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Carey v. Borough of Fair Lawn

Decided: September 29, 1955.

WILLIAM A. CAREY & CO., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
BOROUGH OF FAIR LAWN, BERGEN COUNTY, NEW JERSEY, ET AL., DEFENDANTS-RESPONDENTS



Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.

Conford

On April 13, 1954 the plaintiff was one of four bidders in response to public advertisements for proposals for garbage collection in the Borough of Fair Lawn to commence May 18, 1954. The contract was awarded to the defendant Mastrangelo, one of the other bidders, and this proceeding in lieu of prerogative writ seeks to set that action aside as illegal and demands judgment declaring that plaintiff was the lowest responsible bidder and legally entitled to the award. The Law Division held that since the plaintiff's status to maintain the action was solely as an unsuccessful bidder and not as a taxpayer or citizen, it was precluded from attacking the municipal proceedings because its own proposals failed to conform with the specifications of the borough in several particular respects.

The award to Mastrangelo, for a three-year period, was made by a resolution finding that his was the low bid, "considering the projected growth of Fair Lawn." The plaintiff's bid for three years on a fixed basis was some $17,000 less than that of Mastrangelo. But the latter's additional proposals on a unit basis for servicing dwellings to be constructed, as compared with Carey's projected against estimates of future construction for three years made by the borough manager after the receipt of the bids, operated to make the Mastrangelo total bid less than that of the Carey firm for the contract period by some $1300 ($281,868 as against $283,238). The complaint charged that this result was the product of manipulation of estimates in bad faith for the purpose of granting the contract "to a favored bidder." The trial court found it unnecessary to determine the merits of this contention, its conclusion against the plaintiff being premised on the assumption that it was the lowest bidder. Defendants make the same concession for purposes of their argument before us and

our discussion of the issues consequently assumes that Carey's bid was lowest.

Municipal contracts with private persons or agencies for collection, removal and disposal of garbage and refuse are subject to regulation by N.J.S.A. 40:66-4 and R.S. 40:50-1 et seq. The first cited section provides that before making such a contract "the governing body shall first adopt specifications for the doing of the work in a sanitary and inoffensive manner" and that advertisement for bids therefor and the award thereof shall be made in the manner provided in the other cited statute. It is further required that the contract include "and in all respects conform to the specifications adopted for the doing of the work." R.S. 40:50-4 provides that public advertisements for bids shall designate the time and place of the meeting at which the bids shall be received; that the bids shall be opened and their contents announced publicly in the presence of bidders; and that no bid shall be received either prior or subsequent to the hour designated in the advertisement. R.S. 40:50-5 provides that the public body charged with the making of the contract may require of any person proposing to bid thereon a "statement showing his financial ability and experience in performing public work, before furnishing him with the plans and specifications therefor" and may refuse to furnish the plans and specifications if not satisfied as to the sufficiency of the statement. The section authorizes adoption of "a standard form of statement or questionnaire for bidders on public work."

The statutory provisions recited evince a legislative intent that by adequate public notice and strict equality of treatment of bidders the taxpaying public may be assured the benefit of competitive bidding on public work and of the award of contracts to the lowest responsible bidder free from manipulation and favoritism, so far as reasonably practicable; cf. Scatuorchio v. Jersey City Incinerator Authority , 14 N.J. 72, 88 (1953); Tufano v. Borough of Cliffside Park , 110 N.J.L. 370, 373 (Sup. Ct. 1933). The important objective of responsibility and competency of bidders is subserved in part by the provision for "pre-qualification" of bidders through

the questionnaire. See Gunne v. Borough of Glen Ridge , 11 N.J. Misc. 3, 4 (Sup. Ct. 1932).

The defendant municipality required from bidders for the presently disputed contract answers to a questionnaire which not only called for answers to questions, but contained statements of requirements for performance of the contract which appear to have been intended as supplemental specifications, since the specifications state that the questionnaire "is made a part of the specifications as if the same were fully set forth herein." Instead of invoking the statutory privilege of withholding distribution of specifications to bidders until after submission and approval of completed questionnaires, the municipality required that the questionnaire be completed and submitted together with the bid. Plaintiff has taken no exception to this procedure. Defendants assert that plaintiff was in substantial default of the specifications in three particulars: type of trucks, place for dumping or disposal, and governmental permits for dumping. We proceed to consider these items:

1. Type of trucks. The specifications recite that "the bodies of all vehicles to be used must be * * * Packer type automatic closed body * * *." The questionnaire, in paragraph 1, " Equipment ," states: "Describe as follows the trucks mounted with all metal automatic packer type * * * now owned by you and which you propose to use in the performance of this contract. A minimum of seven such type trucks should be listed as: Five for regular daily service and two for emergency purposes." The plaintiff in response listed five packer-type trucks and four not of that type, two of them being closed Heil bodies. Plaintiff asserts this discrepancy did not constitute a failure to qualify for the reasons: (a) R.S. 40:50-5 does not constitute the questionnaire permitted thereby a part of the specifications; (b) there was no requirement that any specific number of trucks must be owned as of the time of submission of the bids, and (c) the equipment requirement was intended to be applicable as of the time of commencement of the work and had plaintiff been accorded a hearing by the authorities it

could have established ability to procure seven packer-type trucks or equivalent ...


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