NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION
DOCKET NO. A-1649-10T21
A-1650-10T2
A-1804-10T2
VANAS CONSTRUCTION CO., INC.,

Plaintiff-Respondent,

v.

CITY OF JERSEY CITY and ARCO

ELECTRICAL CONTRACTORS, INC.,
t/d/b/a ARCO CONSTRUCTION
GROUP,

Defendants-Appellants.
____________________________________

JOGI CONSTRUCTION, INC.,

Plaintiff-Respondent,

v.

CITY OF JERSEY CITY and JOSEPH

M. SANZARI, INC.,

Defendants-Appellants.
_____________________________________

Argued December 15, 2010 - Decided December 23, 2010

Before Judges Sapp-Peterson and Fasciale.

On appeal from the Superior Court of New

Jersey, Law Division, Hudson County, Docket

1
Under A-1649-10T2, the City of Jersey City is appealing the
order entered under L-4553-10, Jogi Construction being the
respondent, as well as the order entered under L-5049-10, Vanas
Construction Co., Inc. being the respondent.
 Nos. L-4553-10 (A-1804-10T2) and L-5049-10
(A-1650-10T2).

Raymond Reddington, Supervisory Assistant

Corporation Counsel, argued the cause for
appellant City of Jersey City under A-1649-
10T2 (William Matsikoudis, Corporation
Counsel, attorney; Mr. Reddington, of
counsel and on the brief).

Thomas S. Cosma argued the cause for

appellant Joseph M. Sanzari, Inc. under A-
1804-10T2 (Connell Foley, L.L.P., attorneys;
Mr. Cosma, of counsel and on the brief).

Joseph J. Hocking argued the cause for

appellant Arco Electrical Contractors, Inc.,
t/d/b/a Arco Construction Group under A-
1650-10T2 (Schenck, Price, Smith & King,
L.L.P., attorneys; Mr. Hocking, on the
brief).

Henry N. Christensen, Jr. (Norton &

Christensen, P.A.) argued the cause for
respondent Jogi Construction, Inc. under A-
1804-10T2.

Aldo DiTrolio argued the cause for

respondent Vanas Construction Co., Inc.
under A-1650-10T2 (Gaccione, Pomaco &
Malanga, P.C., attorneys; Mr. DiTrolio, of
counsel and on the brief).

PER CURIAM

In these three accelerated appeals that have been

consolidated, appellants Joseph M. Sanzari, Inc. (Sanzari), Arco

Electical Contractors, Inc., t/d/b/a Arco Construction Group

(Arco), and the City of Jersey City (the City), appeal from

trial court orders entering judgment in favor of respondent Jogi

Construction, Inc. (Jogi) and partial judgment in favor of Vanas

2 A-1649-10T2
Construction Co., Inc. (Vanas). The trial court found that bid

proposals submitted by Sanzari for the Newark Avenue Roadway

Improvement Project, Federal Project No. FS-7851(102) and Jersey

City Project No. 09-006 (Newark Avenue Project), and by Arco for

the West District Police Precinct, Project No. 2007-002 (West

District Precinct Project), were materially defective and that

the defects were non-waivable. The court permanently enjoined

and restrained the City from implementing and effectuating the

respective contracts as to Sanzari and Arco. We affirm.

I.

Jersey City advertised for bids in connection with the two

projects in the spring of 2010. The bid specifications required

that prospective bidders complete and submit numerous documents.

Two such documents were the "Certificate of Experience" of the

general contractor and the "Plant and Equipment Questionnaire"

(Questionnaire) to be completed by the general contractor.

Additionally, the bid specifications required the separate

submission of a Certificate of Experience and Questionnaire to

be completed by each subcontractor required to be named pursuant

to N.J.S.A. 40A:11-16.2

2
We have reproduced the exact language of the Certificate of
Experience and Questionnaire contained in the two bid proposals.
The Certificate of Experience and Questionnaire are attached as
Appendices A and B, respectively.

3 A-1649-10T2
 It is undisputed that when the City opened bids for the

Newark Avenue Project on May 6, 2010, Sanzari's bid was the

lowest at $3,169,067.80, followed by Jogi at $3,348,789.94, and

English Paving Company, Inc., at $3,399,133.73. However,

Sanzari's bid proposal did not include a completed Certificate

of Experience and Questionnaire for Kevco Electric Company

(Kevco), listed as Sanzari's electrical engineer in the bid

proposal. The City notified Sanzari of the deficiency, and

either on May 6 or May 7, Sanzari provided the omitted

documents. Similarly, when the City opened the bids for the

West District Precinct Project on August 5, 2010, Arco's bid of

$9,653,153 was the lowest, followed by Vanas at $9,750,000, and

Onekey, LLC at $9,790,000. Arco also failed to include in its

package completed Certificates of Experience and Questionnaires

for K & D Contractors, LLC, its proposed plumbing and HVAC

subcontractor; and Erection & Welding Contractors, its proposed

structural steel and ornamental iron subcontractor. The City

advised Arco that it could submit the requisite documents within

twenty-four hours.

A. The Jogi Bid Protest

Jogi filed a bid protest for the Newark Avenue Project on

May 7, the day following bid openings. Jogi contended the

Sanzari bid proposal was non-responsive and thereby null and

4 A-1649-10T2
void. In a letter dated May 14, Jersey City notified Sanzari

that "[p]ursuant to the terms and conditions of the City's bid

specifications, the City must reject Sanzari's bid." The letter

stated further:

The Certificates of Experience for the

subcontractor named in the proposal pursuant
to N.J.S.A. 40A:11-16 was discussed in two
different sections of the bid specification.
Section 8 entitled "Bid Documents" on page
I-6 of the Information to Bidders advised
bidders that Certificates of Experience for
subcontractors required by law to be listed
in the proposal were to be submitted with
the proposal. It advised that a failure to
do so would result in rejection of the bid.
The Schedule of Required Submittals by
Bidder on page SRS-1 advised that a failure
to include the Certificates would result in
rejection of the bid.

