Opinion
DOCKET NO. A-4121-11T3
05-20-2013
SAJO TRANSPORT, INC., A New Jersey Corporation, Plaintiff-Respondent, v. THE VILLAGE OF RIDGEWOOD, A Municipal Corporation, Defendant-Respondent, and C&A CARBONE, INC., Defendant-Appellant.
Thomas S. Cosma argued the cause for appellant (Connell Foley LLP, and Chiaia & Associates, LLC, attorneys; Mr. Cosma and John F. Chiaia, of counsel and on the brief). Respondents have not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Harris.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-690-11.
Thomas S. Cosma argued the cause for appellant (Connell Foley LLP, and Chiaia & Associates, LLC, attorneys; Mr. Cosma and John F. Chiaia, of counsel and on the brief).
Respondents have not filed a brief. PER CURIAM
This appeal involves the bidding for a solid waste disposal contract arising under the Local Public Contracts Law (the LPCL), N.J.S.A. 40A:11-1 to -51. Defendant C&A Carbone, Inc. (Carbone) — the successful bidder — appeals from the April 5, 2011, January 31, 2012, and April 9, 2012 orders of the Law Division, which together voided defendant Village of Ridgewood's contract award to Carbone and permitted the municipality to receive new bids. We reverse.
I.
In the late summer and early autumn of 2010, Ridgewood solicited proposals pursuant to the LPCL to provide "Landfill Disposal of Solid Waste" for three years, beginning in January 2011, to the municipality. Among its myriad details and specifications, the bid documents required that "[t]he successful bidder's site must be within a 15 mile radius of the contracting communities [sic], although the solid waste may be ultimately landfilled or processed at another site." The actual two-page proposal form, which was to be prepared by bidders, contained an "Item No. 4" as follows:
An earlier version of the specifications called for the successful bidder's site to "be within a 20 mile radius."
+-----------------------------------------------------------------------------+ ¦ ¦MapQuest mileage calculation from 220 Chestnut Street, Ridgewood, ¦ ¦ ¦4.¦NJ to bidder's site. ¦Miles ¦ ¦ ¦ ¦ ¦ ¦ ¦Address of Bidder's Site: ____ ¦ ¦ +-----------------------------------------------------------------------------+ No other instructions were provided in the bid documents about the mileage disclosure or its manner of calculation.
When plaintiff Sajo Transport, Inc. (Sajo) submitted its proposal, it completed "Item No. 4" by inserting its address as "100 Baler Blvd, North Arlington, NJ 07031," and disclosing the distance from the requisite Ridgewood address as "13 Miles." Sajo's bid stated "Map Quest Distance Map is not Available for Destination," and it attached an exhibit to its bid to explain the mileage calculation. The exhibit consisted of a screenshot from an internet webpage of geobytes.com, which indicated that the distance between North Arlington and Ridgewood was thirteen miles, with the caveat, "Please note: The distance is calculated 'as the crow flies.'" Apparently, the algorithm employed by this internet-based distance calculator used the latitude and longitude of the municipalities, and the webpage expressly noted, "this may vary from the driving distances." The MapQuest methodology set forth in "Item No. 4" produces an over-the-road distance between two addresses.
Although Sajo's price per ton to accept Ridgewood's solid waste was less than Carbone's, Ridgewood rejected Sajo's bid and awarded the contract to Carbone. Sajo commenced the present matter in January 2011 by filing a one-count complaint in lieu of prerogative writs. The pleading sought to invalidate the contract award to Carbone, and demanded a judgment "[r]equiring [Ridgewood] to enter a contract with [Sajo] pursuant to the [LPCL]." Sajo's complaint did not expressly seek to invalidate the fifteen-mile requirement, and it was silent about any challenge to the methodology of calculating that distance. Rather, it simply contended that its disposal facility "[was] within a 15 mile radius of [Ridgewood]" and it was "the lowest responsible bidder and is entitled to the award of a three-year contract."
Carbone's "Item No. 4" calculated its disposal facility as "14.79 Miles" from the requisite Ridgewood address.
After a preliminary injunction was denied, and a brief period of discovery was conducted, the Law Division considered cross-motions for summary judgment. Sajo's primary argument went beyond its pleadings. It contended that Ridgewood's bid specifications did not clearly link the "15 mile radius" with MapQuest's over-the-road calculation. Sajo further argued that there was no justification for such a calculation, and Ridgewood's reliance on it was contrary to law.
Carbone (and Ridgewood) argued that Sajo lacked standing to mount a specification challenge to the fifteen-mile distance and manner of calculation because Sajo had failed to file a written protest three days before the bids were opened pursuant to N.J.S.A. 40A:11-13. They also argued that Sajo's substitution of the geobytes.com calculation for the MapQuest calculation was a material deviation from the specifications, which warranted the rejection of Sajo's bid.
