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Ernest Bock & Sons, Inc. v. Mercer County Improvement Authority

February 18, 2010

ERNEST BOCK & SONS, INC., PLAINTIFF-RESPONDENT,
v.
MERCER COUNTY IMPROVEMENT AUTHORITY, DEFENDANT-APPELLANT, AND HUNTER ROBERTS CONSTRUCTION GROUP, LLC, DEFENDANT-RESPONDENT.
ERNEST BOCK & SONS, INC., PLAINTIFF-RESPONDENT,
v.
MERCER COUNTY IMPROVEMENT AUTHORITY, DEFENDANT-RESPONDENT, AND HUNTER ROBERTS CONSTRUCTION GROUP, LLC, DEFENDANT-APPELLANT.
ERNEST BOCK & SONS, INC., PLAINTIFF-APPELLANT,
v.
MERCER COUNTY IMPROVEMENT AUTHORITY AND HUNTER ROBERTS CONSTRUCTION GROUP, LLC, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2503-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 1, 2009

Before Judges Wefing, Messano, and LeWinn.

These three back-to-back appeals, which we consolidate for the purpose of this opinion, involve a public works contract which the Mercer County Improvement Authority (MCIA) awarded to the lowest bidder, Hunter Roberts Construction Co., LLC (Hunter), on July 14, 2009, for the construction of a new criminal courthouse in Trenton. The second lowest bidder, Ernest Bock & Sons, Inc. (Bock), filed a complaint in lieu of prerogative writs challenging the award on the basis that Hunter's bid was non-conforming and invalid for (1) naming an unqualified subcontractor and (2) failing to comply with corporate ownership disclosure requirements. Bock further sought to compel the MCIA to award the contract to it as the next lowest responsible bidder. The matter was transferred from Mercer County to Burlington County.

On September 1, 2009, Judge Ronald E. Bookbinder, rendered a decision rejecting Bock's first claim, but finding that Hunter's bid was "materially defective for failing to comply with the [o]wnership [d]isclosure requirements of N.J.S.A. 52:25-24.2 and N.J.S.A. 40A:11-23.2, as required by the bid specifications." Therefore, the judge rescinded the contract award to Hunter. These three appeals followed.

In Nos. A-0051-09T2 and A-0150-09T2, the MCIA and Hunter separately appeal from provisions of the September 1, 2009 order rescinding the contract award to Hunter. In No. A-0199-09T2, Bock appeals from the provision in that order that Hunter's bid was not defective for naming a structural steel subcontractor that was not AISC*fn1 -certified as required by the MCIA's bid instructions. For the reasons that follow, we affirm the rescission of the contract awarded to Hunter substantially for the reasons stated by Judge Bookbinder in his written decision. Therefore, we dismiss Bock's appeal as moot.

I.

The factual background giving rise to these appeals may be summarized as follows. On January 30, 2009, the MCIA issued an "Advertisement for Bids," soliciting bids for the construction of a new Mercer County criminal courthouse. When the bids were opened on April 24, 2009, Hunter was the lowest bidder at $51,483,000; Bock was the next lowest bidder at $51,643,000. Bock submitted an objection to Hunter's bid on May 1, 2009. On July 14, 2009, the MCIA awarded the contract to Hunter. Bock's lawsuit followed.

In order to understand the issue presented by Bock's successful challenge to Hunter's bid, it is necessary to review the pertinent bidding instructions issued by the MCIA, Hunter's compliance with those instructions, and the applicable statutory mandates.

The MCIA's bidding instructions stated in Section 1, entitled "INVITATION TO BID":

D. The Bid Documents include the Bidding Requirements and the proposed Contract Documents. The Bidding Requirements consist of the Notice to Bidders, the Instructions to Bidders, any Supplementary Instructions to Bidders, the Proposal Forms and any other sample bidding and contract forms included or referenced in the Specifications. The proposed Contract Documents consist of the form of Agreement between the Owner and Contractor, Conditions of the Contract (General, Supplementary and any other Conditions), the Drawings, Specifications and all Addenda issued during bidding period.

The bidding instructions with respect to corporate disclosure provided as follows:

3. QUALIFICATION OF BIDDERS

A. Bidders . . . shall be pre-qualified by the State of New Jersey, Department of Property Management and Construction for the type of work bid, prior to submission of Bids . . . .

8. PREPARATION OF BIDS

F. In addition to the Pre-Qualification requirements specified above, each Bid shall include or be accompanied by [a]:

(v). Disclosure Statement setting forth names and addresses of all stockholders of [sic] partners who hold ten percent (10%) or greater interest in any corporation of [sic] partnership bidding on ...


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