The issue presented is whether a potential builder of a public construction project can rectify an error in the form of the bid bond and consent of surety submitted at the time of the bid or whether the failure to provide the appropriate form is a material non waivable defect.
The facts underlying this action are not in dispute. On December 8, 1993, defendant Township of Clinton ("Township") accepted bids pursuant to the Local Public Contracts Law, N.J.S.A. 40A:11-1 , for alterations to the Clinton Township Municipal Building. DeSapio submitted the lowest bid for the project and defendant Scozzari Builders, Inc. ("Scozzari") submitted the second lowest bid.
Each potential bidder was furnished with a package entitled "General Documents and Specifications" ("the documents") which
had been prepared by the Township's architects. The documents provided that the bidders would be presumed to be thoroughly familiar with the contract documents, including all addenda and bulletins, and that failure or omission of any bidder to receive or examine any form, instrument or document would not relieve that bidder from that obligation. The bidders were directed to address any questions regarding the contract documents to the Township's architects.
Pursuant to the Local Public Contracts Law, the Township required specifically that: (1) the bid proposal "be accompanied by a Proposal Guaranty in the form of a Certified Check, Cashier's Check, or acceptable Bid Bond, made payable to the Owner in the sum of ten percent (10%) of the Base Bid Proposal, but in no case in excess of $20,000," and (2) the bid proposal be "accompanied by a Proposition of Surety, in form as bound in these documents, assuring that satisfactory arrangements have been made between the surety and the Bidder by which the surety agrees to furnish the Bidder with a Performance Payment Bond and Maintenance Bond in form as bound herein."
The packet of documents provided to the bidders contained a number of sample forms for the benefit of the bidder. The bidders were made aware that additional copies of forms were available from the Township architect upon request.
There were no sample forms of Consent of Surety contained in the bound documents. In the place of the Consent of Surety sample form was a statement which read as follows:
Surety Company Certification
All bidders shall submit with their bid a certificate from an approved surety company stating that it will provide the ...