79 N.J.L. 342 | N.J. | 1910
The opinion of the court ivas delivered by
This writ brings up for review the award of a contract by the board of education of Newark to Frederick EHgus for the erection of the East Side Commercial and Manual Training High School in the city of Newark.
The prosecutor claims to be aggrieved as a taxpayer.
We think there is no- merit in the contention.
Section 53 of the School law (Pamph. L. 1904, Special Session, p. 21) requires that all contracts for building sebooi houses shall be awarded to the lowest responsible bidder. This provision limits the power of the board. Jacobson v. Board of Education of the City of Elizabeth, 64 Atl. Rep. 609.
Wo think the board complied with ibis requirement.
There were seven Lids. The two lowest, after the acceptance of the “desirable alternates” wore the Sterling company, $211,134, and Frederick Kilgus, $245,845. The Sterling company was, therefore, the lowest bidder. But whether it was the lowest responsible bidder was fof the determination of the board in the exercise of a bona, fide discretion after investigation upon notice and hearing to the bidder affected. Jacobson v. Board of Education of the City of Elizabeth, supra; Wilson v. Trenton, 31 Vroom 394; Connolly v. Freeholders, 28 Id. 286. The proofs returned show that the board, after such investigation and hearing, accorded the Sterling company upon proper notice, found that the Sterling company was not responsible. Such action is final and will not be disturbed by this court unless it appears that it was taken in bad faith or the proofs were of such a character as to satisfy reasonable men of the company’s responsibility. Wilson v. Trenton, supra. In this case fraud or bad faith is not claimed. With respect to the contention that the action was an abuse of discretion, it is sufficient to say that the proofs are such that we would not be justified in interfering with the finding of the hoax’d of education that
The next objection is that the J. F. Walsh Construction Company submitted a lower bid than Kilgus, and that both bids exceeded the amount of the appropriation. This objection is not well founded in fact. The Walsh company’s bid was $255,000, and that of Kilgus, considering the alternates submitted and accepted by the board, was $245,845. Such alternates as were submitted by the Walsh company did not reduce their hid. Since the amount of (lie appropriation was $250,000, the Kilgus bid was well within it. Specifications otherwise sufficient are not objectionable in requiring estimates on certain alternatives therein named. Every bidder in such case has the same opportunity to submit bids on the same alternatives. Van Reipen v. Jersey City, 29 Vroom 263.
It is further urged that the specifications were so indefinite that they did not protect the interest of the city.
We see no merit in the contention. ISTo bidder seemed to have thought the specifications at all indefinite. Moreover our examination satisfies us that bidders were duly informed by the specifications as to the nature, quality and quantity of the materials to be furnished and the work to bo done, and that the same information was furnished to all. This we think resulted in intelligent and competitive bidding and in a binding contract.
The next objection is that the penalty for overtime named in the Kilgus bid was not in compliance with the terms of the specifications.
The specifications prescribed the percentage basis upon which the penalty was to bo calculated in the contract as ".04 per cent, per clay on contracts above $100,000, provided that the maximum should he $100 per day.” All of the proposals, the forms of which were furnished by the-board to the bidders, fixed one-fourth per cent, as the amount of the penalty. That percentage was clearly an error, as the pen
The next objection is that the committee on buildings, grounds and supplies had no authority to advertise for, receive and open bids. There is no merit in the objection. By the rules of the board such functions seem to have been delegated to that committee. We incline to think that the function was purely ministerial or administrative and could properly be delegated. City of Burlington v. Dennison, 13 Vroom 165. But whether so or not is immaterial for the committee, after opening the bids, reported to the board of education and the board acted on the bids and awarded the contract. Clearly the contract so awarded is not rendered unlawful by the fact that the appropriate committee advertised for, received and opened the proposals. Kraft v. Board of Education, 38 Id. 512.
It is next urged that the bids were not opened, read and recorded in the manner required by law. We think there was a substantial compliance with the statute. The argument is that section 33 of the Crimes act (Pamph. L. 1898, p. 804) was not followed with respect to the reading and recording of the bids. That section directs the committee, at the time and place designated in the notice, to immediately proceed to unseal and publicly announce the contents of the bids in the presence of such bidders as choose to attend, and to make proper record of the prices and terms in the minutes.
We cannot say that these directions were disregarded. At the designated time and place the committee received the bids and immediately opened them. Their contents was pub
Tlio next objection urged is that the specifications were changed after their adoption by the board and the advertisement for proposals thereon.
We think the objection is not well founded.
The specifications provided that should any bidder be in doubt as to. the intention and meaning of the drawings or specifications, he might make inquiry in writing, and the question and answer, if reply bo made, would be communicated to all bidders. Accordingly five "bulletins” were sent out lo all who had applied to the board for proposal forms. Since all prospective bidders were required to use the board’s proposal forms, all prospective and actual bidders necessarily received before bidding all bulletins and were therefore upon an equal footing, and there is no complaint in that regard. Moreover the bulletins were largely explanatory of minor details and those involving minor changes were within the provisions of the specifications to. that effect.
It is again objected that changes were effected by these "bulletins” after the plans and specifications were adopted by the state board of education. Section 129 of the School act (Pamph. L. 1904, Special Session, p. 49) provides that "in order that due care may be exercised in the heating, lighting, ventilating and other hygienic conditions of public school buildings hereafter to be erected, all plans and specifications for any such proposed school building shall he submitted to the state board of education for suggestion and criticism before the same shall be accepted bv the board of education of the district in which it is proposed to erect such building.” Section 131 provides that in order that the health, sight and comfort of the pupils may be properly protected, all school
The next objection is that the call for bids was not advertised as required by law. Wo think it was. It is admitted that it was actually advertised for five consecutive insertions in the official newspapers of Newark as required by chapter 168 of Pamph. L. 1899, p. 370. This was done by the secretary of the board, under the direction of the committee on buildings, grounds and supplies. The argument is that since the first insertion was on August 27th, 1909, and the formal resolution of the board of education authorizing the committee to advertise was not passed until the day following, that, therefore, the contract finally awarded must be set aside. To this there are two sufficient answers — first, the rules of the board directed the committee to “advertise for bids for the required work as directed by law;” secondly, the action of the committee was ratified by the hoard.
We have examined all other reasons urged for setting aside the contract, hut find no merit in them.
The result is that the proceedings brought up by this writ will be affirmed, with costs.