. . . ([C]ontracting authorities may

not waive any material or substantial
variation between the conditions under which
the bids are invited and the proposal
submitted). The Certificates of Experience
for subcontractors that were required by law
to be listed in the bid proposal were
referenced in two different sections of the
bid specifications. Bidders were clearly
advised that the Certificates were mandatory
documents that were to be submitted with the
proposal. The City will proceed to evaluate
the bid proposal of Jogi Construction, Inc.
to determine if it is the lowest responsible
bidder.

In correspondence dated May 20, Sanzari's attorney stated

that the bid proposal was not materially defective and that the

City was "legally bound under the Local Public Contracts Law to

5 A-1649-10T2
award the contract to Sanzari as the lowest responsible bidder."

He first argued as a threshold matter that N.J.S.A. 40A:11-16(b)

did not apply because Kevco was the only electrical

subcontractor named in the proposal and, therefore, Sanzari was

only required to list the "names of the trade subcontractors

required to be listed by N.J.S.A. 40A:11-16." Second, he argued

that Kevco "is well-known to the City from other City public

projects in which Kevco has performed or is performing

electrical work." Third, he challenged the two provisions

contained in the bid proposals cited by the City in its May 14

correspondence:

Neither Section 8 nor the Schedule state

that the general contractor (i.e., the
bidder) must provide a separate Certificate
of Experience for its subcontractors, be
they listed or unlisted subcontractors.
Indeed, the Certificate of Experience itself
does not state that it must be completed by
the listed subcontractors. Rather, it
states at pg. P-32 as follows: "IMPORTANT:
THIS CERTIFICATION MUST BE FILLED IN BY
BIDDER." (Emphasis in original).

Sanzari's next argument acknowledged that the Questionnaire

expressly required the general contractor to provide duplicate

copies of the proposal to its proposed subcontractors and

required the subcontractors to complete the duplicate documents,

but noted that this provision was "found a[t] the bottom of the

second page of the Plant and Equipment Questionnaire, which is

6 A-1649-10T2
of course a different document that asks for information

particular to plant and equipment." Finally, he argued that the

City ignored "the equally important provisions of Section 29

['SUBMISSION OF POST BID INFORMATION'] of the Information to

Bidders[,]" that contemplated "the possibility of post-bid

submissions specifically addressed to the responsibility of the

proposed subcontractors."

Subsequent to its receipt of the correspondence from

Sanzari's attorney, the City, in a letter dated May 27, 2010,

notified Sanzari that after reviewing Tec Electric, Inc. v.

Franklin Lakes Board of Education, 284 N.J. Super. 480 (Law Div.

1995), it reconsidered its rejection of Sanzari's bid proposal

and concluded that "despite what the specifications stated, . .

. . Sanzari's failure to include the Certificate [of Experience

for Kevco] was a minor defect which could be and was cured[,]"

and that under the Tec Electric, Inc. decision, it was required

to permit "Sanzari to cure the defect."

B. The Vanas Bid Protest

On August 9, five days after bid opening, Vanas formally

objected to the award of the contract to Arco. It first took

"exception to the leniency the City has allowed Arco with

respect to issuing this documentation within 24 hours as all of

this documentation was to be 'submitted with the bid' as

7 A-1649-10T2
indicated in multiple locations in the bid form." Vanas next

maintained that Arco's non-compliance "prevented the City from

determining that legitimate, experienced subcontractors were

being used." It additionally argued:

Furthermore, if the bid of Arco was

substantially less tha[n] the second bid,
they could adopt a position that their bid
did not comply with the requirements of the
bid form and therefore withdraw their bid
without penalty and without being bound by
the Bid Bond to the City of Jersey City[,]
thereby giving them an advantage over every
other bidder who submitted bids in
accordance with the Contract Documents.
Clearly, the intent of the Bid Form was that
all the required documentation be submitted
with the bid. The bid of Arco did not
comply with this requirement.

In response, the City acknowledged that the failure to

include the Certificate of Experience and Questionnaire

documents for each of Arco's subcontractors was "clearly a bid

defect." Specifically, the City concluded:

First, the submission of documents used

to determine the responsibility of a bidder
did not deprive the City of its assurance
that the contract would be entered into,
performed and guaranteed according to the
specified requirements. Arco submitted a
bid bond and consent of surety and would
have suffered severe financial consequences
if it had refused to provide the documents
to the City. Second, allowing Arco to cure
the defect did not give it a competitive
advantage over the other bidders. The
missing documents pertained to the
experience and qualification of
subcontractors. The document did not and

8 A-1649-10T2
 could not influence the amount of the Arco[]
bid or of any of the other bidders. See[]
Tec Elec[.], Inc. v. Franklin Lakes Bd. of
Educ[.], 284 N.J. Super. 480, 487 (Law Div.
1995).

In a resolution adopted on July 14, 2010, City Council

awarded the Newark Avenue Project to Sanzari. In a resolution

dated September 15, 2010, City Council awarded the West District

Precinct Project to Arco. Jogi and Vanas, as the second lowest

bidders on the respective contracts, filed verified complaints

in lieu of prerogative writ seeking to set aside the action of

the City. Jogi argued that the contract award to Sanzari was

arbitrary, unreasonable, capricious, illegal, and in derogation

of public policy. Vanas' complaint raised similar allegations

but additionally alleged that "[a]ssuming a post-bid cure was

even permissible, Arco's post-bid submissions still did not

substantially meet the requirements of the bid invitation."

