86 N.J.L. 5 | N.J. | 1914
The opinion of the court was delivered by
Clearly, the lowest bid did not get the contract. The lowest bid, under the invitation to bidders, ivas the aggregate of the lowest bids for separate items.
This hid was $16,488 lower than that of the successful bidder. The circumstance that this lowest bid ivas made up of the separate proposals that had been invited is not a lawful ground for discrimination against it; such proposals were made in strict compliance with the, terms of the advertisement for bids and under the statute the award must follow such advertisement or the contract will he invalid.
In extenuation of this violation of the statute it is said that it was within the discretion of the city authorities to decide
If, however, we are wrong in reading this statute as it is written and in deeming that it means just what it says, and if the correct view is that the 'city after discovering that the bidders on separate items are the lowest bidders, may change its advertised scheme and decide that the competition shall be limited to bidders for the doing of the entire work in a single contract, then and in that case the present award is invalid, because if any such decision was made the lowest bidders under the public advertisement for bids were entitled to be heard upon that question before it was decided against them. The siatus of the lowest bidders carrying with it this right, is legally indistinguishable from that accorded to such bidders
This last-cited case also disposes of the notion that the statute can he evaded under color of the rejection “of any and all bids.”
For the reasons stated the contract in the present case is invalid and must be set aside.
There is another flaw in these proceedings that ought not to be passed over merely because no demonstrable harm has come of it in the present case. I refer to the requirement of the advertisement that each bidder must specify the number of days lie will require to finish the work. According to all our cases, if this element of time is to enter into the competitive scheme. ¡I should be the same for all, not left for each bidder to fix for himself and thereby estimate Ms bid npon a basis different from that of any other bidder. The general vice of this course is that no common standard for the competition is set up, and as was said by the Conrt of Errors and Appeals in Browning v. Bergen, 79 N. J. L. 494, “where no common standard is set up no competition is proposed.”
“'No contract,” said Mr. Justice Van Syckel, in Van Reiper v. Jersey City, 58 N. J. L. 262, “can be properly upheld under proposals which do not require competitive bids upon the same definite basis.”
Of this definite basis time is as much an element as is the number of men to be employed or the wages to be paid, which if required to be specified by each bidder would destroy any semblance of competition as to price.
In a recent case in this court we expressly held that unless the length of Lime was alike for all bidders there could be no such competition as the law requires. Johnson v. Atlantic City, 85 N. J. L. 145.
The mischief to be apprehended is not that contracts will lie awarded to the bidder who will take the least time rather than to him who will take the least money, i. e., to the lowest bidder, but that, owing to this multiple standard, it is impossible to tell who is, or rather would have been, the lowest bidder had there been a common standard of time alike for
Experience in dealing with evasions of this law teaches that it is better to keep the door wide open than to try to close one that is, perhaps purposely, left a little ajar.
At all events, upon both reason and authority, a contract based upon such non-competitive bidding is not a valid one under the law we are now considering.
It is claimed by the prosecutor that the delay > of bight months in awarding this contract will cost the taxpayers any-wheres from $50,000 to $80,000, owing to the drop in prices of material during that period. The result we have reached on the main question renders it unnecessary to pass also upon this one. This remark applies also io the claim that the entire proceeding is vitiated by the addition to the market-house of a second story not intended for market purposes, but by which it is claimed that upwards of $200,000 are added to the cost of the market building. And the same remark applies also to the “well” item and to all the other points made in the brief of counsel for the prosecutor., as to which wcl simply express no opinion, one way or the other.
Eor the specific reasons given, the contract brought up by this writ is set aside, with costs.