Contractors and subcontractors who engage in public work must be mindful of the language contained in bid solicitations. While it is easy to presume that the solicitations or advertisements for certain types of contracts are consistent within the same municipality, agency or public entity, bid requirements could be unintentionally created by the use of particular words over others, for example, “shall” as opposed to “may.”
In a recent New Jersey case, Cioffi’s Towing Service, Inc. v. Borough of Collingswood, et. al., the Court held that a bidder who failed to list certain equipment deemed mandatory by the municipality would be disqualified from consideration. The Court determined that compliance with the list of equipment was mandatory because the word “shall” was used. Although this is not necessarily a construction case, the lesson for New Jersey bidders is that they must be increasingly mindful of any list of requirements contained in a bid solicitation or advertisement, especially since failure to meet such requirements could result in “material, non-waivable” bid defects.
In this case, the municipality included certain equipment requirements in the bid, and the list of equipment owned provided by the bidder did not comport with these requirements. The reasoning behind the inclusion of the requirement for certain items was so that the municipality could be certain of the availability of the equipment during the performance of the project. Because the bidder failed to comply, the municipality had no assurance that this equipment would be available, or that the job could be done properly. Additionally, it would not have been fair to award the job to the bidder here because there may have been potential bidders who declined to bid on the project because they did not have the required equipment or the ability to obtain it, even if they could adequately perform the job. Allowing this bid to be considered, the Court reasoned, would give an unfair advantage to the bidder despite their failure to comply with the requirements.
The Court noted that the bid solicitation included language stating that the bid “shall meet the minimum requirement…”. The Court ruled that this language was purposeful and, therefore, it would be impermissible for the municipality to “transform the mandatory requirement in specifications into a request”.
This case illustrates why it is so important for contractors and subcontractors to always read each portion of a bid solicitation or advertisement with extreme care, even if it looks like a template or boilerplate language.