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Bodies by Lembo, Inc. v. County of Middlesex

January 4, 1996

BODIES BY LEMBO, INC., PLAINTIFF-APPELLANT,
v.
COUNTY OF MIDDLESEX AND THE NORCIA CORPORATION, DEFENDANTS-RESPONDENTS.



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

Approved for Publication January 4, 1996.

Before Judges Michels, Villanueva and Kimmelman. The opinion of the court was delivered by VILLANUEVA, J.s.c.

The opinion of the court was delivered by: VILLANUEVA

The opinion of the court was delivered by VILLANUEVA, J.S.C.

Plaintiff Bodies by Lembo, Inc., appeals from an order requiring rebidding for road maintenance equipment by the County of Middlesex (County) after plaintiff was declared the lowest responsible bidder. We reverse and remand to have the trial court order that the contract be awarded to plaintiff.

On September 1, 1994, the Board of Chosen Freeholders of Middlesex County (Board) adopted a resolution authorizing the bidding for road maintenance equipment including, inter alia, eight dump bodies, each with snow plow and hydraulic system, to be installed on eight truck chassis owned by the County. Plaintiff submitted a bid in the total amount of $172,000. The bid of The Norcia Corporation (Norcia) for the same equipment was $177,688. Both of these bids conformed to the specifications set forth in the County's Notice to Bidders (Notice). In addition to its bid for the installation of a Biebeau MS1034 dump body with a Valk snow plow, Norcia submitted an alternate bid in the total amount of $169,152 for a purportedly "equivalent" product, i.e., a Chief Mark II dump body with Power-Trol hydraulic system and Valk snow plow, under section 13.0 of the bid specifications.

On November 30, 1994, Jack Garber, the County's purchasing agent, recommended that five of the seven items contained in the Board's resolution be awarded to bidders. Included in that recommendation was the contract for the eight dump bodies for which plaintiff was designated as the "lowest responsible bidder."

On December 12, 1994, prior to any announcement of an award, Norcia sent a "letter of protest" to Jack Garber requesting a hearing in the event that its alternate bid was not accepted. A purported hearing took place on December 14, 1994, between the County and Norcia. That hearing apparently caused Norcia to make numerous changes to its alternate bid which either corrected or bettered the non-conformities. Thereafter, on January 19, 1995, the Board awarded the contract (Contract) to Norcia.

Plaintiff filed a verified complaint in lieu of prerogative writs, together with an order to show cause with temporary restraints, seeking to have the court, inter alia, rescind the Contract between the County and Norcia and award it to plaintiff. On March 3, 1995, the trial Judge granted plaintiff's application for temporary restraints and set March 22, 1995, as the return date for the order to show cause. On March 22, the parties consented to the imposition of permanent restraints pending the outcome of the within litigation and agreed to a Disposition of the matter by summary judgment.

After oral argument the Judge found that the hearing requested by Norcia and held without notice to the other bidders, constituted a violation of Local Public Contracts Law, N.J.S.A. 40A:11-1 to -49, sufficient to invalidate the Contract. He concluded that the Contract was awarded to Norcia based on the modifications Norcia made to the alternate bid after the December 14 hearing. He found, further, that since the irregularities in Norcia's original alternate bid demonstrated a material departure from the bid specifications and prejudiced other bidders, the County could not waive the irregularities.

By order dated July 7, 1995, the Judge granted plaintiff's motion for summary judgment, invalidated Norcia's alternate bid and rescinded the Contract. In addition, he ordered the County to "advertise for new bids as soon as practicable." The Judge made no mention of attorney's fees.

Plaintiff filed a motion for reconsideration, seeking to vacate that portion of the court's order requiring the County to readvertise for bids and to have the court reconsider its denial of plaintiff's request for attorney's fees. Plaintiff also sought an order excluding Norcia from submitting a bid in response to the County's rebid of the Contract, or, alternatively, a stay preventing the County from rebidding the Contract pending appeal. On September 29, 1995, the court entered an order which denied plaintiff's motion to vacate the order compelling the County to advertise for new bids, plaintiff's application for attorney's fees and costs, and plaintiff's application for a stay pending appeal.

In the meantime, on July 20, 1995, the Board rescinded the January 19, 1995, Contract with Norcia, revised its bid specifications, and passed a resolution authorizing public advertising for bids on the revised bid specifications. *fn1 According to the resolution, the revisions were made to "reflect changes on the basis of new technology, added safety, and availability of parts."

On August 9, 1995, plaintiff filed a notice of appeal with the Appellate Division, and, pursuant to R. 2:9-5, sought an order staying the County from opening the bids submitted to it pursuant to its readvertisement. We granted the stay on August 14, 1995. Plaintiff now appeals from that part of the trial ...


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