J.SMENTKOWSKI, INC. v. GARFIELD CITY
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2394-17T2
J. SMENTKOWSKI, INC., a
New Jersey Corporation,
Plaintiff-Appellant,
and
RONALD F. MURTHA,1 an
Individual taxpayer,
Plaintiff,
v.
GARFIELD CITY, a New Jersey
Municipal Corporation, and
STERLING CARTING, INC., a
New Jersey Limited Liability
Company,
Defendants-Respondents.
____________________________________
Argued April 16, 2018 – Decided May 7, 2018
Before Judges Sabatino, Ostrer and Rose.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No.
L-7363-17.
1
We were advised at oral argument that Murtha, a city taxpayer,
has voluntarily dismissed his claims.
Thomas S. Cosma argued the cause for appellant
(Connell Foley LLP, attorneys; Thomas S.
Cosma, of counsel and on the briefs; Michael
Affrunti, on the briefs).
John J. Lavin argued the cause for respondent
City of Garfield (Lavin & Associates, PC,
attorneys; John J. Lavin, of counsel and on
the brief).
Richard D. Trenk argued the cause for
respondent Sterling Carting, Inc. (Trenk,
DiPasquale, Della Fera & Sodono, PC,
attorneys; Richard D. Trenk, of counsel and
on the brief; Mark Y. Moon, on the brief).
PER CURIAM
Appellant J. Smentkowski, Inc. ("JSI") was the low bidder on
a multi-year procurement by respondent City of Garfield ("the
City") for solid waste collection in the municipality. The second
lowest bidder, respondent Sterling Carting, Inc. ("Sterling")
notified the City that JSI's consent of surety form did not conform
to the bid specifications. The City agreed that JSI's bid was
materially defective, and awarded the contract to Sterling.
JSI filed an order to show cause in the Law Division seeking
to overturn the City's rejection of its bid. The trial court
denied JSI's application and upheld the contract award to Sterling.
This appeal ensued.
For the reasons that follow, we affirm the trial court's
decision. We do so fundamentally because we agree that JSI's
consent of surety, which referred to so-called "standard" payment
2 A-2394-17T2
and performance bonds, materially deviated from the City's
detailed bid specifications.
I.
The record reflects the following pertinent chronology of
events.
Pursuant to the Local Public Contracts Law,
N.J.S.A. 40A:11-
1 to -51 ("LPCL"), the City published a request for proposals
("RFP") for the collection and disposal of solid waste and so-
called "white goods," for either a three-year or five-year term.
The anticipated start date of the contract was November 1, 2017.
If the City chose to award a three-year contract, the contract
would end on October 31, 2020. If the City awarded a five-year
contract, the contract term would conclude on October 31, 2022.
The City's RFP included detailed bid specifications and
numerous forms, which were required to be completed and submitted
as part of any bidder's response. The bid submissions were due
on October 18, 2017 at 10:00 a.m.
Key Provisions in City's Bid Specifications
Section 1.4 of the RFP specifies a list of documents that
"shall be submitted" by every bidder by the specified date and
time. This list includes Item 6, entitled "Certificate of Surety."
Section 1.4 of the RFP further provides, "All of the foregoing
3 A-2394-17T2
shall be submitted in accordance with the instructions hereinafter
contained."
Section 2, the RFP's definitional section, defines the term
"[b]id proposal" as "all documents, proposal forms, affidavits,
certificates, statements required to be submitted by the bidder
at the time of the bid opening." Additionally, Section 2 defines
the term "[c]onsent of surety" as "a promissory note guaranteeing
that if the contract is awarded, the surety will provide a
performance bond."
Section 3.1 of the RFP mandates that "[e]ach document in the
bid proposal must be properly completed in accordance with N.J.A.C.
7:26H-6.5.[2] No bidder shall submit the requested information on
any form other than those provided in these bid specifications."
(Emphasis added).
