This opinion considers the ramifications of the classification requirement of the Public Schools Contracts Law, N.J.S.A. 18A:18A-26, and implementing regulations in N.J.A.C. 17:19-26. The issue before the court is novel since there is no guiding authority under the present statute.
Defendant Manchester Township Board of Education (hereinafter "board") solicited bids for the construction of four tennis courts. Four bids were received. Two were rejected for reasons not material to the present litigation. Plaintiff Bil Jim Construction Co., Inc., bid $98,795, and defendant American Track and Tennis Co. (hereinafter "American") bid $99,500. The board determined that plaintiff did not submit the appropriate proof of classification as required by N.J.S.A. 18A:18A-26. The contract was awarded to American. Plaintiff filed a complaint in lieu of prerogative writs and obtained an order to show cause seeking temporary restraints. On the return date of the order to show cause the court dissolved the restraints and permitted the board to proceed with the contract at its own risk. This opinion resolves the question of whether the contract was properly awarded.
The ability to perform the work required is of the very essence of any contract for public work. Donald F. Begraft, Inc. v. Franklin Bd. of Education, 133 N.J. Super. 415, 417 (App.Div.1975). Thus N.J.S.A. 18A:18A-26 imposes the requirement that all bidders be prequalified to perform the work involved in the contract. It states:
Every board of education shall require that all persons proposing to bid on any contract requiring public advertisement for bids with the board for public work, the entire cost whereof will exceed $20,000.00, shall first be classified in accordance with [ N.J.S.A. 18A:18A-27 et seq. ] as to the character and amount
of public work on which they shall be qualified to submit bids. So long as such requirement is in effect, the board of education shall accept such bids only from persons qualified in accordance with such classification.
Prequalification serves to protect a vital and valid public interest as well as to protect the interests of the bidders. Contract specifications requiring prequalification of bidders are designed to assure that only those bidders who have the ability to perform the work may be awarded the contract. Begraft, supra at 417.
Pursuant to N.J.S.A. 18A:18A-27(d), the State Board of Education has delegated the classification function to the Department of the Treasury. That department has adopted regulations which create classifications for such things as "C060 athletic fields/tracks/courts," "C022 fencing," "C054 site work" and "C057 landscape constr[uction]." N.J.A.C. 17:19-26.
In this case the board did not specify which classification was required. The court has been provided with the classification certificates for Bil Jim and American. Plaintiff is classified for site work and landscape construction but not for athletic fields/tracks/courts. Plaintiff asserts that it intended to subcontract the topcoat portion of the job to a builder who was qualified for athletic fields/tracks/courts as plaintiff has done for other school contracts awarded to it. Plaintiff argues that because the major part of the job is site work, "site work" should be the required classification.
American is classified for athletic fields/tracks/courts but not site work. Apparently American intended to subcontract all site work. The board contends that the bid specifications call for tennis courts, so "athletic fields/tracks/courts" is the intended classification.
The purpose of the bidding laws is to protect the public by placing bidders on an equal footing and to ensure that competition will eliminate the possibility of fraud, extravagance or favoritism ...