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P & A Construction, Inc. v. Township of New Brunswick

A-3667-08T3 (N.J. Super. App. Div. 2010) (Unpublished)

PUBLIC BIDDING — A public bidding lawsuit is moot when the decision cannot have a practical effect on the existing controversy, but a case that is technically moot can still be heard if it involves a significant public interest.

A company contested a municipality’s award of a contract to a competitor to resurface a road. It argued that the winning bid was deficient because the successful bidder failed to provide a certified financial statement showing its assets and liabilities prepared within the prior 12 months. The bid was submitted on January 15, 2009. The winning bidder submitted financial statements as of December 31, 2007, but certified by its accountant on April 17, 2008. The municipality decided that since the accountant’s certification was within twelve months of the bid date, it was acceptable even though the financial data submitted was more than one year old.

The lower court concluded that the winning bidder’s financial statement was prepared within the twelve-month period as required by the bid process and it dismissed the complaint. The complaining company applied for a stay which was denied. It then applied to the Supreme Court but it denied the company’s motion for a stay and acceleration of the appeal. The company then appealed the dismissal of its suit. While the appeal was pending, the resurfacing work was nearly complete. The municipality argued that since the work was almost complete, the appeal was moot. The company responded that the case should be decided on its merits because “it concerns a matter of utmost public interest.” The Court disagreed.

The Court noted that a case is moot when the decision sought cannot have a practical effect on the existing controversy. In this case, even if the court were to rule that the bid was improper, it would have had no practical effect since the road resurfacing work was nearly completed. However, a case that is technically moot can still be heard if it involves a significant public interest. The company argued that the issue of whether the financial statement included in a bid must cover the twelve-month period immediately prior to the bid date was a matter of public interest. The municipality argued that it was not significant because the issue was not likely to escape subsequent review. The Court agreed that the issue presented was not likely to escape appellate review if it recurs. Therefore, appellate review was not warranted.

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