On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-3597-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 11, 2011 - Decided Before Judges Payne, Baxter and Koblitz.
This appeal by Suburban Disposal, Inc. raises issues regarding the bidding procedures adopted by the Borough of Chatham in connection with a five-year solid waste disposal contract commencing on January 3, 2011. The essentially uncontroverted facts of the matter give context to the legal discussion that follows.
On August 25, 2010, Chatham issued a bid document entitled Specifications for Solid Waste Collection Service that provided instructions to bidders and set forth bid submission requirements, work specifications and other matters relevant to the bidding process. The document commenced by stating:
Sealed proposals for SOLID WASTE COLLECTION SERVICE will be received by the Borough of Chatham in the Municipal Building, 54 Fairmount Avenue, Chatham, New Jersey on October 26, 2010 at 2:00 p.m. prevailing time, Room 212 at which time and place they will be publicly opened and read aloud. No sealed proposals will be accepted after this time.
The document also stated in paragraph 1.3:
All bid proposals will be publicly opened and read by the Borough Clerk at the time and place specified in the Notice to Bidders. All bid proposals will be date and time stamped upon receipt. Bidder is solely responsible for the timely delivery of the bid proposal and no bids shall be considered which are presented after the public call for the receiving bids [sic]. Any bid proposal received after the date and time specified will be returned, unopened, to the bidder.
An additional paragraph addressed changes to bid specifications, stating that notice of such changes would be provided no later than five days prior to bid opening, excepting Saturdays, Sundays and holidays, by publication in the Chatham Courier and The Star-Ledger.
In order to accommodate Robert Willis, the expert retained by Chatham to furnish advice in connection with the bids, the time for opening of bids was subsequently changed from 2:00 p.m. to 9:30 a.m. on October 26. Notice of that change was printed in the Florham Park Eagle, the Chatham Courier, and the Madison Eagle on September 30, 2010 and in The Star-Ledger on October 12, 2010.*fn1 Willis undertook to provide further notice of the change by faxed messages addressed, as he phrased it in his certification, to "all bidders for whom I had a legible address." A sheet bearing xeroxed copies of business cards was utilized by Willis in his notification efforts. However, he acknowledged that no notification was provided to Future Sanitation, Inc. "because Future's business card was not easily reproduced," and notification was not provided to Galaxy Carting "because the business card for Galaxy was cut off of the bottom right hand of the facsimile that was sent to me of all the business cards. Only a 'G' and an 'S' were on the page and I did not inquire as to whether a card was cut off of the page." Additionally, no faxed notification was supplied to Suburban, the company that was then providing waste hauling services to Chatham.
On October 26, two bidders, B&B Disposal and Suburban, submitted bids by the 9:30 a.m. deadline, and they were opened. At approximately 1:50 p.m., two additional prospective bidders appeared. One left when informed that the deadline had been missed. Galaxy's representative remained, and after being instructed to do so by Galaxy's counsel, he left Galaxy's bid with Chatham's deputy clerk, who forwarded it to Willis.*fn2 Willis tabulated all three of the bids. The chart prepared by him indicated that B&B Disposal had submitted a bid of $1,344,000; Suburban had submitted a bid of $1,223,000; and Galaxy had submitted a bid of $1,016,560. Galaxy's bid was thus substantially less than that of Suburban, the lowest bidder to have met the 9:30 deadline.
By letter dated October 27, counsel for Galaxy protested the notice procedures undertaken on Chatham's behalf, stating: "The information supplied to me by my client discloses that some of the potential bidders received written notification of the addendum changing the bid receipt date from the Borough, while others, such as my client, did not." Counsel then sought to be informed whether, as a result, the bids would be rejected pursuant to N.J.S.A. 40A:11-13.2(e).
On November 1, 2010, Chatham notified potential contractors that, at a meeting to be held on November 8, 2010, the Borough Council would consider a resolution rejecting all bids and a second resolution authorizing re-advertising on or about November 9, 2010 for a ...