Section 4.4 of the RFP sets forth requirements for the
necessary performance bond. Section 4.4 provides as follows:
For a three (3) or five (5) year contract the
successful bidder shall provide a performance
bond issued by a surety in an amount equal to
no more than one hundred percent (100%) of the
annual value of the contract. The successful
bidder shall provide said performance bond to
the [City] at such time as the executed
Contract is delivered. The performance bond
for each succeeding year shall be delivered
to the [City] with proof of full payment of
2
We discuss, infra, the pertinent portions of N.J.A.C. 7:26H-6.5,
a Board of Public Utilities ("BPU") regulation.
4 A-2394-17T2
the premium one hundred twenty (120) days
prior to the expiration of the current, bond.
Failure to deliver a performance bond for
any year of a multi-year, contract one hundred
twenty (120) days prior to the termination of
the current bond will constitute a breach of
contract and will entitle the [City] to
terminate the contract upon the expiration of
the current bond. Notwithstanding termination
pursuant to this section, the contractor is
obligated to fully performs [sic] through the
date of termination of the contract and
damages shall be assessed in an amount [equal]
to the costs incurred by the [City] in re-
bidding the contract.
Section 5.4 of the RFP provides that the successful bidder
"shall provide rear end containers at various City buildings at
the direction and discretion of the Superintendent of Public
Works." Section 5.4 thereafter lists the minimum quantity and
size requirements for the dumpsters and the exact locations where
each dumpster must be placed.
Section 5.18 of the RFP, entitled "Indemnification,"
specifies that the successful bidder:
shall indemnify and hold harmless the [City]
from and against all claims, damages, losses,
and expenses including all reasonable expenses
incurred by the [City] on any of the aforesaid
claims that may result or arise directly or
indirectly, from or by reason of the
performance of the contract or from any act
or omission by the Contractor, its agents,
servants, employees or subcontractors and that
results in any loss of life or property or in
any injury or damage to persons or property.
5 A-2394-17T2
Consents of Surety
Section 6.1 of the RFP enumerates a checklist of bidding
documents, which includes Item 6.7, "Consent of Surety." The
City's required consent of surety form states at the top of the
page, "(THIS CONSENT OF SURETY FORM IS PART OF THE BID AND MUST
BE FILLED OUT AND SUBMITTED WITH THE BID)[.]" The form goes on
to state:
In consideration of the promises (the Bid to
which this is attached), the undersigned
Surety Company, licensed to do business in the
State of New Jersey, consents and agrees that
if the Contract for which the preceding Bid
is made be awarded to the person, firm or
corporation making the same, it will become
bound as sure[t]y and guarantor for its
faithful performance, and will execute a
Performance Bond in the form annexed hereto,
said Bond to be in an amount equal to one
hundred percent (100%) of the Contract price
for the term of the Contract subject to being
reduced annually to that proportion of the
total number of years remaining on the
Contract, and to be conditioned so as to
indemnify the [City] against loss due to the
failure of the Cont[r]actor to meet the
stipulations of the Contract, Cont[r]act
Documents, and the Bond, and to guarantee
payment to all persons performing or
furnishing labor or materials for performance
of said Contract.
The form must be signed by the surety and by a principal of the
bidder.
The consent of surety JSI provided with its October 2017 bid
did not track the RFP's language. Instead, it read:
6 A-2394-17T2
The Platte River Insurance Company as Surety,
a Corporation organized and existing under the
laws of the State of Nebraska and licensed to
do business in the State of New Jersey hereby
consents and agrees that if the accompanying
proposal of [JSI]
To City of Garfield
For Solid Waste & White Goods Collection
be accepted and contract awarded, the said
Platte River Insurance Company will become
bound as Surety and will execute standard
performance and payment bonds in the amount
called for by [the City] conditioned for the
proper and faithful fulfillment of said
contract.
[(All emphasis in original; signature
omitted).]
By contrast, the consent of surety that Sterling provided with its
October 2017 bid, coincidentally also issued by Platte River,
fully comported verbatim with the City's required form.
