On appeal from Commissioner of Transportation.
Fritz, Bischoff and Morgan. The opinion of the court was delivered by Morgan, J.A.D.
Notified on February 1, 1978 that its bid for a project known as "For the Construction of Bayonne Park, Lincoln Park and James J. Braddock-North Hudson Park Bikeway System, Hudson County Federal Project No. BW-M-OOS(146), D.O. #375," was the lowest bid submitted and that it was being awarded the job, Massare Brothers nonetheless delayed submission of the executed contract and performance bond well past the ten-day period from the date of award permitted in the bid specifications. The admitted fact was that those documents were not delivered to the Department of Transportation until March 16, 1978. Following a hearing held on the ensuing challenge by appellant Marsellis-Warner Corporation, the next lowest bidder on the job, the hearing examiner recommended that the award to Massare Brothers be nullified and be given instead to appellant. The Commissioner of Transportation. however, declined to follow this recommendation, directed execution of Massare's contract, and this appeal followed. The issue raised herein concerns the materiality and consequent waivability of the requirement in the bid specifications that submission of the executed contract and bond be made not later than ten days following the award. A finding of materiality normally precludes waiver of the requirement; a contrary finding permits waiver of a violation of that requirement.
The facts are free from dispute and are drawn primarily from the testimony at the hearing held in response to appellant's challenge to the award and the findings of fact based thereon. They disclose that bids on the project were received by the Department of Transportation on December 15, 1977 and were opened on that date in the presence of Thomas Massare, one of the two partners of Massare Brothers,
who thereby obtained knowledge that their bid at $130,260.50 was the lowest, the next lowest bid being the one submitted by appellant Marsellis-Warner at $147,475.88. Formal notification to Massare Brothers that it was being awarded the job was made by letter dated February 1, 1978 containing specific instructions that Item 1.3.5 of the Standard Specifications required return of the executed contract and bond "within ten working days after the date of the Award." Although this notification was mailed on February 1, 1978 (certified mail, return receipt requested), the letter was not actually received until February 13, 1978 when Thomas Massare finally picked up the letter at the post office. Quite obviously, the daily monitoring of incoming mail was not part of Massare's office routine. Notwithstanding admitted receipt of the letter on that date and the clear instructions contained therein concerning time limitations on the return of the executed contract and bond, no action to comply was taken until more than a month later. During this period of inaction Joseph S. Oswald, Chief, Bureau of Contract Administration, attempted several times to reach the Massares by telephone. Calls were placed on February 14, 16, 22 and 27, and finally on March 1, 1978. On each occasion Oswald reached Massare's answering service, was advised that the Massare brothers were on vacation, and that the call would be returned. None of them was.
Accordingly, Oswald wrote another letter on March 1, 1978, again advising the Massares of the necessity of returning the executed contract and bond and, incidentally, recounting his unsuccessful efforts to reach them by telephone. This letter, originally sent to a wrong address, was remailed correctly on Friday, March 8, 1978. It was received on Monday, March 10, 1978, when Thomas Massare picked it up at the postoffice. On March 13, 1978 Massare telephoned Oswald and on March 16, 1978 finally delivered the overdue contract and bond. In a letter submitted with these documents Thomas Massare advised that the delay in the submission was "due to the fact that I have been away on vacation and
just returned," a fact later shown to be untrue. Following receipt of this letter Oswald immediately notified Jack Friedenrich, Director of Engineering and Operations (State Highway Engineer), that the contract and bond had been received; Friedenrich directed that the contract be executed and that appellant Marsellis-Warner be advised of that fact. Appellant, who had previously been placed on a stand-by notice by reason of Massare's delay, lodged a challenge to the award, thus precipitating the hearing to which reference has already been made.
At the hearing the reasons for the delay were explored. It turned out that Thomas Massare had been in Puerto Rico on vacation during January and in Martinique during the beginning of February 1978. He had, of course, returned by February 13, 1978 when he picked up Oswald's first letter. His subsequent inaction on the contract was sought to be explained by a mental depression from which he was suffering, which caused him to do little if anything concerning his business. His brother Anthony was given little or no information concerning the pendency of the award despite the admitted fact that Thomas knew as of December 1977 that the partnership was the low bidder on the job. Anthony was given no responsibilities with respect to office administration and was apparently not even required to pick up mail or check on incoming calls with the firm's answering service. In any event, it was not until Oswald's second letter was received that Thomas Massare was moved to action. At the hearing he evinced his enthusiasm for the job and testified that his mental state had improved to the point where he would be able to undertake it.
The hearing examiner's findings of fact, which mirrored the foregoing recitation, concluded with the following observations and recommendations:
Massare's illness does not adequately explain the extent of the delay, nor the absence of any communication to the Department prior to March 13, 1978. ...