On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Bergen County.
Approved for Publication December 12, 1997.
Before Judges Brochin, Kestin and Eichen. The opinion of the court was delivered by Kestin, J.A.D.
The opinion of the court was delivered by: Kestin
The opinion of the court was delivered by
Plaintiff, Serenity Contracting Group, Inc. (Serenity), filed suit seeking restraints against defendants from entering into a contract for the construction of new police department headquarters, and an order requiring defendant Borough of Fort Lee (the municipality) to award the contract to Serenity. The verified complaint alleged that Serenity and defendant C. Raimondo & Sons Construction Co. (Raimondo) had bid on the project pursuant to the Local Public Contracts Law, N.J.S.A. 40A:11-1 to -49, and that, despite Serenity's low bid, the Borough Council had impermissibly awarded the contract to Raimondo, the next lowest bidder.
After reviewing the proofs and the arguments of the parties, the trial court denied the relief sought, entering judgment for defendants and dismissing the complaint with prejudice. In a written opinion, after reciting the procedural history and the contentions of the parties, the trial Judge elucidated the reasons for his decision:
Although Serenity submitted the lowest bid, the Mayor and Council of Fort Lee determined that Serenity's bid was deficient, and therefore non-responsive, as a result of numerous unexplained alterations and other defects.
In support of its position requesting the court to rescind the contract between Fort Lee and Raimondo, Serenity relies upon N.J.S.A. 40A:11-6.1, which reads in part: "All purchases, contracts or agreements which require public advertisement for bids shall be awarded to the lowest responsible bidder." Serenity argues that because it was the lowest responsible bidder for the Project, it is entitled by law to the award of the contract. This court disagrees in that although Serenity may have been the lowest bidder, the Mayor and Council of Fort Lee did not find it to be the lowest responsible bidder.
In order to reject a low bid on a finding of irresponsibility, "there must be evidence of such character concerning the irresponsibility of the bidder as would cause fairminded and reasonable men to believe it was not in the best interest of the municipality to award the contract to the lowest bidder." Stano v. Soldo Constr. Co., 187 N.J. Super. 524, 534, 455 A.2d 541 (App. Div. 1983) citing Arthur Venneri Co. v. Paterson Housing Auth., 29 N.J. 392, 402, 149 A.2d 228 (1952). A determination that a bidder is irresponsible must be a bona fide judgment based upon facts tending to support the determination. Stano, 187 N.J. Super. at 535. Thus, a determination by a governing body not to award a contract to a bidder because of irresponsibility will be reviewed on an abuse of discretion standard. Id.
Applying these principles to the matter at bar, this court finds that there were facts to support Fort Lee's decision to award the contract to Raimondo, and not Serenity. First, Serenity's bid contained several alterations. Some of the alterations were made by crossing out bid prices and hand writing other prices in their stead, while others were accomplished by means of "white-out".
Second, the alterations on Serenity's bid were not explained or noted in the bid over the signature of the bidder as required by § 6(d) of the Bid Specifications. Fort Lee claims that as a result of this, it feared that Serenity could have disclaimed the alterations as having been made without authorization and could have sought to withdraw its bid on this ground.
Third, Serenity listed two subcontractors for the plumbing and fire work, one of which was typed in and one which was hand written. The handwritten entry was not initialed, and was written in a different color from the rest of the bid.
Based upon these deficiencies, Fort Lee determined that it was not in its best interests to award the contract to Serenity. In that this court finds that there was no abuse of discretion on the part of Fort Lee in awarding ...