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Contract Applicators, Inc v. Borough of Park Ridge

October 2, 2012

CONTRACT APPLICATORS, INC., PLAINTIFF-APPELLANT,
v.
BOROUGH OF PARK RIDGE, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-10371-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 11, 2012

Before Judges Lihotz and Ostrer.

Plaintiff Contract Applicators, Inc., appeals from a final Law Division judgment awarding it $10,894.20, following a bench trial. Plaintiff's complaint sought payment of $58,774.42 for alleged costs of "labor, material, equipment, overhead and profit" for extra work items incurred in the performance of a public works contract for defendant, the Borough of Park Ridge. The trial court determined plaintiff failed to abide the express terms of the contract, as it did not obtain prior approval authorizing performance and payment of the extra work. Accordingly, the judge concluded plaintiff was not entitled to relief. The judge also found plaintiff had successfully defeated defendant's claimed credits, resulting in the judgment awarded to plaintiff. On appeal, plaintiff argues the trial judge erred in denying payment for the extra work. Following our review of the arguments in light of the record and the applicable law, we affirm.

These facts were presented at trial. Defendant solicited a lump sum bid to complete all aspects of the mechanical and structural rehabilitation and waterproofing of the Mill Road Powerhouse Museum (the project), a hydroelectric facility originally built in 1904. On May 22, 2008, defendant determined plaintiff's $193,509 bid was the lowest responsible sealed bid, and plaintiff was selected to perform the project in accordance with the drawings and specifications. Defendant adopted a resolution awarding plaintiff the contract, and noted Dan Loughran, an engineer with Quad 3 Group, Inc., was engaged to supply information regarding engineering related to the project and Bill Beattie, the municipal Director of Operations, was designated as defendant's contact for the contract.

The July 16, 2008 contract executed by the parties stated "all work shall be done in strict accordance with the Bid Specifications as prepared by [defendant]" and described in a specifications book for the project. The contract incorporated by reference all bid specifications, as well as plaintiff's responsive bid proposal. The bid specifications warned "[n]o additional claims for compensation [would] be considered."

Further, the bid specifications notified bidders:

Any proposed changes or deviations from the contract documents during the construction phase of this project must be submitted to [defendant] in writing. Written approval from [defendant] must be obtained prior to execution of the proposed change. The contractor proceeding without receipt of this approval does so at his own risk.*fn1

The contract also contained "administrative and procedural requirements for handling and processing Contract modifications." Specifically, contractor initiated change proposals for "latent or unforeseen conditions" were required to be submitted in writing to the project engineer and must:

1. Include a statement outlining reasons for the change and the effect of the change on the Work. Provide a complete description of the proposed change. Indicate the effect of the proposed change on the Contract Sum and the Contract Time.

2. Include a list of quantities of products required or eliminated and unit costs, with total amount of purchases and credits to be made. If requested, furnish survey data to substantiate quantities.

3. Indicate applicable taxes, delivery charges, equipment rental, and ...


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