mounting hardware, and the central control software to the list of portions of the project that could be satisfied solely by a single source, that is the [633] manufacturers identified in the specifications proper. Needless to say, these restrictions also drew a pointed objection from plaintiff. By a letter dated December 21, 2007, plaintiff advised the County’s purchasing agent that plaintiffs

initial objection to the form and content of the [project] specifications remains unchanged, in that all of the items specified are for a specific manufacturer (Econolite), with no approved equal provision. There is only one vendor in the State authorized to supply the necessary traffic signal equipment to the successful low bid Contractor. As a supplier of a competing brand that can meet or exceed the specific brand listed, we feel this unfair practice is in direct violation of the public bid process.
Therefore, we once again respectfully request that the bid be postponed until the specifications can be reviewed and amended.

The County responded promptly. By a letter dated December 24, 2007, just three days later, the County noted that it “ALWAYS accepts an equivalent to any brand name stated in an advertised bid specification^]” noting that any “equivalent must meet or exceed the specification of the brand stated in the bid and it is the responsibility of the bidder to prove that the equivalent meets or exceeds specification.” The County cautioned plaintiff that, for those reasons, “this bid specification need[ ] not ... be amended and the bid opening date will not be postponed.” Consistent with that explanation, the County issued the following formal confirming clarification dated December 26, 2007, two days later:

CLARIFICATION NO. 1

1. The bid specification should read Econolite or equal (equivalent) in all sections of the specification. As stated in the [bidding documents] and [N.J.S.A] 40A:11-13(d), [t]he County ALWAYS accepts equivalents to any brand name specified in a bid specification, however the equivalent must meet or exceed the bid specification and the bidder must prove that the equivalent meets or exceeds specification.

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JEN ELECTRIC, INC. v. County of Essex, 964 A.2d 790, 197 N.J. 627, 2009 N.J. LEXIS 50 (N.J. 2009).

964 A.2d 790 (JEN ELECTRIC, INC. v. County of Essex) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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