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Spina Asphalt Paving Excavating Contractors, Inc. v. Borough of Fairview

September 26, 1997

SPINA ASPHALT PAVING EXCAVATING CONTRACTORS, INC., PLAINTIFF-RESPONDENT,
v.
BOROUGH OF FAIRVIEW AND THE MAYOR AND COUNCIL OF THE BOROUGH OF FAIRVIEW AND TOMARO CONTRACTING, INC., DEFENDANTS-APPELLANTS.



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

Approved for Publication September 27, 1997.

Before Judges D'Annunzio, A.a. Rodriguez and Coburn. The opinion of the court was delivered by Coburn, J.A.D.

The opinion of the court was delivered by: Coburn

The opinion of the court was delivered by

COBURN, J.A.D.

The Borough of Fairview, upon receipt of bids submitted in accordance with the Local Public Contracts Law, N.J.S.A. 40A:11-1 to -49, awarded a contract for its Ninth Street Sewer, Phase 13 Project to defendant Tomaro Contracting, Inc. ("Tomaro"). Plaintiff, Spina Asphalt Paving Excavating Contractors, Inc. ("Spina") instituted this action in lieu of prerogative writs, claiming that the Borough arbitrarily failed to recognize that Spina's bid was lower than Tomaro's. On motions for summary judgment filed by all parties *fn1 to the action, the Law Division agreed with Spina and ordered the Borough to award it the contract. The municipal defendants and Tomaro appeal. We affirm.

The bidding was on a unit price basis and the proposals were submitted on forms supplied by the Borough. There were twenty-five items. One item provided the source of this litigation. It related to the provision of dense graded aggregate base course. The proposal form and the manner in which Spina's bid was expressed is as follows:

"ITEM ESTIMATED DESCRIPTION AND UNIT PRICES UNIT COMPUTED

NO. QUANTITY PRICE TOTALS

6. 1,350 S.Y. Dense Graded Aggregate Base

Course, 4" Thick

FOUR HUNDRED Dollars $400.00 $5400.00 "

(Only the underlined words and figures were inserted by Spina.) The other twenty-four items were set up in a similar fashion.

At the end of the form the bidder was required to express in words and numbers the total of the twenty-five items. Spina's total bid expressed in words and figures in the proper place at the end of the form was $125,781.85. ...


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