Bradley has been publishing an ongoing survey of state-level bid protest processes and procedures (see our posts on “Bid Protests in Georgia,” “Bid Protests in the District of Columbia,” “Bid Protests in New York,” “Bid Protests in Virginia,” “Bid Protests in Massachusetts,” and our “Update on Bid Protests in Alabama”). For the next state in this series, we focus on the bid protest procedures in New Jersey.
What Rules Apply?
- The Division of Purchase and Property (DPP) of the New Jersey Department of the Treasury provides centralized procurement and related services to agencies of the executive branch of state government.
- Procurements by local boards of education under the Public School Contracts Law, N.J.S.A 18A:18A-1 et seq., procurements by the New Jersey Turnpike Authority (Ch. 9 of Title 19 of the New Jersey Administrative Code), and procurements by public municipalities, counties, and local government/authorities are outside of the authority of the DPP.
- N.J. Admin. Code § 17:12-3 governs bid protest procedures for procurements that fall under the authority of the DPP.
Who May Protest?
- For pre-award protests, a vendor that intends to submit a proposal in response to an advertised request for proposals and that objects to a term or specification therein may submit a written protest to the Director of Purchasing. N.J.A.C. 17:12-3.2(a).
- For post-award protests, a bidder who has submitted a proposal in response to a request for proposals may submit a written protest to the Director of Purchasing concerning (1) the rejection of its proposal, when such objection is based upon the bidder’s failure to comply with N.J.A.C. 12.12-2.2, (2) the notice of award of a contract, or (3) cancellation of an RFP after the opening of proposals. N.J.A.C. 17:12-3.3.
When Must a Protest Be Filed?
- Pre-award protests shall be submitted to the Director of Purchasing only after the DPP has formally responded to questions posed during the request for proposals question and answer period. N.J.A.C. 17:12-3.2(b). The Director of purchasing may disregard any pre-award protest filed fewer than seven business days prior to the scheduled deadline for proposal submission. N.J.A.C. 17:12-3.2(b)(3).
- Post-award protests must be filed within 10 business days following the bidder’s receipt of written notification that its proposal is non-responsive or of notice of award, as applicable, or prior to the deadline specified in the DPP’s notice of intent to award communication to the bidder, whichever date is earlier. N.J.A.C. 17:12-3.3(b).
What Must the Protest Include?
- Pre-award protests must contain the following: (1) identification of the solicitation number; (2) the terms/specifications at issue and the specific grounds for challenging the cited terms/specifications, including all argument materials, or other documentation that may support the protester’s position; and (3) a statement as to whether the protester requests an opportunity for an in-person presentation and the reason(s) for the request. N.J.A.C. 17:12-3.2(b)1.
- Post-award protests must contain the following: (1) identification of the solicitation number; (2) the specific grounds for challenging the proposal rejection, the notice of intent to award, or the cancelation, including all arguments, materials, and/or other documentation that may support the protester’s position; and (3) a statement as to whether the protester requests an opportunity for an in-person presentation and the reason(s) for the request. N.J.A.C. 17:12-3.3(b)1.
What Are the Discovery Procedures?
- The Director is entitled to request, receive, and review copies of all records and documents relevant to the issues and arguments set forth in the protest.
- Upon receipt of the Director’s request, the bidder shall promptly provide the requested records and documents free of charge in the time, place, and manner specified by the Director.
- If the protesting bidder fails to comply with the request, such failure may constitute a reasonable basis for the Director to resolve the protest against the protester.
- The Director may also consider relevant information requested and received from other parties. N.J.A.C. 17:12-3.4.
Will a Hearing Be Held?
- For both pre- and post-award protests, the Director, or the Director’s designee from within or outside the Division may perform a review of the written record or conduct an in-person presentation. In the case of a review or an in-person presentation being handled by a hearing officer designee from outside the DPP, the determination of such designee shall be in the form of a report to the Director, which shall be advisory in nature and not binding on the Director.
- All parties shall receive a copy of the hearing officer’s report and shall have 10 business days to provide written comments or exceptions to the Director. After the 10-business-day period for comments/exceptions, the Director shall make a final written decision on the matter.
- In the case of a review or in-person presentation being handled by a designee from within the Division, the determination shall be issued by the Director, or the Director’s designee, and such determination shall be a final agency decision. See N.J.A.C. 17:12-3.2(f); N.J.A.C. 17:12-3.3(f).
What Are the Appeal Procedures?
- Final agency decisions on both pre- and post-award protests are appealable to the Superior Court Appellate Division. N.J.A.C. 17:12-3.1(b).