Companies that bid on public contracts may find it necessary from time to time to challenge specifications

Companies that bid on public contracts may find it necessary from time to time to challenge specifications, the responses submitted by other bidders, or the award of the contract itself.

However, bidding challenges are subject to definite time limitations, which are routinely enforced by courts. Thus, the key to success in public bidding disputes is twofold: the vendor must be able to quickly spot issues and irregularities that may give rise to a protest and must immediately take action in the correct venue to preserve the challenge.

Only by so doing, will a company that regularly bids on public work be able to fully protect its business interests and to maximize its revenue from government contracts. Specifications Issued in Connection with an RFP Typically, governmental units seek services from vendors through the issuance of a “Request for Proposals,” or “RFP,” which invites qualified companies to submit responses, or bids, for the services or products sought. In most cases, the RFPs provide a set of specifications that describes what the government is seeking to purchase, detail with specificity what features a particular product or service must have, and set forth the technical requirements that must be met.

Challenges to specifications generally concern whether the language employed is clear and understandable and whether the technical requirements are rationally and reasonably related to the goods and services sought. Other challenges concern whether the specifications are written to favor one bidder such that only that bidder, and no other, is capable of performance or whether the specifications are capable of performance by any vendor at all. A bidder should not submit a response to the RFP with the belief that any issues or concerns with the specifications can be raised later if in fact another vendor is awarded the contract.

 In New Jersey, all challenges to bid specifications must be brought prior to bid opening; otherwise, such challenges are forever lost. In other words, a disappointed bidder will not be heard to complain about specifications, as the law presumes that a bidder who responds to an RFP understood and was able to respond to the specifications.

Challenges to Specifications are typically brought within the governmental unit that issued the RFP. State agencies often have specific regulations governing the challenging of bid specifications. For example, the Purchase Bureau within the State Department of Treasury (which issues RFPs for a variety of state purchases) requires that protests of specifications be submitted in writing “in sufficient time to permit a review of the merits of the protest and to take action as may be necessary prior to the scheduled date and time of bid opening”. The State may disregard any protest not containing specific information required by the applicable regulations and also if the protest is “filed less than 72 hours before the scheduled bid opening.” Although a protest filed after the deadline may still be heard, experience teaches that such untimely challenges are routinely ignored, leaving the bidder without recourse.                

 Under the regulations promulgated by the Department of Treasury, a vendor that has submitted a response to an advertised RFP may submit a written protest challenging either the rejection of its bid or the award of the contract itself. Such challenges must be brought within “10 business days following the vendor’s receipt of written notification that its bid has not been accepted or of the award decision.” The Department has the discretion to disregard any protest filed after the 10-day period and to proceed with the award of the contract. The protest must specify the grounds for the challenge and attach all documents relevant to the claim, as well as include a statement as to whether an oral presentation is required. Generally, in cases where the lowest bid was not accepted, all bidders are notified of the award and the Department is obligated to wait 10 days before awarding the contract, so as to allow for the filing of protests. In cases where the award is challenged, the contract is not to be awarded until the protest is resolved — except where the failure to award shall result in substantial cost to the State or if public exigency so requires. In any case where such concerns exist, the Department can modify or amend any deadline in the regulations upon adequate notice to the parties involved. The Department has the sole discretion to allow oral presentations and can request by way of discovery from the protesting bidder any documents deemed relevant to the issues. The Department can also consider documents requested and received by other bidders. Unless oral testimony is received, the record on the case consists of the protest filed by the bidder; the RFP at issue; the bids submitted by the other vendors; the evaluation report; the award document; and relevant cases, regulations, and documents. A bidder dissatisfied with the outcome of the protest does not file a case with the trial court but, rather, with the state intermediate appellate court, which can decide the case or take other action as it deems appropriate.

Martin Milita, is in the  public affairs solutions industry, serving Duane Morris Government Strategies, LLC, in Trenton, New Jersey, as senior director. His responsibilities include providing important clients with strategic advice on matters ranging from business-to-government outreach to corporate development. Martin Milita has  successfully represented entities large and small, for profit and not for profit on billions of dollars of public procurements- including the Xerox Electronic Tolls Collection contract in New Jersey Before establishing himself as a lobbyist, Martin Milita enrolled at the Temple University James E. Beasley School of Law, from which he graduated cum laude with his juris doctor. Prior to that, he earned his bachelor of arts in political science from King’s College. Early in his career, Martin Milita served as New Jersey state deputy attorney general in the Department of Law and Public Safety. In that role, he successfully resolved enforcement issues related to tax and Medicaid fraud. After two decades practicing law, Mr. Milita co-founded Holman Public Affairs. There he built relationships with Fortune 500 businesses in need of assistance regarding legislative and executive branch strategies at the state and federal levels. Beyond his professional duties, Milita supports a number of nonprofit groups, including the Civil War Trust and the Knights of Columbus, the 24th Infantry Association (First to Fight), and the New Jersey Naval Militia Foundation.