The City did not receive any requests for clarification about,
or objections to, the bid specifications. On October 18, 2017,
JSI and Sterling timely submitted sealed bids in response to the
RFP. No other bids were received. The bids were unsealed and
publicly read on October 18, 2017. JSI was the low bidder.
Five days later, on October 23, 2017, Sterling submitted a
protest letter to the City objecting to JSI's bid, alleging that
JSI's consent of surety failed to conform to the required form as
provided in the bid specifications. Specifically, JSI's consent
7 A-2394-17T2
of surety did not state that the surety would indemnify the City
for loss under the contract and guarantee payments to all persons
performing labor or providing materials for the performance of the
contract. After reviewing Sterling's bid protest, the City agreed
that JSI's bid was non-conforming.
On October 24, 2017, the City adopted Resolution 17-364
awarding the contract to Sterling as the lowest responsible bidder.
The City's resolution stated, in pertinent part:
WHEREAS,
N.J.S.A. 40A:11-23.2(b)
requires mandatory Bid Compliance with the
Submission of Surety Documents and the
corresponding certificate; and
WHEREAS, Smentkowski Surety Submission
deviated from the specific submission Bid
language requirements, resulting in a
substantial Bid deviation and the
Disqualification of the [JSI] Bid[.]
In an opinion by Judge Christine A. Farrington, the trial
court found that JSI's bid submission was non-responsive because
the submission failed to adhere to the required consent of surety
form, in the language prescribed by the City in its bid
specifications. The court additionally found that the City's
action was neither arbitrary nor unreasonable.
8 A-2394-17T2
In November 2017, Sterling commenced work under the contract.
This appeal by JSI, which we have accelerated at its request,
ensued.3
II.
The overall goal of public bidding statutes is to "guard
against favoritism, improvidence, extravagance and
corruption . . . ." Barrick v. State,
218 N.J. 247, 258 (2014)
(quoting Keyes Martin & Co. v. Dir., Div. of Purchase & Prop.,
99 N.J. 244, 256 (1985)); see also L. Pucillo & Sons, Inc. v. Mayor
& Council of the Borough of New Milford,
73 N.J. 349, 356 (1977)
(underscoring the "prophylactic" approach of bidding laws to
secure these policy objectives). Public bidding laws are designed
"to secure for the taxpayers the benefits of competition and to
promote the honesty and integrity of the bidders and the
system . . . ." In re Protest of the Award of the On-Line Games
Prod. & Operation Servs. Contract,
279 N.J. Super. 566, 589 (App.
Div. 1995). These laws are to be "construed as nearly as possible
with sole reference to the public good." Ibid. (quoting Keyes,
99 N.J. at 256).
With respect to local public contracts that are bid and
awarded under the LPCL, the objective "is to secure for the public
3
JSI did not move to stay the award.
9 A-2394-17T2
the benefits of unfettered competition." Meadowbrook Carting Co.
v. Borough of Island Heights & Consol. Waste Servs., Inc.,
138 N.J. 307, 313 (1994) (citation omitted); see also Twp. of River
Vale v. R.J. Longo Constr. Co.,
127 N.J. Super. 207, 215 (Law Div.
1974) (similarly noting the purpose of competitive bidding for
local public contracts is the "advancement of the public interest
in securing the most economical result by inviting competition in
which all bidders are placed on an equal basis," not protection
of individual interests of bidders).
Consistent with these principles, the LPCL mandates that
publicly advertised contracts be awarded to "the lowest
responsible bidder." N.J.S.A. 40A:11-4(a) (emphasis added);
Meadowbrook,
138 N.J. at 313 (citations omitted). The Supreme
Court has interpreted this requirement to signify that "the
contract must be awarded not simply to the lowest bidder, but
rather to the lowest bidder that complies with the substantive and
procedural requirements in the bid advertisements and
specifications." Meadowbrook,
138 N.J. at 313 (citations
omitted).
