On application for writ of certiorari.
For the prosecutor, Harold Simandl (Fred A. Lorentz, on the brief).
For the respondent Board of Education, Jacob Fox.
For the respondent Cohen, Harry Krieger and Louis H. Hollander.
Before Justices Donges, Colie and Eastwood.
The opinion of the court was delivered by
COLIE, J. This is the application of Frank P. Farrell, Inc., for a writ of certiorari or, in the alternative, for a rule to show cause why certiorari should not be allowed to review a resolution of the Board of Education adopted on April 5th, 1948, awarding a contract for heating and ventilating work on the Dayton Street School in the City of Newark to Max Cohen.
The Board of Education advertised for bids and in accordance with the statutory requirement contained in R.S. 18:11-7 and 18:11-10 called for a separate bid for the heating
and ventilating contract. In February, 1948, bids were received but all were rejected and the Board of Education re-advertised. On March 10th, 1948, the second bids were received. The applicant, Farrell, Inc., submitted a base bid, including combustion controls, of $83,376 but the contract was awarded to Max Cohen whose base bid amounted to $83,624. As an additional proposal, the specifications called for the furnishing of temporary heat and this controversy turns upon the effect to be given to the bids on the additional proposal.
Despite the fact that the base bid of Farrell, Inc., was the lower, the contract was awarded to Cohen, the reason being that on the temporary heating, Farrell, Inc., bid $30 additional cost for each temporary radiator and $135 additional cost for temporary heat for 24 hour day; whereas the Cohen bid on the same items was $20 and $90, respectively. In the minutes of the Board of Education meeting at which the contract was awarded, it was explained that the contract was awarded to Cohen "although the base bid of Max Cohen was $176 higher than the next lowest bidder, Frank P. Farrell, Inc., the difference in the additional proposals which included temporary heat, made the bid of Max Cohen the lowest bid."
Certain phases of the law applicable to this situation are settled. The statute R.S. 18:6-26 provides that the contract shall be awarded to the lowest responsible bidder. In the absence of a question as to financial responsibility, the low bidder is entitled to an award of the contract as a matter of right. Sellitto v. Cedar Grove, 133 N.J.L. 41.
Prosecutor argues that the additional proposal for unit prices for the furnishing of temporary heat is indefinite and destroys the common standard requisite to put all bidders upon an equal footing. This argument is not now available to the prosecutor. It comes before the court on the basis of being the low bidder and in no other capacity. In McGovern v. Trenton, 60 N.J.L. 402, prosecutor attacked the award of a paving contract to a third party and sought to challenge, inter alia, certain specifications upon which the ...