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P&A Construction, Inc. v. Township of North Brunswick

April 13, 2010

P&A CONSTRUCTION, INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF NORTH BRUNSWICK, A BODY CORPORATE OF THE STATE OF NEW JERSEY, AND LUCAS BROTHERS, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS, AND S. BROTHERS, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-0756-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: January 6, 2010

Before Judges Cuff and C.L. Miniman.

Plaintiff P&A Construction, Inc., appeals from a final judgment dismissing its verified complaint contesting the award by defendant Township of North Brunswick (the Township) of a contract to defendant Lucas Brothers, Inc. (Lucas), following competitive bidding. Because the issues presented for our consideration are moot, we dismiss the appeal.

In or around December 2008, the Township advertised for competitive bids for the 2009 Road Improvement Program Contract No. 09-001 (the Contract). Each bidder was required to "furnish a certified financial statement showing his assets and liabilities and prepared within the last 12 months." This requirement was also outlined on a standardized checklist for bidders. Specifically, the checklist included a "Certified Financial Statement prepared within the last twelve months" along with a provision that the failure to submit this documentation "may be a cause for the bid to be rejected" under N.J.S.A. 40A:11-23.1b.

The Township received bids for the Contract on January 15, 2009. After reviewing the bids, the Township determined that Lucas submitted the lowest bid. Defendant S. Brothers was the second lowest bidder and plaintiff was the third. In a letter addressed to the Township's attorney, plaintiff submitted a bid-protest notice alleging noncompliance on the part of both Lucas and S. Brothers.*fn1

In particular, plaintiff alleged Lucas submitted a financial statement that was "out of date and contrary to the mandated standard that the financial statement be prepared within twelve (12) months of the bid." As such, plaintiff insisted the bid was "absolutely materially defective" and, therefore, the Township could not award the contract to Lucas.

The Township responded on January 21, 2009, concluding that the alleged deficiencies in Lucas's bid were unsupported by the facts and not material to the bid solicitation process. Specifically, the Township noted that Lucas had provided "financial statements as of December 31, 2007," but they had been "audited and certified by Levin & Company, LLC and dated April 17, 2008." Because bids were received on January 15, 2009, the audit and certification dated April 17, 2008, were "clearly within the twelve-month period required by the bid solicitation documents." Several more letters were exchanged among the parties during the ensuing week, none of which resolved the dispute.

Following this correspondence, plaintiff filed a verified complaint and submitted an order to show cause on February 2, 2009, to enjoin the Township from awarding the Contract to Lucas. The court entered the order to show cause with temporary restraints, set forth a briefing schedule, and ordered all parties to appear on February 25, 2009. Lucas filed an answer on or about February 19, 2009, as well as a brief and certification in opposition to plaintiff's requested relief. The Township submitted a letter brief and certification on or about February 20, 2009. The Township also filed its answer to plaintiff's complaint on or about February 23, 2009. On February 24, 2009, plaintiff filed a letter brief and supplemental certification.

The judge conducted a hearing on February 25, 2009, at which time plaintiff, the Township, and Lucas all presented arguments in support of their respective positions. The judge permitted the parties to submit supplemental documentation to determine whether Lucas's financial statements were certified by an accountant. Lucas provided a certification from its accountant, Robert Levin, on March 5, 2009. The Township submitted a certification from its accountant on March 6, 2009.

Additionally, plaintiff filed a certification to demonstrate the intended meaning of the word "prepared" in the bid solicitation as interpreted by the State of New Jersey, Department of Community Affairs, Division of Local Government Services (the Division). Specifically, in a letter to plaintiff's counsel dated March 5, 2009, the Director of the Division stated that "[i]t is the Division's view that the word 'prepared' in the certified financial statement language refers to a period ending within twelve months prior to the date of the receipt of the bids."

On March 13, 2009, the judge issued a letter opinion and denied plaintiff's request to enjoin the Township from executing the Contract with Lucas. The judge noted that Lucas's "financial statement was clearly prepared within the twelve-month period prior to the bid acceptance date as required by the bid solicitation documents." The judge addressed plaintiff's concern that the financial statement did not accurately portray Lucas's financial condition by pointing out that other indicators, such as bonding and surety, were available to the Township in determining the lowest bidder for the Contract. An order dismissing the action was entered the same day.

Thereafter, plaintiff moved to stay the dissolution of the temporary restraints to allow it to file an application for emergent relief with us. The judge granted the requested stay until March 27, 2009. Plaintiff then filed an emergent application for a stay on March 23, 2009. The Township opposed the stay and we denied the application on March 25, 2009. Plaintiff then sought emergent relief from the Supreme Court of New Jersey on March 26, 2009. The Court temporarily extended the stay, but after ...


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