Q We recently prepared a bid package for work that needed to be done in town. The lowest bid was by a company that we trust and that we know does good work. However, the bid they submitted was not entirely complete. I know that minor irregularities can be waived (and we included language to that effect in the specifications), but what does that mean? Do we have to award the bid to the next lowest bidder?
A In general, towns accepting bids have very little leeway to waive anything other than a minor irregularity. A minor irregularity is one that, if waived, would not give one bidder an advantage over another. Courts have been very strict in limiting the ability to waive errors and omissions; in fact, “strict compliance is required, and a municipality generally is without discretion to accept a defective bid.” Meadowbrook Carting Co. v. Borough of Island Heights, 138 N.J. 307, (1994).
In Meadowbrook, the low bidder failed to include three documents: the consent of surety, certificate of insurance, and an ownership disclosure statement. The Supreme Court set out two standards that should guide municipalities in deciding whether or not to waive a defect:
1. Whether the effect of the waiver would be to deprive the municipality of its assurance that the contract will be entered into, performed and guaranteed according to specification requirements;
2. Whether it is of such a nature that its waiver would adversely affect competitive bidding by placing the bidder in a position of advantage over other bidders or by otherwise undermining the necessary common standard of competition.
The Supreme Court was most concerned about the failure to include the consent of surety. Despite the fact that it may cause increased costs for local contracting units, they determined that this is not a curable defect and the bid, even if lowest, must be rejected.
From a practical standpoint, however, attempting to cure even a minor defect or irregularity will, in many cases, involve litigation with other bidders who believe they are now at a disadvantage. In most cases, the most prudent course is to reject all bids and re-advertise the bid
Q We are a civil service town. I’d like to know what
the restrictions and processes are for disciplining an employee?
A The Civil Service Law does provide some protections to employees facing “major discipline.” In general, the law defines major discipline as termination, demotion, or a suspension of more than five working days. In general, anything less than this is considered minor discipline and the Civil Service Laws do not normally apply.
Under Civil Service regulations, major discipline is only available for the following reasons:
1. incompetency, inefficiency or failure to perform duties;
3. inability to perform duties;
4. chronic or excessive absenteeism or lateness;
5. conviction of a crime;
6. conduct unbecoming a public employee;
7. neglect of duty;
8. misuse of public property, including motor vehicles;
9. discrimination that affects equal employment opportunity (as defined in N.J.A.C. 4A:7-1.1), including sexual harassment;
10. violation of federal regulations concerning drug and alcohol use by and testing of employees who perform functions related to the operation of commercial motor vehicles, and State and local policies issued thereunder;
11. violation of New Jersey residency requirements as set forth in P.L. 2011, c. 70; and,
12. other sufficient cause. “Other sufficient cause” has in the past included abuse of an institutional client, a history of persistent minor offenses taken cumulatively, and a threat of assault against a coworker.
Prior to any major discipline, the employee must be serviced with a Preliminary Notice of Disciplinary Action, which must include the nature of the charges, any facts supporting those accusations, and the specific penalty the town seeks to impose. With limited exceptions, the employee must also receive a hearing before receiving any major discipline if they request it.
The hearing is held before the appointing authority or its representative. The employee may be represented by an attorney and cannot be cross examined unless they choose to testify. The appointing authority has 20 days to issue their decision, which may then be appealed to the Civil Service Commission
This column is for informational purposes only, and is not intended as legal advice.