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In re Contract for Route 280 Section 7U Exit Project

Decided: May 27, 1981.

IN THE MATTER OF CONTRACT FOR ROUTE 280 SECTION 7U EXIT PROJECT


On appeal from decision of Commissioner of Transportation.

Botter, King and McElroy. The opinion of the court was delivered by Botter, P.J.A.D.

Botter

[179 NJSuper Page 281] Appellant J.A. Cavanaugh Contractors, Inc. (Cavanaugh) appeals from the rejection of its bid of $1,655,608 for a highway construction project known as Route 280, Section 7-U Exit Ramp. The bid was approximately $84,000 less than the bid of the second low bidder. Appellant's bid was rejected because it was accompanied by a schedule showing the status of contracts

on hand as of August 31, 1980 instead of as of September 30 as required by the bid specifications.

The facts are not in dispute. The bids were opened at 10:00 a.m. on October 23, 1980. As part of the financial statement to be submitted by each bidder, the specifications required an up-dated statement as to the status of contracts on hand. The governing date was September 30, 1980. Instead, appellant annexed a schedule dated August 31, 1980. This appears to have been entirely inadvertent. The form to which the August 31 schedule was attached, DC-74B, even related to a different project. The aggregate figures in both schedules were comparable in many respects. For example, the totals in various categories were:

August 31 Sept. 30

Adjusted contract amount $9,866,282 $8,711,313

Amount earned and billed 7,428,591 6,845,366

Retainage 361,399 399,078

Amount now due excluding retainage 630,703 657,739

Balance to be completed 2,344,240 1,805,188

No purpose is evident that would explain the submission of the wrong schedule. In the afternoon of the bid opening date, October 23, 1980, appellant hand-delivered to the Department of Transportation (DOT) the correct document accompanied by a letter stating that the August 31 schedule was attached erroneously "through inadvertence" although the September 30 data "was ready and prepared to be submitted with our Bid." Appellant took the position that the error should be waived by DOT since "the two Schedules involved no substantial difference, and since there can be no prejudice to the Department or to the other bidders. . . ." DOT affirmed its rejection of the bid stating: "While on the surface this deviation might seem minor it has consistently been the position of this Department that such an omission is a material departure from the ...


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