On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-3147-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, R. B. Coleman and Baxter.
This is a public bidding case. The North Hanover Township Board of Education solicited bids for the installation of a solar panel system at one of its schools. Sealed bids were opened on August 11, 2009. The lowest bid was submitted by Ray Angelini, Inc. (RAI) in the amount of $2,284,655. Lighton Industries, Inc. (Lighton) submitted the second lowest bid, in the amount of $2,339,000. Each bidder submitted a single bid for the overall performance of the work and listed various subcontractors that would perform certain designated work. Lighton's bid did not list more than one subcontractor in each designated category. RAI's bid, however, listed two structural steel subcontractors and four roofing subcontractors.
The bid specifications required the listing of such subcontractors and proof of their performance security. RAI complied with those requirements. The bid specifications did not require a delineation of the scope of work that each designated subcontractor (if more than one was named in a particular category) would perform. RAI did not list a scope of work delineation in the structural steel and roofing categories. Because it did not, Lighton contended RAI's bid was fatally defective and should have been rejected. The school district had awarded the bid to RAI. Lighton instituted this prerogative writs action seeking to set aside RAI's bid, to declare Lighton the lowest responsible bidder, and to direct the school district to award the bid to Lighton.
Without dispute, the validity of the bids is governed by the Public School Contracts Law (PSCL), N.J.S.A. 18A:18A-1 to -59. The matter came before Judge Bookbinder on October 21, 2009. He determined that under the applicable provision of the PSCL, N.J.S.A. 18A:18A-18, bidders on school projects who submit a single bid are required to list subcontractors for structural steel work and provide proof of their performance security, but they are not required to set forth the scope of work each subcontractor will perform. He further noted that N.J.S.A. 18A:18A-18 did not require the listing of roofing subcontractors. Finally, he concluded that with respect to both the structural steel and roofing subcontractors, RAI complied with the requirements of the bid specifications. The judge rejected Lighton's argument that a more stringent requirement regarding the identification of subcontractors in bids under the Local Public Contracts Law (LPCL), N.J.S.A. 40A:11-1 to -51, which requires bidders who submit a single bid to not only identify subcontractors in specified categories (including structural steel), but also to set forth the scope of work each will perform, N.J.S.A. 40A:11-16, should be applicable in the school bidding context as well.
Judge Bookbinder reasoned that the Legislature deliberately amended the LPCL in 1998 to include the scope of work requirement, but did not make a similar amendment to the PSCL. Notably, since 1998, the Legislature has twice amended N.J.S.A. 18A:18A-18, but did not insert a scope of work requirement. The judge concluded that the omission was a deliberate one by the Legislature, and even if it was an oversight, it is not one that leads to an absurd result. Thus, if correction is deemed appropriate by the Legislature, it is the Legislature, not the courts, that should make that determination. The judge also rejected Lighton's contention that the scope of work requirement is a fundamental requirement of New Jersey law with respect to all public bidding, which should result in an implied amendment to N.J.S.A. 18A:18A-18.
Finally, the judge noted the substantial injustice that would result from Lighton's position. Our bidding laws are purely statutory. RAI complied with the clear and unambiguous provisions of the applicable section of the admittedly governing PSCL. To throw out its low bid for noncompliance with some implied condition not contained within the statute would subvert rather than promote the purposes of fair competitive bidding in the public arena.
Judge Bookbinder accordingly issued an order on October 30, 2009 declaring that RAI was the lowest bidder and that the school district properly awarded it the contract. Anticipating an appeal, and recognizing that injunctive relief is the sole remedy available to an aggrieved bidder who is not awarded a contract, the judge granted a temporary stay until November 6, 2009. On November 2, 2009, Lighton filed a notice of appeal. On November 6, 2009, we issued an order extending the stay pending appeal. We accelerated the appeal, and after receiving briefs from all parties, the matter was placed on our March 1, 2010 calendar for oral argument.
In the interim, on January 20, 2010, Judge Bookbinder issued a written supplemental statement of reasons, amplifying his earlier decision. See R. 2:5-1(b).
We are in complete agreement with Judge Bookbinder's analysis and conclusion. We affirm substantially for the reasons set forth in his thorough and well-reasoned supplemental decision of January 20, 2010. The stay is vacated.
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