NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1193-19T1

IN RE PROTEST OF 

CONTRACT AWARD FOR

PROJECT A1150-08, N.J.

EXECUTIVE STATE HOUSE

COMPREHENSIVE

RENOVATION AND

RESTORATION

_____________________________

Submitted January 6, 2021 – Decided

Before Judges Sumners, Geiger and Mitterhoff.

On appeal from the New Jersey Department of 

Treasury, Division of Property Management and 

Construction, Project No. A1150-08.

Hedinger & Lawless, LLC, attorneys for appellant 

Hall Construction Co., Inc (Robert T. Lawless, on the 

briefs).

Gurbir S. Grewal, Attorney General, attorney for 

respondent New Jersey Division of Property 

Management and Construction (Melissa H. Raksa, 

Assistant Attorney General, of counsel; Beth L. 

Mitchell, Assistant Attorney General and Vivek N. 

Mehta, Deputy Attorney General, on the brief).

Stevens & Lee, PC, attorneys for respondent Daniel J. 

Keating Company (Maeve E. Cannon and Patrick D. 

Kennedy, of counsel and on the brief; Michael A. 

Cedrone, on the brief).

February 2, 2021

APPROVED FOR PUBLICATION

February 2, 2021

APPELLATE DIVISION
A-1193-19T1 2

Peckar & Abramson, PC, attorneys for amicus curiae 

Associated Construction Contractors of New Jersey 

(Charles F. Kenny, on the brief).

The opinion of the court was delivered by

GEIGER, J.A.D.

Hall Construction Co., Inc. (Hall) appeals from the November 15, 2019 

final agency decision of the New Jersey Division of Property Management and

Construction (DPMC) rejecting Hall's bid protest and awarding the contract for 

the Comprehensive Renovation and Restoration of the New Jersey Executive 

State House, DPMC Project No. A1150-08 (the Project), to respondent Daniel 

J. Keating Company (Keating), the lowest bidder. The appeal presents an 

issue of first impression—whether a prime contractor bidder is required to 

name its building control systems subcontractor in its bid. For the following 

reasons, we dismiss the appeal as moot and also determine that Hall's 

arguments lack merit. 

I. 

We discern the following facts from the record. DMPC solicited 

competitive bids for the comprehensive renovation and restoration of the 

Executive State House in Trenton. Final specifications for the project were 

issued on August 20, 2019. Following several rounds of bidder questions, 
A-1193-19T1 3

DMPC issued clarifications and amendments to the specifications. DPMC 

then advertised for sealed bids for the Project. The advertisement stated: 

In accordance with N.J.S.A. 52:32-2, this project shall 

be bid as a single bid (lump sum all trades). Bidder 

must be classified themselves or name their classified 

sub-contractor(s) for the following trade(s):

Structural Steel (C029)

Plumbing (C030)

HVACR (C032)

Electrical (C047)

Failure to list classified sub-contractors will deem the 

bid non-responsive. 

DPMC opened electronic bids for the Project on September 17, 2019. 

Three bids were received. Keating's bid of $199,498,000 was the lowest. 

Hall's bid of $205,777,000 was the second lowest. Tutor Perini Building 

Corp.'s bid of $211,777,000 was the third lowest. Thus, Hall's bid was 

$6,279,000 higher than Keating's. 

Both Keating and Hall used DMPC's bid proposal form (Bid Form). The 

Bid Form required bidders to identify the names and addresses of each 

subcontractor who would be performing certain classified trade works on the 

Project. This included identifying each subcontractor performing "HVACR1

(C032) – Mechanical" and "HVACR (C032) – Duct Work." In addition, each 

1

 "HVACR" refers to heating, ventilating, air conditioning, and refrigeration. 
A-1193-19T1 4

subcontractor listed on the Bid Form was required to be classified by DMPC 

for their trade at the time of the bid. Thus, subcontractors performing HVACR 

mechanical and HVACR duct work were required to be classified as HVACR 

(C032) contractors at the time of the bid. Notably, the Bid Form did not 

require bidders to identify subcontractors performing "C043 – Control 

Systems" work. 

The day after the bid opening, Hall lodged its initial bid protest, 

contending that Keating's bid must be rejected and the contract awarded to 

Hall because: (1) Keating's named HVACR mechanical subcontractor, Devine 

Brother's, Inc. (Devine), exceeded its DPMC aggregate classification rating;

and (2) a notary public with an expired commission notarized Keating's bid 

bond. Hall sent three subsequent letters to DPMC that provided further 

information about Devine and reaffirmed its argument that Keating's bid bond 

was deficient. 