The motion judge rejected the lack-of-standing argument, concluding that because Sajo was seeking the award of the contract as the lowest responsible bidder, and its "relief is premised on the arbitrary nature of the 15-mile radius," it had "standing to challenge an entitlement to the contract." Nevertheless, because the court also found that "the only effect that the '15 mile radius' requirement has on the bidding process is placing bidders on an unequal footing" it declared that "Ridgewood's contract with Carbone is therefore null and void in violation of [the LPCL]." Accordingly, the court granted Sajo's motion in part, denied Carbone's motion in full, and found "that the proper remedy is to set aside the current contract and permit Ridgewood to receive new bids." In the interim, the court held that "Carbone's compensation for future services until the awarding of a new contract shall be paid on a per diem basis in accordance with the contractual rate."
A subsequent motion for reconsideration was filed by Carbone (and Ridgewood), which was denied. The court also denied Carbone's application for a stay pending appeal. This appeal followed.
We granted an emergent stay pending appeal in May 2012.
Sajo filed a cross-appeal, which was withdrawn in September 2012. Neither Sajo nor Ridgewood has participated in this appeal.
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II.
Because this matter was decided as part of dueling motions for summary judgment, we review the matter de novo and are governed by the same standard governing the motion court under Rule 4:46. Khandelwal v. Zurich Ins. Co., 427 N.J. Super. 577, 585 (App. Div. 2012). Thus, the "'trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" McDade v. Siazon, 208 N.J. 463, 473 (2011) (quoting Estate of Hanges v. Metro Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
Carbone argues that Sajo "altered the form of the bid proposal by unilaterally eliminating the MapQuest mileage calculation . . . and substituting a Geobytes mileage calculation." Sajo is accused of performing a "sleight of hand trick," where Sajo "ignor[ed] the specifications, disregard[ed] the bid proposal form, and insert[ed] its chosen navigation tool to try and fool [Ridgewood.]"
Relying on William A. Carey & Co. v. Fair Lawn, 37 N.J. Super. 159 (App. Div. 1955) and Weidner v. Tully Envtl., Inc., 372 N.J. Super. 315 (App. Div. 2004), Carbone contends that "[c]ontracting authorities may not waive any material or substantial variance between the conditions under which the bids are invited." Thus, when "the non-compliance is material and non-waiveable, the inquiry into whether the decision as to bid conformity is proper is over because a non-conforming bid is no bid at all."
The motion court did not address these arguments directly because it found that "[a]lthough Sajo raises a valid argument that the Mapquest request is not material to the competitive nature of the bid process, the court finds that as a threshold matter, the bidding process procured by Ridgewood was invalid." We disagree with this legal conclusion, and agree with Carbone's assessment of Sajo's bid proposal.
The LPCL requires specifications "for the . . . performance of . . . services . . . be drafted in a manner to encourage free, open and competitive bidding." N.J.S.A. 40A:11-13. In particular, no specifications under the LPCL may "[r]equire any standard, restriction, condition or limitation not directly related to the purpose, function or activity for which the contract is awarded[.]" N.J.S.A. 40A:11-13(a). Contrary to the motion court, we view Ridgewood's fifteen-mile over-the-road distance limitation as directly related to "the purpose, function or activity for which the contract is awarded." Ibid.
Ridgewood sought bids from contractors who would receive Ridgewood's waste carried on Ridgewood's solid waste vehicles. Thus, the greater the distance the disposal facility is from Ridgewood, the greater the expense to the municipality in terms of fuel, employee time, and wear and tear on its trucks. In its proposal, Ridgewood requested both the "MapQuest mileage calculation from 220 Chestnut Street, Ridgewood, NJ to bidder's site" as well as the "successful bidder's site . . . be within a 15 mile radius of the contracting communities [sic] [.]" Although we recognize that the use of the word "radius" connotes a straight line measurement, a calculation using such a methodology would only make sense if Ridgewood's garbage trucks could fly. Despite this, Sajo submitted its bid with a geobytes.com calculation "as the crow flies" with an origin point of "North Arlington, New Jersey" and destination point of "Ridgewood, New Jersey."
In Meadowbrook Carting Co. v. Borough of Island Heights, 138 N.J. 307 (1994), the Court set forth a two-factor test for determining "'whether a specific noncompliance constitutes a substantial and hence non-waiveable irregularity.'" Id. at 315 (quoting Twp. of River Vale v. R.J Constr. Co., 127 N.J. Super. 207, 216 (Law Div. 1974)).