C. The Prerogative Writ Actions

The trial court conducted oral argument on the Sanzari/Jogi

matter on September 28 and on the Arco/Vanas matter on October

7. The court reserved decision after each of the arguments and

issued a written opinion on October 15, granting judgment in

favor of Jogi and partial judgment in favor of Vanas. In

reaching its decision, the court first considered the purposes

for the Certificate of Experience and Questionnaire. To answer

9 A-1649-10T2
that question, the court referenced the City's explanation

contained in its August 24, 2010 letter to Vanas in response to

Vanas' challenge to the Arco award:

A Certificate of Experience and a Plant

& Equipment Questionnaire are documents that
the City uses to determine whether the low
bidder, and its subcontractors that are
required to be listed pursuant to N.J.S.A.
40A:11-16, are responsible. Responsibility
involves a consideration of a bidder's
experience, financial ability, moral
integrity and availability of facilities
necessary to perform the contract . . . .

With this language as the factual framework for analyzing

the purposes of the two documents, the court next noted that in

both bid proposals "all bidders were put on notice [by the

express language of the bid information and specifications

prepared by the City] that failure to include the Certificates

and Questionnaires would result in 'automatic rejection . . . at

the time of [b]id reception.'" The court then reasoned:

In both matters before me, the bid

submissions from the lowest bidders included
a list of subcontractors but failed to
include the Certificates or other supporting
documents as to the subcontractors named.
As discussed above, the express purpose of
the Certificate is to assist the City in
determining whether the low bidder and its
named subcontractors are sufficiently
experienced, financially able, and in
possession of the facilities and moral
integrity necessary to perform the contracts
in question. In the absence of these
Certificates and other required
documentation in both cases, the City was

10 A-1649-10T2
 essentially provided with nothing more than
the names and addresses of the
subcontractors that would be responsible for
performing portions of the work required
under the contract. At the time of bid
reception, the City therefore had no
information regarding prior work performed
by each subcontractor, the manner in which
each subcontractor had inspected the
proposed work, each subcontractor's plan for
performing the proposed work, the supervisor
responsible for overseeing each
subcontractor, full information as to each
subcontractor's other private or government
contracts, each subcontractor's available
equipment, or the status of each
subcontractor's contracts for materials.

The court concluded that the action of the City in awarding the

two contracts to the two lowest bidders violated N.J.S.A.

40A:11-23.2.

The court also considered the impact of the awards under

the two-part test first enunciated by Judge Pressler in Township

of River Vale v. R.J. Longo Construction Co., Inc., 127 N.J.

Super. 207, 216 (Law. Div. 1974) and adopted by the Supreme

Court in Meadowbrook Carting Co., Inc. v. Borough of Island

Heights, 138 N.J. 307, 313 (1994):

[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

11 A-1649-10T2
 undermining the necessary common standard of
competition.

[River Vale, supra, 127 N.J. Super. at 216.]

The court noted the Court's recognition in Meadowbrook that

notwithstanding the existence of the River Vale test, decisions

applying the two-part test "have been somewhat inconsistent in

articulating the difference between a material defect in a bid

that cannot be waived and an immaterial defect that can be

waived." Meadowbrook, supra, 138 N.J. 319.

Against this analytical framework, the court rejected the

argument advanced that bid bonds were in place to prevent

Sanzari and Arco from walking away from the contracts once the

bids were opened and they were deemed non-compliant because the

bid bonds for each project would only entitle the City to

$20,000 in each case if the bidders walked away and the projects

were valued in excess of $3 million and $9 million respectively.

Consequently, the court concluded "[t]he non[-]compliance by

both [d]efendants precluded such commitment because the omission

of Certificates effectively left nullification in the hands of

the bidders." Based upon these findings, the court was

satisfied that Jersey City, in both instances was "deprived of

adequate assurance that [the] contracts would be entered into

with the non[-]compliant [d]efendants."

Addressing the second prong, the court stated:

12 A-1649-10T2
 [B]oth [d]efendants were afforded an unfair
bidding advantage insofar as they were not
required to submit the subcontractor
documentation in their initial bid
submissions. Whether or not the burden of
doing so is considered to be laborious, the
requirement of obtaining Certificates and
supporting documents from all subcontractors
must surely lessen the pool of subcontractor
candidates from which a bidding contractor
can choose in preparing the final bid
submission. I therefore find it
indisputable that a general contractor who
is not required to obtain these documents
prior to bid submission is placed in a
position of advantage over its competitors.

Moreover, in order to achieve the

"common standard of competition" called for
by the LPCL,3 the conditions and
specifications of the bidding process "must
apply equally to all prospective bidders."
Hillside [v. Sternin], 25 N.J. [317,] 322
[(1957)]. Were it otherwise, and were
courts to freely permit individual bidders
to follow or disregard bid specifications at
their leisure, "the mandate for equality
among bidders would be illusory and the
advantages of competition would be lost."
Id. at 323. The unambiguous language
included in the packet submitted to bidders
by the City is not, and cannot, be disputed
by the parties; all bidders were put on
notice that failure to include the necessary
Certificates and Questionnaires would result
in "automatic rejection . . . at the time of
[b]id reception." In conformity with its
rejection of a bid by A.J.M. Contractors
just months earlier on the same grounds, the
City initially enforced the clear language
of its bid specifications by rejecting
Defendant Sanzari's bid proposal for failure
to include the Kevco Certificate in its

3
Local Public Contracts Law, N.J.S.A. 40A:11-1 to -51.

13 A-1649-10T2
 initial bid submission. The City thereafter
reversed course and permitted both
[d]efendants the opportunity to cure the
very same type of defect that had caused the
rejection of the A.J.M. bid. I conclude
that a "common standard of competition"
cannot exist when the rules of the game are
changed at the very moment that they are
broken.

Subsequent to the court's rulings, the City awarded the

contracts to Jogi and Vanas. The court thereafter entered an

order staying its October 15 orders. Sanzari and Arco filed

applications with this court seeking permission to file an

emergent motion on short notice to continue the stay pending

appeal. We denied the application by order dated November 18,

2010, and on appeal to the Supreme Court, our order was

reversed. By order dated November 24, we granted the emergent

application, extended the trial court's stay pending appeal,

issued an accelerated briefing schedule and consolidated the two

appeals for purposes of joint disposition. The City filed a

separate appeal on December 1, 2010, which has been consolidated

with the Sanzari and Arco appeals.

