Menna Supko & Nelson LLC Wins Turnpike Bid Protest

Forces Rescission of Pre-Qualification Previously Granted By Authority In
Relation To Extra Heavy Duty Towing and Recovery Services Contract

On February 23, 2011, Menna Supko & Nelson LLC attorneys Brian M. Nelson and Michael P. Supko, Jr. won a bid protest before the New Jersey Turnpike Authority (“the Authority”) on behalf of our client, B&L Towing & Recovery of Carteret, which had bid on a highly valuable contract to provide extra heavy duty towing and recovery services on one of the busiest sections of the New Jersey Turnpike.

There is a very difficult burden to overcome in such proceedings. Not only must the Authority essentially admit error in accepting unqualified contractors or bids, but the law provides the Authority extraordinary discretion in making determinations interpreting its own bid specifications and needs. Nevertheless, through a hearing conducted by the Authority in which its own witnesses testified against our client’s position, we were able to demonstrate that the Authority overlooked important written interpretations of its own specifications resulting in a determination that our client’s primary competitor was not qualified to bid.

The New Jersey Turnpike is one of the most heavily travelled roadways in the nation upon which millions of dollars in interstate commerce takes place every day. To keep things moving when accidents occur, the Authority privately contracts for extra heavy duty towing and recovery services that must be provided on a 24/7/365 basis by only the most experienced contractors with millions of dollars of specialized equipment that can quickly and safely remove large tractor-trailers and their loads from the roadway. Accordingly, the Authority drafts highly detailed pre-qualification and bid specifications to ensure that only the most highly qualified contractors with the proper equipment are pre-qualified to bid on such contracts.

Like many pre-qualification or bidding proceedings, there is a period for written questions to be submitted with written answers being provided by the contracting entity that become part of its specifications. Frequently this valuable process is overlooked by both bidders and contracting entities, which can use it to their competitive advantage to clarify vague or ambiguous specifications. While contracting entities have significant discretion, they must still play by the rules they are subject to and the specifications they establish. Further, all too often government entities and private bidders fail to conduct adequate due diligence regarding the growing body of laws and regulations governing public bidding processes. Specifications are also frequently overlooked and merely copied from other entities without a complete understanding of the terms and conditions contained therein that reduce competitiveness or cause other problems, outdated or inapplicable forms are used, and most State and local pay-to-play regulations continue to be misunderstood.

New Jersey has hundreds of public entities, authorities and commissions that have been subjected to increased scrutiny recently by the State Comptroller, which has through numerous reports now, highlighted poor or improper bidding practices by many governmental entities.