No. 106: For affirmance -- Chief Justice Weintraub, and Justices Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. No. 107: For reversal -- Chief Justice Weintraub, and Justices Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Weintraub, C.J.
Defendants moved to dismiss the indictment returned against them and the State moved to amend. The trial court refused to dismiss but required the State to elect to proceed upon one of the two counts the indictment contains. The State's motion to amend was denied in part. The Appellate Division granted all parties leave to appeal and we certified the appeals before the Appellate Division considered them.
The indictment is for conspiracy in violation of N.J.S. 2 A:98-1. The first count is based upon subsection "h" which denounces a conspiracy to commit an act for the perversion or obstruction of "the due administration of the laws." The statute, the due administration of which is charged to be the subject of the conspiracy, is R.S. 58:14-22.
It requires the Passaic Valley Sewerage Commission to resort to competitive bidding with respect to work or materials involving an expenditure in excess of $2,000. Pursuant to that act the Commissioners called for bids. The charge is that the five named defendants agreed in advance as to which of the companies they represented would bid and in what amounts. The second count alleges a conspiracy to obtain moneys by false pretenses in violation of subsection "f" of N.J.S. 2 A:98-1, the false pretense being that the bids submitted were "competitive bids" whereas in fact they were the product of the agreement to submit bids which the defendants had collectively prearranged.
Each count alleges the same overt acts. In essence they aver the submission by George Brewster & Son, Inc., of bids of $4,998,450 and $5,024,450 upon specified alternate bases and the submission by Terminal Construction Corp. of bids in the respective amounts of $5,125,180 and $5,130,180; that an award was made to the Brewster company which then assigned the contract to a certain joint venture using the trade name of Geo. M. Brewster & Son, Inc. -- Constructors; that under the assignment the Brewster company retained a 25% interest with a like interest going to La Fera Contracting Co., Inc., and the remaining 50% interest going to Joseph Miele Construction Co., Inc., and C. Salvatore & Sons, a partnership; and that the assignment was closely followed by the execution of an agreement between the joint venture and Terminal Construction Corp. whereby Terminal acquired a 30% interest in the basic contract. Thus Brewster, the successful bidder, remained with a 25% interest, further reduced by the overall 30% interest of Terminal, the other company which had submitted a bid in furtherance of the alleged conspiracy.
The two counts actually charge but a single conspiracy, the ultimate object of which was to obtain the contract under the guise of competitive bidding, thereby to receive more money than might be paid under a contract ensuing from true competition.
It is well preliminarily to restate the principles by which a challenge to the adequacy of a criminal charge must be measured.
A charge must sufficiently identify the criminal event to enable the accused (1) to defend and (2) to defeat a subsequent prosecution for the same offense. State on Complaint of Bruneel v. Bruneel, 14 N.J. 53, 60 (1953). This is so with respect to every mode of charging a crime whether by accusation or indictment, by reason of the demands of due process of law and the guarantee against multiple exposure for the same offense. The constitutional right to indictment adds another, distinctive safeguard, to wit, that no man shall be brought to trial for crime unless a grand jury shall first find sufficient cause for the charge. State v. DiPaolo, 34 N.J. 279, 285 (1961); State v. Williamson, 31 N.J. 16, 18 (1959) (concurring opinion). Hence the indictment must allege all the essential facts of the crime, lest an accused be brought to trial for an offense the grand jury did not find. The provision of R.R. 3:4-3(a) that an indictment or accusation shall contain "the essential facts constituting the offense charged" reflects, so far as indictments are concerned, the mandate of the constitutional right to indictment, as does also the provision of R.R. 3:4-5 that an amendment may not "charge another or different offense." State v. Grothmann, 13 N.J. 90 (1953).
Pleading is never an end in itself. It is merely the vehicle for the merits of a controversy. The vehicle is sufficient if it informs with fairness, and in the case of an indictment the critical criteria are those we have just outlined. If an indictment satisfied those demands, the charge is sufficiently stated. An indictment should not be dismissed unless its insufficiency is palpable. State v. Weleck, 10 N.J. 355, 364 (1952).