On appeal, Sanzari contends:

POINT I
THE CITY ACTED WITHIN ITS PERMISSIBLE
DISCRETION WHEN IT PERMITTED SANZARI TO CURE
AN IMMATERIAL AND WAIVABLE DEFECT IN FAILING
TO INCLUDE THE CERTIFICATE OF EXPERIENCE.

A. THE CONFLICTING BID INSTRUCTIONS DID

NOT EXPRESSLY REQUIRE THE CERTIFICATE

14 A-1649-10T2
 OR QUESTIONNAIRE FOR SUBCONTRACTORS BE
SUBMITTED AT THE TIME OF BIDDING.

B. EVEN IF A CERTIFICATE AND QUESTIONNAIRE

FOR KEVCO WERE REQUIRED AT THE TIME OF
BIDDING, THEIR INADVERTENT OMISSION DID
NOT CONSTITUTE A MATERIAL DEFECT.

C. THE LACK OF MATERIALITY OF THE LATE

SUBMISSION OF THE DOCUMENTS IS FURTHER
EVIDENCED BY . . . SANZARI'S COMPLETE
COMPLIANCE WITH THE LPCL.

POINT II
IT IS IN THE BEST INTEREST OF THE PUBLIC
THAT THE CONTRACT BE AWARDED TO SANZARI.

In its appeal, Arco contends:

POINT I
ARCO'S FAILURE TO SUBMIT THE REQUIRED
SUBCONTRACTOR DOCUMENTATION WITH ITS BID DID
NOT VIOLATE THE FIRST PRONG OF
RIVERVALE/MEADOWBROOK MATERIALITY ANALYSIS
BECAUSE IT DID NOT DEPRIVE JERSEY CITY OF
ANY ASSURANCE THAT THE CONTRACT WOULD BE
ENTERED INTO AND PERFORMED BY ARCO ACCORDING
TO ITS SPECIFIED TERMS.

POINT II
JERSEY CITY'S AWARD OF THE CONTRACT TO ARCO
DID NOT VIOLATE THE SECOND PRONG OF
RIVERVALE/MEADOWBROOK MATERIALITY ANALYSIS
BECAUSE ARCO GAVE NO COMPETITIVE ADVANTAGE
OVER VANAS OR ANY OTHER COMPLIANT BIDDER.

POINT III
VANAS' DISCUSSION OF OTHER ALLEGED
DEFICIENCIES IN ARCO'S POST-BID SUBMISSIONS
IS INAPPROPRIATE AND SHOULD NOT BE
CONSIDERED BY THIS COURT.

The City, in its appeal, contends:

POINT I

15 A-1649-10T2
 THE FAILURE OF SANZARI AND ARCO TO INCLUDE
WITH THEIR BID PROPOSALS CERTIFICATES OF
EXPERIENCE AND PLANT AND EQUIPMENT
QUESTIONNAIRES FOR SUBCONTRACTORS NAMED
PURSUANT TO N.J.S.A. 40A:11-16 WERE CURABLE
BID DEFECTS.

POINT II
SANZARI AND ARCO WERE NOT AFFORDED AN UNFAIR
BIDDING ADVANTAGE BECAUSE THEY WERE LEGALLY
BOUND TO PERFORM THE CONTRACTS WITH THE
SUBCONTRACTORS NAMED IN THEIR BID PROPOSALS.

POINT III
THE LAW PERMITS THE CITY TO ALLOW A LOW
BIDDER TO CURE MINOR BID DEFECTS.

POINT IV
THERE WAS A COMMON STANDARD OF COMPETITION
FOR ALL BIDDERS WHO SUBMITTED PROPOSALS FOR
PROJECTS I AND II.

II.

In our review of the City's determination that the omission

of the Certificates of Experience and Questionnaires in the bid

proposals submitted by Sanzari and Arco were minor defects that

were curable and waivable, we apply the same standard of review

employed by the trial court, namely, whether the decision was

arbitrary, unreasonable or capricious. Palamar Constr., Inc. v.

Twp. of Pennsauken, 196 N.J. Super. 241, 250 (App. Div. 1983).

We approach this matter mindful that ordinarily it is not our

task to substitute our judgment for that of the municipality,

particularly where municipal action calls for the exercise of

discretion. Colonnelli Bros., Inc. v. Vill. of Ridgefield Park,

16 A-1649-10T2
284 N.J. Super. 538, 541 (App. Div. 1995), certif. denied, 143

N.J. 327 (1996). Nonetheless, in the context of awarding public

contracts, we are also mindful that we have construed local

public contracts law "to curtail the discretion of local

authorities by demanding strict compliance with public bidding

guidelines." L. Pucillo & Sons, Inc. v. Mayor and Council of

Borough of New Milford, 73 N.J. 349, 356 (1977).

Close scrutiny of municipal action in the award of public

contracts furthers the objective underlying all public bidding

laws, namely, "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 Award of On-Line

Games Prod. and Operation Servs. Contract, 279 N.J. Super. 566,

589 (App. Div. 1995). Public "[b]idding statutes are for the

benefit of the taxpayers and are construed as nearly as possible

with sole reference to the public good." Terminal Constr. Corp.

v. Atl. County Sewerage Auth., 67 N.J. 403, 409-10 (1975).

The court observed more than fifty years ago in Hillside,

supra, "[i]n 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." 25 N.J. at 326. Consequently, a

municipality must ensure that its bidding process is not used or

17 A-1649-10T2
perceived as being used in such a way as to favor one bidder

over another or to allow for corruption. Terminal Constr.,

supra, 67 N.J. at 410. In doing so, a municipality furthers the

objectives of our public contract laws, which is not to promote

the individual interests of the bidders, but to promote the

public interest by "inviting competition in which all bidders

are placed on an equal basis[.]" River Vale, supra, 127 N.J.