"Strict compliance is required, and a municipality generally
is without discretion to accept a defective bid." Id. at 314
(citations omitted). The long-established judicial policy in
applying the LPCL is "to curtail the discretion of local
10 A-2394-17T2
authorities by demanding strict compliance with public bidding
guidelines." Ibid. (citation omitted). As Justice Francis
observed in Township of Hillside v. Sternin,
25 N.J. 317, 326
(1957), "In this field it is better to leave the door tightly
closed than to permit it to be ajar, thus necessitating forevermore
in such cases speculation as to whether or not it was purposely
left that way." "Public bidders should regard the specifications
as requiring the submission of bids on the terms specified."
Meadowbrook,
138 N.J. at 324. "Courts should not casually
transform the mandatory requirement in [bid] specifications . . .
into a polite request." Ibid. (citation omitted).
The present case turns on the materiality of the City's bid
specification dictating the form of the consent of surety that had
to be submitted with the bid. "It is firmly established in New
Jersey that material conditions contained in bidding
specifications may not be waived." Terminal Constr. Corp. v.
Atlantic Cty. Sewerage Auth.,
67 N.J. 403, 411 (1975) (citing Twp.
of Hillside,
25 N.J. at 324). Such non-waivability, however, does
not apply to "minor or inconsequential conditions." Ibid.
The established two-prong test for evaluating materiality is
as follows: (1) "whether the effect of a waiver [of the bid
specification] would be to deprive the municipality of its
assurance that the contract will be entered into, performed and
11 A-2394-17T2
guaranteed according to its specified requirements;" and (2)
"whether [a deviation] 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." River
Vale,
127 N.J. Super. at 216. The Supreme Court in Meadowbrook,
138 N.J. at 315, adopted this materiality test for local government
contracts. In the case at bar, the City concluded that JSI's non-
conforming consent of surety form was a "material" defect under
these legal criteria, and the trial court upheld that
determination.
As Judge Farrington aptly recognized, a reviewing court
generally uses a deferential standard of review of governmental
decisions in bidding cases. A court ordinarily should not overturn
a procurement decision unless it finds the decision to be
arbitrary, capricious, or unreasonable. On-Line Games,
279 N.J.
Super. at 590-92. If a procurement decision is grounded rationally
in the record and does not violate the applicable law, it must be
upheld. Id. at 590-93. In particular, the standard of review for
decisions concerning bid conformity on a local public contract
level "is whether the decision was arbitrary, unreasonable or
capricious." Id. at 590.
12 A-2394-17T2
The focus of this case is upon the City's bid specification
requiring bidders to submit a particular form of a consent of
surety. "This certificate from a surety company, referred to as
a consent of surety, assures the public entity that the surety
will provide the performance bond [and, where applicable, the
payment bond] if the contract is awarded to and signed by the
bidder." Meadowbrook,
138 N.J. at 316 (citation omitted). "A
consent of surety is a direct undertaking by the bonding company,
enforceable by the municipality." Id. at 321. A consent of surety
"provides the local government with some assurance at the time of
the bid submission that the low bidder will have the capacity to
perform the contract and to supply the necessary bonds." Id. at
316 (citations omitted).
A bidder's total failure to submit a consent of surety
qualifies as a material defect necessitating a municipality's
rejection of its bid. Id. at 321; Albanese v. Machetto,
7 N.J.
Super. 188, 190-91 (App. Div. 1950) (deeming a low bidder's failure
to comply with bid specifications requiring the submission of a
consent of surety a material defect, because that omission
implicated the bidder's ability to fulfill its obligations under
a trash removal contract); De Sapio Constr., Inc. v. Twp. of
Clinton,
276 N.J. Super. 216, 221 (Law Div. 1994) (finding that a
low bidder's failure to include a required consent of surety with
13 A-2394-17T2
its bid deprived the municipality of necessary assurance the
contract would be fulfilled). As the Supreme Court has noted,
"our courts have held that the ability to secure a proper consent
of surety is a consideration that could affect bid calculations."
