McGeehan, Jayne and Goldmann. The opinion of the court was delivered by McGeehan, S.j.a.d.
[20 NJSuper Page 341] The defendant City of New Brunswick advertised for bids for the construction of a 30-inch pipe line, approximately 14,000 feet in length, including pipe, excavation and other miscellaneous items. The defendant A. Cestone Company made its bid, in the total sum of $526,358.50, to furnish all materials and to perform all the required work according to the specifications. This was the lowest bid of the six bids made on the entire contract, as
awarded. The plaintiff, Frank Stamato & Co., submitted a bid in the total sum of $526,590, which was next to the lowest bid. On February 5, 1952, defendant City of New Brunswick passed a resolution accepting the bid of defendant A. Cestone Company.
Frank Stamato & Co. then brought suit in the Superior Court, Law Division, in which it sought a judgment setting aside the resolution of the City of New Brunswick awarding the contract to A. Cestone Company, and requiring the City of New Brunswick to award the contract to plaintiff. Defendants answered and both sides made motions for summary judgment on the pleadings and affidavits. The trial court entered summary judgment setting aside the resolution of February 5, 1952, and the defendant A. Cestone Company appeals.
The complaint alleged that A. Cestone Company had made an "unbalanced bid" on Items 7 and 8 of the specifications and demanded that the award of the contract to A. Cestone Company should be set aside because (1) Cestone's unbalanced bid violated the specifications which prohibited an obviously unbalanced bid, and (2) the city's failure to reject Cestone's unbalanced bid and its action in awarding the contract to Cestone "constituted unfair competition, partiality, privilege, and discrimination and plaintiff was not put on an equal footing or basis to compete with said defendants to bid said work according to said specifications."
The pertinent parts of the specifications provide:
"0.11 -- Basis for Comparing Bids
All bids will be compared on the basis of the Engineer's estimate of the quantities of work to be done. The estimated quantities shown in the proposal forms are not to be considered by the Contractor as actual quantities which may be required to complete the work, but solely to serve as a basis for comparing bids.
Bids which are obviously unbalanced, may be rejected."
In considering the results of the subsurface investigation thus presented, it shall be understood by the Contractor that the record,
as shown, represents the judgment of the observer as to the character of materials and subsurface conditions, and that the City, or its Engineer, do not guarantee that the character of the underground material will even approximately be as reported by the driller."
"Article VI -- Variations Between Proposal and Actual Quantities
The quantities of the various items of work to be done and materials to be furnished under this contract, which have been estimated as shown in the Schedule of Contract, Items attached hereto, are approximate only and for the purpose of comparing, on a uniform basis, the bids offered for the work under this contract; and the Owner is not to be held responsible that any of the estimated quantities shall be found even approximately correct in the construction of the work; and the Contractor shall make no claim for anticipated profits, or for loss of profit, because of a difference between ...