The issue presented is whether, after the Court has declared the apparent low bid to be legally insufficient, a municipality which has reserved the right to reject all public bids may do so when the governing body believes that rebidding would probably bring a lower price.
The Court holds that under the circumstances of this case this reason is a legally sufficient basis for the Township to reject all bids.
THE PUBLIC BIDDING PROCESS HEREIN
Prior to August 21, 1991, defendant Township of Belleville ("Township") advertised for the receipt of public bids concerning a contract to be let for work on Belleville Avenue and Valley Street ("Project"), involving the reconstruction of approximately 800 linear feet of roadway, installation of drainage, water mains and related site work. The Notice to Bidder required that the bid proposal be on the standard form enclosed with the bid package, be enclosed in sealed envelopes bearing the name and address of the bidder and addressed to the Township, and that the proposal "must be accompanied by a Statement of Consent of Surety from a surety company authorized to do business in the State of New Jersey, acceptable to the Township and a bid guarantee to the Township for not less than ten percent (10%) of the amount bid except that the bid guarantee need not exceed $20,000." The requirement for a bid guarantee is repeated in the Information for Bidders, and the requirement for the Consent of Surety is repeated in the Information for Bidders.
All bidders who desired to bid submitted their bids prior to the time scheduled for opening, which was 11:00 a.m. on August 21. The Municipal Clerk proceeded to open the bids. When she opened the sixth bid, submitted by defendant T. Ritacco Construction Co., Inc. ("Ritacco"), it was discovered that the bid proposal did not have included therewith any form
of bid guarantee, be it a certified check in the amount of 10% of the bid (which equated to $17,279.50) nor a Bid Bond in any amount nor a Consent of Surety. The apparent low bid of Ritacco was $172,615. The apparent second low bid of $186,809 submitted by plaintiff Marvec Construction Corp. ("Marvec") was fully responsive and complete.
Within seconds after the Ritacco bid was opened, a woman stated: "I left the bid bond on my table, I'll be right back." A woman was then seen running out of the room. Approximately 20 minutes later, the woman returned and submitted the bid bond for Ritacco. She explained that she was Mrs. Ritacco and had inadvertently left the bid bond on her desk while she was putting the bid into the envelope which she submitted. She apologized for the delay and the bond was placed with the bid. Two additional bids, both of which were higher than the Ritacco and Marvec bids, were opened prior to her return.
Marvec notified the Township Attorney by two letters that Marvec believed that the Ritacco bid must be rejected as materially deviating from the Bid Specifications and from the applicable provisions of the Local Public Contract Law. The Township Attorney apparently disagreed because on September 10, the Township Council passed a Resolution awarding the contract to Ritacco, subject to the approval of the Essex County Community Development Block Grant Program.
Since the Township believed that the delay in supplying the bond in no way jeopardized the integrity of the public bidding process, the Township awarded the contract to Ritacco.
FIRST ORDER TO SHOW CAUSE
Marvec filed this complaint in lieu of prerogative writs to restrain the Township from awarding the contract to Ritacco and for a declaratory judgment that said bid was null and void and of no effect. Marvec also sought to be declared the lowest responsive and responsible bidder on the Project and to be entitled to the award of the contract and damages.
Upon return of the first Order to Show Cause on October 3, the Court concluded that the failure to include the bid bond was a material deviation in the bid and, therefore, nonwaivable. Pucillo & Sons v. Belleville Tp., 249 N.J. Super. 536, 545, 592 A.2d 1216 (App.Div.1991); Pucillo v. Mayor and Council of the Borough of New Milford, 73 N.J. 349, 356, 375 A.2d 602 (1977); George Harms Construction Co. v. Boro of Lincoln Park, 161 N.J. Super. 367, 391 A.2d 960 (Law Div.1978).
The Court set aside the award to Ritacco as being null, void and of no effect and enjoined the effectuating of the award of the contract to Ritacco and enjoined Ritacco from undertaking any work with respect to the subject award. The Court also declared Marvec's bid to be the lowest responsive bid submitted with respect to the Project.
SECOND ORDER TO SHOW CAUSE
When the Township failed to take any action to determine whether Marvec was a responsible bidder or to reject all the bids, Marvec obtained another order to show cause to restrain the Township from "readvertising for bids, receiving bids or otherwise implementing or effectuating the rejection of all bids for the subject Project" returnable November 8. Marvec's responsibility as a bidder has never been questioned.
On the return date the Court ordered the Township to act on the Marvec bid by October 17, i.e., within 60 days of the opening of the bids on August 21, as required by law and the bid specifications. Otherwise Marvec could not have recovered monetary damages. M.A. Stephen Construction Co. v. Bor. of Rumson, 118 N.J. Super. 523, 288 A. 873 (Law Div.1972), aff'd, 125 N.J. Super. 67, 308 A.2d 380 (App.Div.1973).
On October 15 the Township Council adopted the following resolution by a four to two vote:
WHEREAS, by resolution dated September 10, 1991, the Township of Belleville awarded the bid for the reconstruction of portions of Belleville Avenue and Valley Street to T. Ritacco ...