Conford, Freund and Haneman. The opinion of the court was delivered by Haneman, J.A.D. Conford, J.A.D. (concurring).
[62 NJSuper Page 478] Defendant D. Stamato & Co., Inc. (Stamato) appeals from a judgment of the Law Division in favor of plaintiff, a citizen and taxpayer of the Borough of Cresskill (borough), setting aside a resolution of said borough awarding a contract for the construction of a section of a municipal sewer system to it.
Prior to October 7, 1959 the borough advertised for bids for the sewer project. Under the terms of the specifications, each bidder was required to submit unit price bids on 34 of the 35 items involved in the work to be done. The quantities required for the items were estimated. The total price, computed by multiplying the estimated quantities by the unit price bid, formed the basis for a comparison to determine the low bidder. The "Information for Bidders" provided:
"If so ordered by the Engineer, timber sheeting and bracing shall be left in place to avoid undermining or otherwise endangering the work or adjacent structures."
"Well-points are to be used only with the written approval of the Engineer."
In relation to balanced bidding it was provided that:
Any bid which, in the opinion of the Engineer, is obviously unbalanced, may be rejected. Where such unbalanced bids are not rejected the Borough may at its discretion for purpose of partial payment pay actual cost plus 15%, the difference between the partial payment price and the bid price shall become payable at the time of the final payment."
One of the items included in the specifications, rock excavation, was estimated to require the removal of 2,100 cubic yards for which, unlike the other 34 items listed in the specifications, a predetermined unit price of $20 per cubic yard was fixed by the borough. Hence, all bids submitted necessarily included the figure of $42,000 for rock excavation.
On October 7, 1959 Stamato submitted an overall total bid of $668,774.67. M.Q.M. Construction Co. (M.Q.M.) submitted the second lowest bid of $680,349.50. For two of the items on which unit price bids were required, i.e. ,
timber sheeting to be left in place, and for well-pointing, Stamato and M.Q.M. bid as follows:
D. Stamato M.Q.M. Constr.
Item Description Unit-Amount Unit-Amount
in place (417 MFBM) .01-$4.17/ $200-$83,400
ft.) .01-97.00/ 2- 19,400
lin. ft.) .01-11.00/ 6- 6,600
It is admitted that the actual unit cost of these items is substantial and the bids by Stamato merely nominal.
On October 13, 1959, M.Q.M. sent a letter to the Mayor and Council of Cresskill protesting the award of the contract to Stamato. When, on October 20, 1959, all bidders were granted the opportunity to be heard on the protest, only counsel for defendant and M.Q.M. appeared. Following the hearing, the mayor and council, by resolution, awarded the contract to defendant. M.Q.M. originally joined with the plaintiff herein in an effort to set aside the municipal action. However, in recognition of the fact that it is now well settled that an unsuccessful bidder has no standing to attack the specifications, Camden Plaza Parking v. City of Camden , 16 N.J. 150 (1954), M.Q.M. consented to a dismissal as to it.
Plaintiff's complaint contested the validity of the award of the contract upon the grounds that (1) Stamato's bids for sheeting and well-pointing constituted unbalanced bidding, and (2) the fixed price for rock excavation was violative of N.J.S.A. 40:50-1. The pretrial order does not mention the well-pointing.
Plaintiff conceded that there was no fraud or collusion between Stamato and any of the borough officials.
The trial court found for plaintiff principally upon a conclusion that the specifications did not set up a common
standard for competition in relation to the sheeting to be left in place and the well-pointing, adverting to the difference in the unit prices bid for these items by Stamato and M.Q.M.
Plaintiff argues for affirmance upon the grounds that, (1) Stamato furnished an unbalanced bid, by its prices for sheeting left in place and well-pointing, which is of such a nature as to be conducive to fraud and collusion, and (2) the set price for rock excavation violates N.J.S.A. 40:50-1. (Defendant municipality asks that all issues ...