Kolovsky, Lynch and Lora. The opinion of the court was delivered by Kolovsky, P.J.A.D.
Defendant township advertised for bids for paving of a portion of Canistear Road with a bituminous concrete surface upon an existing foundation, the advertisement stating that the "estimated amount of bituminous surface required is 1420 tons."
Bids were received by the township committee on September 23, 1974. The bid of plaintiff D. Stamato & Co., Inc., at a unit price of $15.15 a ton for a total of $21,513, was the lowest of the four bids submitted. However, the township committee rejected that bid and adopted a motion awarding the contract to the next lowest bidder, defendant Intercounty Paving, Inc. (Intercounty), whose bid was $15.30 a ton, or a total of $21,726 "because of dissatisfaction with the last performance of D. Stamato & Co. Inc."
Plaintiff then instituted this action to set aside the award of the bid to Intercounty and to require the township to award the contract to it. On the return day of the order to show cause with restraints which issued on the filing of the verified complaint, the judge continued the restraints and ordered the township "to conduct a hearing on October 21, 1974 to determine whether plaintiff is the lowest responsible bidder."
At the conclusion of the October 21 hearing before the township committee it recessed its meeting to October 23, 1974 "to render our decision." The minutes of the township committee's meeting of October 23 contain no findings as to the responsibility of plaintiff except that to be inferred from the only action taken, the passage of a motion awarding the contract to Intercounty, the "second lowest bidder," and authorizing the mayor and clerk to sign the contract which had already been signed by Intercounty.
The parties returned to the trial court on October 24, 1974. After hearing argument -- although a transcript of the hearing of October 21 was not yet available -- the judge ruled that there was no showing of any abuse of discretion by the township committee. A final judgment in defendant's favor was entered, embodying a restraint against the performance of any work until October 25 in order to enable plaintiff to apply to this court for a stay.
Plaintiff filed a notice of appeal and applied for a stay. The stay was granted on condition that the filing of briefs be expedited so that the appeal might be argued on its merits, as it was, on November 6, 1974.
At the outset, we are satisfied that there is no merit to the township's contention that since July 1, 1971, the effective date of "Local Public Contracts Law," N.J.S.A. 40A:11-1 et seq., a municipality required to advertise for bids need no longer award the contract to the lowest responsible bidder and may, in its discretion, award the contract to a higher bidder.
It is conceded that the contract here involved is not one excepted from the bidding requirements of N.J.S.A. 40A:11-4, which provides in pertinent part:
Every contract or agreement, for the performance of any work or the furnishing or hiring of any materials or supplies, the cost or the contract price whereof is to be paid with or out of public funds, * * * shall be made or awarded only after public advertising for bids and bidding therefor * * *. No work, materials or supplies shall be undertaken, acquired ...