On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Judges Shebell, Havey and Skillman.
Plaintiffs, L. Pucillo & Sons, Inc. and Chetcar Realty, appeal from the dismissal of their complaint in lieu of prerogative writs, which named as defendants, Township of Belleville (Township), Board of Commissioners of the Township of Belleville (Board), and Domenick Pucillo Disposal, Inc. (Domenick). The complaint, filed on November 22, 1989, challenged the Township's award of a contract for scavenger services to Domenick, alleging that the Township and the Board, "in violation of their responsibilities under N.J.S.A. 40A:11-1, et seq.," arbitrarily and capriciously awarded the contract to Domenick. The complaint sought a declaration that the contract was null and void, judgment compelling the readvertisement of the proposals for the scavenger contract, and an order restraining defendants from continued performance of the contract.
In their answer to the complaint the Township and Board challenged the plaintiffs' standing to bring the action, and asserted that the action was barred on the grounds of estoppel and because the forty-five-day period under R. 4:69-6(a) for bringing such an action elapsed. Domenick's answer raised the same defenses.
On July 3, 1990, plaintiffs moved for summary judgment, and thereafter, defendants filed a motion to dismiss plaintiffs' complaint pursuant to R. 4:6-2. The Law Division judge denied plaintiffs' motion and granted defendants' motion to dismiss the complaint. In reaching this decision, the judge stated:
Two threshold issues present themselves. The first, whether the plaintiffs or either of them has standing to bring this action. And the second, whether the action is time-barred pursuant to Rule 4:69-6(a).
While I find that the plaintiffs have the requisite standing to bring this suit, at the same time I hold that this action is time-barred and does not meet the test requisite for an enlargement of the 45-day limitation period under Rule 4:69-6(a).
The pertinent facts follow. The Township issued specifications for a "scavenger contract" to commence on September 12, 1989. The extended deadline for bid submission was September 8, 1989. The relevant portions of the bidding advertisement that generated this controversy are as follows:
Section 1:3 Documents To Be Submitted With Proposal
(A) Statement of Qualifications, Experience, Financial Ability and Non-Collusion Affidavit, Affirmative Action Report full and completely answered under oath; and
(B) Proposal properly completed in accordance with the form thereof; and
(C) Certified check, bank cashier's check or bid bond in the amount of $20,000.00 or 10% of the bid proposals for the maximum term of years bid, whichever amount is less, payable to the Treasurer of the Township of Belleville in accordance with N.J.S.A. 40A:1-21.
(D) A Certificate of a Surety Company duly authorized to do business in New Jersey and satisfactory to the Board of Commissioners, setting forth that the Surety Company will furnish the required bond herein provided, if the bidder is awarded the contract, and which certificate shall state that said surety will issue a bond in form and with the indemnity requirements herein demanded and required, within (10) days of the award of the contract to the bidder in accordance with N.J.S.A. 40A: (Emphasis added).
Each bidder shall accompany his Proposal with a Certified Check, cashier's check or bid bond in the amount of Twenty Thousand Dollars ($20,000.00) or 10% of the bid proposal for the maximum term of year bid whichever amount is less which sum shall be made payable to the Treasurer of the Township of Belleville. In the event that the bidder to whom the contract is awarded fails to enter into the contract in the manner and within the time required and to furnish the required Performance Bond, properly executed, the award to him shall be annulled and said amount to be deposited by him with the Proposal shall become the property of the Township of Belleville as liquidated
damages in partial or full payment as provided for in Section 1:6-1. (Emphasis added).
Section 1:7 Surety Company Bond
Accompanying each bid shall be a certificate from a responsible surety company stating that it will provide the bidder with a bond in the full amount of the bid. Said certificate shall be executed by a responsible surety company in good financial standing authorized to do business in the State of New Jersey, and [illegible] to the Board of Commissioners of the Township of Belleville, conditioned upon furnishing the bidder, if awarded the contract with a Performance Bond to secure the faithful uninterrupted performance of the contract, to indemnify and save harmless the Township of Belleville from all proceedings, suits or actions of any name or description and to secure the payment of all claims against the contractor including claims for services performed, materials, supplies, or equipment furnished to the contractor in the performance of work. Said performance bond shall remain in full force and effect for the time set forth in Part 2, Section 2:3. (Emphasis added).
Section 1:8 Alternate Proposals
The form of Proposal, made part of the Specifications, contained alternate bids as is indicated in said form. The bidder is requested to submit bids on each proposal. The bidder is requested to submit bids on one-year, three-year and five year contracts. Each proposal should be separate with respect to the years so indicated.
Section 1:10 Right to Reject Bids
The Board of Commissioners reserves the right to reject any bid under the following circumstances:
(A) If the bidder fails to furnish any of the information required here in pursuance to any portion of the bidding documents or specifications.
(C) If the proposal does not substantially conform to the requirements of the specifications.
(F) To waive any clerical or inconsequential mistakes or errors, if to do so would be in the best interests of the Township of Belleville.
Section 1:11 Conditioned Proposals
The Bidder shall not change the Proposal, instructions to Bidder and Building Requirements, Statement of Scope and Nature of Work and shall not in any manner or form amend, change or condition by adding a new rider, clause or word. In the event the Bidder shall amend, change, modify or condition the substance of the foregoing documents, they shall be rejected.
Section 1:13 When the Contractor Is To Furnish Bond
Within ten (10) days after the awarding of the contract, but in any event prior to the execution thereof the Contractor to whom the award has been made shall execute and deliver to the Township Clerk a Performance Bond executed by a responsible surety ...