SHT CORP., T/A SOMERSET HILLS TOWING VS. COUNTY OF SOMERSET, (L-1017-15, SOMERSET COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-0308-15T3
SHT CORP., t/a SOMERSET
HILLS TOWING,
Plaintiff-Appellant,
v.
COUNTY OF SOMERSET and
MIKE'S TOWING & RECOVERY,
Defendants-Respondents.
____________________________
Argued February 15, 2017 – Decided September 14, 2017
Before Judges Fuentes, Simonelli and Carroll.
On appeal from the Superior Court of New
Jersey, Law Division, Somerset County, Docket
No. L-1017-15.
William J. Pollinger argued the cause for
appellant.
Carl A. Taylor, III, argued the cause for
respondent County of Somerset (Cooper, Cottell
& Taylor, LLC, attorneys; Mr. Taylor, of
counsel and on the brief).
Stefani C. Schwartz argued the cause for
respondent Mike's Towing & Recovery (Schwartz
Simon Edelstein & Celso, LLC, attorneys; Ms.
Schwartz, of counsel and on the brief; Stephan
R. Catanzaro, on the brief).
PER CURIAM
Somerset County Board of Chosen Freeholders solicited bids
for towing and storage work for the Somerset County Prosecutor's
Office. Three towing businesses submitted bids. Plaintiff, SHT
Corp., t/a Somerset Hills Towing, submitted the lowest bid. Mike's
Towing & Recovery submitted the second lowest bid. The County
nonetheless awarded the contract to Mike's Towing & Recovery. The
County rejected plaintiff's bid as nonresponsive to the bid
specifications, which included a warning that: "Failure to sign
and give all information in the bid may result in the bid being
rejected." The County notified plaintiff of its decision in a
letter dated June 12, 2015.
In this appeal, plaintiff seeks the reversal of the Law
Division's order upholding the County's decision to award the
contract to Mike's Towing & Recovery. After reviewing the record
developed before the trial court, we affirm.
The bid packet plaintiff submitted to the County included a
response to question 21, which requires bidders to:
Acknowledge any past or pending civil
complaints, complaints to the Better Business
Bureau, Division of Consumer Affairs, other
regulatory agencies or police departments
filed against any owner, the business itself,
its agents or employees for any type of
deceptive business practice, insurance fraud,
price gouging, local ordinance violations or
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other similar complaint(s) regarding the
services of the towing company.
The format of the bid specification requires the bidder to
answer this question: "yes or no." Plaintiff answered "no," but
attached the following statement: "There have never been any
complaints by consumers or third parties. However, the Bridgewater
Township Police Department had filed complaints, which thus far
have all been dismissed. There is a pending motion to dismiss the
remaining complaints." By letter dated June 16, 2015, the Somerset
County Counsel advised plaintiff:
The response by Somerset Hills Towing failed
to identify complaints made in Bernards
Township and Bridgewater Township.
It is the County's understanding that Somerset
Hills Towing was denied a Rotating Towing
License in Bernards Township on November 11,
2014 (see attached). Further, it is the
County's understanding that there are pending
violations against owner, Michael Bassaparis,
in Bridgewater Township Municipal Court.
On July 21, 2015, plaintiff filed an action in lieu of
prerogative writs and Order to Show Cause (OTSC) seeking to
overturn the County's decision. On July 22, 2015, Judge Edward
Coleman entered the OTSC which set a return date of Thursday, July
30, 2015. The County filed a responsive pleading and a
certification from Karen L. McGee, the County's Purchasing Agent.
McGee conceded that of the three bids received, the bid submitted
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by Somerset Hills Towing was "the lowest bidder based solely upon
price[.]" However, Somerset Hills Towing was rejected "because
their bid was non-responsive and the County did not deem it prudent
to waive the defects in Somerset Hills bid proposal."
McGee averred that after Somerset Hills Towing answered "no"
to Question 21, "it was discovered that Somerset Hills Towing did
have issues that should have been made part of their response."
