Clapp, Smalley and Schettino. The opinion of the court was delivered by Smalley, J.s.c. (temporarily assigned).
This is an appeal from a summary judgment rendered in favor of defendants in a proceeding in lieu of prerogative writ, commenced by plaintiff to set aside the action taken by defendant Board of Trustees of the Free Public Library of the Town of Montclair, in awarding to defendant Frank Briscoe Company, Inc., a contract for the construction of a new public library. A statement of the facts, which are substantially uncontroverted, that gave rise to the dispute, may be set forth as follows:
The advertisement contained the following language:
"Instructions to Bidders, Forms of Proposal, Drawings, Specifications and other Contract Documents may be examined at the Main Public Library and a copy thereof may be obtained by each bidder upon application to the librarian, Miss Margery Quigley, at the Main Library Building at 73 Church Street, Montclair, New Jersey and deposit of $50.00. * * *
Each bid must be accompanied by a certified check for ten per cent (10%) of the amount of the bid drawn upon an incorporated bank or trust company, payable to the Board of Trustees of the Free Public Library of the Town of Montclair, as a guarantee that in case the contract is awarded to the bidder he will within two weeks thereafter execute the contract and furnish satisfactory bond. Upon failure to do so he shall forfeit the security as liquidated damages.
The checks of all except the three (3) lowest bidders on each item will be returned within three (3) days after the opening of the bids, and the remaining checks, except for the check of the successful bidder on each item, will be returned when the contract has been executed, or in any event, within thirty (30) days after the opening of the bids. No bidder may withdraw his bid within thirty (30) days after the opening thereof."
The "Instructions to Bidders" contain the following recitals:
"The bidders shall refer to the Advertisement regarding the time and place of the receipt of bids, the amount of deposit required for
copies of the drawings and contract documents, and certified check or bid bond required with each proposal, the bond required, and other matter pertaining to the award of the contracts."
"The Trustees of the Free Public Library reserve the right to waive minor informalities in any bid or bids."
Although the advertisement was silent as to the use of bid bonds, it should be noted that the specifications not only referred to their use, but also contained a form of bid bond to be used by those bidders, who desired to avail themselves of that medium of deposit. Further, it is significant that of 36 bids received, 14 were accompanied by bid bonds conforming with the instructions.
Defendant Frank Briscoe Company submitted the lowest bid, $302,217, accompanied by a bid bond in the amount of $80,000. The next lowest bid was submitted by plaintiff, $325,800, accompanied by a certified check for $35,000. It can thus be seen that defendant's bid was more than $23,500 less than plaintiff's, and that the bid bond was far in excess of the requisite 10% of the bid. Nevertheless, the plaintiff made public objection to defendant's bid on the ground that it was accompanied by a bid bond rather than a certified check. However, the defendant board of trustees accepted defendant's bid and adopted a resolution awarding it the construction contract. Plaintiff then commenced the present action, in which the defendants prevailed when their motion for summary judgment was granted. Plaintiff appeals, alleging as error defendant company's deviation from the advertisement in submitting its bid, and further that the defendant ...