Super. at 215. See also 426 Bloomfield Ave. Corp. v. City of

Newark, 262 N.J. Super. 384, 387 (App. Div. 1993).

Here, there is no dispute that the City identified the

submission of these documents as mandatory and that the

consequence for the failure to submit the documents was

automatic rejection. It is also undisputed that the documents

were not included in the bid proposals as required. If the

omitted documents are statutorily mandated, then unquestionably

the failure to submit the documents with the bid proposal is

non-waivable. N.J.S.A. 40A:11-23.1; see also P & A Constr.,

Inc. v. Twp. of Woodbridge, 365 N.J. Super. 164, 177 (App. Div.

2004). On the other hand, if not statutorily mandated, the

determination of whether the defects are minor or

inconsequential and therefore waivable, or material and non-

waivable is subject to the two-part River Vale test. Ibid.

18 A-1649-10T2
 A.

The trial judge found that the omission of the Certificates

of Experience and Questionnaire for the subcontractors rendered

Sanzari's and Arco's bids "defectively unresponsive and non-

curable" and the City's decision to permit Sanzari and Arco to

cure the defect violated N.J.S.A. 40A:11-23.2.

N.J.S.A. 40A:11-23.2 states in relevant part:

When required by the bid plans and

specifications, the following requirements
shall be considered mandatory items to be
submitted at the time specified by the
contracting unit for the receipt of the
bids; the failure to submit any one of the
mandatory items shall be deemed a fatal
defect that shall render the bid proposal
unresponsive and that cannot be cured by the
governing body:

. . . .

d. A listing of subcontractors pursuant to

section 16 of P.L.1971, c.198 (C.40A:11-
16)[.]

N.J.S.A. 40A:11-16 requires that in the case of a single

bid contract, as in the Sanzari and Arco bids, the bids must

contain:

the name or names of all subcontractors to

whom the bidder will subcontract the
furnishing of plumbing and gas fitting, and
all kindred work, and of the steam and hot
water heating and ventilating apparatus,
steam power plants and kindred work, and
electrical work, structural steel and
ornamental iron work, each of which
subcontractors shall be qualified in

19 A-1649-10T2
 accordance with P.L.1971, c.198 (C.40A:11-1
et seq.)

[(emphasis added).]

While the bid proposals contained the names of the

subcontractors, there was nothing provided that demonstrated the

subcontractors' qualifications in "accordance with P.L.1971,

c.198 (C.40A:11-1 et seq.)" Ibid. We construe the reference to

"40A:11-1 et seq." to simply mean that the subcontractor must

meet the test for qualifications under the LPCL, whatever those

particular qualifications may be. A review of the LPCL does not

set forth any particular requirement for subcontractors other

than their listing under Section 11-16. Thus, we do not agree

that the failure to provide the Certificate and Questionnaire

for the subcontractors violated N.J.S.A. 40A:11-23.2 as the

trial court found. That, however, does not end the discussion.

As we have previously had occasion to state:

[T]he 1999 amendments to the [LPCL] do not

contain any legislative directive concerning
the waiver of other bid defects. We do not
believe that this legislative silence can be
reasonably construed as an affirmative
authorization for local contracting agencies
to waive any bid defect that is not
expressly set forth in N.J.S.A. 40A:11-23.2.
Instead, we conclude that N.J.S.A. 40A:11-
23.2 should be construed as a legislative
directive that a bidder's failure to submit
any of the five mandatory items set forth
therein shall automatically be considered a
non[-]waivable defect, but any other bid

20 A-1649-10T2
 defect shall continue to be considered under
the River Vale criteria of materiality.

[P & A Constr., supra, 365 N.J. Super. at

177.]

Because the trial court did not base its decision solely

upon its finding that the City violated N.J.S.A. 40A:11-23.2,

but instead also considered the River Vale criteria of

materiality, any error in reaching the conclusion that the City

violated N.J.S.A. 40A:11-23.2 was harmless. R. 2:10-2.

B.

In applying the River Vale factors, we must first determine

whether the City's decision to waive its requirement that

bidders submit the Certificates of Experience and Questionnaires

at the time the bid proposals were submitted "deprive[d] the

[the City] of its assurance that the contract [would] be entered

into, performed and guaranteed according to its specified

requirements." River Vale, supra, 127 N.J. Super. at 216. As

to Sanzari, in reversing its earlier rejection of the bids as

non-conforming "with the bidding instructions," in its May 27,

2010 letter, the City simply stated that "despite what the

specifications stated, this was a minor bid defect." The letter

provided no explanation why the defect was deemed minor.

Rather, it merely referenced the River Vale factors and then, in

a conclusory manner, stated "[b]ased on this test," the omission

21 A-1649-10T2
of the documents "was a minor defect which could be and was

cured."

As to Arco, the City offered three reasons why it

considered the defect to be minor: (1) Arco submitted a bid

bond and consent surety and would have suffered severe financial

consequences if it had refused to provide the documents to the

City; (2) the "missing documents pertained to the experience and

qualification of subcontractors"; and (3) the "document did not

and could not influence the amount of . . . Arco's bid or of any

of the other bidders." Financial security to perform is only

one factor that evidences the bidders ability to perform the

contract in accordance with the plans and bid specifications.

