On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4770-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 29, 2012 -
Before Judges Graves, J. N. Harris and Koblitz.
Plaintiff Suburban Disposal, Inc. (Suburban) appeals from an October 7, 2011 order denying its request to restrain the award of solid waste collection and recycling contracts by the City of Bayonne to Joseph Smentkowski, Inc., d/b/a Galaxy Carting (Galaxy). The facts are not in dispute. After reviewing the legal arguments, we determine that Galaxy was not a responsible bidder because, at the time of its bid, it was compliant with neither N.J.A.C. 7:27-32.1 to -32.25, the Diesel Retrofit Program (DRP) regulations, nor the unambiguous language of the bid specifications. We therefore reverse.
Bayonne's contracts for solid waste and recycling collection were set to expire on September 30, 2011. As a result, in April 2011, Bayonne publicly issued specifications to solicit bids for these services. Bayonne then issued an addendum to both contract specifications stating, "[i]n the event of conflict or inconsistency between the terms of this Addendum and the Bid Specifications, the terms of the Addendum shall govern and control."
Under the first Addendum, each bidder was required to sign and submit an affidavit "certifying that the bidder is in full compliance" with the DRP and to also furnish proof of such compliance "upon award" of a contract. Section 4.8 of the Addendum provided:
Any potential bidder shall sign the affidavit attached to this addendum certifying that the bidder is in full compliance with all applicable portions of N.J.A.C. 7:27.32 et seq. ("Diesel Retrofit Program"). The winning bidder shall at all times remain in compliance with the N.J.A.C. 7:27-32 et seq. Non-compliance at any time with said Program shall be deemed a breach of the Contract. In case of non-compliance, the successful bidder may be served by the City with notice to cure. If within 30 days of service, the winning bidder remains in non-compliance with the Diesel Retrofit Program, said bidder may be served with notice of cancellation of the Contract by the City of Bayonne.
The attached "6.9 Affidavit of Compliance With Diesel Retrofit Program" stated in pertinent part:
2. [NAME OF BIDDER] shall provide all documentation, if any, of compliance with N.J.A.C. 7:27-32, et seq., if applicable, upon award of the Contract, at any time new documentation becomes available throughout the duration of the Contract, and at any time if requested by the City of Bayonne or its agents.
Pursuant to N.J.S.A. 40A:11-13 and Section 6.9 of the Bid Specifications, Bayonne provided the following instructions to prospective bidders regarding their right to challenge bid specifications: Per N.J.S.A. 40A:11-13, any prospective bidder who wishes to challenge a bid specification shall file such challenges in writing with the contracting agent no less than three business days prior to the opening of the bids. Challenges filed after that time shall be considered void and having no impact on the contracting unit or the award of the contract.
Suburban did not challenge the bid specifications before the opening of the bids on July 25, 2011. Galaxy bid on both contracts. It was determined to be the lowest bidder for the recycling contract by $128,140 and by $20,820 for the solid waste contract. Suburban was the second lowest bidder on both contracts. By letter to Bayonne dated August 5, 2011, Suburban claimed Galaxy's failure to comply with the DRP compelled Bayonne to reject Galaxy's bids as non-responsive.
On August 10, 2011, Bayonne forwarded Suburban's objection to Galaxy, indicating that "the bid specifications require appropriate documentation, if any, of compliance with the Diesel Retrofit Program, if applicable, upon award of a contract." On August 24, 2011, Bayonne informed Galaxy that it must submit proof of compliance with the DRP on or before September 8, 2011. In late August 2011, Galaxy spent more than $830,000 to purchase four DRP-compliant 2011 and 2012 model year trucks to perform the two contracts.
On September 16, 2011, Suburban filed a verified complaint and an order to show cause seeking to restrain the award of the solid waste and recycling contracts to Galaxy. The trial judge ...