Meadowbrook,
138 N.J. at 316 (citing L. Pucillo & Sons, Inc.,
249 N.J. Super. at 547 (noting a failure to submit a required consent
of surety threatens the policies underlying competitive-bidding
statutes)); De Sapio,
276 N.J. Super. at 220-222 (holding that a
"conditional" consent of surety comprised a material defect
because it provided the bidder with a competitive advantage over
other bidders); see also George Harms Constr. Co. v. Ocean Cty.
Sewerage Auth.,
163 N.J. Super. 107, 110 (App. Div. 1978) (holding
that a "requirement that the surety be licensed to do business in
this State was a material condition of the instructions to bidders
and not a mere technicality").
As the Court in Meadowbrook observed, "To permit [wholesale]
waiver of the consent-of-surety requirement would undermine the
stability of the public-bidding process."
138 N.J. at 321. The
Court reasoned:
if a low bidder that had failed to submit a
consent of surety decided it no longer sought
the contract because it had determined that
its bid was too low, that bidder could decline
to obtain the consent of surety and the
performance bond. Without a performance bond,
14 A-2394-17T2
the bidder cannot be required to enter into
and perform the contract.
[Ibid.]
"The Legislature obviously regarded the financial capacity
of a bidder to be a material and substantial consideration in the
determination of the lowest responsible bidder, as evidenced by
its adopting separate provisions within the [LPCL] to provide
municipalities with a means of requiring prospective bidders to
furnish in advance a statement of their financial capacity." Id.
at 322; see N.J.S.A. 40A:11-20 to -22 (citations omitted).
Accordingly, the Court held in Meadowbrook that the municipality
had misapplied its authority by waiving a consent-of-surety
requirement. Id. at 325.
These cases signify that a consent of surety is commonly
regarded as a material requirement, incapable of waiver. The
bidder must supply it when required to do so by the bid
specifications. In the present case, JSI did submit a "Consent
of Surety" document, albeit one that did not track the language
called for under the City’s bid specifications. This is not an
instance, as in Meadowbrook, of a bidder's complete omission of a
consent of surety. The issue nevertheless remains as to whether
JSI's consent of surety was materially defective because of
15 A-2394-17T2
differences between it and the consent of surety form that the
City prescribed in its bid specifications.
As the contracting unit for this solid waste removal
procurement, the City is responsible for delineating the form of
the consent of surety that must be furnished by prospective
bidders. The City has the authority to mandate the precise
language of the form, as it so desires, so long as it is not
contrary to the applicable regulations.
In this regard, we note the Uniform Bid Specifications for
Municipal Solid Waste Collection Contracts, N.J.A.C. 7:26H-6.1 to
-6.18, promulgated by the BPU pursuant to
N.J.S.A. 48:13A-7.22,
provide in relevant part as follows:
For all municipal solid waste collection
contracts, advertised in accordance with
N.J.S.A. 40A:11-1 et seq., the contracting
unit shall prepare, or cause to be prepared
bid packages for prospective bidders. All
such bid packages shall be prepared in
accordance with this subchapter and the
Uniform Bid Specification forms located at
Appendix A at the end of this subchapter which
are incorporated herein by reference. The
contracting unit shall be responsible for
providing prospective bidders with all forms
listed and described in this subchapter that
are not specifically provided at Appendix A.
[N.J.A.C. 7:26H-6.4(a) (emphasis added).]
N.J.A.C. 7:26H-6.5(d)(6) provides that bid proposals submitted for
local solid waste contracts must contain "[a] consent of surety
16 A-2394-17T2
stating that the surety company will provide the bidder with a
performance bond if the bidder is awarded the contract[.]"