The City used the Certificate of Experience and Questionaire to

consider other factors, including "availability of facilities

necessary to perform the contract[.]" The absence of these

documents at the time the bids were received provided no

assurances of the "availability of facilities necessary to

perform the contract[.]" The City had no information whatsoever

in this regard. As the trial court stated:

In the absence of these Certificates and

other required documentation in both cases,
the City was essentially provided with
nothing more than the names and addresses of
the subcontractors that would be responsible
for performing portions of the work required
under the contract. At the time of bid
reception, the City therefore had no

22 A-1649-10T2
 information regarding prior work performed
by each subcontractor, the manner in which
each subcontractor had inspected the
proposed work, each subcontractor's plan for
performing the proposed work, the supervisor
responsible for overseeing each
subcontractor, full information as to each
subcontractor's other private or government
contracts, each subcontractor's available
equipment, or the status of each
subcontractor's contracts for materials.

We note that although not mandated statutorily for

subcontractors, N.J.S.A. 40A:11-20 provides:

There may be required from any bidder

submitting a bid on public work to any
contracting unit, duly advertised for in
accordance with law, a certificate showing
that he owns, leases, or controls all the
necessary equipment required by the plans,
specifications and advertisements under
which bids are asked for and if the bidder
is not the actual owner or lessee of any
such equipment, his certificate shall state
the source from which the equipment will be
obtained, and shall be accompanied by a
certificate from the owner or person in
control of the equipment definitely granting
to the bidder the control of the equipment
required during such time as may be
necessary for the completion of that portion
of the contract for which it is necessary.

The inclusion of this provision in the LPCL is clear evidence of

the substantive materiality of the Questionnaire here because it

calls for the bidder to provide most of the information set

forth under Section 11-20.

The City exercised its discretion to not only require the

general contractor to complete the Questionnaire but also

23 A-1649-10T2
required each subcontractor listed by the bidder to also

complete the Questionnaire. As we stated in P & A Construction,

Inc., supra, 365 N.J. Super. at 173, where the issue was the

omission of a certified financial statement, which was a

mandatory requirement in the bid specification but later deemed

waivable by the municipality because it was not statutorily

mandated:

The essential reason for requiring a bidder

to submit a certified financial statement
with its bid, as with the requirement that a
bidder show that it owns, leases or controls
whatever equipment is necessary to perform
the contract . . . is to provide assurance
to the contracting agency that the bidder
will be able to complete performance if it
is awarded the contract.

[Ibid. (emphasis added).]

We agree, as appellants argued, that not every item

designated as mandatory in a bid proposal means that the item is

material and therefore non-waivable. Here, however, the record

does not support such a finding. If, for example, the

Certificate of Experience or Questionnaire contains responses

that facially reflect questionable plans, supervision,

availability of the necessary equipment, "this would provide a

proper basis for the contracting agency to reject the bid on the

ground that the bidder's ability to complete performance could

be jeopardized by a lack of" sufficient human and equipment

24 A-1649-10T2
resources. Ibid. Thus, by waiving its requirement that the

Certificates of Experience and Questionnaires must be included

in the bid proposals at the time of opening the City was

deprived of "'assurance that the contract [would] be . . .

performed and guaranteed according to its specified

requirements.'" Ibid. (quoting River Vale, supra, 127 N.J.

Super. at 216).

As to the second prong of the River Vale analysis, we are

in complete agreement with the trial court's findings:

[B]oth [d]efendants were afforded an unfair

bidding advantage insofar as they were not
required to submit the subcontractor
documentation in their initial bid
submissions. Whether or not the burden of
doing so is considered to be laborious, the
requirement of obtaining Certificates and
supporting documents from all subcontractors
must surely lessen the pool of subcontractor
candidates from which a bidding contractor
can choose in preparing the final bid
submission. I therefore find it
indisputable that a general contractor who
is not required to obtain these documents
prior to bid submission is placed in a
position of advantage over its competitors.

Moreover, in order to achieve the

"common standard of competition" called for
by the LPCL, the conditions and
specifications of the bidding process "must
apply equally to all prospective bidders."
Hillside, [supra,] 25 N.J. at 322. Were it
otherwise, and were courts to freely permit
individual bidders to follow or disregard
bid specifications at their leisure, "the
mandate for equality among bidders would be
illusory and the advantages of competition

25 A-1649-10T2
 would be lost." Id. at 323. The
unambiguous language included in the packet
submitted to bidders by the City is not, and
cannot, be disputed by the parties; all
bidders were put on notice that failure to
include the necessary Certificates and
Questionnaires would result in "automatic
rejection . . . at the time of Bid
reception." In conformity with its
rejection of a bid by A.J.M. Contractors
just months earlier on the same grounds, the
City initially enforced the clear language
of its bid specifications by rejecting
Defendant Sanzari's bid proposal for failure
to include the Kevco Certificate in its
initial bid submission. The City thereafter
reversed course and permitted both
[d]efendants the opportunity to cure the
very same type of defect that had caused the
rejection of the A.J.M. bid. I conclude
that a "common standard of competition"
cannot exist when the rules of the game are
changed at the very moment that they are
broken.

There is no contention here that the actions of Sanzari or

Arco were other than as represented, inadvertent. Nor is there

any evidence that the City's actions in waiving the defects were

undertaken for any reason other than advancing the public

interest. At oral argument, the City explained that the

inclusion of the Certificate of Experience and Questionnaire as

mandatory in the bid proposals and for which automatic rejection

would result in the event of non-compliance, was a "mistake."

We initially note that this was not an explanation offered to

any of the bidders at the time of the bid protests. Nor was

this argument advanced before the trial court. Hence, there is

26 A-1649-10T2
no support for this contention in the record and we decline to

consider it here. Star of Sea Concrete Corp. v. Lucas Brothers,

Inc., 370 N.J. Super. 60, 72 (App. Div. 2004) (citing Nieder v.

Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)).

