On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4681-03.
Before Judges Skillman, Wells and Fisher.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The issue presented by this appeal is whether the 1999 amendments to the Local Public Contracts Law, L. 1999, c. 39, N.J.S.A. 40A:11-21 to -23.2, which contain a new section that makes certain types of bid defects automatic grounds for rejection of a bid, should be construed as an implicit authorization for a local contracting agency to waive any other type of bid defect. We conclude this new section was not intended to change existing law concerning the determination of waivability of bid defects other than the ones set forth therein. We also conclude that the requirement in the bid proposal involved in this case [.arrowhorizex] submission of a certified financial statement [.arrowhorizex] was material and hence not waivable by the contracting agency.
In December 2002, defendant Township of Woodbridge issued a solicitation for bids for road reconstruction work. Attached to the solicitation was a checklist of items bidders were required to submit with their bids. This checklist was divided into two subsections, A and B. The items listed under subsection A included a bid guarantee as required by N.J.S.A. 40A:11-21, a certificate from a surety company, pursuant to N.J.S.A. 40A:11-22, a statement of corporate ownership, pursuant to N.J.S.A. 52:25-24.2, and a listing of subcontractors as required by N.J.S.A. 40A:11-16. At the top of the subsection A checklist, it stated:"Failure to submit the following documents is a mandatory cause for the bid to be rejected (N.J.S.A. 40A:11-23.2)." The items listed under subsection B included a certified financial statement prepared within the last twelve months, a consent of surety as to a labor and material payment bond, a non-collusion affidavit and a certificate showing that the bidder owns, leases or controls any necessary equipment. At the top of the subsection B checklist, it stated:"Failure to submit the following documents may be a cause for the bid to be rejected (N.J.S.A. 40A:11-23.1b.)."
Defendant F. Montecalvo Contracting Co. (Montecalvo) submitted the low bid for the road reconstruction work. However, Montecalvo's bid was not accompanied by"a certified financial statement prepared within the last twelve months," which was one of the items set forth under subsection B of the checklist. Instead, Montecalvo's president sent a letter with its bid which stated:
F. Montecalvo Contracting Co., Inc. has been in business since 1976. We have over $5,000,000.00 worth of bonding capacity.
Our corporate references should speak for themselves. Should F. Montecalvo Contracting Co., Inc. be the apparent low bidder on the project referenced above, we will submit our company's current financial statement if necessary. However, we feel that as a small, privately-held corporation, this information is confidential.
Shortly after the bids were opened, plaintiff P&A Construction, Inc. (P&A), the second low bidder, sent a letter to Woodbridge which contended that Montecalvo's bid was not responsive to the bid proposal because it was not accompanied by the required certified financial statement. P&A asked Woodbridge to reject Montecalvo's bid and award the contract to P&A.
Woodbridge denied P&A's challenge to Montecalvo's bid by letter dated June 16, 2003, which stated in pertinent part:
[T]he Financial Statement is not one of the"mandatory requirements" set forth in N.J.S.A. 40A:11-23.2. Our"Checklist For Construction" at page C-13 section B states,"Failure to submit the following documents may be a cause for the bid to be rejected.
Like P&A, we have many years of positive experience with Montecalvo and are confident in their ability to meet their contractual obligations. Accordingly, we are not inclined to dismiss their bid for that reason.
P&A then brought this action in lieu of prerogative writs to enjoin Woodbridge from awarding the contract to Montecalvo, joining Woodbridge, Montecalvo and Defino Contacting Co.,*fn1 the third low bidder, as defendants. The case ...