As we have said, the indictment charges defendants conspired to prevent and obstruct the due administration of the bidding statute, R.S. 58:14-22. That statute requires advertisement and provides the proposals received at the designated time and place "shall be publicly opened," and the contract awarded "to the lowest responsible bidder." The purpose of the statute is plain enough -- to obtain the lowest responsible bid which uninhibited competition can produce. "The purpose is to secure competition and to guard against favoritism, improvidence, extravagance and corruption. Statutes directed toward these ends are for the benefit of the taxpayers and not the bidders * * *." Hillside Tp., Union County v. Sternin, 25 N.J. 317, 322 (1957).
The nub of defendants' position is that a conspiracy cannot subvert the bidding statute unless it reduces the number of bids which would have been submitted. Upon that premise, defendants say a combination of persons to bid as a unit is not necessarily invidious since it may be that none would have bid for want of resources or for fear of overwhelming loss. Hence, it is argued, a mere agreement to unite is consistent with innocence, and thus no crime is charged unless there is alleged a purpose to induce a member of the combination to refrain from submitting a bid he had planned to make.
The error of the argument resides in the assumption that the object of a bidding statute may be defeated only by the removal of a potential bidder. Quite obviously that is but one way to interfere. Still another is the creation of the pretense of competition where in fact there is none. The thesis of the bidding statute is that competition will reveal the fair value of the work and thus guide the public agency to a decision whether to make an award or to readvertise. Collusive bids cloak the lowest among them with a robe of reasonableness, likely and indeed calculated to induce the public body to accept a bid in excess of its own estimate.
The natural tendency of an agreement of ostensible competitors to submit predetermined bids is thus to deceive and to subvert the administration of a bidding statute, and an agreement to that end is itself illegal whether it succeeds or fails and whether it does or does not influence the decision to award. 6 Corbin, Contracts § 1468, p. 849 (1951); 43 Am. Jur., Public Works and Contracts § 33, p. 774; McMullen v. Hoffman, 174 U.S. 639, 19 S. Ct. 839, 43 L. Ed. 1117 (1899); United States v. Amster, 273 F. 532 (D.C.E.D.N.Y. 1921); Morgan v. Gove, 206 Cal. 627, 275 P. 415, 62 A.L.R. 219 (Sup. Ct. 1929); People v. Strauch, 240 Ill. 60, 88 N.E. 155 (Sup. Ct. 1909); Atcheson v. Mallon, 43 N.Y. 147 (Ct. App. 1870); City of Wichita Falls v. Skeen, 18 Tex. Civ. App. 632, 45 S.W. 1037 (Civ. App. 1898); Kimball Elevator Co. v. Elevator Supplies Co., 2 Utah 2 d 289, 272 P. 2 d 583 (Sup. Ct. 1954); see Gulick v. Ward, 10 N.J.L. 87, 93 (Sup. Ct. 1828); Houston v. United States, 217 F. 852 (9 Cir. 1914), certiorari denied 238 U.S. 613, 35 S. Ct. 284, 59 L. Ed. 1490 (1915); People v. Olson, 15 N.Y.S. 778 (Super. Ct. 1891).
Such agreements are condemned by N.J.S. 2 A:98-1. The indictment here alleges a conspiracy of that stamp. It does not charge merely that a group united to submit a single bid. Rather it charges defendants agreed "in advance of bidding on said contract [to be awarded by the public agency] which companies represented by them would bid on said contract, and in what amounts." The words we have italicized are plural. Hence there is charged an agreement to submit a number of bids in amounts upon which all had agreed, a course which, as we have said, involves the pretense of competition. The indictment then under "Overt Acts" alleges that "in execution of the aforesaid conspiracy and to effect the objects thereof," both the Brewster company and ...