For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None.
The Director of Purchase and Property, Department of the Treasury, advertised for bids for the moving of the Department of Agriculture and the Department of Health from their then existing quarters to the new Health-Agriculture Building, John Fitch Way, Trenton, N.J. No requests for the bid proposal forms were received in response to the advertising. Thereafter, on February 24, 1965 invitations to bid and bid documents were sent to various movers who had submitted bids to the State on prior occasions. There was a separate proposal form for each moving project and separate bids were expected. The bid proposal forms made attendance mandatory at a pre-bid briefing and "walk-around" session to familiarize prospective bidders with the locations involved and property to be moved.
Appellant's president, Donald S. Hubsch, attended the walk-around, along with representatives of the Director and a number of potential bidders. Joseph W. Seaman of the Purchase Bureau conducted the activities and the meeting for the Director. According to his affidavit and the stenographic notes of the meeting, he announced to all present, including appellant's president (who, he said, was seated about eight feet away at the time), that the Director reserved the right to award a combined contract for the two moves, viz. Department of Agriculture and Department of Health. He emphasized, however, that separate bids were required for accounting purposes. Appellant's president deposed that he had no recollection of any such announcement.
In due course nine bidders made individual bids for each of the two moving contracts. The bids of Hubsch Company and Petry Express and Storage Company were:
Dept. of Agriculture Dept. of Health
Petry's over-all bid of $31,598 was the lowest of all bids submitted for the combined moves.
After conferences with members of his staff, and also with the State Treasurer, the Director concluded, with the approval of the Treasurer, that the interests of the State would be best served by awarding both contracts to one mover. In this way it was felt that possible confusion or lack of coordination, if two movers were utilized, would be avoided. Accordingly the Director instructed his deputy to notify Petry that its combined low bid would be accepted. The deputy communicated with Petry Company informing it of the probable award of the contract to it on a combined basis, and suggested a possible reduction in the total bid because of savings in overhead if it performed both moving projects. Petry agreed to accept a combined price of $30,000.
The moving was scheduled to begin April 12, 1965. On March 30 appellant received written notification from the Director informing it that its bids were being rejected and that a single contract for both moves was being awarded to Petry, since its over-all bid was the lowest. Hubsch was given an invitation to communicate with the Director if there were any questions about the decision.
A conference was requested by Hubsch and held on April 8. It was attended by the Director, Deputy Director, Joseph W. Seaman of the Purchase Bureau, and a member of the Attorney General's staff, also by Mr. Hubsch, the sales engineer of his organization and his attorney. The reasons, as noted above, for the award of the single contract for both moves to Petry as the lowest combined bidder were explained. It developed at the conference that when Hubsch bid for the work, its interest was only in the Department of Agriculture move. Consequently, it intentionally overbid by $20,000 on the Department of Health job, a device of which the Director indicated his disapproval.
When the Director declined to change his decision, Hubsch unsuccessfully sought a preliminary restraint against the handling of the two moves under the single contract and the award of the ...