Notably, Appendix A to the BPU's uniform regulations includes
a "BIDDING DOCUMENTS CHECKLIST" at Section 6.1, which lists
"[c]onsent of surety" as one of the documents that must be included
with a bid. N.J.A.C. 7:26H-6 App. A. Section 6.7 of Appendix A,
entitled "CONSENT OF SURETY," does not prescribe a statewide form
or any form language that must be used by a municipality in its
RFP for such contracts. N.J.A.C. 7:26H-6 App. A. Rather, Section
6.7 of Appendix A reads, "[FORM HELD BY THE CONTRACT UNIT][.]"
N.J.A.C. 7:26H-6 App. A (emphasis added). This specific reference
in the Appendix to consents of surety contrasts with Section 6.4
of the Appendix, which states as to bid guaranties: "BID GUARANTY
[FORM SUPPLIED BY CONTRACTOR][.]" N.J.A.C. 7:26H-6 App. A
(emphasis added). Thus, the BPU regulations contemplate that the
local government's "contract unit," rather than the "contractors"
who submit bids, determines the appropriate content of the required
consent of surety form.
By further illustration, N.J.A.C. 7:26H-6.5(d)(7), which
concerns the bid proposal form, supports this conclusion. This
regulation provides that "[t]he form and wording of the bid
proposal" be either "identical to or a reasonable approximation
of the form and wording in N.J.A.C. 7:26H-6, Appendix A[.]" By
17 A-2394-17T2
contrast, nothing in the regulations allows such "a reasonable
approximation" for a consent of surety form. This distinction
further supports respondents' position that the City possessed the
authority to insist in its RFP upon certain language in the consent
of surety form, so long as the form included an assurance that the
surety company would provide the necessary bonds if the bidder
were awarded the contract.
N.J.A.C. 7:26H-6.5(d)(2) mandates that "[t]he contracting
unit shall not consider a bid proposal unless it contains each of
the following items: . . . A completed questionnaire demonstrating
that the bidder has the financial ability, experience, capital and
equipment necessary to perform the contract. The bidder shall
answer each question fully and completely; failure to answer each
question completely or to provide any of the information requested
shall result in rejection of the bid proposal." (Emphasis added).
Here, JSI failed to provide "information requested" by omitting
the required language from its consent of surety.
JSI argues that it did not materially deviate from the bid
specification because its consent of surety promises to furnish
"standard" performance and payment bonds. However, that vague
term does not track the specific promises and indemnification
obligations set forth in Item 6.7 of the RFP. Indeed, research
helpfully supplied to this court by respondents shows there is no
18 A-2394-17T2
one "standard" form of a performance or payment bond for government
contracts in New Jersey.4 Moreover, there does not appear to be
a singular industry standard for such language.
4
See, e.g.,
N.J.S.A. 2A:44A-31(d) (Construction Lien Law);
N.J.S.A. 2A:44-143 (New Jersey Bond Act);
N.J.S.A. 2A:44-147
(another portion of the New Jersey Bond Act);
N.J.S.A. 2B:14-2
(bond of surrogates);
N.J.S.A. 2B:14-10(c) (special deputy
surrogates);
N.J.S.A. 2C:41-4(b) (civil remedies for
racketeering);
N.J.S.A. 13:1D-9(u) (powers of the Department of
Environmental Protection ("DEP"));
N.J.S.A. 18A:18A-25 (bidding
under Public Schools Contracts Law);
N.J.S.A. 18A:64-68(a)
(performance bond or other security in bidding under State College
Contracts Law);
N.J.S.A. 18A:64A-25.17(a) (performance guaranty
and certificate under County College Contracts Law);
N.J.S.A.
27:7-31;
N.J.S.A. 40:55D-53(a) (subdivision and site plan review
and approval under Municipal Land Use Law);
N.J.S.A. 58:26-
23(e)(8) (contract for water supply privatization);
N.J.S.A.
