JAMES FITZGIBBON, III VS. STAFFORD TOWNSHIP BOARD OF EDUCATION (L-1107-18, OCEAN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4411-17T2

JAMES FITZGIBBON, III,

Plaintiff-Appellant,

v.

STAFFORD TOWNSHIP
BOARD OF EDUCATION and
FALASCA MECHANICAL, INC.,

Defendants-Respondents.
________________________________

Argued March 4, 2019 – Decided May 13, 2019

Before Judges Messano and Rose.

On appeal from Superior Court of New Jersey, Law
Division, Ocean County, Docket No. L-1107-18.

Evan M. Labov argued the cause for appellant (Hankin
Sandman Palladino & Weintrob, attorneys; John F.
Palladino, Evan M. Labov, and Sean P. Higgins, on the
briefs).

Brent R. Pohlman argued the cause for respondent
Stafford Township Board of Education (Methfessel &
Werbel, attorneys; Brent R. Pohlman and Jason D.
Dominguez, on the brief).
 Steven A. Berkowitz argued the cause for respondent
Falasca Mechanical, Inc. (Berkowitz & Associates, PC,
attorneys; Steven A. Berkowitz, on the brief).

PER CURIAM

On February 22, 2018, defendant Stafford Township Board of Education

(the Board) requested bids for mechanical/plumbing improvements to the

Stafford Schools. The public bid package required that

[a]ll bidders must be pre-qualified by the New
Jersey Schools Development Authority and the State of
New Jersey, Department of the Treasury. All bidders
must submit with their bid a current copy of their
"Notice of Classification" and the "Total Amount of
Uncompleted Contracts" . . . including the same
documentation for all subcontractors.

[(emphasis added).]

The Board received two bids on March 16, 2018, the lowest from Surety

Mechanical Services, LLC (Surety), and the second from defendant Falasca

Mechanical, Inc. (Falasca). The Board rejected Surety's bid as non-conforming,

because it failed to name its subcontractor(s), as required by the specifications

and the Public School Contracts Law (the Act), N.J.S.A. 18A:18A–1 to –60.

The Board awarded the $3.793 million contract to Falasca.

Falasca's bid package included certifications from its two subcontractors

stating their "Total Amount of Uncompleted Contracts" (form DPMC 701), as

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required by N.J.A.C. 17:19-2.13. That Treasury Department regulation provides

in pertinent part:

(a) A firm shall include with each bid a certification
that the firm’s bid for the subject contract would not
cause the firm to exceed its aggregate rating limits,
including consideration of its backlog of uncompleted
construction work, including public and private
contracts.

(b) If at the time of a bid opening a question arises as
to whether a bid for a project is within a firm's existing
classification or aggregate rating, the bid shall be
opened, and if the bid is at variance with the firm's trade
classification or aggregate rating, the bid shall be
rejected.

(c) A firm shall not be awarded a contract which, when
added to the backlog of uncompleted construction work
would exceed the firm's aggregate rating. The backlog
of uncompleted construction work shall be the total
contract value of unbilled work, as evidenced by the
most recent approved invoice (or other similar
documentation) received by the bidder before or on the
date of the bid.

[Ibid. (emphasis added).] 1

1
The aggregate rating is "permissible aggregate work volume based upon the
given contractor's submissions detailing financial ability." Brockwell &
Carrington Contractors, Inc. v. Kearny Bd. of Educ., 420 N.J. Super. 273, 276
(App. Div. 2011). Under N.J.A.C. 17:19-2.13, the bidder must demonstrate
"that the bid does not exceed its aggregate rating less uncompleted work . . . ."
Seacoast Builders Corp. v. Jackson Twp. Bd. of Educ., 363 N.J. Super. 373, 378
(App. Div. 2003).

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Both subcontractors stated their respective "amount of uncompleted work . . .

from all sources (public and private)[,]" and each certified, "that the amount of

this bid proposal, including all outstanding incomplete contracts does not exceed

my prequalification dollar limit." However, both certifications predated the

receipt of bids by several weeks; in fact, both predated the Board's advertisement

for bids.

Plaintiff James FitzGibbon, III, a resident and taxpayer of Stafford

Township, filed a verified complaint seeking an order to show cause that

Falasca's bid was materially defective, because the subcontractors' certifications

were not current at the time of the bid. The Law Division judge denied plaintiff's

request for temporary restraints, but she set the matter down for a hearing in

short order.

After considering oral argument on the return date, the judge concluded

plaintiff failed to meet the requisite standard for injunctive relief. In particular,

the judge concluded plaintiff did not establish "an ultimate, reasonable chance

of success on the merits . . . ." See, e.g., Garden State Equal. v. Dow, 216 N.J.

314, 320 (2013) (holding successful request for injunctive relief must

demonstrate "the applicant's claim rests on settled law and has a reasonable

probability of succeeding on the merits . . . ."). The judge reasoned:

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 I'll assume for purposes of this application that the
subcontractors were not made aware previously that
[their DPMC 701s were] being submitted and . . . have
not actually submitted a pre-bid for the project directly
to Falasca. That it's clear that Falasca had a business
relationship with these [sub]contractors. That
ultimately the risk of the project falls to the successful
bidder. I agree that there was no risk to the Board by
this . . . defect, if, in fact, it's considered a defect, and
without any risk to the Board it does not constitute a
material defect . . . .

The judge dismissed the complaint and denied plaintiff's request for a stay.

Plaintiff sought to file an emergent motion for a stay pending appeal to

this court. A panel of our colleagues entertained the application but denied

plaintiff's motion. Plaintiff then filed an emergent application for a stay with

the Supreme Court, which entered a one-justice order denying the application

"for failure to satisfy the standards for emergent relief stated in Crowe v.

