On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-4126-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Messano and LeWinn.
These appeals were calendared and argued back-to-back. Because they involve the same core facts and compel the same legal analysis, we have consolidated them for purposes of this opinion. At issue is a series of orders entered by the Law Division judge after a summary proceeding. The first, dated January 27, 2009, granted plaintiff, Nova Crete, Inc. (Nova Crete), permanent injunctive relief, "restrain[ing] and enjoin[ing]" defendants, the City of Elizabeth (Elizabeth) and JOGI Construction, Inc. (JOGI), from "proceeding with work pursuant to an award of contract" for the Elizabeth Avenue Streetscape Enhancement Construction Project (the project). On February 20, the judge entered two additional orders: he denied JOGI's motion for reconsideration; and, he ordered Elizabeth to "rescind the award of contract to JOGI." In A-3211-08, Elizabeth appeals, and Nova Crete cross-appeals; in A-3550-08, JOGI appeals.
The salient facts and procedural history are undisputed. Elizabeth publicly solicited bids for the project. Each bidder received a packet of "Information for Bidders" that stated in relevant part:
Each bidder must submit with his bid a certificate from a responsible surety company stating that the said surety company will provide in the event that he should be the successful bidder, a surety bond in the amount of one hundred percent (100%) of the contracted price and subject to such conditions as contained in the specifications, said surety bond to be satisfactory to the City Council of the City of Elizabeth. The surety shall comply with the requirements of N.J.S.A. 2A:44-143 as amended. [(Emphasis added).]
The bid package also contained a "Document Submission Checklist" advising all bidders that submission of "[a] [c]ertificate from a surety company, pursuant to N.J.S.A. 40A:11-22" was mandatory, and that the failure to submit same may be "cause for the bid to be rejected[,]" citing N.J.S.A. 40A:11-23.2.
On October 7, 2008, Elizabeth received nine bids. Nova Crete's bid was the lowest, at $1,388,495.00; JOGI's was the second lowest at $1,626,061.09. On October 20, Elizabeth's Director of Public Works, John F. Papetti, Jr., notified the City Council that Nova Crete's bid "failed to provide an unconditional Consent of Surety which is a material defect[.]" Therefore, Papetti claimed the bid was "non[-] responsive and must be rejected." On October 28, the Council awarded the contract to JOGI.
Specifically, Nova Crete's consent of surety stated:
The Aegis Security Insurance Company as Surety . . . hereby consents and agrees that if the Contract for the Elizabeth Avenue Streetscape . . . be awarded to Nova Crete Inc., as Principal, the undersigned Surety agrees with the said City of Elizabeth, Obligee, to execute the final bond as required by the specifications and to become Surety in the full amount of the contract price, not to exceed ($2,200,000.00) dollars, for the faithful performance of the contract, provided we are requested by the Principal.
By contrast, JOGI's consent of surety stated:
Developers Surety and Indemnity Company . . . hereby agrees that if [JOGI] is the successful Bidder for Elizabeth Avenue Streetscape[,] it as surety, will provide the Bidder with bonds in such sum as are ...