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Erco Ceilings of Somers Point, Inc. v. Richard Stockton College of New Jersey

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 13, 2010

ERCO CEILINGS OF SOMERS POINT, INC., PLAINTIFF-APPELLANT,
v.
THE RICHARD STOCKTON COLLEGE OF NEW JERSEY, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1918-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 20, 2010

Before Judges Skillman and Gilroy.

Appellant Erco Ceilings of Somers Point, Inc., appeals from respondent's, The Richard Stockton College of New Jersey, April 7, 2009 decision rescinding respondent's intent to award appellant a contract for the installation of carpet and tile. We dismiss the appeal.

In early February 2009, respondent advertised a request for proposals (RFP) No. B090019, advising that it would accept sealed bids for installation of carpet and tile on an as-needed basis at the college. On March 17, 2009, respondent opened the bid proposals as scheduled, and determined appellant as the lowest responsible bidder. On March 23, 2009, respondent sent appellant a notice of its intent to award appellant the contract. The notice provided in part that "this award shall be effective seven (7) days from the date of this letter subject to any appeals."

On March 30, 2009, Carpet Showcase, an unsuccessful bidder, sent respondent a letter protesting respondent's intent to award the contract to appellant, contending that Carpet Showcase was the lowest responsible bidder. On April 6, 2009, counsel for Carpet Showcase advised appellant of his client's intent to appeal the award of the contract. On the following day, respondent rescinded its intent to award the contract to appellant, advising that it had decided to reject all bids. On April 23, 2009, appellant notified respondent that it objected to the rescission as untimely. On May 14, 2009, respondent re- advertised the campus-wide carpet and tile installation project under RFP No. B090025.

On June 1, 2009, appellant filed a complaint in lieu of prerogative writs seeking to compel respondent to award appellant the contract and to enjoin respondent from opening bid proposals received under the second RFP. The following day, in opposition to appellant's application for an order to show cause, respondent challenged the trial court's jurisdiction to proceed in the action, contending that jurisdiction to hear appeals from final decisions of State agencies rests with the Appellate Division.

On June 3, 2009, pending the court's resolution of the jurisdictional issue, the court entered an order permitting respondent to receive and open bid proposals under the second RFP, but enjoining respondent from awarding a contract under that RFP. On June 10, 2009, the court entered an order supported by a memorandum of decision, determining that it did not have jurisdiction to hear the appeal, transferred the action to the Appellate Division pursuant to Rule 2:2-3(a)(2), and denied appellant's request for a preliminary injunction enjoining respondent from opening bid proposals received under the second RFP.

On June 11, 2009, respondent sent a notice of its intent to award the carpet and tile contract under the second RFP to New Jersey State Flooring, Inc. The notice confirmed that the contract was for a one-year period expiring on June 30, 2010, with the respondent having the option to extend the contract for two additional periods of one year each.*fn1 A copy of the notice was sent to appellant the same day.

On June 16, 2009, appellant filed an administrative appeal with respondent, challenging the contract award to New Jersey State Flooring, contending in part that respondent had acted in an arbitrary and capricious manner when it rescinded the award of the contract and rejected all bid proposals under the first RFP. On July 9, 2009, respondent denied appellant's appeal from the award of the contract to New Jersey State Flooring. However, appellant did not appeal to us from that decision.

On appeal from the rescission of the award of the contract, appellant argues that respondent "acted in an arbitrary and capricious manner when it refused to award Erco the contract because an unmeritorious appeal had been filed," and respondent lacked a cogent and compelling reason to reject all bid proposals under RFP No. B090019. Respondent counters that the appeal was filed untimely; that the appeal is moot as the contract has been executed and the work is substantially completed; and that it properly rescinded the award of the contract to appellant and rejected all bids under the initial RFP. Because we conclude that appellant failed to name New Jersey State Flooring as an indispensable party to this appeal, we dismiss the appeal without addressing the parties' arguments.

Determining whether a party is indispensable to an action is fact specific. Allen B. DuMont Labs., Inc. v. Marcalus Mfg. Co., 30 N.J. 290, 298 (1959). "A party is indispensable if [the party] has an interest 'inevitably involved in the subject matter before the court and a judgment cannot justly be made between the litigants without either adjudging or necessarily affecting the absentee's interests.'" Bruno v. MaGrann Assocs., 388 N.J. Super. 539, 547 (App. Div. 2006) (quoting Allen B. DuMont Labs., Inc., supra, 30 N.J. at 298)). See also Pressler, Current N.J. Court Rules, comment 3.1 on R. 4:28-1 (2010). ("Indispensability is usually determined from the point of view of the absent party and in consideration of whether or not his rights and interests will be adversely affected.").

On June 1, 2009, appellant initiated its appeal from respondent's decision to rescind the award of the contract under RFP No. 090019 by filing a complaint in lieu of prerogative writs in the Law Division. In the complaint, appellant did not assert a claim for damages. Rather, appellant sought an order under the Declaratory Judgment Act, N.J.S.A. 2A:16-50 to -62, declaring that it was entitled to the award of the contract because respondent's rejection of all bid proposals under the initial RFP was arbitrary and capricious, and in violation of the State College Contracts Law, N.J.S.A. 18A:64-52 to -85. Additionally appellant sought an order enjoining respondent from receiving bid proposals under the second RFP, and from "implementing or effecting award of the contract for the Project to any bidder other than [appellant]."

On June 11, 2009, respondent sent appellant a copy of a letter advising of respondent's intent to award the campus-wide carpet and tile contract to New Jersey State Flooring. Nonetheless, appellant never amended its appeal to add New Jersey State Flooring as a party.

We conclude that appellant's failure to add New Jersey State Flooring as a party to this appeal requires dismissal. We cannot grant the ultimate relief requested by appellant - that it be awarded the campus-wide carpet and tile contract - without affecting New Jersey State Flooring's interest in the contract it was awarded under the second RFP. Both counsel acknowledged at oral argument that, if we were to reverse and direct that respondent award the contract to appellant, respondent would have to void its contract with New Jersey State Flooring, as respondent cannot have two contracts with two different parties to perform the same work. Accordingly, because appellant failed to name New Jersey State Flooring as a party to this appeal, we dismiss. Allen B. DuMont Labs., Inc., supra, 30 N.J. at 298.

Appeal dismissed.


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