NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 21, 2013
On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-551-09.
Michael F. McKenna argued the cause for appellant (Lewis & McKenna, attorneys; Mr. McKenna, of counsel; Mr. McKenna, Paul Z. Lewis, James M. McMahon and Anne E. Penix, on the briefs).
Sudha V. Raja, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Beth Leigh Mitchell, Assistant Attorney General, of counsel; Ms. Raja, on the briefs).
Florio Perrucci Steinhardt & Fader, L.L.C., attorneys for amicus curiae Construction Industry Advancement Program of New Jersey (John F. Neary, of counsel; Mr. Neary and Jennifer Shaw, on the brief).
Before Judges Yannotti, Ashrafi and Leone.
Plaintiff Tilcon New York, Inc. (Tilcon) appeals from the final judgment entered by the trial court on January 19, 2012, dismissing its complaint against defendant, the New Jersey Department of Transportation (NJDOT). We affirm.
Tilcon was the lowest responsible bidder for two of the NJDOT's paving projects: MRRC 162, a project on Route 46 in Morris County (Morris Project), and MRRC N301, a project on Routes 7, 9W, and 1 & 9 in Bergen, Essex and Hudson Counties (Bergen Project). On September 11, 2007, the NJDOT awarded Tilcon the contract for the Morris Project, at a contract price of $3, 267, 000. On December 6, 2007, the NJDOT awarded Tilcon the contract for the Bergen Project, at a contract price of $5, 887, 000.
Both the Morris Project and the Bergen Project are commonly referred to as "mill and fill" projects, in that they required the contractor to "mill, " or remove, two inches of the existing roadway pavement, and "fill, " or replace, the removed material with two inches of new asphalt. The Morris Project contract stated that the subject roadways shall
include milling and resurfacing 2" thick at intersecting streets and all signalized intersecting streets . . . (from gutterline of roadway) or as directed by the engineer. Existing cross slopes and pavement thickness shall be maintained on structures located within project limits. Bridge decks located within project limits that have no existing overlay shall not be overlaid as part of this contract . . . .
Language in the Bergen Project contract was substantially similar.
Among other provisions, the contracts included the NJDOT's 2001 Standard Specifications, and Special Provisions. Sections 102.03 of the Special Provisions in both contracts, entitled "Examination of Contract and Site of Project, " stated:
The Bidder shall carefully examine the site of the proposed Project, the Contract, and all other information before submitting a bid. If site conditions are inconsistent with the Contract or there are discrepancies, errors, omissions or patent ambiguities within the Contract, the bidder shall immediately notify [the NJDOT] as specified in [the specifications]. The Bidder shall evaluate subsurface conditions as necessary to determine how these conditions may affect the methods and cost of construction. . . . Submission of a bid is confirmation that the Bidder has made such independent evaluation and examination . . . and is fully aware of the requirements of the Contract, including all restrictions. Further, the Bidder warrants that the proposed contract prices in the bid include all costs to complete the Work.
Section 406.13, entitled "Acceptance of Surface Course Rideability, " provided that the new pavement's "smoothness" or "roughness" will "be evaluated in terms of the International Roughness Index (IRI), " and that "[t]he measured IRI will be used to compute the appropriate pay adjustment (PA), which may be positive for superior quality work, or negative for defective work." As explained by the trial judge,
The IRI method involved the use of a laser linked to a computer incorporated in a specially equipped vehicle known as a "road profiler." The IRI concept involved an assessment of smoothness through the medium of laser/computer analysis. Utilizing a laser, installed in a specially equipped van, a vehicle would be driven up and down the lanes of the recently paved highway (in several passes). The data would be then evaluated and processed by a computer which compresses and analyzes the data and generates a report. The report is then utilized to determine a relative degree of smoothness of the roadway.
The IRI report determines a numerical IRI value that measures smoothness. The higher the ...