Kole, J.c.c. (temporarily assigned).
Plaintiffs, a taxpayer of Fort Lee and the second lowest bidder, instituted this action in lieu of prerogative writs for an order (1) declaring invalid defendant borough's rejection of all bids received on August 10, 1966 pursuant to its invitation to bid dated August 1966 for work in connection with the improvement of Abbott Boulevard; (2) requiring defendant to award plaintiff a contract therefor as the lowest bidder who conformed to the specifications, and (3) enjoining defendant from re-advertising for new bids on the job or awarding a contract to anyone after such re-advertisement. On September 2, 1966 I issued an order, pursuant to plaintiff's application, restraining defendant only from awarding a contract after re-advertisement pending determination of the action. The borough subsequently re-advertised on the basis of the same proposal and specifications, and received bids on September 14, 1966 pursuant thereto, but has not awarded a contract thereunder because of the restraint.
Plaintiff then moved for summary judgment, contending that the lowest bidder, Giovanni Asphalt Company, on the first bidding did not conform to the specifications with respect to rock excavation. Defendant made a cross-motion for summary judgment. The specifications provided for a " minimum bid price for rock excavation * * * at eight ($8.00) dollars per cubic yard" (emphasis supplied). Giovanni bid $5 per cubic yard; plaintiff bid $18 per cubic yard. The total
amounts bid, according to the estimates of rock excavation and other variable items, made by the borough engineer and given in the bid proposal, were as follows: Giovanni -- $17,965; plaintiff -- $18,193. The total amounts bid by other bidders exceeded plaintiff's.
The borough rejected all bids under an express reservation of the authority to do so in its instructions to bidders, because, among other reasons, Giovanni's rock excavation bid was below the specifications minimum and to accept the next second lowest bid -- plaintiff's -- "might not be obtaining the most advantageous proposal which would be in the best interests of the community."
Plaintiff claims defendant could not reject all bids and was required to award the contract to it as the lowest bidder who complied with the specifications.
The proposal for bidding estimated the amount of rock to be excavated at 240 cubic yards. But paragraph 21 of the "Instructions to Bidders" warns them that this estimate is approximate only, "being given as a basis for the uniform comparison of bids, and the Board does not expressly or by implication agree that the actual amount of work will correspond therewith"; and paragraph 22 requires bidders to satisfy themselves by personal examination of the proposed location of the work, or otherwise, as to the accuracy of the estimates.
It is clear from the proofs that if the quantity of rock were actually more or less than 240 cubic yards, the total price to the borough would increase or decrease by an amount equal to the unit price bid per cubic yard multiplied by the excess over, or deficiency in, the estimated 240 cubic yards. Hence, the one who appears to be the low bidder in total price may in fact, after the job is done, be a high bidder; and the converse may also be true.
The rationale for permitting unit bidding for a variable uncertain item such as rock excavation has been stated as follows (Armaniaco v. Borough of Cresskill, 62 N.J. Super. 476 (App. Div. 1960)):
"Defendants maintain that the municipality must fix the unit price of an item as uncertain as rock excavation or face the possibility of financial catastrophe. The argument proceeds as follows: Unit price bidding and unbalanced bidding are now permitted by law; the risk is that a successful overall low bidder will submit an extremely high unit price for rock excavation, compensating therefor with low bids on other items; if the amount of rock actually encountered ...