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Lenox Towing v. County of Bergen and Nick's Towing Services

October 24, 2011

LENOX TOWING, PLAINTIFF,
v.
COUNTY OF BERGEN AND NICK'S TOWING SERVICES, INC., DEFENDANTS.
HACKENSACK AUTO BODY, CO., PLAINTIFF-APPELLANT,
v.
COUNTY OF BERGEN AND BERGEN BROOKSIDE AUTO BODY & TOWING, INC., DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket Nos. L-9004-09 and L-9317-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued August 30, 2011

Before Judges Payne and Messano.

Plaintiff Hackensack Auto Body Co. (Hackensack) appeals from the grant of summary judgment dismissing its complaint against the County of Bergen (County) and Bergen Brookside Auto Body & Towing, Inc. (Brookside). We have considered the arguments raised in light of the record and applicable legal standards. We reverse and remand for further proceedings consistent with this opinion.

I.

On July 1, 2009, Hackensack and Brookside submitted bids pursuant to the County's advertised solicitation for the towing and storage service contract with the County police department. Brookside's bid was submitted under the signature of John Salemme, its president, with its business address listed as 83 Zabriskie Street, Hackensack.

Pursuant to the bid specifications, storage facilities for towed vehicles needed to "be in compliance with all applicable State, County and Local regulations, including but not limited to, municipal zoning requirements," and be "contiguous to the applicant[']s principal place of business." Additionally, each bidder was required to submit "written evidence of [its] ability to meet [storage] requirements for the total duration period of the contract." With its bid, Brookside furnished a certification from the municipal zoning officer indicating that it was authorized to operate a towing business subject to the provision of "adequate storage facilities."

The bid specifications also provided:

It is not mandatory for the vendor to be in possession (own or lease) [of] all minimum equipment on the date the bid proposal is submitted. However, it is mandatory that such a vendor be able to establish his intent and ability to acquire the necessary equipment and be in possession of same, by no later than ten (10) business days prior to the award of this contract.

If the vendor was not in possession of the "minimum equipment" when the bid was submitted, the specifications required that "[a] performance bond in the amount necessary to buy and/or lease the said equipment required to fulfill the terms of the contract" be submitted with the bid. Each bidder was required to submit a roster of vehicles with specifications that complied with the "minimum equipment" requirements.

Two of the vehicles listed by Brookside were a new 2009 Ford F550 wrecker and a new 2009 Peterbilt 500 heavy duty wrecker. As proof of its intention to purchase these vehicles, Brookside submitted two purchase orders from Nussbaum Wreckers & Carriers. The purchase orders reflected the purchase of four vehicles, including the two vehicles listed by Brookside in the roster, with balances of $75,111 and $278,500 respectively, and receipt of a deposit on each order. Brookside did not furnish a performance bond or include a specification sheet for each vehicle.

On July 22, 2009, Hackensack forwarded written objection to Brookside's bid, arguing that the failure to post the required performance bond and adequately demonstrate ability to store vehicles at its principal place of business were material defects requiring disqualification. In a second objection letter, dated July 24, Hackensack added further objection, noting "it [was] impossible to determine who the bidder actually [was]," since the various documents and insurance information Brookside submitted listed several different business entities, all of which included the name "Brookside." In a third letter submitted September 10, Hackensack claimed its investigation revealed that 83 Zabriskie Street was owned by "John and Regina Salemme," not Brookside, and that other properties -- 85 Zabriskie Street and property on "Oak Street" -- were being used by Brookside in the operation of its towing business.

Both Hackensack and Brookside submitted bids in which they agreed to remit to the County $25 per towed vehicle. On October 7, 2009, the County's Board of Chosen Freeholders awarded the contract to Brookside. The resolution noted that both bids "offer[ed] equal prices and [we]re the highest revenue producing bids" received. Citing N.J.S.A. 40A:11-6.1(d), the resolution indicated that the award could be made "in the discretion of the contracting unit" to the "most advantageous [vendor], price and other factors considered." Further referencing the "bid evaluation" of the County Police Department, the resolution declared that Brookside "more closely [met] compliance with specifications." The contract commenced October 7, 2009 and ended September 1, 2010, with two "12-month options" thereafter.*fn1

On October 23, Hackensack filed a verified complaint in lieu of prerogative writs naming Brookside and the County as defendants. It alleged that Brookside's bid did not comply with the specifications in four areas: the absence of a performance bond and equipment specification sheet; lack of documentation demonstrating the storage facility complied with local zoning; the use of several different corporate and trade names on the bid documents; and submission of a "Business Registration Certificate" in a name other than that of the bidder. Hackensack sought to set aside the contract award to Brookside, have the contract awarded to Hackensack and damages pursuant to 42 U.S.C.A. § 1983 and § 1988.

In support of the request for an order to show cause seeking temporary and permanent injunctive relief, Hackensack's principal, Donald Scheffler, certified that two of the trade names used by Brookside were names of companies owned by him and his partner. He attached a copy of Hackensack's zoning ordinance that prohibited "automobile junkyards or wrecking yards" in all zoning ...


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