DeGioia, 90 N.J. 126 (1982)."

Before us, plaintiff argues "Falasca's failure to provide a current

statement" of their subcontractor's uncompleted work made the bid materially

defective. Our courts have adopted a two-prong test first articulated by Judge

Pressler in Township of River Vale v. R.J. Longo Construction Co., 127 N.J.

Super. 207, 216 (Law Div. 1974), for determining whether a deviation is

material.

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 A deviation is material if: (1) waiver of such defect
deprives the purchaser of its assurance that the contract
will be entered into, performed, and guaranteed
according to the specified requirements, and (2) it
adversely affects the competitive bidding process by
placing a bidder in a position of advantage over other
bidders, or by otherwise undermining the necessary
common standard of competition.

[Hall Constr. Co. v. N.J. Sports & Exposition Auth.,
295 N.J. Super. 629, 637 (App. Div. 1996) (citing
Meadowbrook Carting Co. v. Borough of Island
Heights, 138 N.J. 307, 315 (1994)).]

Plaintiff argues the Board lacked discretion to waive a material defect and award

Falasca the contract. See Meadowbrook Carting, 138 N.J. at 314-15.

Defendants counter these arguments, contending Falasca's bid was not

materially defective. Defendants also contend the appeal is moot, because the

work has essentially been completed. 2 Plaintiff does not dispute this, but argues

the appeal presents an issue of great public importance that will continue to

2
Falasca also argues that plaintiff failed to prove that the awarded contract
actually caused the subcontractors to exceed their aggregate limits, which, it
contends, was evidence critical to plaintiff's success. We reject this argument
out of hand. Plaintiff never had the opportunity to engage in even limited
discovery, nor does the appellate record include anything indicating that Falasca
provided information to the judge at the time of the hearing regarding the
subcontractors' current aggregate limits at the time of the bid. We also reject
the idea that plaintiff was required to furnish that proof in order to succeed.
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evade review. Without accepting defendants' arguments on the merits, we

dismiss the appeal as moot.

"Mootness is a threshold justiciability determination rooted in the notion

that judicial power is to be exercised only when a party is immediately

threatened with harm." Betancourt v. Trinitas Hosp., 415 N.J. Super. 301, 311

(App. Div. 2010) (citing Jackson v. Dep't of Corr., 335 N.J. Super. 227, 231

(App. Div. 2000)). "An issue is 'moot when our decision sought in a matter,

when rendered, can have no practical effect on the existing controversy.'" Redd

v. Bowman, 223 N.J. 87, 104 (2015) (quoting Deutsche Bank Nat'l Tr. Co. v.

Mitchell, 422 N.J Super. 214, 221-22 (App. Div. 2011)). However, courts may

decide such cases where the issues "are of substantial importance and are

capable of repetition while evading review" unless determined by courts.

Advance Elec. Co. v. Montgomery Twp. Bd. of Educ., 351 N.J. Super. 160, 166

(App. Div. 2002) (citing Mistrick v. Div. of Med. Assistance & Health Servs.,

154 N.J. 158, 165 (1998)).

We acknowledge the public bidding process raises issues of substantial

public importance. Id. at 166-67. In Advance Electric, we considered the merits

of an otherwise moot appeal because the plaintiff/unsuccessful bidder presented

a facial challenge to the Act, arguing, in part, the failure to adopt regulations

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governing the qualifications of subcontractors forced school boards to solicit

separate bids for each portion of the work. Id. at 164, 167-68. We concluded

that the "issue plainly is capable of frequent recurrence until such time as either

subcontractor qualification regulations are specifically adopted under the Act,

or until the issues that [the plaintiff] now raises are judicially resolved." Id. at

167.

On the other hand, in Betancourt, we recognized the "public interest in

decisions regarding the termination of life-sustaining medical treatments[,]" 415

N.J. Super. at 313, and that the case "involve[d] a situation that could evade

judicial review." Id. at 314. Nevertheless, we dismissed the appeal as moot

based on the "unusual circumstances of [the] case [that] ma[d]e a recurrence of

this specific set of facts unlikely." Id. at 315, 319.

We do not minimize the bona fides of plaintiff's claim. In Seacoast

Builders, although on different facts, and interpreting a prior version of N.J.A.C.

17:19-2.13, we held "it [was] plain that the bidder must include with its bid the

required certification that the bid does not exceed its aggregate rating less

uncompleted work and that that condition must also be met at the time of the bid

award." 363 N.J. Super. at 378 (emphasis added). Nor do we necessarily agree

with the judge's assessment of the potential materiality of the defect. See

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Brockwell, 420 N.J. Super. at 276, 278-79 (finding a bid was materially

defective when the subcontractor's bid exceeded its aggregate limits less its

backlog of uncompleted contracts).

However, the record fails to reveal that contractors and subcontractors

routinely supply stale DPMC 701 forms, or that public entities frequently excuse

that conduct, such that the particular facts presented pose a prevalent problem

in the realm of the public bidding statutes. 3 More importantly, we doubt that if

such a problem were recurrent, it would escape our review. See Barrick v. State,

Dep't of Treasury, 218 N.J. 247, 264 (2014) (noting "[a]ppellate review" of

public bidding disputes "should be pursued with . . . alacrity"). Unfortunately,

although plaintiff exercised diligence in pursuing his right to timely review in

this case, it proved elusive. We trust it will not happen again.

Dismissed.

3
Plaintiff supplied an unpublished opinion of another panel, in which our
colleagues held that the failure to put any dollar amount of uncompleted work
on the DPMC 701 was a material defect that could not be waived. The appeal
in that case was not moot and presented different facts from those presented
here.
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