On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-94-01.
Before Judges Havey, Braithwaite and Coburn.
The opinion of the court was delivered by: Havey, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This is a public bidding case.*fn1 The Public Works Contractor Registration Act (PWCRA), L. 1999, c.238, became effective on April 11, 2000. N.J.S.A. 34:11-56.48 to -57. It provides that "no contractor shall bid on or engage in any contract for public work . . . unless the contractor is registered pursuant to this act." N.J.S.A. 34:11-56.51 (§ 56.51). The definition of "[c]ontractor" includes "any subcontractor or lower tier subcontractor of a contractor as defined herein . . . ." N.J.S.A. 34:11-56.50.
In this case, the trial court interpreted § 56.51 as requiring the contractor and all subcontractors who will work on the job to be registered before the contractor submits its bid proposal to the public entity. The court therefore vacated an award of a contract by defendant Borough of Keyport to defendant A&K Excavating, L.L.C. (A&K) because A&K's steel structure subcontractor, D.L. Zagata, Inc. (Zagata), was not registered when A&K submitted its bid. We reverse. We hold that under § 56.51, a subcontractor is required to register before it begins performing work on the project, not before the general contractor submits its bid proposal. The matter is remanded with direction that Keyport award the contract to A&K.
On August 1, 2000, the Borough of Keyport solicited public bids for the construction of a new municipal building complex. The bid advertisement provided that "[b]idders are required to comply with the requirements of . . . P.L. 1999, c. 238, 'The Public Works Contractor Registration Act.'" N.J.S.A. 34:11-56.48 to -57. The bid instructions defined "[p]ublic [w]orks" as including "any subcontractor or lower tier subcontractor as defined herein."
Seventeen bids were received, ranging from a bid price of $3,010,000 to $3,898,000. The ascending order of the bidders*fn2 who are participating in this appeal, and the amount of their respective bid, is as follows:
1. A&K Excavating, LLC (A&K) $3,010,000
2. Maharaj Construction, Inc. (Maharaj)$3,082,000
3. R.C.G. Construction Co., Inc. (RCG)$3,127,000
RCG filed written objections with the Borough, alleging that it submitted the only fully compliant bid because, although A&K was registered under the PWCRA at the time it presented its bid proposal, its steel subcontractor, Zagata, was not. RCG also claimed that A&K's failure to include its bid price of $3,010,000 in its corporate resolution was a material defect, and that Maharaj's bid was invalid because necessary information was not contained in its corporate resolution.
On December 19, 2000, Keyport awarded the contract to A&K. In its resolution, the Borough stated that: (1) the registration of subcontractors was not expressly required by the bid specifications and that, in fact, Zagata's registration certificate had been furnished to the Borough prior to its award of the contract to A&K; and (2) A&K's failure to include its bid price in its corporate resolution was a waivable, nonmaterial defect.
In vacating the award of the contract to A&K, the trial court concluded that § 56.51 was clear and unambiguous because it states that "[n]o contractor shall bid on or engage in any contract for public work . . . ." It reasoned that since "contractor" by definition includes a "subcontractor" under N.J.S.A. 34:11-56.50, the Legislature intended that both contractors ...