Contract for Route 280 Section 7U Exit Project, Matter of
| Citation | 431 A.2d 848,179 N.J.Super. 280 |
| Parties | In the Matter of CONTRACT FOR ROUTE 280 SECTION 7U EXIT PROJECT. |
| Decision Date | 27 May 1981 |
| Court | New Jersey Superior Court – Appellate Division |
Mark D. Larner, Newark, for appellant, J. A. Cavanaugh Contractors, Inc. (Budd, Larner, Kent, Gross, Picillo & Rosenbaum, Newark, attorneys; Robert Novack, Newark, on brief).
Dante J. Romanini, Deputy Atty. Gen., for respondent Commissioner of Transportation (James R. Zazzali, Atty. Gen., attorney; John J. Degnan, former Atty. Gen., Andrea M. Silkowitz, Deputy Atty. Gen., of counsel).
Before Judges BOTTER, KING and McELROY.
The opinion of the court was delivered by
BOTTER, P. J. A. D.
Appellant J. A. Cavanaugh Contractors, Inc. (Cavanaugh) appeals from the rejection of its bid of $1,655,608 for a highway construction project known as Route 280, Section 7-U Exit Ramp. The bid was approximately $84,000 less than the bid of the second low bidder. Appellant's bid was rejected because it was accompanied by a schedule showing the status of contracts on hand as of August 31, 1980 instead of as of September 30 as required by the bid specifications.
The facts are not in dispute. The bids were opened at 10:00 a. m. on October 23, 1980. As part of the financial statement to be submitted by each bidder, the specifications required an up-dated statement as to the status of contracts on hand. The governing date was September 30, 1980. Instead, appellant annexed a schedule dated August 31, 1980. This appears to have been entirely inadvertent. The form to which the August 31 schedule was attached, DC-74B, even related to a different project. The aggregate figures in both schedules were comparable in many respects. For example, the totals in various categories were:
August 31 Sept. 30
---------- ----------
Adjusted contract amount $9,866,282 $8,711,313
Amount earned and billed 7,428,591 6,845,366
Retainage 361,399 399,078
Amount now due excluding retainage 630,703 657,739
Balance to be completed 2,344,240 1,805,188
No purpose is evident that would explain the submission of the wrong schedule. In the afternoon of the bid opening date, October 23, 1980, appellant hand-delivered to the Department of Transportation (DOT) the correct document accompanied by a letter stating that the August 31 schedule was attached erroneously "through inadvertence" although the September 30 data "was ready and prepared to be submitted with our Bid." Appellant took the position that the error should be waived by DOT since "the two Schedules involved no substantial difference, and since there can be no prejudice to the Department or to the other bidders...." DOT affirmed its rejection of the bid stating: "While on the surface this deviation might seem minor it has consistently been the position of this Department that such an omission is a material departure from the specifications and thus warrants rejection." Stating that the "omission is not merely a technical one," DOT asserted that the data is useful in determining the bidder's "physical and financial ability to adequately perform at the time of the bid." In addition, the DOT cited a case in which this court summarily determined under R.2:8-3(b) the rejection of a bid which it found "failed to comply with a material condition of the bidding specifications." However, the facts of the case are not recited in the unpublished order by which the case was decided.
It is an established principle that "material conditions" in bidding specifications cannot be waived. Terminal Constr. Corp. v. Atlantic Cty. Sewerage Auth., 67 N.J. 403, 411, 341 A.2d 327 (1975). The problem more often is how to define a "material condition" in or a "material deviation" from bidding requirements. As noted in the Terminal Constr. Corp. case, supra, "while the submission of security with a bid is material and may not be waived," citing Hillside Tp. v. Sternin, 25 N.J. 317, 136 A.2d 265 (1957), "the form in which that security is submitted may vary slightly from that set forth in the specifications." 67 N.J. at 411, 341 A.2d 327. In an effort to describe a general rule, Justice Mountain stated in Terminal :
Essentially this distinction between conditions that may or may not be waived stems from a recognition that there are certain requirements often incorporated in bidding specifications which by their nature may be relinquished without there being any possible frustration of the policies underlying competitive bidding. In sharp contrast, advertised conditions whose waiver is capable of becoming a vehicle for corruption or favoritism, or capable of encouraging improvidence or extravagance, or likely to affect the amount of any bid or to influence any potential bidder to refrain from bidding, or which are capable of affecting the ability of the contracting unit to make bid comparisons, are the kind of conditions which may not under any circumstances be waived. (at 412, 341 A.2d 327)
We are satisfied that the deviation in this case could be waived by the Commissioner. We note that this is not a case of an "omission" to furnish certain financial data, but rather the submission of data that was outdated by one month. Assuming the error to have been inadvertent and not made in bad faith, and that the more current data promptly furnished to correct the error did not substantially alter the contractor's ability to perform, we see no prejudice to DOT or to other bidders if the timeliness of the data used for the updated status of contracts report is waived. Thus, the Commissioner would be evaluating the ability to perform on the basis of a contract status...
To continue reading
Request your trial
-
Statewide Hi-Way Safety, Inc. v. New Jersey Dept. of Transp., HI-WAY
...the same standard to an award by the State Treasurer, subject to a limited scope of review). Thus, in In Re Route 280 Contract, 179 N.J.Super. 280, 431 A.2d 848 (App.Div.), certif. granted, 88 N.J. 473, 443 A.2d 692 (1981), appeal dismissed, 89 N.J. 1, 444 A.2d 51 (1982), we found that the ......
- Ivler, Matter of
-
Saturn Const. Co., Inc. v. Board of Chosen Freeholders, Middlesex County
...or its failure to consider defects in the bid submitted by the party who is awarded the contract, e.g., In re Route 280 Contract, 179 N.J.Super. 280, 282-283, 431 A.2d 848 (App.Div.1981), or defects in the procedures, e.g., Remsco Assoc. v. Raritan Tp. Mun. Util. Auth., 115 N.J.Super. 326, ......
-
Controlled Cable Corp., Matter of
...of clerical errors that were reasonably apparent on the face of the original submission. Compare In the Matter of Contract for Route 280, 179 N.J.Super. 280, 431 A.2d 848 (App.Div.1981), app. dism., 89 N.J. 1, 444 A.2d 51 (1982) (under public bidding law, agency can waive immaterial bidding......