DPMC requested Keating provide documentation of Devine's 

uncompleted work as of the time of the bid opening. Keating contested Hall's 

protest and provided the requested information, including certifications from 

Keating's and Devine's respective presidents. 

On October 7, 2019, DMPC issued a decision rejecting Hall's claims and 

declaring DPMC's intent to award the Project to Keating. DMPC found that 
A-1193-19T1 5

Devine did not exceed its aggregate classification rating and that Keating's bid 

bond was not deficient as the notary's public's commission was still valid and 

in effect when the bid was notarized. 

On October 11, 2019, Hall lodged a second bid protest that raised a new 

ground for rejection. Hall claimed Keating's bid was deficient because it 

failed to name the subcontractor it intended to use for the building control 

systems work, which must be performed by a DPMC classified C043 – Control 

Systems contractor. Hall contended that N.J.S.A. 52:32-2 requires bidders to 

identify on their Bid Form the subcontractors performing all possible facets of 

HVACR work, including subcontractors performing C043 – Control Systems 

work. Hall asserted that control systems work qualified as HVACR work. 

On October 17, 2019, DPMC issued a second decision rejecting Hall's 

claim that Keating submitted a deficient bid. DPMC found that the Bid Form 

did not require bidders to identify subcontractors performing C043 – Control 

Systems work. It noted that C043 – Control Systems work is not included 

within the "umbrella trades" that classified HVACR contractors may perform. 

DMPC explained that "[i]t was neither a requirement of the bid nor the intent 

of DPMC to require bidders to identify a [c]ontrol [s]ystems subcontractor on 

this project." Hall requested a hearing to present its arguments. 
A-1193-19T1 6

The hearing was held before Hearing Officer Wayne J Martorelli on 

October 30, 2019. No witnesses testified. Hall and Keating abandoned their 

respective objections to the form of each other's bid bonds. 

In support of its position that control systems fell under HVACR work, 

Hall argued: (1) Section 230900 of the Project specifications, which detailed 

the work to be performed by C043 – Control Systems subcontractor, was listed 

under Division 23 of the specifications, labelled "HVAC"; and (2) the 

regulations of a different State agency, promulgated under the HVACR 

contractor licensing statute, defines HVACR work to include "pneumatic air 

and/or direct digital controls." N.J.A.C. 13:32A-1.2. Keating maintained that 

Devine had not exceeded its DPMC aggregate classification. It also argued 

that modern-day control systems work was a distinctly different trade from 

HVACR work and that it was not required by N.J.S.A. 52:32-2 to identify its 

building control system subcontractor. 

On November 15, 2019, Hearing Officer Martorelli issued written 

proposed findings and a recommendation to reject Hall's claims that Keating 

submitted a deficient bid. He found that "Keating's bid proposal identified two

HVACR subcontractors: Bonland Industries, Inc. [(Bonland)], to perform the 

duct work at a price of $5,000,000, and Devine, to perform the mechanical 

work at a price of $10,000,000." 
A-1193-19T1 7

The hearing officer noted the following undisputed facts: (1) Devine's 

HVACR mechanical subcontract price and Bonland's HVACR duct work 

subcontract price did not include installation of the building control systems 

described under Section 230900 of the specifications; (2) Keating planned to 

enter into a subcontract with a subcontractor duly classified in the control 

systems work trade to install the building control systems; and (3) Keating 

excluded the control systems work from Devine's work scope to keep the value 

of Devine's current uncompleted work below a $15 million aggregate rating. 

The hearing officer noted that Keating estimated the value of the 

building systems control work at roughly $2.5 million, such that inclusion of 

this work within Devine's mechanical subcontract would—when combined 

with its existing backlog of uncompleted work—exceed Devine's aggregate 

rating. Keating's exclusion of the control systems work from Devine's work 

scope is referred to "de-scoping," which is "a well-accepted practice in the 

industry." Hall did not argue that it was per se unlawful for Keating to reduce 

the scope of Devine's HVACR work. 

Instead, Hall argued that Keating's intent to award the building control 

systems work to an unnamed subcontractor violated N.J.S.A. 52:32-2 because 

the control systems work fell under HVACR work and needed to be completed 

by a named HVACR subcontractor pursuant to N.J.S.A. 52:32-2(b)(2). In 
A-1193-19T1 8

response, Keating argued that the control systems work was not HVACR work 

"but rather work belonging to an entirely separate and distinct specialty trade." 

Keating intended to award the control systems work to a subcontractor 

classified by DPMC under the control systems trade classification. 

The hearing officer explained that DPMC recognizes control systems, 

which require a different skill set and experience, as a separate and distinct 

trade apart from HVACR. He noted that Section 230900 of the specifications, 

which is 111 pages long, "describes a sophisticated, complex, and highly 

technical computerized and web-based control system, installation of which 

requires a level of specialized expertise, outside of the origins of the HVAC 

trade." 

