In a prior post, we discussed the importance of timeliness in challenging bid specifications. Let’s assume that your company takes issue with one of the specifications published by a New Jersey state agency in a request for bids. Your company follows the recommended procedure and timely challenges the specifications prior to bid opening. The New Jersey state agency issues a “final agency decision” denying your challenge.
Final state agency decisions are directly appealable to the New Jersey Superior Court, Appellate Division within 45 days (N.J. Stat. Ann. §2:2-3(a)(2)). But just because the state agency claims its decision is final does not necessarily make it appealable as of right. The decision must be final as to all issues and all parties with adequate factual and legal conclusions in addition to the “unmistakable written notice” of its finality. Silviera-Francisco v. Board of Educ. Of City of Elizabeth, 224 N.J. 126, 136-137 (2016) (citing In re CAFRA Permit No. 87-0959-5, 152 N.J. 287 (1997)). Unsuccessful challengers must look at the substance of the decision — not just the words — to determine when and how they may appeal.
When the decision answers all of the issues raised in the underlying matter, the clock has started and the decision is subject to immediate appeal. Joseph L. Muscarelle, Inc. v. State, by Dept. of Transp., 175 N.J. Super. 384 (App. Div. 1980). But when the decision only answers one of the issues raised in the underlying matter, it is probably an interlocutory decision, and the clock has not begun on the 45-day period to directly appeal. In re Donohue, 329 N.J. Super. 488 (App. Div. 2000).
In the specification challenge context, no case in New Jersey appears to have directly addressed whether a specification challenge is a part of a larger matter (i.e., the entire bid process), and thus interlocutory, or a standalone matter subject to direct appeal. So, whether the appeal is direct or interlocutory, if the rejection of your bid specification challenge diminishes your competitive advantage in the bidding process or actually precludes you from bidding on the specification as written, exercise caution and immediately file an appeal. Barrick v. State, 218 N.J. 247, 263 (2014).
Immediately appealing the rejection of a specification challenge minimizes the risk of that issue being deemed untimely raised in a later appeal or having your bid rejected because it does not meet the offending specifications. The best practice is to file an appeal in the Appellate Division, while also seeking a stay of the bid and evaluation process, upon receiving notice that your specification challenge was denied.
India M. Patel, a Summer Associate at Stevens & Lee, provided research and contributions to this article.
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