Goldmann, Freund and Foley. The opinion of the court was delivered by Goldmann, S.j.a.d.
Kingston Bituminous Products Co. (Kingston) appeals from a Superior Court, Law Division judgment dismissing its action in lieu of prerogative writs, and defendant New Jersey Turnpike Authority (Authority) cross-appeals the dismissal of its counterclaim for damages.
On March 21, 1963 the Authority publicly advertised an invitation for bids for Contract No. R-140, calling for resurfacing and other incidental work in various areas between Mile 56 and Mile 63 on the New Jersey Turnpike, located in Burlington and Mercer Counties. In this connection the office of the Authority's chief engineer prepared a brochure giving information governing the bidding, work to be performed, materials to be supplied, general and specific specifications, etc. Both the advertisement and brochure carried the following invitation:
"Proposals will be received at the New Jersey Turnpike Authority, Administration Building, New Brunswick, New Jersey, until 11:00 o'clock Eastern Standard Time, on the morning of April 16, 1963, at which time and place said proposals will be publicly opened and read."
The chief engineer of the Authority presided at the receipt of proposals on April 16. At or before 11 A.M. Kingston's representative, as well as those of three other contractors, submitted their respective bids. At 11:02 A.M. the chief engineer asked if there were any more proposals. None was submitted. He then inquired of the bid supervisor assisting
him whether any bidders were delayed in the lobby or elevator. The bid supervisor replied there were no other bidders. This is all the chief engineer heard, although it would appear that the supervisor said something more. At any rate, the chief engineer announced that bids were closed. The bid supervisor immediately spoke up in a louder voice and informed him that a prospective bidder had been delayed on the Turnpike because of construction operations.
The chief engineer knew that deck-slab replacement operations were in progress at the Passaic River Bridge that day, with resultant extensive traffic tie-ups on the Turnpike as a result of the center lane closings. He therefore at once announced to those present that a bidder had been held up on the Turnpike and that the opening of bids would be delayed a short time until the bidder arrived. Kingston's representative vigorously objected to the receipt of any further proposals. His objection was duly acknowledged and recorded. At about 11:23 A.M. the delayed bidder -- the Ritangela Construction Corporation representative -- arrived, the company's sealed bid was received, and the chief engineer then proceeded with the opening and reading of the proposals. Ritangela's bid was $365,610, Kingston's $375,193. On the same day, Kingston confirmed its objection to the receipt of the Ritangela proposal by both telegram and letter.
Following the opening and reading of the bids, the chief engineer recommended that the contract be awarded to Ritangela. He submitted his recommendation, together with an explanation of all the circumstances attending the opening of the bids, including the objection made by Kingston's representative, to the Authority's executive director. Two weeks later, on April 30, 1963, the Authority formally awarded the contract to Ritangela in the amount of $365,610.
Kingston then filed its complaint in lieu of prerogative writs on May 3, 1963 demanding that (a) the Authority be enjoined from entering into a contract with Ritangela for the work in question; (b) the award of the contract to Ritangela be set aside, and (c) the Authority be directed to
award the contract to Kingston. An order issued the same day, based upon the complaint and a supporting affidavit, ordering the Authority to show cause before the Law Division on May 16 why an injunctive order should not be issued restraining it according to the demand of the complaint until final hearing, and meanwhile enjoining it from entering into a contract with Ritangela. The order to show cause was served at once, but the Authority had only a few hours before executed the contract with Ritangela.
The Authority answered, denying Kingston's contention that the contract had unlawfully been awarded to Ritangela and that Kingston was the lowest responsible bidder. It also counterclaimed, alleging that the contract had been awarded to Ritangela on April 30, and executed at 11:45 on May 3; that Ritangela had at once proceeded to employ additional personnel, order materials and equipment, and commence moving construction equipment to the worksite; that plaintiff knew or should have known of the date when the contract was awarded, but elected to wait until May 3 to file its complaint; that the complaint was palpably defective in that it failed to state a cause of action, and was filed "for the purpose of harassing the defendant and frustrating its construction operations." Further, plaintiff had obtained and served an order to show cause on May 3, and in compliance with that order the Authority had on the morning of May 6 ordered Ritangela to stop all work until noon of that day; and that as a result of plaintiff's actions Ritangela had filed a claim with the Authority for $1,000 damages sustained by reason of the work stoppage.
The matter came on for a full hearing on May 15. At the conclusion of the case the Law Division judge, upon motion by plaintiff, dismissed the counterclaim on the ground that plaintiff's action involved a genuine issue of fact and law, and there was no proof that the complaint had been filed frivolously or for the purpose of harassing or obstructing ...