This matter has been brought before this court by way of a verified complaint in lieu of prerogative writs, which has as its factual underpinnings a group of facts that current research indicates have never before been analyzed in their relationship with the public bidding laws.
The City of Camden solicited bids for the purpose of obtaining a towing service for abandoned or otherwise removable vehicles found within its geographical boundaries. In its solicition, it reserved the right to "reject any or all proposals. . . ." On the date called for the opening of bids, two bids had been submitted and were opened, and the petitioner was the lowest bidder. No award was made at that time, which is usual. The 60-day period of time within which the City had to engage in this bidding process, N.J.S.A. 40A:11-24, expired without any
action by the City. Some 22 days after the expiration of the 60-day period, the City, presumably on the advice of counsel, passed a resolution "rejecting all bids", which indicated that they were of the opinion that they could not then take action because the 60-day period had expired.
The petitioner requests this court to order the award of the contract to them, declare them to be the lowest responsible bidder, or in the alternative, award them consequential damages because of the City's failure to make an award, or at least give them a hearing on the issue of whether it is the lowest responsible bidder.
It is agreed by both parties that N.J.S.A. 40A:11-24 is the appropriate and most applicable section of the Local Public Contracts Law. It is undisputed that this statute does not specifically address this factual scenario, whether speaking with regard to the award of a contract or with regard to the return of deposits. Therefore, counsel have inferentially agreed that the legislative purpose in drafting this statute and other relevant law surrounding the bidding process must be determined and evaluated in order to arrive at a meaningful resolution.
The statute in pertinent part is set forth below:
40A:11-24. Time for making awards; deposits returned
The contracting unit shall award the contract or reject all bids within such time as may be specified in the invitation to bid, but in no case more than 60 days, except that the bids of any bidders who consent thereto may, at the request of the contracting unit, be held for consideration for such longer period as may be agreed. All bid security except the security of the three apparent lowest responsible bidders shall be returned, unless otherwise requested by the bidder, within 10 days after the opening of the bids, Sundays and holidays excepted, and the bids of such bidders shall be considered as withdrawn. Within 3 days, Sundays and holidays excepted, after the awarding and signing of the contract and the approval of the contractor's performance bond, the bid security of the remaining unsuccessful bidders shall be returned to them.
Fortunately, it is no longer necessary for the court or counsel to grapple with the problem of ascertaining the legislative intent, for our volumes are replete with the often cited purpose as being to guard against favoritism, improvidence, extravagance
and corruption, and to secure for the public the benefits of unfettered competition. Terminal Const. Corp. v. Atlantic Cty. ...