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Gann Law Books v. Ferber

Decided: May 7, 1949.

GANN LAW BOOKS, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
FRED V. FERBER, DIRECTOR OF DIVISION OF PURCHASE AND PROPERTY, DEPARTMENT OF THE TREASURY, STATE OF NEW JERSEY, AND SONEY AND SAGE CO., A CORPORATION, DEFENDANTS-RESPONDENTS



McGeehan, Donges and Colie. The opinion of the court was delivered by Donges, J.A.D.

Donges

This is an appeal from an order of the Superior Court, Law Division, dismissing plaintiff's complaint in lieu of a prerogative writ, to have the award of a contract to defendant Soney & Sage Co., for "the service of editing, publishing and delivering advance sheets and permanent bound volumes of the judicial opinions handed down in the Supreme Court, Superior Court and County Courts of the State of New Jersey" set aside and the defendant Ferber directed to award the contract to the plaintiff.

The complaint alleged that the defendant Ferber is the Director of the Division of Purchase and Property in the Department of the Treasury of the State of New Jersey; that Ferber did advertise for public bids for a contract for editing, publishing and delivering advance sheets, in permanent bound volumes, of the judicial opinions handed down in the Supreme Court, Superior Court and County Courts of the State of New Jersey during the period from September 15, 1948, to September

1, 1950; that the plaintiff submitted a bid and met all specifications and conditions; that three bids were received -- the plaintiff's bid being $34, the bid of the defendant Soney & Sage being $36, and the bid of Hudson Dispatch being $60; that the plaintiff was the lowest responsible bidder meeting all specifications and conditions; that in violation of law the defendant Ferber awarded the contract to the defendant Soney & Sage, who was not the lowest responsible bidder.

Complaint demanded (a) that the action of the defendant Ferber in awarding the contract to the defendant Soney & Sage Co. be reversed and set aside; (b) that the said action be set aside and declared null and void; (c) that the defendant Ferber be directed to award the contract to the plaintiff as the lowest responsible bidder.

The defendants moved for a dismissal of the complaint for failure to state a claim upon which relief can be granted; the court granted the motion of the defendants and entered the order dismissing the complaint, which is now under appeal.

On a motion of this kind, the court must assume the ability of the plaintiff to prove all of the facts alleged in the complaint or incorporated therein by reference. We must assume, therefore, that the plaintiff was the lowest responsible bidder. The only question presented by this appeal is whether a contract for the editing and printing of the opinions of our courts must be awarded to the lowest responsible bidder. The plaintiff argues that R.S. 52:18A-19 and 52:34-1 both require award to the lowest responsible bidder.

The pertinent language of R.S. 52:18A-19 reads:

"Each using agency shall, at all times, in the form and for the periods prescribed by the director of the Division of Purchase and Property, present to him detailed applications and schedules for all articles to be purchased. The director shall then arrange such schedules or parts thereof for purchase and contract, in the manner best calculated to attract competition and advantageous prices. He shall award contracts or orders for purchase to the lowest responsible bidder meeting all specifications and conditions,"

coupled with the definition of "articles" found in R.S. 52:25-1:

"'Articles' mean and include any and all materials, supplies, furniture, equipment, printing, stationery, live stock and all other chattels, ...


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