On appeal from the New Jersey Department of Transportation.
Approved for Publication July 20, 1995
Before Judges Michels, Stern and Keefe. The opinion of the court was delivered by Stern, J.A.D.
The opinion of the court was delivered by: Stern
Statewide Hi-Way Safety, Inc. (Statewide), appeals and James J. Anderson Construction Co., Inc. (Anderson), cross-appeals from an administrative determination of the Department of Transportation (Department or NJDOT). The Department rejected Statewide's bid for highway construction work on the ground that its bid of $7,561,000 for the "cost component" of a highway project exceeded the maximum amount it could bid in light of its bid rating classification, pursuant to N.J.A.C. 16:44-1. The Department also determined that Crisdel Group, Inc. (Crisdel), was the lowest responsible bidder.
Before us, Statewide contends that the award of the bid to Crisdel should be reversed because the Department failed to take into account all relevant information concerning its pre-qualification classification and project rating. Statewide also argues that Crisdel's bid should have been rejected in the absence of a properly totalled bid, and because the Department improperly neglected to total the line items contained in Crisdel's bid and to read the total aloud, as required by N.J.S.A. 27:7-29. On its cross-appeal, Anderson also contends that the failure to read Crisdel's bid aloud violated the requirements of law and public policy.
On an emergent application to this court, we denied Statewide's application to stay the award. That fact is significant because it was conceded at oral argument before us that the highway construction project involved is substantially completed. It is, thus, too late to order rebidding or to award the contract to another bidder. Any order of this court to terminate the project at this juncture would be contrary to the public interest.
In these circumstances, we must dismiss the appeal as moot. See Sente v. The Mayor and Municipal Council of the City of Clifton, 66 N.J. 204, 205, 330 A.2d 321 (1974); Cinque v. New Jersey Department of Corrections, 261 N.J. Super. 242, 243-44, 618 A.2d 868 (App. Div. 1993). However, because of its public importance, we address one of the issues raised by the appeal. Cf. In re Boardwalk Regency Corporation for a Casino License, 90 N.J. 361, 368, 447 A.2d 1335 (1982); John F. Kennedy Memorial Hospital v. Heston, 58 N.J. 576, 579, 279 A.2d 670 (1971). Busik v. Levine, 63 N.J. 351, 363-64, 307 A.2d 571 (1973), appeal dismissed, 414 U.S. 1106, 94 S. Ct. 831, 38 L. Ed. 2d 733 (1973).
On May 26, 1994, NJDOT advertised the bids for construction work on Route 76 (Section 3M) and Route 295 (Section 10M) (Project). Sealed bids were to be accepted at 10:00 a.m. on June 30, 1994. It is uncontested before us that, prior to the opening of bids on June 30, 1994, the following statement was read to the prospective bidders:
All documents accompanying the bid proposals of all bidders shall be checked for completeness, and the mathematical calculations of each proposal will be checked, and the necessary corrections made, to determine the correct total amount. Proposal guarantees will be returned to all except the actual lowest and next lowest bidder after all bids have been checked and corrections made. The Commissioner reserves the right to reject any or all bids in accordance with the provisions of New Jersey Statutes Annotated Title 27:7-30.
See N.J.S.A. 27:7-30, which permits rejection of bids "not in accord with the advertisement of specifications, or for any other irregularity ... or for any other cause."
The Project involves a "cost-plus-time contract which consists of two components": (1) "the dollar amount for all work to be performed under the contract" and (2) "an estimate of the total number of days required to complete the contract multiplied by a daily road user cost." The "lowest bid determination" for the project "is based on the total of these two components. The contract price, however, is awarded based upon only the first component."
Pursuant to N.J.S.A. 27:7-29, NJDOT received seven bids, but only five bids were publicly read. The parties agree that Statewide, Crisdel and Anderson were the three lowest bidders. The bids from Statewide and Anderson, but not the bid from Crisdel, were totalled and read publicly. When the bids were opened, Statewide, with a bid of $11,811,000, was declared the "apparent low bidder," and Anderson, with a bid of $13,739,440.36, was declared "apparent second low bidder."
All the bidders' proposals were then publicly turned over to a microfilm technician for copying and review by NJDOT staff to determine the "actual lowest bidder." See N.J.A.C. 16:44-5.1. As a result of this review, NJDOT determined that Statewide's bid of $7,561,000 for the "cost component" exceeded its "project rating," which is "the maximum dollar amount ... a contractor can bid on an individual project," pursuant to N.J.A.C. 16:44-1.1. In the words of the Assistant Commissioner of Transportation, "since Statewide's bid exceeded its project rating in both classification categories [for which it was pre-qualified], the Department of Transportation determined that the Statewide bid had to be rejected." During the same review, a calculation or "recalculation of the bid ...