[47 NJSuper Page 103] The complaint of plaintiff Murdock Contracting Co., Inc. (hereinafter designated "Murdock") is filed in lieu of prerogative writ (certiorari) and demands judgment that defendant Borough of Verona (hereinafter designated "Verona"): (a) accept a certain bid of the plaintiff; (b) be directed to enter into a contract with plaintiff for such work; (c) be enjoined and restrained
from entering into a contract with defendant and thirdparty plaintiff, Philip Leone (hereinafter designated as "Leone") as a bidder for said work, and (d) pay costs.
Verona by answer denies Murdock's cause and in the manner of separate defenses avers: (1) Murdock did not comply with the requirements at the time of bidding, to wit: to submit proof of ability to furnish a performance bond; (2) Verona legally rejected the Murdock bid because of the aforesaid failure; (3) Murdock's said failure was a substantial variance of conditions set up for full compliance by all bidders, and (4) Verona acted under the controlling law and statute.
Leone, as intervenor, by answer also denies Murdock's cause and similarly avers the aforesaid defenses of Verona. In addition, Leone avers Verona properly accepted his bid as a successful bidder under full compliance of all conditions.
Furthermore, Leone filed his third-party complaint demanding judgment for: (a) affirmance of Verona's rejection of the Murdock bid; (b) direction to Verona to enter into a contract with Leone for said work pursuant to his bid; (c) counsel fees and costs, and (d) other relief. By answer to the third-party pleading Murdock and Verona respectively restate the substance of their previous affirmative and answering pleading.
Now Verona, on notice of motion and affidavit, applies for summary judgment against Murdock for dismissal of the complaint. By written stipulation of counsel thereafter filed all parties ask the court to consider all questions involved and render summary judgment in favor of and against any one or more of the three parties to this litigation. Said joined application, following the filing of briefs and oral arguments, was accordingly submitted.
The nonexistence of a genuine issue as to any material fact and that one of the named parties herein is entitled to a judgment on the law will appear in the following recited circumstances:
Verona desiring to erect a garage and storage building duly advertised for bids for (1) electrical work, (2) structural
steel, and (3) building construction. Murdock, Leone and three others bid on the third item. The other items are not here involved.
As set forth in the advertisement, sealed bids were to be received by Verona at its meeting on Tuesday, June 15, 1957. In the form advertised plans and specifications for the work were made available as were copies of the contract documents. All bids were to be submitted in form provided by Verona and if not, were subject to rejection. Each bid was to be accompanied by a certified check or cash of not less than 10% of the amount thereof to insure the signing of the contract. Also, the governing body of Verona reserved the right to accept or to reject any or all bids.
Pertinent conditions of bidding for all bidders were contained in a form entitled "Notice to Bidders." Therein (but not contained in the advertisement) it was provided as a condition of bidding the submission of proof of bidder's ability to furnish performance bond. It is essential that the terms ...