David Carroll, attorney, Princeton Board of Education
I represent the Princeton Regional School District Board of Education. At the board’s request, I am writing to respond to your recent article and editorial regarding the award of certain school bus route contracts last May.
The bid specifications for these contracts clearly called for per-diem bids on each route. All bidders except Conover submitted per-diem bids. Conover submitted annual bids on each route.
The thrust of the Packet article and editorial is that the board should have waived the admitted defect in the bid of Conover, on the grounds that it was a "minor or technical" defect. The Packet suggests that the board should have recalculated and converted Conover’s annual bid to a per-diem basis by dividing the annual contract by 180 school days.
What this suggested manipulation fails to recognize is that many of the bus routes included private school runs, and that the private schools all have different calendars, most of which are for less than 180 school days. [Indeed, if one uses the actual school days for the suggested recalculation, Conover’s per-diem rate is actually higher for the private school routes.]
In addition, school calendars are subject to change during the school year. That is why the district opted to bid on a per-diem basis, since it is the only practical, objective and fair way to compare bids. And the specifications were express in stating that actual payments due under the per diem contracts would be based on the "actual number of days transportation services were performed."
Conover’s submission of a bid on an annual contract basis was not merely technically defective, but fundamentally ambiguous and problematic as to the actual cost.
While the state Supreme Court has stated that public bodies have the discretionary right to waive minor or technical defects in bids, the court has also made clear that "material" conditions in bidding specification may NOT be waived by the board or cured by the bidder in a post-bid submission. The defect here went to price, and there is no contract term that is more "material" than price under the case law.
Accordingly, Conover’s bid defect was material and rendered its bid invalid. An award to Conover would most certainly have been subject to successful challenge by those bidders who complied with the specifications under governing case law.
Rejection of all bids and re-bidding was indeed an option, but the administration recommended against it for two reasons: (1) fuel prices were continuing to rise and the likelihood was that bids would be higher on rebidding; and (2) the number of bidders and level of competition is negatively affected as time goes on, as contractors fill up their capacity for the school year by entering into contracts with other school districts. The board agreed with this sound reasoning and chose to award the contracts to the lowest responsible bidder.
I am not aware of what information the state "spokespeople" mentioned in your article had, or what their legal background or experience in the public bidding laws includes. I do know that the district staff at the time contacted officials in the Office of Pupil Transportation in the Department of Education (who presumably have expertise in this area), and was advised of their opinion that the Conover bid was defective and could not be accepted. They also suggested consultation with counsel, which the board pursued, resulting in my independent analysis as set forth above.
The situation you described in South Brunswick was presumably one which was based on their specific fact situation and specifications, which were clearly different from Princeton’s.
David W. Carroll,
Board Attorney, PRSD