To emphasize the complexity of control systems work, the hearing 

officer also referenced the several qualification requirements for the control 

systems subcontractor listed in Section 230900. For example, Section 230900 

requires the control systems subcontractor to have the sole and primary 

business of "designing, installing, and maintaining HVAC [c]ontrol Systems." 

It also requires the control systems subcontractor to be: (1) "a factory 

authorized [and] licensed representative for [the] Building Management 

System (BMS) manufacturer"; (2) "a fully certified [and] recognized 

installer/service provider by the [(BMS)] manufacturer"; and (3) "responsible 
A-1193-19T1 9

for the [c]omplete installation and proper operation of the control system" and 

collaboration with related trades. Lastly, the Responsibility Matrix included in 

Section 230900 demonstrates the responsibilities of the control systems 

subcontractor relative to the "Division 23 Mechanical [HVACR] Contractor" 

and the "Division 26 Electrical Contractor." 

The hearing officer concluded that "Section 230900 clearly reflects the

understanding that Building Control work is considered to be a stand-alone 

trade, separate and apart from HVACR." He reasoned that "[i]f the [control 

systems] work was intended to be performed under the supervision and control 

of the HVACR subcontractor, [Section 230900] would have said as much, 

rather than treating them as two separate and co-equal subcontract trades." 

In addition, the hearing officer flatly disagreed with Hall's contention 

"that the [b]uilding [c]ontrol [systems] work must be deemed to be within the 

ambit of work which must be performed [by] one of the HVACR

subcontractors named in the bid because Section 230900 is placed within 

Specification Division 23 – HVAC." He explained that "[a]s a matter of 

standard industry practice, construction contract specifications are organized

according to a numbering system" known as Masterformat,

2 which "provides a 

2

 Masterformat is a "system devised and regularly updated by a trade group, 

the Construction Specifications Institute." 
A-1193-19T1 10

uniform approach to organizing specification[s]" within sections of project 

manuals. The hearing officer pointed out that the Masterformat's preface 

specifically warns that: 

Masterformat's organizational structure . . . does not 

imply how the work is assigned to various disciplines, 

trades, or subcontractors. Masterformat is not 

intended to determine which portions of the project

manual are to be prepared by a particular discipline. 

Similarly, it is not intended to determine what work

required by the project is the responsibility of a 

particular trade. 

For these reasons, the hearing officer found that the inclusion of Section 

230900 within Division 23, which is labeled HVAC, was not meant to imply 

that the control systems work must be performed by a HVACR subcontractor. 

Instead, "Section 230900 clearly reflects the understanding that Building 

Control work is considered to be a stand-alone trade, separate and apart from 

HVACR." Thus, the control systems work "belongs to a separate trade, and 

. . . Keating may award that work directly to a subcontractor classified under 

C043-Control Systems, without violating the requirements of the bidding 

statute." The hearing officer determined that "the only work that must be 

performed by one of the identified HVACR subcontractors is limited to that 

work which a classified HVACR contractor is entitled to self-perform under

classification C032." He emphasized that HVACR classified subcontractors 
A-1193-19T1 11

cannot perform control systems work since it falls within the province of a 

separate trade classification. 

The hearing officer also rejected Hall's contention that HVACR 

licensing laws support its position, explaining: 

The definition of HVACR in the licensing statute does 

not include any language which could be remotely 

understood to include computerized building control

systems. . . . As such, even if the regulations adopted 

under the licensing statute might be understood to 

require a HVACR license to perform such work, the 

enabling legislation does not. Even if it did, 

moreover, there is nothing in the law which suggests 

that the statutory HVACR licensing scheme was 

meant to supersede or override DPMC's authority to 

establish and enforce trade classifications[,]which 

serve the public interest by limiting bidding in a trade 

to contractors with the applicable expertise and

experience.

He concluded that "the plain language of N.J.S.A. 52:32-2 . . . only 

requires the listing of work by subcontractor(s) who[] are installing the actual

HVACR system and not the more specialized work of installing building 

management controls." He reiterated that "N.J.S.A. 52:32-2 dates back to 

1915, decades before sophisticated building control systems that are the 

subject of this protest were invented." Instead, N.J.S.A. 52:32-2 only requires 

bidders to name subcontractors for "the steam and hot water heating and 

ventilating apparatus, steam power plants and all work kindred thereto." 
A-1193-19T1 12

The hearing officer also rejected Hall's argument that Devine exceeded 

its aggregate DPMC rating. He found that the award of the HVACR 

mechanical work would not cause Devine to exceed its $15,000,000 aggregate 

rating when combined with its backlog of existing work. 

