In re Route 280 Contract, 89 N.J. 1 (1982), is frequently cited in connection with the standards for a grant of certification or a decision to vacate certification. But few have occasion to read the Appellate Division opinion that led to the Supreme Court’s ruling. That Appellate Division decision, In re Route 280 Contract, 179 N.J. Super. 280 (App. Div. 1981), was issued 30 years ago today.
The case involved an appeal by J.A. Cavanaugh Contractors, Inc. (“Cavanaugh”) from the rejection of its bid for a project involving construction of an exit ramp on Route 280. The Cavanaugh bid was the lowest of all the bids received. However, the Department of Transportation (“DOT”) rejected the bid because it contained a schedule showing the status of contracts on hand as of August 31, 1980, instead of as of September 30, 1980, as the bid specifications required.
Cavanaugh realized its error and, on the afternoon of the bid opening date, hand-delivered to DOT the correct schedule, accompanied by a letter stating that the August 31 schedule had been attached “through inadvertence” even though the September 30 “was ready and prepared to be submitted” with the bid. Cavanaugh asked DOT to waive the error since “the two Schedules involved no substantial difference, and since there can be no prejudice to the Department or to the other bidders.” The DOT declined, stating that it had consistently viewed such deviations as “a material departure from the specifications [that] warrants rejection.”
The Appellate Division, in an opinion by Judge Botter for himself and Judges King and McElroy, reversed. This was “not a case of an ‘omission’ to furnish certain financial data, but rather the submission of data that was outdated by one month” and was timely corrected without prejudice to DOT or other bidders. The panel remanded to DOT to determine whether, on the facts of the case, it was in the public interest to waive the deviation, “bear[ing] in mind that public policy favors awards to the lowest responsible bidder so long as fair competition in bidding is not impaired.”
The Appellate Division relied substantially on Terminal Const. Corp. v. Atlantic Cty. Sewerage Auth., 67 N.J. 403 (1975), for the applicable rules as to when material conditions in bid specifications can be waived. The panel cited Marvec Allstate, Inc. v. Gray & Fear, Inc., 148 N.J. Super. 481 (App. Div. 1977), in the course of its opinion.
The Supreme Court granted certification and heard oral argument, but then vacated certification. By that time, according to the Court, “the appeal [was] moot as to the parties to the litigation.” The Court also saw the Appellate Division’s opinion as “essentially an application of the principles enunciated by this Court in Terminal Const. Corp.” For those reasons, there was no issue worthy of certification. The Court did, however, take the opportunity to disapprove Marvec as authority, while noting that Marvec was “not essential” to the Appellate Division’s decision below.
All in all, this looks like a good case for the Supreme Court to have left alone, as the Court ultimately chose to do.