Moreover, by urging that we view what it clearly denoted in

the bid proposal as mandatory and grounds for automatic

rejection as a minor defect that was waivable and curable, the

City "would be free to reject a low bidder for such an omission"

—— as the trial court observed had occurred months earlier with

the A.J.M. bid. Pucillo, supra, 73 N.J. at 355. Yet, the City

"could accept a non-conforming bid [such as the Sanzari and Arco

bids,] when it was 'in the best interest of [the City].'" Id.

at 356. In essence, the City has:

transform[ed] the mandatory requirement in

[its] specifications into a polite request.
The ordinary reader of the specifications
would regard them as calling for
[compliance] on all the terms specified.
Awarding the contract to one who failed to
[comply] on all terms necessary created an
inequity in the bidding and an opportunity
for favoritism.

[Ibid.]

The savings to the taxpayers by waiving the defects and

awarding the two contracts to Sanzari and Arco are not

insignificant. However, savings to the taxpayers, standing

alone, is insufficient to justify waiver of a material

27 A-1649-10T2
requirement in the bid specifications. Meadowbrook, supra, 138

N.J. at 325. "Contracts are not to be awarded '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.'" Star of the Sea, supra,

370 N.J. Super. at 73 (quoting Meadowbrook, supra, 138 N.J. at

313). N.J.S.A. 40A:11-2(27) defines "lowest responsible bidder"

as "the bidder or vendor: (a) whose response to a request for

bids offers the lowest price and is responsive; and (b) who is

responsible. (emphasis added). "While the public may

occasionally be harmed by failure to waive a bid requirement,

'the overriding interest in insuring the integrity of the

bidding process is more important than the isolated savings at

stake.'" Star of the Sea, supra, 370 N.J. Super. at 73

(quoting Meadowbrook, supra, 138 N.J. at 313).

We disagree with the argument advanced by appellants that

because the post-bid submissions call for further submissions,

upon request from the engineer or architect, this is further

support for their contention that the omissions were minor

defects. This language, contained in the Information to

Bidders, is permissive and does not call for the submission of

documentation addressing the responsibility of the proposed

subcontractors unless it is requested. We therefore do not view

28 A-1649-10T2
this provision as diminishing the materiality of the

Certificates of Experience and Questionnaires, whose

significance here was evidenced by (1) the mandatory nature of

the documents as expressly noted in the bid proposals; (2)

notice provided to the bidders in the proposal that the

consequences for non-compliance is automatic rejection; and (3)

the City's clear and unequivocal statement of its purpose for

requesting the documents. We note further that in both bid

proposals, these two documents were located sequentially with

each other, rather than separated by numerous other pages

between the two documents.

Finally, in their briefs and during oral argument, Sanzari

and Arco placed considerable reliance upon Palamar Construction,

Inc., supra, and the Law Division decision in Tec Electric Inc.,

supra, to support their position that the omissions here were

minor defects that were curable. We agree with Jogi and Vanas

that these cases are factually distinguishable. Neither case

addressed a bid specification that was delineated as mandatory

and included other evidence in the record demonstrating the

substantive materiality of the omitted documents. Further, if a

defect is material and non-waivable, the timing of the cure, in

our view, becomes irrelevant.

29 A-1649-10T2
 The remaining arguments advanced by appellants are without

sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(1)(E).

Affirmed.

30 A-1649-10T2
 APPENDIX A

1. CERTIFICATE OF EXPERIENCE:

The Bidder must supply a document which will

indicate his experience in performing the
required work under this Project. This
document shall be attached to this Proposal
and along with this Certificate, shall be
signed by Bidder.

The information to be included on this

document shall consist of at least the
following:

(1) Name of Owner

(2) Amount of Contract

(3) Type of Work

(4) Name of Owner's Engineer in

Charge of Work

(5) Address of Owner's Engineer,

Street and Municipality

(6) Approximate Dates

_______________________hereby certifies that

________________ has performed the following
work as described on the attached sheet
within the past three (3) years.

________________________
Name of Bidder

Witness By______________________

________________________
Title

________________________
Date

31 A-1649-10T2
 APPENDIX A - CONTINUED

IMPORTANT: THIS CERTIFICATION MUST BE FILLED

IN BY BIDDER.

32 A-1649-10T2
 APPENDIX B

2. PLANT AND EQUIPMENT QUESTIONNAIRE

Submitted to City of Jersey City

By________________________________

____ a Corporation

____ a Partnership

____ an Individual

With Principal Office at __________________.

The signatory of this questionnaire

guarantees the truth and accuracy of all
statements and of all answers to
interrogatories hereinafter made.

a. In what matter have you inspected the

proposed work? Explain in detail.

_______________________________________

_______________________________________

_______________________________________

_______________________________________

b. Explain your plan and schedule for

performing the proposed work.

_______________________________________

_______________________________________

c. The work, if awarded to you, will have

the personal supervision of whom?

_______________________________________

_______________________________________

33 A-1649-10T2
 APPENDIX B - CONTINUED

d. Do you intend to do the paving on the

proposed work with your own forces?
______ If so, give type of equipment to
be used.

_______________________________________

_______________________________________

_______________________________________

e. Do you intend to sublet any portions of

the work?_____________ If so, it is
mandatory pursuant to N.J.S.A. 40A:11-
16 that you list the names of those
subcontractors under each discipline
below[.] [F]ailure to do so will
automatically result in rejection of
the bid.

Trade Name of Subcontractor Address

Plumbing & _____________________ _______

Gas Fitting _______
and all kindred
[W]ork

Steam and ______________________ _______

Hot Water _______
Heating and
Ventilating
Apparatus,
and all kindred
Work

Electric ______________________ _______

Work _______

Structural _______________________ _______

Steel & _______
Ornamental Iron _______

Each subcontractor listed above shall fill

out and submit a Certificate of Experience

34 A-1649-10T2
 APPENDIX B - CONTINUED

(as shown in this Bid Proposal) and items a,

b, c, f, g, h, i and the remaining
affidavit, duly executed, on the last page
of the "Plant and Equipment Questionnaire".
The General Contractor shall supply each
subcontractor with duplicate pages of this
proposal to be filled out by the
subcontractor and then submitted with the
bid proposal.

