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The New Jersey Schools Development Authority rejected, as nonresponsive, a bidder’s technical proposal on a design-build contract for a new school because a key team member of the bidder (the Project Architect) was involved in the previous development of the design bridging documents.  The bidder touted this fact in its proposal by stating: “[this] involvement allows the SSP team to utilize the most up-to-date information regarding the Project’s design as he was responsible for preparing the bridging documents … while employed with the Authority.”   The Authority disqualified the individual because of his previous involvement and thus precluded his involvement as the proposed project architect for the design-builder.   Substitution of this key individual was not permitted, since, the Authority concluded, “neither the RFP, nor applicable laws government procurement of professional services, permit [Offeror’s] identification of a substitute Project Architect after the deadline for submission of Technical Proposals and Price Proposals.”  Patock Construction Co. v. New Jersey Schools Development Authority (N.J. Superior Ct., App. Div., January 2010 – unpublished decision).

The Offer protested the Authority’s decision, and in response the Authority granted an informal hearing and reviewed the issues and issued a second written decision – still rejecting the Offeror’s proposal as being nonresponsive because of the substantial involvement of its project architect in the preparation of the bridging documents.   In its second decision the Authority explained that the individual’s involvement as a Key Team Member did not specifically disqualify his firm as the design consultant, but nevertheless, the design-builder could not cure the deficiency by substituting another Project Architect because that “would be ‘manifestly unfair’ to the other bidders, and render the procurement process ‘unwieldy, untimely and difficult, in not impossible, to manage.’”  The court affirmed the Authority’s decision.

 

About the author: Article written by J. Kent Holland, Jr.,  a construction lawyer located in Tysons Corner, Virginia,  with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 16, No. 1 (Jan 2014).

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