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O'Neill Elec. Co., Inc. v. Board of Chosen Freeholders of County of Warren

February 14, 1997

O'NEILL ELECTRIC CO., INC., PLAINTIFF-APPELLANT,
v.
THE BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF WARREN, DEFENDANT-RESPONDENT.



On appeal from the Superior of New Jersey, Law Division, Warren County.

Approved for Publication February 18, 1997.

Before Judges Stern, Humphreys and Wecker. The opinion of the court was delivered by Humphreys, J.A.D.

The opinion of the court was delivered by: Humphreys

The opinion of the court was delivered by

HUMPHREYS, J.A.D.

Warren County keeps a list of contractors who pick up bidding documents on projects for which the County has advertised for bids. Based on the advice of the New Jersey Division of Criminal Justice, the County refused plaintiff's request for a copy of the list. Plaintiff's declaratory judgment action seeking a copy of the list was dismissed by summary judgment. Plaintiff appeals, contending: (1) the County's refusal was contrary to the purpose and intent of the bidding laws; and (2) the list is a public record under both the Right To Know Law and the common law and therefore must be disclosed.

We have reviewed the record and the arguments presented. The judgment is affirmed.

I

Plaintiff is an electrical contractor. Plaintiff contends that learning the identity of general contractors who are considering bidding on the project will enable it to submit a price to those contractors for the electrical work on the project. Plaintiff argues that failure to disclose the bidders list stifles competition because it prevents plaintiff and other subcontractors from learning the identities of the general contractors and thereby limits the number of potential subcontractors competing for the work. Plaintiff points out that public bidding statutes are designed to encourage competition in public projects. Plaintiff also argues that keeping the list secret creates "the potential for selective disclosure to certain contractors at the whim of the public official in charge of the list" and thereby fosters favoritism, contrary to the policy of the bidding statutes.

The National Electrical Contractors Association has submitted an amicus brief supporting the plaintiff's position. Amicus argues that

the pool of subcontractors who may bid on a particular project is dictated by the general contractors. Any subcontractor who is not among the general contractors [sic] favorite few is denied the opportunity to bid the project. This, in turn, reduces the pool of potential bidders and ultimately denies the public the benefits of unfettered competition that the statute is intended to provide.

Amici curiae Utility & Transportation Contractors Association of New Jersey, Inc. and Construction Information Systems, Inc. have filed a brief arguing to the same effect.

The County argues that its non-disclosure policy inhibits bid-rigging and should be upheld. The Attorney General has filed an amicus brief ...


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