58:27-23(e)(7) (contract for wastewater treatment privatization);
N.J.S.A. 58:28-5(d)(8) (contract for water supply services);
General Services Administration's Standard Performance Bond Form,
48 C.F.R. § 53.228(b) (2018) (standard performance bond form 25,
part of the Federal Acquisition Regulation); N.J.A.C. 5:36-4.1
(Department of Community Affairs' performance surety bond form for
development and redevelopment activities); N.J.A.C. 5:36-4.3
(Department of Community Affairs' (performance) standby letter of
credit form for development and redevelopment activities);
N.J.A.C. 5:43-5.3(b) (Department of Community Affairs' surety
bonds under Neighborhood Preservation Balanced Housing Program);
N.J.A.C. 6A:23A-21.2(b) (Department of Education's acceptance of
bonds under Public School Contracts Law); N.J.A.C. 7:1A-
2.17(a)(5)(ii) (DEP's regulation for loan conditions for water
supply loan programs); N.J.A.C. 7:1E-4.4(m)(2) (DEP's regulation
for financial responsibility for discharges of petroleum and other
hazardous substances); N.J.A.C. 7:1G-7.4 (DEP's Worker and
Community Right to Know Act regulation for compromise of
penalties); N.J.A.C. 7:14A-8.10(a)(6) (DEP's regulation addressing
additional requirements for underground injection control
program); N.J.A.C. 7:24A-4.2(a)(6)(ii) (DEP's regulation for dam
restoration and inland water projects loan program); N.J.A.C.
7:26A-3.4(c) (DEP's regulation for approval of recycling centers
19 A-2394-17T2
JSI emphasizes that it had previously submitted a consent of
surety referring to "standard" bonds when it was awarded an earlier
contract by the City, and contends that it is unfair to declare
its equivalent submission in this case to be materially non-
conforming. We reject this claim of unfairness. The City was not
estopped from strictly enforcing the terms of the RFP in this
contract cycle once the deviation was called to its attention by
Sterling. The application of equitable estoppel to governmental
agencies is generally disfavored. See Berg v. Christie, 225 N.J.
for recyclable materials); N.J.A.C. 8:59-8.2(h) (Department of
Health and Senior Services' regulation for civil administrative
penalty under Worker and Community Right to Know Act); N.J.A.C.
12:41-2.2(b)(5) (Department of Labor and Workforce Development's
regulation for application for initial approval of private career
schools); N.J.A.C. 16:44-9.1(b)(1) (Department of Transportation's
regulation for construction services contracts); N.J.A.C. 19:4-
8.2(f)(3) (New Jersey Meadowlands Commission's regulation for site
plan parking); N.J.A.C. 19:36-4.5(b)(8) (New Jersey Schools
Development Authority's regulation for requests for proposals for
design-build contracts); N.J.A.C. 19:38-5.1(b)(1) (New Jersey
Schools Development Authority's regulation for procedures for low-
bid procurement of construction contracts for school facilities);
N.J.A.C. 19:38B-4.1(a)(10) (New Jersey Schools Development
Authority's regulation for price and other factors procurement of
construction contracts for new school facilities projects);
N.J.A.C. 19:38B-7.1(c)(1) (New Jersey Schools Development
Authority's regulation for contract approval and execution for new
school facilities projects); N.J.A.C. 19:9-2.2(c)(9) (New Jersey
Turnpike Authority's regulation for purchases requiring public
advertising). These varied statutes and regulations illustrate
there is no singular "standard" governmental form for performance
or payment bonds.
20 A-2394-17T2
245, 280 (2016). The strong public policies underlying the LPCL
and public bidding case law justify the stringency exercised by
the City in this case.
We have duly considered all of JSI's remaining arguments and
find they lack sufficient merit to warrant discussion. R. 2:11-
3(e)(1)(E).5
Affirmed.
5
The unpublished opinion cited by JSI in support of its claim of
conformity with the consent of surety requirement is unavailing.
The opinion is not precedential, see Rule 1:36-3, and, moreover
distinguishably involved a consent of surety that did not
potentially weaken the level of assurances made to the
municipality.
21 A-2394-17T2
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