P &A CONSTRUCTION, INC. v. TOWNSHIP OF NORTH BRUNSWICK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3667-08T33667-08T3

P&A CONSTRUCTION, INC., a corpo ration of the State of New Jersey,

Plaintiff-Appellant,

v.

TOWNSHIP OF NORTH BRUNSWICK, a body corporate of the State of New Jersey, and LUCAS BROTHERS, INC., a corporation of the State of New Jersey,

Defendants-Respondents,

and

S. BROTHERS, a corporation of the State of New Jersey,

Defendant.

________________________________

 

Argued: January 6, 2010 - Decided

Before Judges Cuff and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-0756-09.

Christopher M. Erb argued the cause for appellant (Mandelbaum, Salsburg, Gold, Lazris & Discenza, P.C., attorneys; Richard M. Salsburg, of counsel; Mr. Salsburg and Mr. Erb, on the brief).

John A. Stone argued the cause for respondent Township of North Brunswick (DeCotiis, FitzPatrick, Cole & Wisler, L.L.P., attorneys; Mr. Stone, on the brief).

Hedinger & Lawless, L.L.C., attorneys for respondent Lucas Brothers, Inc., have not filed a brief.

PER CURIAM

Plaintiff P&A Construction, Inc., appeals from a final judgment dismissing its verified complaint contesting the award by defendant Township of North Brunswick (the Township) of a contract to defendant Lucas Brothers, Inc. (Lucas), following competitive bidding. Because the issues presented for our consideration are moot, we dismiss the appeal.

In or around December 2008, the Township advertised for competitive bids for the 2009 Road Improvement Program Contract No. 09-001 (the Contract). Each bidder was required to "furnish a certified financial statement showing his assets and liabilities and prepared within the last 12 months." This requirement was also outlined on a standardized checklist for bidders. Specifically, the checklist included a "Certified Financial Statement prepared within the last twelve months" along with a provision that the failure to submit this documentation "may be a cause for the bid to be rejected" under N.J.S.A. 40A:11-23.1b.

The Township received bids for the Contract on January 15, 2009. After reviewing the bids, the Township determined that Lucas submitted the lowest bid. Defendant S. Brothers was the second lowest bidder and plaintiff was the third. In a letter addressed to the Township's attorney, plaintiff submitted a bid-protest notice alleging noncompliance on the part of both Lucas and S. Brothers.

In particular, plaintiff alleged Lucas submitted a financial statement that was "out of date and contrary to the mandated standard that the financial statement be prepared within twelve (12) months of the bid." As such, plaintiff insisted the bid was "absolutely materially defective" and, therefore, the Township could not award the contract to Lucas.

The Township responded on January 21, 2009, concluding that the alleged deficiencies in Lucas's bid were unsupported by the facts and not material to the bid solicitation process. Specifically, the Township noted that Lucas had provided "financial statements as of December 31, 2007," but they had been "audited and certified by Levin & Company, LLC and dated April 17, 2008." Because bids were received on January 15, 2009, the audit and certification dated April 17, 2008, were "clearly within the twelve-month period required by the bid solicitation documents." Several more letters were exchanged among the parties during the ensuing week, none of which resolved the dispute.

Following this correspondence, plaintiff filed a verified complaint and submitted an order to show cause on February 2, 2009, to enjoin the Township from awarding the Contract to Lucas. The court entered the order to show cause with temporary restraints, set forth a briefing schedule, and ordered all parties to appear on February 25, 2009. Lucas filed an answer on or about February 19, 2009, as well as a brief and certification in opposition to plaintiff's requested relief. The Township submitted a letter brief and certification on or about February 20, 2009. The Township also filed its answer to plaintiff's complaint on or about February 23, 2009. On February 24, 2009, plaintiff filed a letter brief and supplemental certification.

The judge conducted a hearing on February 25, 2009, at which time plaintiff, the Township, and Lucas all presented arguments in support of their respective positions. The judge permitted the parties to submit supplemental documentation to determine whether Lucas's financial statements were certified by an accountant. Lucas provided a certification from its accountant, Robert Levin, on March 5, 2009. The Township submitted a certification from its accountant on March 6, 2009.

Additionally, plaintiff filed a certification to demonstrate the intended meaning of the word "prepared" in the bid solicitation as interpreted by the State of New Jersey, Department of Community Affairs, Division of Local Government Services (the Division). Specifically, in a letter to plaintiff's counsel dated March 5, 2009, the Director of the Division stated that "[i]t is the Division's view that the word 'prepared' in the certified financial statement language refers to a period ending within twelve months prior to the date of the receipt of the bids."

On March 13, 2009, the judge issued a letter opinion and denied plaintiff's request to enjoin the Township from executing the Contract with Lucas. The judge noted that Lucas's "financial statement was clearly prepared within the twelve-month period prior to the bid acceptance date as required by the bid solicitation documents." The judge addressed plaintiff's concern that the financial statement did not accurately portray Lucas's financial condition by pointing out that other indicators, such as bonding and surety, were available to the Township in determining the lowest bidder for the Contract. An order dismissing the action was entered the same day.

