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Weinacht v. Board of Chosen Freeholders of County of Bergen

Decided: December 19, 1949.

RICHARD J. WEINACHT, SR., PLAINTIFF-RESPONDENT,
v.
BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF BERGEN, NEW JERSEY, DEFENDANT-APPELLANT



On appeal from the Superior Court, Appellate Division.

For affirmance -- Chief Justice Vanderbilt, and Justices Case, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- Justice Heher. The opinion of the court was delivered by Wachenfeld, J.

Wachenfeld

Does R.S. 40:9-3 require bids for structural steel and ornamental iron work singly or in combination? The Superior Court determined separate bids were provided for, while the Appellate Division held the import of the statute was "to combine steel and iron in a single bid." Certification having been allowed, the question so posed is before us for determination.

In November, 1948, the Bergen County Board of Freeholders advertised for competitive bids for the construction of a hospital building. Among other things, the advertisement called for separate bids for structural steel and for miscellaneous iron. The latter term is conceded by both sides to be synonymous in the trade with the term "ornamental iron work."

The respondent, a taxpayer engaged in the fabrication and erection of structural steel and ornamental iron work, filed suit in the Superior Court, Law Division, to have the advertisement declared illegal and void and to compel the Board to re-advertise for a single combined bid for "structural steel and ornamental iron work," asking for a restraint in the meantime against the acceptance of a bid for the structural steel alone. The complaint was based on R.S. 40:9-3, which, it was contended, required a combined bid rather than separate bids on the two items.

R.S. 40:9-3 reads as follows:

"In the preparation of plans and specifications for the erection, construction, alteration or repair of any public building by any political subdivision of this state, when the entire cost of the work will exceed one thousand dollars in amount, the architect engineer or other person preparing the plans and specifications, shall prepare separate plans and specifications for the plumbing and gas fitting, and all kindred work, and of the steam and hot water heating and ventilating apparatus, steam power plants and kindred work, and electrical work, structural steel and ornamental iron work.

"The board, body or person authorized by law to award contracts for the erection, construction, alteration or repair of any such public building, shall advertise for, in the manner provided by law, and receive separate bids for each of said branches of work, and award contracts therefor to the lowest responsible bidder for each of such branches respectively."

Respondent's motion for summary judgment was denied and his complaint dismissed. He appealed to the Appellate Division. Meanwhile the Board of Freeholders had received bids for the structural steel but none for the ornamental iron work. It accordingly re-advertised for bids on the latter and received one bid. Thereafter and while the appeal was pending, the Board advertised again, this time calling for separate bids on structural steel and miscellaneous iron work and also for combined bids on both. It subsequently accepted the lowest combined bid and awarded the contract accordingly.

The trade customs prevailing and the legislative history are interesting and enlightening. The City of Newark in 1913 advertised for bids for the construction of a large public

market building. The statutes then in force required competitive bids but there was no requirement that the work be subdivided. The advertisement called for a combined bid for the entire work under a general contract and also for separate proposals under six different branches of construction. When the bids were received the aggregate of the lowest bids for the separate branches of construction was $16,000 lower than the lowest bid for the construction of the whole work. The governing body awarded the contract to the lowest general contractor and the Supreme Court set aside the award so made, Armitage v. Newark, 86 N.J.L. 5 (Sup. Ct. 1914), holding that the general contractor was not the low bidder. As a result of this development, Chapter 95 of the Laws of 1915 was enacted by the Legislature. For the first time, the law required separate bids for the various branches of work specified when the entire cost of the work exceeded $1,000. The act was again amended in 1931, when it ...


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