Whenever a bid sets forth more than one

subcontractor for any of the specialty trade
categories listed above, the bidder shall
submit to the contracting unit a certificate
signed by the bidder listing each
subcontractor named in the bid for that
category. The certificate shall set forth
the scope of work for which the
subcontractor has submitted a price quote
and which the bidder has agreed to award to
each subcontractor should the bidder be
awarded the contract. The certificate shall
be submitted to the contracting unit
simultaneously with the list of the
subcontractors. The certificate may take
the form of a single certificate listing all
subcontractors or, alternatively, a separate
certificate may be submitted for each
subcontractor. If a bidder does not submit
a certificate or certificates to the
contracting unit, the contracting unit shall
award the contract to the next lowest
responsible bidder.

f. Give full information about all of your

contracts, whether private or
government contracts, whether prime or
sub-contracts; whether in progress or
awarded but not yet begun; or where you
are low bidder pending formal award of
contract.

35 A-1649-10T2
 APPENDIX B - CONTINUED

The information to be included on this

document shall consist of at least the
following:

(a) Owner
(b) Location
(c) Description
(d) Adjusted Contract Amount
(e) Amount Completed and
Billed
(f) Additional Earned Since
Last Estimate
(g) Balance to be Completed
(h) Estimated Date of
Completion
(i) Totals of Items, D, E,
F, G and H above

g. What equipment do you own that is

available for and intended to be used
on the proposed project?

The information to be included on this

document shall consist of at least the
following:

(a) Quantity
(b) Type of Equipment
(c) Description, Size,
Capacity, etc.
(d) Condition
(e) Years of Service
(f) Present Location

h. What equipment do you intend to

purchase or lease for use on the
proposed work, should the Contract be
awarded to you?

The information to be included on this

document shall consist of at least the
following:

(a) Quantity

36 A-1649-10T2
 APPENDIX B - CONTINUED

(b) Type of Equipment

(c) Description, Size,
Capacity, etc.
(d) Approximate Cost
Purchase/Lease

i. Have you made contracts or received

firm offers for all materials within
prices used in preparing your Proposal?
Do not give name of dealers or
manufacturers.

_______________________________________

_______________________________________

The undersigned hereby declare(s) that

the items of equipment in [q]uestion g
are owned by _________________________,
and are available for and are intended
to be used on the Project, if awarded
the Contract, and that he/they
propose(s) to purchase or lease for the
Project the additional items of
equipment stated in Question h.

If awarded the Contract, the

undersigned will furnish certificates
from the owners of leased equipment to
the effect that, in case of default of
Contract, as set forth in NJSS
Subsection 108.14, the Governing Body
has the right to take over the leased
equipment for use in completing the
work.

STATE OF _________________)
: ss.
COUNTY OF ________________)

I, ___________ of the City of

__________, in the County of __________

37 A-1649-10T2
 APPENDIX B - CONTINUED

and the State of _____________, of full

age, having been duly sworn according

to law, upon my oath depose and say

that:

I am ______________ of ____________________,
Title Name of Organization

and that the answers to the foregoing

questions and all statements therein

contained are true and correct.

Sworn and Subscribed to ___________________

the City of Jersey City

before me this _____ day

of __________, 200 .

_________________________
SIGNATURE OF NOTARY PUBLIC
(Stamp and Seal)

My commission expires_________

3. FINANCIAL STATEMENT
(see no. 3 on page p-3)

ASSETS

Cash on Hand $______

Cash in Bank and Name

of said Bank $______

__________________________________________

Accounts receivable from $______

completed contracts

38 A-1649-10T2
 APPENDIX B - CONTINUED

Real Estate used for business $______

purposes

Material in Stock $______

Equipment Book Value $______

Furniture and Fixtures $______

Other Assets $______

TOTAL ASSETS $______

LIABILITIES

Notes payable to Bank $______

Notes payable for Equipment $______

obligations

Notes payable for other $______

obligations

Accounts payable $______

Other Liabilities $______

TOTAL LIABILITIES $______

5. CORPORATION OR PARTNERSHIP STATEMENT

Chapter 33 of the Public Laws of 1977

provides that no corporation or partnership
shall be awarded any State, County,
Municipal or School Districts contract for
purposes of any work or the furnishing of
any materials or supplies unless prior to
the receipt of the bid or accompanying the
bid of said corporation or partnership there
is submitted a statement. The statement
shall set forth the names and addresses of
all stockholders in the corporation or
partnership who own ten percent (10%) of its
stock of any class or of all individual

39 A-1649-10T2
 APPENDIX B - CONTINUED

partners in the partnership who own a ten

percent (10%) or greater interest therein.

Incorporated:____ Partnership:____ Date:____

200____

Legal Name of Bidder:_______________________

Business Address: Street, City, State and

Zip Code
____________________________________________

____________________________________________

____________________________________________

Telephone: ( )

____________________________________________
Listed below are the names and addresses of
all stockholders in the corporation or
partnership who own ten percent (10%) or
more of its stock of any class, or of all
individual partners in the partnership who
own a ten percent (10%) or greater interest
therein.

Name:______________ Address:________________
Name:______________ Address:________________
Name:______________ Address:________________
Name:______________ Address:________________
Name:______________ Address:________________
Name:______________ Address:________________
Name:______________ Address:________________
Name:______________ Address:________________
Name:______________ Address:________________
Name:______________ Address:________________
Name:______________ Address:________________
Name:______________ Address:________________

We have no one person who owns ten percent

(10%) or more of the corporat[ion] or
partnership.

40 A-1649-10T2
 APPENDIX B - CONTINUED

Signed:_________________
Title:__________________

6. BID GUARANTEE (SEE INFORMATION TO

BIDDERS ARTICLE NO. 09)

7. CONSENT OF SURETY (SEE INFORMATION TO

BIDDERS ARTICLE NO. 10)

41 A-1649-10T2