Leonard, Seidman and Bischoff. The opinion of the court was delivered by Leonard, P.J.A.D.
Plaintiff in this action in lieu of prerogative writs seeks to set aside a resolution of defendant Essex County Park Commission (Commission), dated March 14, 1973, awarding defendant Good Humor Corporation (Good Humor) the right to sell ice cream and related refreshments throughout the Essex County Park system and to declare null and void the March 30, 1973 contract entered into between them pursuant to said resolution.
The factual and procedural background is fully set forth in the opinion of the trial court reported at 126 N.J. Super. 301
(Law Div. 1974), and no useful purpose will be served by a full repetition thereof. We merely note that the record indicates that the Commission received informal bids from plaintiff and Good Humor. The former offered to pay 16% commission of gross sales and the latter 12 1/2%. The Commission, following a "review and evaluation" by its superintendent of recreation and his assistant, determined that Good Humor "would best serve the needs of the Commission and the public." Accordingly, Good Humor's proposal was accepted and a three-year contract was awarded to it. Plaintiff's request for a Commission hearing was denied.
Following a trial upon stipulations, affidavits, depositions, exhibits and memoranda of law, plaintiff appeals from a judgment of dismissal of its action.
The central issues involved on this appeal are (1) whether the Local Public Contracts Law (N.J.S.A. 40A:11-1 et seq.) applies to the Commission, and (2) if it does, whether this law is applicable to the instant contract.
Section 3 of the law (N.J.S.A. 40A:11-3) provides that "a contracting unit" may make, negotiate or award a contract, as therein described, which does not exceed in the aggregate the sum $2500 in a fiscal year, without public advertising for bids and bidding therefor. On the other hand, § 4 (N.J.S.A. 40A:11-4) mandates that every such contract, not included in § 3, "shall be made or awarded only after public advertising for bids and bidding therefor."
Section 2 (N.J.S.A. 40A:11-2) of the law includes among "Definitions" the following:
(1) "Contracting Unit" means
(c) Any board, commission * * * department, branch, * * * of any county * * *.
It is conceded that the Commission was created pursuant to N.J.S.A. 40:37-96 to 174 and that it consists of five members appointed by the ...