Without disclosing the methods employed in her investigation or
identifying the source of her information, McGee certified that
due to my inquiry with Bernards Township, I
became aware of the issues they were having
with SHT, and the potential removal from the
rotation cycle. I also became aware of the
Bridgewater Township Police Department issues
and the BBB issue. In addition, I am aware
there was an issue with SHT and AVIS and a
pending court case.
Somerset Hills Towing, despite answering the
question [21] "no," placed an insert providing
some clarification. However, for the
aforementioned reasons, even with this insert
the answer was not responsive. Accordingly,
it was determined by the County that the
contract be awarded to Mike's Towing as the
lowest responsive bidder.
The OTSC entered by Judge Coleman on July 22, 2015, directed
the County to show cause why the contract for towing services
awarded to Mike's Towing "should not . . . be set aside and instead
awarded to plaintiff." The matter came before a different judge
on August 4, 2015. After considering the briefs and certifications
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and hearing the arguments of counsel, the judge denied plaintiff's
application for a preliminary injunction.
THE COURT: New Jersey Supreme Court in Crowe
v. De Gioia, [90 N.J. 126 (1982)] stated that
New Jersey has long recognized a wide variety
of context, the power of the Judiciary to
prevent some threatening, irreparable
mischief which should be adverted until the
opportunity is afforded for a full and
deliberate investigation into the case.
The four factors are: Immediate and
irreparable harm; that the legal rights of the
underlying plaintiff's claim are well settled;
and that the reasonable likelihood of ultimate
success on the merits, and the balance of
hardships between all parties as well as third
parties in interest and the public.
As to the first factor, Crowe stated that the
harm is generally considered irreparable in
equity if it cannot be redressed adequately
by monetary damages.
In addition, with regard to the third factor,
the Court held that the preliminary injunction
should not issue when material facts are
controverted.
However, the Court stated that mere doubt as
to the validity of the claim is not an adequate
basis for refusing to maintain the status quo.
The local bidding law yields to the
municipality the authority to exercise
principal business judgment that conforms to
the provisions of the law. Such exercises are
reviewed for the abuse of discretion.
If the defects are material, they are non-
waivable. If the defects are non-material,
the municipality may waive them or . . . in a
valid exercise of sound business judgment that
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kept faith with the policies underlying the
bidding law reject the bid.
The legal rights that regard the petitioner's
application are well settled. There's no
question that the petitioner's bid was not
forthcoming, . . . and rendered it
nonconforming.
The petitioner did not disclose the Better
Business Bureau complaint and the Avis action.
The petitioner did not disclose that it was
denied a rotational towing license in Bernards
Township.
Further, its representation with its bid
documents received on April 7th, that all the
complaints filed by Bridgewater had been all
dismissed, was inaccurate. The complaints
have not yet been dismissed and were not
disposed of by the motion to dismiss.
The [c]ourt need not come to a decision as to
whether the misrepresentations were material
as the [c]ourt finds the County exercised
sound business judgment by rejecting a bid
that failed to give the full story.
Question 21 that read that the successful
bidder shall meet the following criteria is
immaterial. The question means that the
successful bidder would have to truthfully
respond to each of the questions.
The petitioner does not have a reasonable
likelihood of success on the merits. The
petitioner's harm is not irreparable, as the
low fees and tows is a monetary damage.
The [C]ounty has the right to make a
determination as to the responsiveness of the
bid. The [c]ourt finds that the [C]ounty has
a greater hardship as awarding the relief
sought by the petitioner forces the [C]ounty
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to award the contract to a non-responsive
bidder.
Petitioner's stated hardship of a loss of tows
is without merit as it does not have the right
to tows under the contract.
Petitioner's due process rights were not
violated by failure of the [C]ounty to hold a
hearing. A hearing is only required when
there's a challenge to the bidder's competency
or responsibility.
The petitioner's bid was nonconforming . . .
and not rejected due to responsibility. No
hearing was required.
