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Prismatic Development Corp. v. Somerset County Board of Chosen Freeholders

Decided: September 27, 1989.

PRISMATIC DEVELOPMENT CORP., PLAINTIFF-APPELLANT,
v.
SOMERSET COUNTY BOARD OF CHOSEN FREEHOLDERS AND TURNER CONSTRUCTION COMPANY, INC., DEFENDANTS-RESPONDENTS



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

Bilder, Ashbey and Arnold M. Stein. The opinion of the court was delivered by Bilder, J.A.D.

Bilder

[236 NJSuper Page 159] This case involves a public contract for the construction of a new county administration building in Somerville. As in Carney v. Trenton, 235 N.J. Super. 372 (App.Div.1988), the project is governed by the Local Public Contracts Law, N.J.S.A. 40A:11-1 et seq. The question presented is whether a prospective prime contractor for a single overall contract may name alternative specialty subcontractors when bidding pursuant to N.J.S.A. 40A:11-16. An examination of the statute and its legislative history convinces us it cannot.

I.

A little background is helpful to an understanding of the problem with which we are dealing. Under the statute, contracts for the erection of a public building involving more than about $7500*fn1 must be publicly bid. These contracts ordinarily involve the performance of a number of different types of construction as, for example, electrical or plumbing or structural work. In recognition of this fact, the statute provides for the preparation of separate plans and specifications for various components of the finished project. N.J.S.A. 40A:11-16. And similar recognition of varied aspects of the work is accorded by the form in which these projects are carried out. They may be undertaken by a single prime contractor who bids the entire project (a single overall contract) or a group of contractors who separately bid a specialized branch of the work. Ibid.*fn2

In the instant case defendant Turner Construction Company, Inc. was the low bidder for a single overall contract for the construction of Somerset County's new administration building.*fn3 Its bid was $11,950,000. Plaintiff Prismatic Development Corp. submitted a competing bid of $12,475,000, making it the next lowest bidder. Plaintiff brought an action in lieu of prerogative writ to restrain an award to Turner, contending that its bid was fatally defective in that it failed to include a "consent of surety" to the required bid bond and lacked an affidavit of non-collusion, and that it listed multiple prime subcontractors in violation of N.J.S.A. 40A:11-16. In this latter regard, Prismatic made clear it was not the use of multiple

subcontractors which gave rise to its objection, but that Turner was not committed to any of them and was free to negotiate arrangements with some or any of those named after the opening of the bids -- that the bid listed subcontractors some of whom Turner would not use. Following briefing and oral argument, on August 25, 1989 the trial judge dismissed the complaint, finding the deficiencies did not exist but if they did, they were waivable and/or nonmaterial and that the submission of alternative subcontractors was statutorily permissible and, moreover, approved by our Carney decision. On appeal plaintiff again contends Turner's bid failed to include a consent of surety and that this was a material non-waivable deficiency. It also claims error in the trial judge's conclusion that Turner could list multiple subcontractors for the same branch of work, some of whom might not be used.*fn4 It seeks an award of the contract to itself as the lowest responsible bidder. We accelerated the appeal and entered a consent order staying the execution of a construction agreement pending our decision.

N.J.S.A. 40A:11-16, in pertinent part, provides:

In the preparation of plans and specifications for the erection, alteration or repair of any public building by any contracting unit, when the entire cost of the work will exceed the amount set forth in, or the amount calculated by the Governor pursuant to, section 3 of P.L. 1971, c.198 (C.40A:11-3), the architect, engineer or other person preparing the plans and specifications may prepare separate plans and specifications for

(1) The plumbing and gas fitting and all kindred work;

(2) Steam power plants, steam and hot water heating and ventilating apparatus ...


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