On appeal from Superior Court, Law Division, Mercer County.
Long and Keefe. Keefe, J.A.D., temporarily assigned.
Two issues concerning the Local Public Contracts Law, N.J.S.A. 40A:11-1, et seq. are raised on this appeal. They are: 1) whether § 16 of the Local Public Contracts Law prohibits naming multiple subcontractors for each branch of work identified in the bid proposal without contracting with each of them after the contract is awarded; and 2) whether a local contracting unit can waive a condition of the bid proposal which provides that the bid price in written terms prevails over the bid price expressed numerically.
This case involves a contract awarded for the construction of the Trenton Water Works Distribution Center (Project). The Project owner, City of Trenton (City), is a municipal corporation of the State of New Jersey. Thus, the advertising, bidding and contracting for the Project are governed by the Local Public Contracts Law, N.J.S.A. 40A:11-1, et seq.. The Project specifications contained a Notice for Bids which provided that,
Bid Proposals will be received as a lump-sum bid including general construction; structural steel and miscellaneous metal; plumbing and drainage; heating, ventilating and air conditioning; electrical and landscaping work.
The bidding, therefore, was to be done on a "single-prime" basis in which the successful low bidder would contract to perform the entire work with the aid of subcontractors in the specialty trades. The Instructions to Bidders directed that the bid "proposal shall be submitted on the Form of Proposal furnished by the Architect properly filled out and duly executed" by the bidder. The Form of Bid Proposal stated:
The General Contractor [e.g. bidder] must list the name of each Prime Sub-Contractor for each Trade noted below whos[e] price was included i[n] his Single Overall Bid Proposal. The Substitutions of Prime-Subcontractor working on this Project will not be permitted.
On February 22, 1988, the City accepted bids for the project. Plaintiff, Thomas P. Carney, Inc. (Carney) submitted a base bid of $5,097,441.00. Defendant, Fitzpatrick & Associates, Inc., (Fitzpatrick) submitted a base bid in written terms of $4,000,995.00 and in numerical figures of $4,995,000.00. Fitzpatrick's bid, even at the higher number, was the low bid while Carney's was the second lowest bid. The bid proposal contained a table listing the separate trades for which subcontractors could be used. The form completed by Fitzpatrick appeared as follows:
Schlosser, Wolfer, Structural Steel and Miscellaneous
J.A. Christman, E.F. Grant Plumbing ...