March 4, 2008
THE LANDTEK GROUP, INC., PLAINTIFF-RESPONDENT,
SOMERSET COUNTY PARK COMMISSION, DEFENDANT-RESPONDENT, AND BOB VIERSMA & SONS, INC., DEFENDANT-APPELLANT, AND DUMOR CONTRACTING, INC., DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-735-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 30, 2008
Before Judges Cuff, Lihotz and Simonelli.
This appeal arises from the award of a contract following public bidding for the construction and installation of a synthetic turf athletic field at an athletic complex in Somerset County. A disappointed bidder, The Landtek Group, Inc. (Landtek), filed an order to show cause and verified complaint challenging the award on the basis that the successful bidder, defendant Bob Viersma & Sons, Inc. (Viersma), did not submit a conforming bid. By order dated May 25, 2007, Judge Ciccone rejected all bids and ordered defendant Somerset County Park Commission to re-bid the project "with clear, unambiguous bid specifications and instructions."
Viersma, the successful bidder, filed a notice of appeal; the May 25, 2007 order has been stayed pending appeal. By order dated September 4, 2007, we accelerated this appeal. On appeal, Viersma argues that Landtek lacks standing because its challenge is a disguised challenge to the specifications that must be asserted prior to the award of a contract. Viersma also contends that the specifications are neither confusing nor ambiguous and that it submitted a conforming bid.
In her May 25, 2007 opinion, Judge Ciccone stated that Landtek challenged the bids submitted by Viersma and the next lowest bidder as materially deficient and non-conforming to the bid specifications because they failed to demonstrate the requisite experience and omitted proof of an insured warranty.
In examining compliance with the specifications by the successful bidder, the judge found:
[I]t is not stated anywhere in Section 627.02A(4) that multiple synthetic turf fields completed during the same project may be counted as individual installations . . . . Both the Park Commission and Viersma argued that one project listed in Viersma's bid included three or four synthetic turf fields, which the Park Commission counted as individual installations in order to reach the requisite number of five similar installations. This Court cannot allow the unclear language of the bid specifications to stand nor condone the Park Commission adjusting the specifications after the bids were opened in order to make the lowest bid responsive and conforming. To do so would fail to protect the public good by securing the benefits of fair and open competition . . . . It would ignore the fact that the requirement of five similar projects in the recent past deterred other contractors from bidding for the project.
Judge Ciccone also found that she could not determine whether Viersma submitted a conforming bid because the language of the bid specifications requiring submission of an insured manufacturer's warranty did not clearly state whether the warranty had to be submitted with the bid or upon completion of the project.
Following a complete review of the record, we agree with the disposition of the Landtek challenge and affirm substantially for the reasons expressed by Judge Ciccone in her May 25, 2007 opinion.
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