Aemitage v. Mayor and Common Council of City of Newark

• Decision Date: 16 June 1914
• Citation: 90 A. 1035,86 N.J.L. 5
• Parties: AEMITAGE v. MAYOR AND COMMON COUNCIL OF CITY OF NEWARK et al.
• Court: New Jersey Supreme Court

90 A. 1035

86 N.J.L. 5

AEMITAGE

v. MAYOR AND COMMON COUNCIL OF CITY OF NEWARK et al.

Supreme Court of New Jersey.

June 16, 1914.

(Syllabus by the Court.)

Certiorari by John L. Armitage against the Mayor and Common Council of the City of Newark and the Essex Construction Company to review proceedings of the Common Council of such city which resulted in awarding to such company a contract for the erection of a public building. Contract set aside.

This suit brings up for review the proceedings of the common council of the city of Newark which resulted in the awarding of a contract for the erection of a public market building to the Essex Construction Company. The proceedings prior to the actual awarding of the contract were conducted on the part of the city by the market committee of common council. On May 2, 1913, at a special meeting of this committee, plans and specifications were adopted and a motion carried that bids for the work would be received on Monday, May 26, 1913. Advertisement was thereupon made for sealed proposals.

This advertisement contained the following announcements to bidders:

"Proposals will be received for the erection and construction of the entire work under general contract, and separate proposals will be received for the construction of the building as follows:

"Item 1. Mason work, etc.

"Item 2. Carpenter work, etc.

"Item 3. Electrical work, etc.

"Item 4. Plumbing, etc.

"Item 5. Well, etc.

"Item 6. Boilers, etc."

It is admitted that within these items was embraced all of the work covered by the general contract. And the paragraph that follows speaks repeatedly of the person or persons to whom the contract may be awarded.

It was further provided that:

"Bidders must specify in their proposals the number of days required to finish their work should the above work or works be awarded to them."

On May 26, 1913, at the hour specified in the advertisement the bids were opened. There were 3 bids for the doing of the whole work by general contract and some 25 or more bids on separate items or combinations thereof.

The lowest bid for the construction of the whole work was the sum of the six lowest bids on the separate items, viz., $646,212.

The next lowest bid was that of the Essex Construction Company which was for the whole work by a general contract at $662,700.

On January 19, 1914, the common council adopted a resolution awarding the contract for the construction of the public market to the Essex Construction Company. On February 9, 1914, this contract was executed and March 6, 1914, this writ of certiorari was allowed by the Supreme Court.

The pertinent statutory provision is, "An act relating to expenditures by public county, city, town, township, borough and village bodies," approved April 1, 1912 (P. L. 1912, p. 593), which reads as follows:

"Where and whenever hereafter it shall be lawful and desirable for a public body in any * * * city, * * * to let contracts * * * for the doing of any work or for the furnishing of any materials or labor, where the sum to be expended exceeds the sum of five hundred dollars, the action of any such public body * * * shall be invalid unless such public body shall first publicly advertise for bids therefor, and shall award said contract for the doing of said work or the furnishing of such materials or labor to the lowest responsible bidder; provided, however, that said public body may, nevertheless, reject any and all bids."

Argued February term, 1914, before GARRISON, TRENCHARD, and MINTURN, JJ.

Fort & Fort, of Newark, for prosecutor. Frank E. Bradner, of Newark, for City of Newark. Herbert Boggs, of Newark, for Essex Const. Co.

GARRISON, J. (after stating the facts as above). Clearly the lowest bid did not get the contract. The lowest bid under the invitation to bidders was the aggregate of the lowest bids for separate items.

This bid was $16,488 lower than that of the successful bidder. The circumstance that this lowest bid was made up of the separate proposals that had been invited is not a lawful ground for discrimination against it; such proposals were made in strict compliance with the terms of the advertisement for bids and under the statute the award must follow such advertisement or the contract will be invalid.

In extenuation of this violation of the statute it is said that it was within the discretion of the city authorities to decide that it was more advantageous to the city to have its work done by a general contractor than by the bidders for the separate items. True, it was not only the right but the duty of the city authorities to decide this question, but when and how often? They had exercised this right once when they...