On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3706-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Fisher.
This appeal involves a dispute between two competing bidders for a municipal contract to provide towing services.
The successful bidder's proposal indicated it was in possession of two wreckers despite the specifications' mandate that three wreckers were required. We conclude the municipality could not waive this material nonconformity and, therefore, reverse the dismissal of the complaint and remand for judgment in favor of plaintiff, the next lowest bidder.
The critical facts in this case are neither complicated nor in dispute. Plaintiff Cioffi's Towing Service, Inc., and defendant Helmrich Transportation Systems, Inc., are operators of towing businesses. In 2008, defendant Borough of Collingswood (the municipality) sought bids on a three-year contract to provide towing services. The request for bids contained a list of "minimum standards" that all bidders "shall be required" to meet. Among those minimum standards was the mandate that the operator "must maintain" the following equipment:
-- "One heavy duty wrecker - over 10 ton capacity";
-- "One medium duty wrecker - 10 ton capacity";
-- "One light duty wrecker - 4 ton capacity"; and
The request for bids also indicated that the municipality reserved "the right to reject any or all proposals and to waive any immaterial informalities as may be permitted by law."
The municipality received three bids. The lowest bidder was disqualified for reasons not relevant here. Helmrich was the next lowest bidder. Helmrich's list of equipment, however, revealed it had only two wreckers, not the three wreckers required by the bid specifications. Notwithstanding this discrepancy, the municipality awarded the contract to Helmrich. Upon learning this, plaintiff immediately requested that the municipality rescind the award because Helmrich did not indicate it had the specified equipment, and did not supply a certified land survey and a certificate of good standing, as also required by the bid specifications. The municipality's administrator deemed the lack of a certified land survey and certificate of good standing to be immaterial and then sought out the chief of police's view regarding the adequacy of Helmrich's equipment. The chief of police concluded that "[a]lthough [Helmrich's] equipment list does not reference a medium duty towing vehicle, the equipment listed is sufficient to serve the [municipality's] needs for towing services based upon my familiarity with the frequency of calls for such services." As a result, the municipality rejected plaintiff's request that the contract with Helmrich be rescinded.
Plaintiff immediately filed this action, seeking a judgment invalidating the municipality's contract with Helmrich and awarding the contract to plaintiff. The matter was scheduled for a plenary hearing on the return date of an order to show cause, but the parties agreed upon a submission of the undisputed facts and no live testimony was presented. A week after hearing the argument of counsel, the trial judge rendered an oral decision in which she held that the discrepancies between the bid specifications and Helmrich's proposal were immaterial and that the municipality's waiver of those discrepancies did not adversely affect ...