Sellitto v. Grove Tp.
| Decision Date | 07 May 1945 |
| Docket Number | No. 227.,227. |
| Citation | 133 N.J.L. 41,42 A.2d 383 |
| Parties | SELLITTO v. CEDAR GROVE TP. |
| Court | New Jersey Supreme Court |
OPINION TEXT STARTS HERE
Certiorari proceeding by Nicholas Sellitto to review the validity of the action of the Township of Cebar Grove in awarding a contract for public scavenger service to one C. D. Marangi, who was not the lowest bidder therefor.
Award set aside.
January term, 1945, before BROGAN, C. J., and DONGES and PERSKIE, JJ.
Joseph C. Cassini, of Orange, for prosecutor.
Boardman & Stickel, of Newark (Fred G. Stickel, III, of Newark, of counsel), for respondent.
The dispositive question for decision, on the competent proofs in this cause, is whether the determination by respondent that prosecutor was not the lowest responsible bidder, R.S. 40:50-1 et seq., N.J.S.A., is justified, notwithstanding that he was in fact the lowest bidder.
This is the second time this court has been called to pass upon the validity of the action of the Township of Cedar Grove in awarding the contract for public scavenger service, for a fixed period, after having publicly advertised for bids therefor, to one C. D. Marangi whose bid was $6400, although prosecutor's bid was $5749.
On the first occasion this court concluded, among other things, that ‘there was no distinct finding that (prosecutor) was not responsible’; that it had not been shown by competent evidence that prosecutor was irresponsible; that prosecutor was neither put on ‘fair notice’ of a hearing, not was such a ‘hearing’ held, and thus ‘due regard was not given to prosecutor's status' as the low bidder. Accordingly, the award to Marangi was set aside. Sellitto v. Cedar Grove Tp., 132 N.J.L. 29, 38 A.2d 185.
Thereafter, the Mayor and one of the other two members of the Board of Commissioners of respondent township (the third member was absent because of death of a member of his family) conducted a hearing, pursuant to due notice, to determine prosecutor's ‘responsibility or irresponsibility.’ See, R.S. 40:72-14, N.J.S.A., as to a quorum. Prosecutor, represented by counsel, appeared and submitted to a searching examination conducted by the Mayor (who is an attorney-at-law) and by counsel for the Township. From the transcript of that examination, read by the three Commissioners, plus the written exhibits relating to the contract, the Board of Commissioners again concluded that prosecutor was not the ‘lowest responsible bidder,’ and for the second time awarded the contract to Marangi. The propriety of that action is attacked by prosecutor.
The law is clear. Prosecutor's status, as the lowest bidder, is not one of grace; it is one of right. Such a status may not lightly be disturbed. For it is based upon competition, a state policy. R.S. 40:50-1 et seq., N.J.S.A. That policy, concededly applicable here, aims to encourage public bidding, pursuant to advertisement therefor, and to protect the lowest responsible bidder. That policy further aims to avoid favoritism and to safeguard the taxpayers. Cf. Sellitto v. Cedar Grove Tp., supra.
Since prosecutor was, without question, the lowest bidder, the only question was and is whether he was a responsible bidder. That is a question of fact. A bidder's responsibility involves, among other things, his ability to account, and to answer for his undertaking. Schwitzer v. Board of Education, 79 N.J.L. 342, 75 A. 447; Peluso v. Hoboken, 98 N.J.L. 706, 126 A. 623; Peter's Garage, Inc. v. Burlington, 121 N.J.L. 523, 527, 3 A.2d 634, affirmed 123 N.J.L. 227, 8 A.2d 910. A finding that one is not a responsible bidder must be based upon a finding by the majority of the members of the governing body that the bidder ‘was so lacking in the experience, financial ability, machinery and facilities necessary to perform the contract as to justify a belief upon the part of fair-minded and reasonable men that (he) would not be able to perform (his) contract.’ And, ‘To reject the bid of the lowest bidder there must be such evidence of the irresponsibility of the bidder as would cause fair-minded and reasonable men to believe that it was not for the best interest of the municipality to award the contract to the lowest bidder.’ Paterson Contracting Co. v. Hackensack, 99 N.J.L. 260, 263, 264, 122 A. 741, 742; Sellitto v. Cedar Grove Tp., supra.
In this type of case, we do not generally disturb a finding of fact made by governing officials, on competent evidence, unless it is made to...
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