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J. Fletcher Creamer & Son, Inc. v. North Bergen Municipal Utilities Authority

A-1375-98T3 (N.J. Super. App. Div. 1999) (Unpublished)

CONTRACTS; PUBLIC BIDDING—Omission of required certified financial statements and an equipment list is a material, non-waivable bidding defect, but omission of corporate resolutions is correctable.

A municipal utilities authority awarded two contracts to the bidder with the lowest numerical bids. The next lowest bidder filed a complaint with the authority alleging that the successful bidder failed to include the required certified financial statements, equipment list, and corporate resolution. It also claimed that each of these items was a material, and thus non-waivable, defect in the bid package. The authority conducted a special meeting at which it allowed the lowest bidder to submit the omitted certified statement and the equipment list, whereupon the second lowest bidder filed an action in lieu of prerogative writ. The Court held that omission of the corporate resolution was an insufficient violation because of the principal’s status as sole shareholder, sole director, and president of the lowest bidder. As to the equipment list and certified financial statement, the Court held that these were material aspects of the bid which could not be supplied after the fact, because such a procedure would give the lowest bidder a potential competitive advantage. The lower court awarded the bid to the next lowest responsible bidder and the Appellate Division affirmed.


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