Conford, Kilkenny and Leonard. The opinion of the court was delivered by Leonard, J.A.D.
In this breach of contract action defendant County of Bergen (county) appeals from a judgment entered against it by the court, without jury, in the sum of $9,339. The only issue here involved is that of liability, the parties having agreed upon the amount of damages.
The basic facts are not disputed. On January 10, 1967 the county, through its board of chosen freeholders (board), caused to be advertised a "Notice to Bidders" to submit sealed bids for, among other things, the furnishing and delivery of "High Octane 100 Plus Gasoline, Various County Department & Municipalities " (emphasis added). The notice advised that "Proposal Forms and Specifications" might be obtained from the county's purchasing agent and that "no bid will be considered unless made upon the 'Proposal Form' supplied by the County."
This "Proposal Form" required the bidder to submit a separate bid for the county's gasoline requirements and eight other separate bids for the requirements of each of eight designated municipalities located in Bergen County. The bidder was requested to state a "Firm Price Per Gallon" and a "Lump Sum Price" for the county and for each of the eight municipalities. There was no indication on the form that the same "price per gallon" be submitted for the county and the municipalities.
Of importance are the following three provisions contained in the county's "Proposal Form."
"The County of Bergen is responsible only for its own requirements as outlined in the bid. In the case of the municipalities included in this bid, the successful bidder will enter into a separate contract. The County will not be responsible for any municipal obligations, either for payment or otherwise."
"Deliveries cannot be made by the successful Bidder to any Municipality until said municipality enters into an agreement with the County by Ordinance permitting the said County to bid on its requirements."
"If, in the opinion of any Municipality participating in this bid, the prices quoted are not acceptable, as to the entire bid or any portion thereof, said municipality has the right to reject same."
On February 7, 1967 plaintiff and two other bidders submitted bids, all on the county's "Proposal Form." Plaintiff offered to supply the required gasoline for the county and for seven of the municipalities (it made no bid for the Borough of Northvale) for a total price of $92,153.85. Plaintiff offered to supply 466,950 gallons to the county for $0.1348 per gallon, a total lump sum bid of $62,944.86, and to supply the requirements of the respective municipalities at various, but higher, prices per gallon.
Each of the other two bidders offered to supply the needs of the county and each of the eight designated municipalities at a uniform price per gallon. One bid $0.1379 and the other $0.1597. The former's lump sum bid to the county was $64,392.41 and the latter's $74,571.92.
On March 3, 1967 the executive administrator of the board of the county wrote to ...