Therefore, I deny the petitioner's order to
show cause, and I dismiss the complaint
without prejudice.
[Emphasis added.]
We have taken the time and effort to quote completely the
trial court's analysis and to illustrate the confusion it created.
By all accounts, the court's analysis and use of language signals
this was merely an interlocutory decision taken, in the trial
judge's own words, "until the opportunity is afforded for a full
and deliberate investigation into the case." Our rules of
appellate practice clearly provide that, except as otherwise
expressly stated, "appeals may be taken to the Appellate Division
as right from final judgments of the Superior Court trial
divisions[.]" R. 2:2-3(a)(1). (Emphasis added).
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This court's policy against piecemeal appellate review is
well-established.
Under Rule 2:2-3(a)(1), an appeal as of right
may be taken to the Appellate Division only
from a "final judgment." To be a final
judgment, an order generally must "dispose of
all claims against all parties." "This rule,
commonly referred to as the final judgment
rule, reflects the view that 'piecemeal
[appellate] reviews, ordinarily, are [an]
anathema to our practice.'"
[Vitanza v. James, 397 N.J. Super. 516, 518-
19 (App. Div. 2008) (quoting Janicky v. Point
Bay Fuel, Inc., 396 N.J. Super. 545, 549-50
(App. Div. 2007)).]
The Supreme Court has also recently addressed this issue.
[N]o party may confer jurisdiction on an
appellate tribunal simply by filing a notice
of appeal. No agreement between or among
parties may confer jurisdiction on the
Appellate Division in the absence of a final
order, Hudson v. Hudson, 36 N.J. 549, 553
(1962), and the Appellate Division has
repeatedly admonished parties for attempting
to disguise an interlocutory order or orders
as final for purposes of pursuing an appeal
as of right, see Grow Co. v. Chokshi, 403 N.J.
Super. 443, 461 (App. Div. 2008); CPC Int'l,
Inc. v. Hartford Accident & Indem. Co., 316
N.J. Super. 351, 365-66 (App. Div. 1998),
certif. denied, 158 N.J. 73, 726 (1999). To
that end, an appellate tribunal always has the
authority to question whether its jurisdiction
has been properly invoked.
[Silviera-Francisco v. Board. of Educ. of City
of Elizabeth, 224 N.J. 126, 143 (2016).]
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However, pursuant to Rule 2:2-4, we are satisfied that the
interest of justice warrant that we grant leave to appeal nunc pro
tunc. We discern no basis to question plaintiff's good faith in
concluding this was a final order subject to appellate review as
of right. Furthermore, notwithstanding the trial court's
language, the relief granted by the court to defendants de facto
disposed of the case. We will thus review the merits of
plaintiff's arguments.
We start our analysis by reaffirming certain bedrock
principles underpinning public bidding and the award of public
contracts. "The purpose of the Local Public Contracts Law,
N.J.S.A. 40A:11-1 to -50, is to promote competitive bids 'to secure
for the public the benefits of unfettered competition.'" Muirfield
Const. Co., Inc. v. Essex Cty. Imp. Auth., 336 N.J. Super. 126,
132 (App. Div. 2000) (quoting Meadowbrook Carting Co., Inc. v.
Borough of Island Heights, 138 N.J. 307, 313 (1994)). The award
of a contract involving the expenditure of public funds requires
the public agency to award a contract not merely based on the
lowest bid. The integrity and reliability of the business entity
submitting the bid are equally compelling factors in determining
who should be awarded the contract. Gaglioti Contracting, Inc.
v. City of Hoboken, 307 N.J. Super. 421, 431 (App. Div. 1997).
The lowest responsible bidder is the guiding principle. Ibid.
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Here, the record shows plaintiff was less than candid in its
response to Question 21. The answer "no," followed by an
incomplete account of its history of complaints and pending cases
in neighboring municipalities rendered the answer not just
nonresponsive, but intentionally evasive. Under these
circumstances, the County was well within its right to reject the
bid.
Affirmed.
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