Lora, Crane and Michels. The opinion of the court was delivered by Michels, J.A.D.
This appeal is taken from a judgment of the Chancery Division which, in part, declared that a New Jersey "Buy American" statute, to wit N.J.S.A. 52:33-2, as incorporated in the addendum of the specifications relating to Contract W-76, Wanaque Filtration Plant, conflicts with the General Agreement on Tariffs and Trade (GATT) and the Supremacy Clause of The United States Constitution and is unconstitutional,*fn1 but, nevertheless, held that the bids submitted in accordance with such specifications were binding, and ordered that they be received and opened by defendant North Jersey District Water Supply Commission (Commission). The factual and procedural background and the issues raised in the Chancery Division are recounted in the opinion of that court and need not be repeated in detail here. See 150 N.J. Super. 533.
Briefly, plaintiffs, K.S.B. Technical Sales Corp., a wholly-owned subsidiary of a West German manufacturer of pumps and pumping equipment, and Linda Fazio, also known as Sieglinde Fazio, a taxpayer and resident of the City of Clifton, instituted this action seeking a declaration that New Jersey's "Buy American" statutes, N.J.S.A. 40A:11-18, N.J.S.A. 52:32-1, and N.J.S.A. 52:33-2, are unconstitutional and against public policy, and an order striking the following "Special Requirement" from Addendum No. 1 to the Specifications for the Wanaque Filtration Plant (Contract W-76):
Use of American Manufactured Products:
Only manufactured products of the United States, wherever available, shall be used in the work in accordance with municipalities and counties Local Public Contracts Law N.J. 40A:11-18.
Plaintiffs also sought to enjoin the Commission from receiving and opening the bids submitted in accordance with this Special Requirement.
The trial judge held that the New Jersey "Buy American" statutes do not conflict with the Commerce Clause of the United States Constitution and therefore are not facially unconstitutional. However, the court held that N.J.S.A. 52:33-2, as incorporated in the addendum to the specifications, conflicts with the General Agreement on Tariffs and Trade (GATT) and the Supremacy Clause and is unconstitutional. Notwithstanding this declaration rendering the specifications for the work unlawful and void, the court, as a result of "balancing the equities" in the case, ordered the Commission to receive and open the bids submitted in accordance with the specification, and held that these bids were binding upon the Commission. Plaintiffs appealed, and the Commission and the intervening defendants Terminal Construction Corporation (Terminal) and the State of New Jersey (State) cross-appealed. We accelerated the appeal pursuant to R. 2:9-2.
Plaintiffs contend on appeal that the trial judge erred in not holding the "Buy American" statutes unconstitutional on their face under the Commerce Clause of the United States Constitution. We disagree. We are convinced that the judge correctly determined that the three New Jersey Buy American statutes, to wit: N.J.S.A. 40A:11-18, N.J.S.A. 52:32-1 and N.J.S.A. 52:33-2, do not conflict with the Commerce Clause and therefore are not facially unconstitutional. Moreover, we are in accord with his determination that (1) the Commission is a public body, and that the work to be performed in constructing the Wanaque filtration plant is a public work within the meaning of N.J.S.A. 52:33-1, and therefore plant construction contracts are governed by the provisions of N.J.S.A. 52:33-2, and (2) in the context of this case the applicable "Buy American" statute incorporated in the addendum to the specifications requiring that "Only manufactured products of the United
States, wherever available, shall be used in the work" conflicts with GATT and the Supremacy Clause of the United States Constitution and is therefore unconstitutional. Accordingly, we affirm those portions of the judgment of the Chancery Division essentially for the reasons expressed by Judge Ciolino in his written opinion. See 150 N.J. Super. at 533. However, we deem it appropriate to add the following reasons for affirming the declaration of unconstitutionality of the applicable "Buy American" statute under the Supremacy Clause.
Part II, Art. III, par. 2 of the 1947 General Agreement on Tariffs and Trade provides that products imported into the territory of a signatory country from another "shall be accorded treatment no less favorable than that accorded to like products of national origin in respect to all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution, or use." An exception dealing with the use of imported materials by government agencies appears in par. 5 of the same Article. It provides:
The provisions of this Article shall not apply to the procurement by governmental agencies of products purchased for governmental purposes and not for resale or use in the production of goods for sale . . . .
Plaintiffs and Terminal contend that a conflict exists between these provisions and N.J.S.A. 52:33-2, and that consequently the New Jersey statute is invalidated by operation of the Supremacy Clause, U.S. Const. Art. VI, cl. 2. The State, on the other hand, contends that (1) the provisions of GATT are inapplicable since the challenged pumps are not used in the "production" of "goods" ...