[F]irst, whether the effect of a waiver would be to deprive the municipality of its assurance that the contract will be entered into, performed and guaranteed according to its specified requirements, and second, whether it is of such a nature that its waiver would adversely affect competitive bidding by placing a bidder in a position of advantage over other bidders or by otherwise undermining the necessary common standard of competition.
[Ibid. (quotations marks omitted) (quoting River Vale, supra, 127 N.J. Super. at 216.]
The changes wrought by Sajo in its bid proposal were material. Distance measured "as the crow flies" is not an accurate or representative gauge of the miles Ridgewood's waste disposal vehicles would have to travel from 220 Chestnut Street to the Sajo disposal site. See In re Protest of Award of On-line Games Prods. & Operation Servs. Contract, 279 N.J. Super. 566, 597-603 (App. Div. 1995). As noted in Tully, the change made by Sajo "effectively allowed [it] to submit a proposal founded upon criteria different from the criteria available to the other potential bidders, undermining potential competition." Tully, supra, 372 N.J. Super. at 324-25. Much as in Tully, the changes here are "more than inconsequential discrepancies that may be waived." Id. at 325. This was not a case of Sajo using a different over-the-road algorithm or methodology instead of MapQuest. With full understanding that it could not comply with the fifteen-mile over-the-road specification, Sajo unilaterally changed the rules of the game, rendering its bid non-responsive and subject to rejection. That being the case, Ridgewood's award to Carbone, as the lowest responsible bidder was proper.
We next address the standing issue. Carbone challenged Sajo's standing to bring its complaint in lieu of prerogative writs because of the last paragraph of N.J.S.A. 40A:11-13. The statute states the following:
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 a contract.Because Sajo never challenged the fifteen-mile standard or the MapQuest methodology, Carbone asserts that any litigational challenges to those elements of the specifications are barred.
[Ibid.]
In its opposition, Sajo argued that it was not trying to rewrite the Ridgewood bid specifications but that Ridgewood failed to clearly specify the need for "road-based calculation as the basis for qualifying bidders[.]" Instead, Sajo argued that the "only reasonable construction to be given to the MapQuest calculation . . . is that it is for informational purposes only." We disagree. If that were the case, there would be no need for a clearly stated limitation in the disposal facility's distance from Ridgewood. In addition, Sajo would not have felt compelled to provide an alternative means to meet the limitation indicated in the specifications.
In discussing the distinction between challenges made to bid specifications and challenges to contract awards to successful bidders, the New Jersey Supreme Court noted that in the latter "all interested parties have accepted the specifications as drawn, have bid on those specifications, and, at least as far as the successful bidder is concerned, have a vested interest in the contract award itself." Jen Elec., Inc. v. Cnty. of Essex, 197 N.J. 627, 644 (2009). Here, although its litigation strategy departed from its initial claims, Sajo ultimately sought to decouple the distance specifications from the bidding process without properly challenging them ahead of time pursuant to the LPCL.
Sajo, much like the plaintiffs in Saturn Constr. Co. v. Bd. of Chosen Freeholders, 181 N.J. Super. 403 (App. Div. 1981), "phras[ed] its complaint to request relief as the lowest responsible bidder" rather than to challenge the bid specifications. Id. at 407. Also like the Saturn plaintiffs, Sajo "only challenges the award" to Carbone
on the basis of an arguable ambiguity in the bidding specifications. . . . Its only basis for stating that it is the lowest bidder is found by interpreting the specifications to allow the [public entity] to award a contract by ignoring one of the mandatory bid items. We find this to be a challenge to the specifications, and that to find standing in this case would not further the public's interest but would merely give [the plaintiff] another chance.
[Id. at 408.]
The same is true here. In addition, N.J.S.A. 40A:11-13's function as a statute of limitations, Jen Elec., Inc., supra, 197 N.J. at 643, serves to time-bar Sajo's legal theories based upon a challenge to Ridgewood's specifications. To allow otherwise would hand Sajo a trump card that could be played against a successful bidder if its bluff with geobytes.com failed.
We are thoroughly satisfied that Sajo's challenge to the specifications was meritless. We further disagree with the motion court's characterization of the fifteen-mile distance as "unjustified," and its view that Sajo was treated unfairly. The record supports neither conclusion. Neither Sajo nor the motion court had a roving commission to scan Ridgewood's efforts to provide a solid waste disposal contract for its citizens under the lens of the "public interest." Given the limited nature of Sajo's pleadings and its silence right before it submitted its bid proposal, Sajo's challenge must "be considered void and having no impact on the contracting unit or the award of a contract." N.J.S.A. 40A:11-13.
Reversed and remanded for the entry of a judgment dismissing the complaint with prejudice.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APELATE DIVISION