On appeal from the Department of Transportation.
Matthews, Ard and Polow. The opinion of the court was delivered by Matthews, P.J.A.D.
Because of a dispute as to payment under a contract between appellant Frapaul Construction Co., Inc. (Frapaul) and respondent State of New Jersey, Department of Transportation (DOT), Frapaul submitted a claim to the DOT by letter. Frapaul's claim was considered by the DOT's Claims Committee and denied, and that decision was approved by the Deputy Commissioner. This appeal followed.
The DOT awarded a contract to Frapaul on June 23, 1977 for certain construction work on sections 4F and 4H of Route 20 in the City of Paterson, County of Passaic. The contract consisted of the New Jersey State Highway Department's Standard Specifications for Road and Bridge Construction , 1961, and the supplementary specifications and addenda thereto.
Addendum No. 1 to Article 1.4.3 provided that 3,200 linear feet of portable curb was required as part of the system for the maintenance and protection of traffic. This system was in effect during all stages of the construction. In addition, the first plan sheet states the contract quantity of this curb to be 3,200 linear feet. The project, which consisted of four separate stages, required curb placement and relocation in the first three stages.
After Stage II placement of the curbing, Frapaul contested the DOT's contract quantity of 3,200 linear feet. As a result of a dispute over the quantity of curbing for which payment was due, Frapaul presented a claim to the DOT. Consideration of Frapaul's claim occurred through the DOT's Claims Committee as provided for in N.J.A.C. 16:33-2.1 et seq. The Committee, composed of various DOT personnel, solicits the explanation of
contractor claims submitted under the standard and supplementary specifications and allows questioning by the DOT to better define the claims. As a result of reviewing the project file, listening to the contractor's position and discussing the matter, the Committee decides whether or not to recommend approval of the claim to the Commissioner.
Here, the amount of 3,200 linear feet of portable curb was apparently sufficient for the entire project due to the fact that portions could be removed and relocated as the project progressed through its stages. Portions placed in one stage were not required to remain in place during the entire project and could be utilized in later stages. Frapaul concedes that only 3,200 linear feet of curbing had to be purchased for the project. However, since the total curbing actually put in place for the three stages totaled 6,318 linear feet as measured on the plans, Frapaul based its costs for approximately 6,300 linear feet of curbing. It was Frapaul's position that its bid price did not include costs for furnishing a lesser amount of curbing at various locations throughout the project.
The Claims Committee reviewed the facts, both on its own and with Frapaul. After deliberating, the Committee voted unanimously to deny the claim based on the quantity and payment provisions of the supplementary specifications.
Prior to 1970 the State was protected from actions in contract and tort by sovereign immunity. In 1970, however, the Supreme Court abolished the common law sovereign immunity of the State in contract actions. P, T & L Constr. Co. v. Transportation Dep't Comm'r , 55 N.J. 341 (1970). In doing so the court made reference to the availability of a forum to entertain those claims:
Obviously there should be an established forum in which all such claims may be presented as of right and upon known principles. The judiciary of course is able to meet that need. This is not to say that another tribunal would be unsuitable. The point is that a court of claims has not been created, and until one is established, if it should be, the judiciary ought not to withhold its hand on a mere assumption that its coordinate branches would want it that way. [at 346]
Subsequent to the decision, Title 59 of the New Jersey Statutes was enacted by the Legislature ...