ERCO CEILINGS OF SOMERS POINT, INC v. THE RICHARD STOCKTON COLLEGE OF NEW JERSEY
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4970-08T2
ERCO CEILINGS OF
SOMERS POINT, INC.,
Plaintiff-Appellant,
v.
THE RICHARD STOCKTON COLLEGE
OF NEW JERSEY,
Defendant-Respondent.
________________________________
Argued April 20, 2010 - Decided May 13, 2010
Before Judges Skillman and Gilroy.
On appeal from the Superior Court of New
Jersey, Law Division, Atlantic County,
Docket No. L-1918-09.
Russell J. McEwan argued the cause for
(Littler Mendelson, P.C.,
appellant
attorneys; Mr. McEwan, on the brief).
Mamta Patel argued the cause for respondent
(Paula T. Dow, Attorney General, attorney;
Melissa H. Raksa, Assistant Attorney General,
of counsel; Ms. Patel, Senior Deputy Attorney
General, on the brief).
PER CURIAM
Appellant Erco Ceilings of Somers Point, Inc., appeals from
respondent's, The Richard Stockton College of New Jersey, April
7, 2009 decision rescinding respondent's intent to award
appellant a contract for the installation of carpet and tile.
We dismiss the appeal.
In early February 2009, respondent advertised a request for
proposals (RFP) No. B090019, advising that it would accept
sealed bids for installation of carpet and tile on an as-needed
basis at the college. On March 17, 2009, respondent opened the
bid proposals as scheduled, and determined appellant as the
lowest responsible bidder. On March 23, 2009, respondent sent
appellant a notice of its intent to award appellant the
contract. The notice provided in part that "this award shall be
effective seven (7) days from the date of this letter subject to
any appeals."
On March 30, 2009, Carpet Showcase, an unsuccessful bidder,
sent respondent a letter protesting respondent's intent to award
the contract to appellant, contending that Carpet Showcase was
the lowest responsible bidder. On April 6, 2009, counsel for
Carpet Showcase advised appellant of his client's intent to
appeal the award of the contract. On the following day,
respondent rescinded its intent to award the contract to
appellant, advising that it had decided to reject all bids. On
April 23, 2009, appellant notified respondent that it objected
to the rescission as untimely. On May 14, 2009, respondent re-
A-4970-08T2
2
advertised the campus-wide carpet and tile installation project
under RFP No. B090025.
On June 1, 2009, appellant filed a complaint in lieu of
prerogative writs seeking to compel respondent to award
appellant the contract and to enjoin respondent from opening bid
proposals received under the second RFP. The following day, in
opposition to appellant's application for an order to show
cause, respondent challenged the trial court's jurisdiction to
proceed in the action, contending that jurisdiction to hear
appeals from final decisions of State agencies rests with the
Appellate Division.
On June 3, 2009, pending the court's resolution of the
jurisdictional issue, the court entered an order permitting
respondent to receive and open bid proposals under the second
RFP, but enjoining respondent from awarding a contract under
that RFP. On June 10, 2009, the court entered an order
supported by a memorandum of decision, determining that it did
not have jurisdiction to hear the appeal, transferred the action
to the Appellate Division pursuant to Rule 2:2-3(a)(2), and
denied appellant's request for a preliminary injunction
enjoining respondent from opening bid proposals received under
the second RFP.
A-4970-08T2
3
On June 11, 2009, respondent sent a notice of its intent to
award the carpet and tile contract under the second RFP to New
Jersey State Flooring, Inc. The notice confirmed that the
contract was for a one-year period expiring on June 30, 2010,
with the respondent having the option to extend the contract for
two additional periods of one year each.1 A copy of the notice
was sent to appellant the same day.
On June 16, 2009, appellant filed an administrative appeal
with respondent, challenging the contract award to New Jersey
State Flooring, contending in part that respondent had acted in
an arbitrary and capricious manner when it rescinded the award
of the contract and rejected all bid proposals under the first
RFP. On July 9, 2009, respondent denied appellant's appeal from
the award of the contract to New Jersey State Flooring.
However, appellant did not appeal to us from that decision.
On appeal from the rescission of the award of the contract,
appellant argues that respondent "acted in an arbitrary and
capricious manner when it refused to award Erco the contract
because an unmeritorious appeal had been filed," and respondent
lacked a cogent and compelling reason to reject all bid
1
We were informed at oral argument that New Jersey State
Flooring has been operating under the contract since its award,
but that respondent had not yet made a decision as to whether to
extend the terms of the contract.
A-4970-08T2
4
proposals under RFP No. B090019. Respondent counters that the
appeal was filed untimely; that the appeal is moot as the
contract has been executed and the work is substantially
completed; and that it properly rescinded the award of the
contract to appellant and rejected all bids under the initial
RFP. Because we conclude that appellant failed to name New
Jersey State Flooring as an indispensable party to this appeal,
we dismiss the appeal without addressing the parties' arguments.
Determining whether a party is indispensable to an action
is fact specific. Allen B. DuMont Labs., Inc. v. Marcalus Mfg.
Co.,
30 N.J. 290, 298 (1959). "A party is indispensable if [the
party] has an interest 'inevitably involved in the subject
matter before the court and a judgment cannot justly be made
between the litigants without either adjudging or necessarily
affecting the absentee's interests.'" Bruno v. MaGrann Assocs.,
388 N.J. Super. 539, 547 (App. Div. 2006) (quoting Allen B.
DuMont Labs., Inc., supra,
30 N.J. at 298)). See also Pressler,
comment 3.1 on R. 4:28-1 (2010).
Current N.J. Court Rules,
("Indispensability is usually determined from the point of view
of the absent party and in consideration of whether or not his
rights and interests will be adversely affected.").
On June 1, 2009, appellant initiated its appeal from
respondent's decision to rescind the award of the contract under
A-4970-08T2
5 RFP No. 090019 by filing a complaint in lieu of prerogative
writs in the Law Division. In the complaint, appellant did not
assert a claim for damages. Rather, appellant sought an order
under the Declaratory Judgment Act, N.J.S.A. 2A:16-50 to -62,
declaring that it was entitled to the award of the contract
because respondent's rejection of all bid proposals under the
initial RFP was arbitrary and capricious, and in violation of
the State College Contracts Law, N.J.S.A. 18A:64-52 to -85.
Additionally appellant sought an order enjoining respondent from
receiving bid proposals under the second RFP, and from
"implementing or effecting award of the contract for the Project
to any bidder other than [appellant]."
On June 11, 2009, respondent sent appellant a copy of a
letter advising of respondent's intent to award the campus-wide
carpet and tile contract to New Jersey State Flooring.
Nonetheless, appellant never amended its appeal to add New
Jersey State Flooring as a party.
We conclude that appellant's failure to add New Jersey
State Flooring as a party to this appeal requires dismissal. We
cannot grant the ultimate relief requested by appellant - that
it be awarded the campus-wide carpet and tile contract - without
affecting New Jersey State Flooring's interest in the contract
it was awarded under the second RFP. Both counsel acknowledged
A-4970-08T2
6
at oral argument that, if we were to reverse and direct that
respondent award the contract to appellant, respondent would
have to void its contract with New Jersey State Flooring, as
respondent cannot have two contracts with two different parties
to perform the same work. Accordingly, because appellant failed
to name New Jersey State Flooring as a party to this appeal, we
Allen B. DuMont Labs., Inc., supra,
30 N.J. at 298.
dismiss.
Appeal dismissed.
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