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Stano v. Soldo Construction Co.

Decided: January 12, 1983.

EUGENE J. STANO, PLAINTIFF-RESPONDENT,
v.
SOLDO CONSTRUCTION COMPANY, A NEW JERSEY CORPORATION, DEFENDANT-APPELLANT, AND BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF WARREN AND ESTIMATE DESIGN SERVICE, INC., A NEW JERSEY CORPORATION, DEFENDANTS. KEN-RAD CONSTRUCTION CO., INC., PLAINTIFF-RESPONDENT, V. BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF WARREN, DEFENDANT, AND NPS CONTRACTORS, INC., A NEW JERSEY CORPORATION, DEFENDANT-APPELLANT. RAYMOND PETERS, PLAINTIFF-RESPONDENT, V. BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF WARREN, DEFENDANT, AND NPS CONSTRUCTORS, INC., A NEW JERSEY CORPORATION, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Warren County.

Matthews, Antell and Francis. The opinion of the court was delivered by Matthews, P.J.A.D.

Matthews

The public contract involved in these consolidated appeals was originally awarded to appellant Soldo Construction Company. Plaintiff Stano, a principal for a subcontractor of the second highest bidder, challenged this award. The award was reversed because Soldo failed to provide a list of qualified subcontractors, as required by N.J.S.A. 40A:11-16.

The contract was re-awarded to defendant NPS Constructors, Inc., which is the appellant in the second appeal, contingent upon clarification of its shareholder statement and the provision of material regarding the qualifications of its shareholders. That award was later reversed because NPS did not provide a proper proposition of surety for one of its subcontractors, as required by N.J.S.A. 40A:11-16.

I

Eugene J. Stano v. Soldo Construction Company and Board of Chosen Freeholders, of the County of Warren and Estimate Design Service, Inc. (A-5910-81-T1)

On June 29, 1982 defendant county invited lump sum bids for the construction of additions and alterations to the Warren Haven Health Care Center, pursuant to N.J.S.A. 40A:11-16. The contract was awarded to defendant Soldo Construction Company as the lowest bidder on July 21, 1982. Soldo set forth in its bid the names of its subcontractors, and named Estimate Design Service, Inc. as its subcontractor for the electrical, plumbing and heating work for the projects.

Although Estimate Design is prequalified with the Department of Building and Construction of the State of New Jersey as an electrical contractor, it is not prequalified as a contractor

for plumbing or heating work. Neither Estimate Design nor its principals are licensed as plumbers by the State or by any New Jersey municipality.

Plaintiff challenged Soldo's bid based upon his contention that, since Estimate Design was not a qualified subcontractor, whose names are required to be set forth by N.J.S.A. 40A:11-16, Soldo was not a "responsible bidder" within the meaning of that statute. Defendant Estimate Design did not bring forth any evidence of its experience or qualifications with regard to plumbing or heating work. Although the trial judge states that he did not intend to imply that possession of a license was the criterion by which to judge the qualifications of a subcontractor, since there was nothing before the court to suggest the qualifications of Estimate Design, Soldo was adjudged to have failed to comply with N.J.S.A. 40A:11-16. The judge further stated that a listing of qualified subcontractors was a material-type requirement that could not be waived. He granted what was essentially summary judgment on the affidavits, since he found no factual dispute. He thus held that compliance with N.J.S.A. 40A:11-16 requires that there be a factual basis upon which a county can determine that subcontractors are qualified, which was not provided here.

On August 10, 1982, the judge set aside the award of the Warren Haven Health Care Center contract to Soldo as being in violation of N.J.S.A. 40A:11-16. On August 11, 1982 defendant freeholders reawarded the contract to defendant NPS Constructors, Inc., which was the second lowest bidder.

II

Ken-Rad Construction Co., Inc. v. Board of Chosen Freeholders of the County of Warren and NPS Constructors, Inc.

Raymond Peters v. Board of Chosen Freeholders of the County of Warren and NPS Constructors, Inc. (A-449-82-T1)

These two cases were consolidated and heard on September 13, 1982. The first impropriety which respondents alleged concerned

the proposition of security submitted by NPS for one of its proposed subcontractors, Washington Mechanical. The proposition of surety submitted with its bid was a photocopy of an original proposition of surety and accompanying power of attorney submitted by another bidder, Kaslow & Jeffrey. The proposal of surety guaranteed that Reliance Insurance Company would furnish a bond in an amount at least equal to Washington Mechanical's subcontract for performance of the HVAC*fn1 work on the Warren Haven project. A photocopy of the proposal of surety was included in the NPS bid; the original and the power of attorney were included in the bid of Kaslow & Jeffrey. The proposal of surety did not name any particular general ...


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