FREDCO LANDSCAPING LLC v. TOWNSHIP OF CEDAR GROVE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3082-09T3

FREDCO LANDSCAPING, LLC,

Plaintiff,

v.

TOWNSHIP OF CEDAR GROVE and

THE LANDTEK GROUP, INC.,

Defendants-Respondents,

and

APPLIED LANDSCAPE TECHNOLOGIES,

INC.,

Defendant/Intervenor-Appellant.

________________________________________________________________

October 22, 2010

Argued October 5, 2010 - Decided

Before Judges Wefing, Payne and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-10010-09.

Adrienne L. Isacoff argued the cause for appellant (Lowenstein Sandler PC, attorneys; Steven E. Brawer, of counsel; Ms. Isacoff, on the brief).

Thomas P. Scrivo argued the cause for respondent Township of Cedar Grove (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Mr. Scrivo, on the brief).

Joseph J. Hocking argued the cause for respondent The LandTek Group, Inc. (Hedinger & Lawless L.L.C., attorneys; Mr. Hocking, on the brief).

PER CURIAM

Applied Landscaping Technologies, Inc. (Applied), the fourth lowest bidder, appeals the dismissal of its lawsuit challenging the award of a contract to build a synthetic turf softball field in Cedar Grove, New Jersey. Applied concedes that since the softball field is virtually completed the appeal is moot, but seeks our review nonetheless, arguing that its appeal raises an issue of significant public interest. Finding no such issue, we dismiss the appeal as moot.

In September 2009, the Township of Cedar Grove invited bids for construction and installation of a softball field. Cedar Grove used a county grant of $225,000 for part of the construction cost. As a condition of the grant, the money had to be used by June 30, 2010. Twelve bidders responded, including the three parties in the case below: Fredco Landscaping, LLC (Fredco), Applied, and The LandTek Group, Inc. (LandTek).

Fredco submitted the low bid while J.A. Alexander, (not involved in this litigation), LandTek, and Applied submitted the second, third and fourth bids. Cedar Grove determined that Fredco was unqualified for the job and that J.A. Alexander had failed to submit a conforming bid. As LandTek had the lowest bid remaining, Cedar Grove awarded it the contract.

On December 10, 2009, Fredco filed a verified complaint in lieu of prerogative writs seeking an award of the contract as the lowest responsive, responsible bidder. By consent, Applied intervened. On February 19, 2010, the trial court upheld the contract award to LandTek and denied the applications by Fredco and Applied. Only Applied appealed this decision.

The trial court denied Applied's application for a stay of construction pending appeal. We also denied a stay.

"The standard of review on . . . whether a bid on a local public contract conforms to specifications . . . is whether the decision was arbitrary, unreasonable or capricious." In re Protest of Award of On-Line Games Prod. and Operation Servs. Contract, 279 N.J. Super. 566, 590 (App. Div. 1995).

Applied argues that the bid process was fatally defective in that, unlike Applied, LandTek did not acknowledge receipt of a "clarification" from the town sent three days before the bids were due. This one-page "clarification" indicated that the field turf need only be appropriate for softball without meeting the more stringent requirements of a football/soccer component.

Clarifications need not be acknowledged in writing. Applied argues that this document, although titled a "clarification," is actually an "addendum" which must be acknowledged in writing pursuant to N.J.S.A. 40A:11-23.2. If it were an addendum, it should have been sent by Cedar Grove "seven days, Saturdays, Sundays, or holidays excepted, prior to the date of acceptance of bids." N.J.S.A. 40A:11-23c(2). Here the "clarification" was sent only three days prior to the acceptance of bids. LandTek, the successful bidder, argues that if Applied believed that the "clarification" was actually an "addendum," it could have objected to the late service pursuant to N.J.S.A. 40A:11-13, which requires that any bidder who wishes to challenge a bid specification do so at least three days prior to the opening of bids or the objection is waived. No bidder is permitted to sit back and wait until a bid is awarded before registering a complaint to the bid specifications.

The parties agree that this case is moot as the project is almost completed and could no longer be awarded to Applied. As a general rule, in New Jersey, "[m]oot or academic appeals are generally dismissed." Advance Elec. Co., Inc. v. Montgomery Twp. Bd. of Educ., 351 N.J. Super. 160, 166 (App. Div.), certif. denied, 174 N.J. 364 (2002). A case is moot if "the issues are hypothetical, a judgment cannot grant effective relief, or there is no concrete adversity of interest between the parties." Ibid.

"When a party's rights lack concreteness from the outset or lose it by reason of developments subsequent to the filing of suit, the perceived need to test the validity of the underlying claim of right in anticipation of future situations is, by itself, no reason to continue the process." JUA Funding Corp. v. CNA Ins., 322 N.J. Super. 282, 288 (App. Div. 1999) (citing Milk Drivers and Dairy Emps. v. Cream-O-Land Dairy, 39 N.J. Super. 163, 177 (App. Div. 1956)). However, "the New Jersey Constitution does not restrict the exercise of judicial power to actual cases and controversies." State v. McCabe, 201 N.J. 34, 44 (2010) (citing State v. Gartland, 149 N.J. 456, 464 (1997)); see also N.J. Const. art. VI, 1, 1. Courts may choose to hear moot cases where they concern matters of substantial importance that are capable of repetition, yet evade review. Mistrick v. Div. of Med. Assistance & Health Servs., 154 N.J. 158, 165 (1998).

We do not find that a resolution of the precise issues raised here concerns a matter of substantial importance that is likely to be repeated. A timely objection by Applied to late service of what it considered to be an "addendum" would have resulted in a decision as to whether acknowledgment was required and would have given LandTek the opportunity to acknowledge receipt of the "addendum" if necessary. In Advance Electric, supra, 351 N.J. Super. at 166-67, we heard a moot appeal brought by an unsuccessful bidder of a school board contract. The unsuccessful bidder claimed that no regulations governed subcontractor qualifications in these types of contracts because none had been expressly adopted under the Public Schools Contracts Law. We found that the issue presented was likely to recur until it was judicially resolved, or regulations governing state contractors were specifically adopted and applied to subcontractors. Id. at 167.

The facts presented here, however, are unlikely to recur in this posture, nor will this issue likely recur while evading review. Any bidder who objects timely to specifications will be able to pursue a remedy. We decline to consider the issues presented in the absence of a justiciable controversy.

The appeal is dismissed as moot.