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Burroughs Corp. v. Board of Chosen Freeholders of County of Camden

Decided: July 10, 1981.

BURROUGHS CORPORATION, A MICHIGAN CORPORATION & MICHAEL P. ADAMS & ADELIA A. ADAMS, HIS WIFE, PLAINTIFFS,
v.
BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF CAMDEN, A BODY CORPORATE AND POLITIC OF THE STATE OF NEW JERSEY; AND HONEYWELL INFORMATION SYSTEMS, INC., A DELAWARE CORPORATION, DEFENDANTS



Davis, J.s.c.

Davis

This is an action in lieu of prerogative writs in which Burroughs, Inc. seeks to compel the Camden Board of Chosen Freeholders (Board), to accept its bid for a countywide computer system and to enjoin Board from accepting the bid of Honeywell Information Systems, Inc.

The basis of Burroughs' application for restraints is that the statutory period of time for the award of the contract has expired. By cross-motions for summary judgment Burroughs and Honeywell alleges that the other is not a qualified bidder because the bid materially deviates from Board's specifications.

The primary issues presented by the parties' application are (1) whether the voluntary and unilateral provision in Honeywell's bid to hold it open for 90 days constitutes an impermissible extension of the 60-day limitation imposed by N.J.S.A. 40A:11-24 for the awarding of bids and (2) whether the deviations alleged by each party are material and nonwaivable by Board as a matter of law.

I. Deviations

A contract may not be awarded upon terms which are different from those on which bidders were invited to bid. Case v. Trenton , 76 N.J.L. 696, 700 (E. & A. 1909). Also bidders, actual and potential, must be put on the same footing. Skakel v. North Bergen , 37 N.J. 369, 378 (1962). A fair and adequate comparison between the data submitted by bidders must be insured so as to avoid even the possibility of favoritism. Belousofsky v. Linden Bd. of Ed. , 54 N.J. Super. 219 (App.Div.1959). By diligently guarding against favoritism, improvidence, extravagance and corruption, the benefits of unfettered competition will be secured for the public. Terminal Constr. Co. v. Atlantic Cty. Sewerage Auth. , 67 N.J. 403 (1975). If the language of Board's specification is ambiguous or imprecise, no strained

interpretation of the words used will save them from being declared void. Tice v. Long Branch , 98 N.J.L. 214 (E. & A. 1922). As a matter of fact, the judicial policy of this State is to limit the discretion of local governments in this area. Pucillo v. New Milford , 73 N.J. 349 (1977).

For several years Board has been interested in upgrading its present Univac Spectra computer system which it uses to perform various business applications, such as producing payroll for its employees, inventory control, accounting of taxes, voter registration, jury selection, probation matters, Medicaid and many others. In response to Board's solicitation for bids Burroughs submitted its bid and identified its computer as being B-6800. This description is generic in nature since there are three models under this category. Each model performs the required functions but each has a different price. Board correctly rejected this bid because it had no way of knowing which model in fact was going to be delivered or to which model the price related. A fair comparison cannot be made with other bids if the model is not known. Belousofsky v. Linden Bd. of Ed., supra.

In order to update its equipment, Board recognized that most, if not all, of the existing application programs, such as those previously mentioned, be converted into a format usable by the new system. Board also decided that it would only give the successful bidder minimum assistance in carrying out conversion. The specifications clearly indicated these requirements.

Honeywell, in its response to the solicitation of bids, proposed that Honeywell , not Board, provide minimum assistance. Honeywell also stated that it would perform in accordance with the specifications if Board so required. Board waived the requirement of total conversion and accepted Honeywell's alternate proposal. This acceptance constituted an impermissible waiver as a matter of law.

Similarly, Board illegally waived its requirements that any proposed equipment be new when it accepted Honeywell's bid which provided for equipment which was supposedly "as good as new." Likewise, Board cannot elect to relax a specified delivery date for the equipment by accepting Honeywell's proposal to exercise their "best efforts" or, conditioning delivery as being "subject to prior sale."

As a part of its computer program and from a review of the specifications, it is clear that Board desired a system that could have enough of a memory system whereby any programs called to be executed by the computer could be completed without interruption because of insufficient memory space in the system. In order to provide this function (virtual storage) a great deal of data is stored on what may be likened to large magnetic phonograph records, called disk packs. These packs are stored ...


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