Thereafter, plaintiff moved to stay the dissolution of the temporary restraints to allow it to file an application for emergent relief with us. The judge granted the requested stay until March 27, 2009. Plaintiff then filed an emergent application for a stay on March 23, 2009. The Township opposed the stay and we denied the application on March 25, 2009. Plaintiff then sought emergent relief from the Supreme Court of New Jersey on March 26, 2009. The Court temporarily extended the stay, but after reviewing the application, the Court denied plaintiff's motion for a stay and for acceleration of the appeal without prejudice.

This appeal followed. When the Township filed its appellate brief on July 29, 2009, it advised us that the Contract with Lucas was "near-completed." At oral argument, the Township represented that the contracted work had been completed rendering this appeal moot, and pointed out that plaintiff did not move before us to accelerate this appeal to avoid mootness. Plaintiff urges that we should decide this case on its merits because "it concerns a matter of utmost public interest."

A case is moot "when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." N.Y. Susquehanna & W. Ry. Corp. v. State of N.J. Dep't of Treasury, 6 N.J. Tax 575, 582 (Tax 1984), aff'd, 204 N.J. Super. 630 (App. Div. 1985). Additionally, "[m]oot or academic appeals are generally dismissed." Advance Elec. Co. v. Montgomery Twp. Bd. of Educ., 351 N.J. Super. 160, 166 (App. Div.) (citations omitted), certif. denied, 174 N.J. 364 (2002). In other words, "a court will not decide a case if the issues are hypothetical, a judgment cannot grant effective relief, or there is no concrete adversity of interest between the parties." Ibid. It is the policy of this State to refrain from rendering advisory opinions or exercising jurisdiction in the abstract. State v. Abeskaron, 326 N.J. Super. 110, 117 (App. Div. 1999), certif. denied, 163 N.J. 394 (2000); N.Y. Susquehanna & W. Ry. Corp., supra, 6 N.J. Tax at 582.

However, although a case may be technically moot, a court may decide an issue if it involves a significant public interest warranting resolution. In re Application of Boardwalk Regency Corp. for a Casino License, 90 N.J. 361, 368 (1982); Abeskaron, supra, 326 N.J. Super. at 117. In such instances, the matter must be "capable of repetition while evading review." Advance Elec. Co., supra, 351 N.J. Super. at 166.

For example, in Advance Electric Company, this court implemented the public-interest exception in a public bidding case, even though the contract had been completely performed. Id. at 166-67. There, the unsuccessful bidder was a primary contractor challenging the award of a public school contract because there were no regulations governing qualification of subcontractors that the primary contractors could use in formulating their bids. Id. at 163. Although we ultimately found the plaintiff's argument lacked merit, id. at 177, we found that the "issue plainly is capable of frequent recurrence until such time as either subcontractor qualification regulations are specifically adopted . . . , or until the issues that [the plaintiff] now raises are judicially resolved," id. at 167. In addition, "it is likely that future appeals on the same issue would not be decided until the construction was completed." Ibid.

Similarly, in Statewide Hi-Way Safety, Inc. v. New Jersey Department of Transportation, 283 N.J. Super. 223, 225 (App. Div. 1995), an unsuccessful bidder challenged the Department of Transportation's (DOT) award of a public contract to another bidder after the DOT failed to comply with a regulation requiring that bid proposals be read aloud. We dismissed the unsuccessful bidder's appeal as moot since the project was substantially completed, but nevertheless addressed the issue "because of its public importance." Id. at 226. In particular, we acknowledged the purpose of public bidding laws and the policy of strict compliance with both the substantive and procedural requirements of bid advertisements and specifications. Id. at 230-31 (citing Twp. of Hillside v. Sternin, 25 N.J. 317, 322 (1957) and Meadowbrook Carting Co. v. Borough of Island Heights, 138 N.J. 307, 313-14 (1994)). We held that the failure of the DOT to read the elements of the bid constituted a material deviation from the governing statute and that a party with standing could prevail under similar circumstances. Id. at 232.

Here, plaintiff urges the issue of whether the certified financial statement must cover a period of time ending within twelve months of the bid date falls within the public interest exception to the doctrine of mootness. Plaintiff argues the matter is analogous to Statewide Hi-Way Safety, supra, 283 N.J. Super. 223, where we issued a written opinion regarding a public contract that had been completed but touched upon a matter of significant public interest. Plaintiff contends that the issue presented here involves a compelling public interest because "[e]stablishing the financial bona fides of a bidder is a critical consideration of any public body soliciting bids."

The Township contends that the public interest exception to the mootness doctrine should not apply here because the question presented by plaintiff "is not likely to escape subsequent review." The Township also asserts that plaintiff's failure to seek acceleration of the appeal by us to prevent mootness should bar plaintiff from seeking relief now.

We are satisfied that the issue presented is not likely to escape appellate review if it recurs. Advance Elec. Co., supra, 351 N.J. Super. at 166. Many similar contracts are for projects of much greater duration than resurfacing a public roadway and will present a full opportunity for timely review of this issue if it recurs. Public interest in the issue alone is not sufficient to warrant review where a decision "can have no practical effect on the existing controversy." N.Y. Susquehanna & W. Ry. Corp., supra, 6 N.J. Tax at 582.

 
Dismissed as moot.

Plaintiff alleged that S. Brothers' bid was noncompliant, and thus materially defective, because it did not include the name of an electrical subcontractor for the Contract. S. Brothers, however, did not respond to the subsequent complaint filed by plaintiff, nor did it participate in the eventual order-to-show-cause hearing.

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A-3667-08T3

April 13, 2010