NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 5, 2013
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2720-12.
Joseph R. Haftek, Jr., argued the cause for appellant (Tesser & Cohen, attorneys; Mr. Haftek and Lee M. Tesser, of counsel and on the briefs).
Thomas J. Hirsch argued the cause for respondent, Kappa Construction Corp.
William J. Pascrell, III, Passaic County Counsel, attorney for respondent, County of Passaic, joins in the brief of respondent, Kappa Construction Corp.
Before Judges Simonelli, Koblitz and Accurso.
Plaintiff A&A Industrial Piping, Inc. appeals from a September 14, 2012 final order denying its request to restrain defendant Passaic County from awarding a contract to defendant Kappa Construction Corp. (Kappa) for upgrades to the HVAC and fire protection systems for the Passaic County Jail. Because we agree with Judge Brogan that the County properly rejected plaintiff's bid as non-conforming and the award of the contract to Kappa, the only other bidder, was in conformity with the Local Public Contracts Law, N.J.S.A. 40A:11-1 to -51, we affirm.
This is plaintiff's second bid protest in connection with this contract. Last year, plaintiff challenged the County's decision to reject all bids and re-bid the contract when it inadvertently failed to include a Division of Property
Management and Construction (DPMC) pre-qualification requirement in the bid specifications. Plaintiff had been the second lowest bidder for that contract, and the lowest bidder had not pre-qualified its subcontractors. Plaintiff did have the necessary pre-qualification certificates and argued, among other things, that DPMC pre-qualification was statutorily required so no re-bid was necessary or allowable. Judge Brogan dismissed the complaint, and we affirmed. A&A Indus. Piping, Inc. v. Cnty. of Passaic, No. A-4902-10 (App. Div. Apr. 25, 2012).
The County revised the bid specifications to include the DPMC pre-qualification requirement and advertised for bids. In a letter of October 19, 2011, plaintiff challenged the inclusion of the pre-qualification requirement contending that the County had not adopted regulations for the qualification of bidders in accordance with N.J.S.A. 40A:11-25, and thus inclusion of a pre-qualification requirement was illegal.
Although the County made no response to the letter, it issued a clarification to bidders advising that it intended to enforce the requirement of DPMC pre-qualification. Shortly thereafter it postponed the bid opening and proceeded to properly adopt a resolution allowing for pre-qualification of bidders on certain public building contracts pursuant to N.J.S.A. 40A:11-25. It then issued addendum three to the notice to bidders advising of the new bid-opening date and noting that "all other terms and conditions contained in the specifications and prior notice to bidders remain unchanged."
When the bids were opened, plaintiff was the low bidder. Its bid of $5, 317, 000 was $193, 000 lower than that of Kappa's, the only other bidder. Upon review of the bid documents, however, the County discovered that plaintiff had failed to provide DPMC certificates for its own plumbing crew and for its structural steel subcontractor. Plaintiff subsequently supplied the certificates, but both post-dated the bid date. The County rejected plaintiff's bid ...