DPMC Director Christopher Chianese issued a November 15, 2019 final 

agency decision accepting and adopting in full the hearing officer's proposed 

findings and conclusions and affirming his recommendation to reject Hall's bid 

protest. The Director stated that Hall's bid protest was rejected and the Project 

"shall be awarded to [Keating]." Hall immediately requested a stay of the 

contract award pending appeal, which DPMC denied the same day. The 

Director found that Hall could not "satisfy [the] exacting standard for 

injunctive relief" adopted by our Supreme Court in Crowe v. DeGioia, 90 N.J. 

126, 132-34 (1982). DPMC then issued a Notice to Proceed to Keating to 

begin work on the Project. 

On November 18, 2019, Hall moved for leave to appeal, acceleration of 

the appeal, and an emergent stay of the contract award. On the same day, we 

granted Hall leave to file the motion and granted a temporary stay of the 

contract award. On December 4, 2019, we denied Hall's motions for a stay 

pending appeal and to accelerate the appeal. Five days later, we vacated the 
A-1193-19T1 13

temporary stay. We granted the Associated Construction Contractors of New 

Jersey's (ACCNJ) motion to appear as amicus curiae. 

Keating subsequently moved to dismiss the appeal and DPMC moved for 

summary disposition. Hall moved to supplement the record. We denied all 

three motions but preserved Keating and DPMC's right to raise and brief the 

issue of mootness. Keating has been working on the Project since the 

temporary stay was vacated over thirteen months ago. 

Hall raises the following points for our consideration:

POINT I

THE MERITS OF HALL'S APPEAL SHOULD BE 

CONSIDERED DESPITE HALL'S PREVIOUS 

REQUEST FOR A STAY OF THE CONTRACT 

AWARD HAVING BEEN DENIED.

POINT II

DPMC'S DECISION WAS ARBITRARY AND 

CAPRICIOUS AS IT WAS CONTRARY TO THE 

PLAIN LANGUAGE OF THE STATUTE, OTHER 

RELEVANT STATUTES[,] AND IGNORED 

HIGHLY RELEVANT EVIDENCE.

II.

Appellate courts have "a limited role" in the review of a final decision of 

an administrative agency. In re Stallworth, 208 N.J. 182, 194 (2011) (quoting 

Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). Final agency 

decisions will be upheld unless the decision is "arbitrary, capricious, or 
A-1193-19T1 14

unreasonable," or "not supported by substantial credible evidence in the record 

as a whole." Ibid. (quoting Henry, 81 N.J. at 579-80). In determining whether 

agency action is arbitrary, capricious, or unreasonable, we must examine: 

(1) whether the agency's action violates express or 

implied legislative policies, that is, did the agency 

follow the law; (2) whether the record contains 

substantial evidence to support the findings on which 

the agency based its action; and (3) whether in 

applying the legislative policies to the facts, the 

agency clearly erred in reaching a conclusion that 

could not reasonably have been made on a showing of 

the relevant factors. 

[Ibid. (quoting In re Carter, 191 N.J. 474, 482-83 

(2007)).]

"The burden of demonstrating that the agency's action was arbitrary, capricious 

or unreasonable rests upon the person challenging the administrative action."

In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div. 2006) (citing McGowan 

v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002)). 

The reviewing court "may not substitute its own judgment for the 

agency's, even though [it] might have reached a different result." Stallworth, 

208 N.J. at 194 (quoting Carter, 191 N.J. at 483). "This is particularly true 

when the issue under review is directed to the agency's special 'expertise and 

superior knowledge of a particular field.'" Id. at 195 (quoting In re Herrmann, 

192 N.J. 19, 28 (2007)). The Appellate Division must "defer to an agency's 

technical expertise, its superior knowledge of its subject matter area, and its 
A-1193-19T1 15

fact-finding role." Futterman v. Bd. of Review, Dep't of Labor, 421 N.J. 

Super. 281, 287 (App. Div. 2011) (quoting Messick v. Bd. of Review, 420 N.J. 

Super. 321, 325 (App. Div. 2011)). Furthermore, an "agency's interpretation 

of statutes and regulations within its implementing and enforcing 

responsibility is ordinarily entitled to" deference. E.S. v. Div. of Med. 

Assistance & Health Servs., 412 N.J. Super. 340, 355 (App. Div. 2010) 

(quoting Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. 

Div. 2001)). 

Deference is particularly appropriate when the "agency's expertise and 

superior knowledge of a particular field" is involved, Greenwood v. State 

Police Training Ctr., 127 N.J. 500, 513 (1992), including its reasonable 

statutory "construction in recognition of the agency's expertise," TAC Assocs.

v. N.J. Dep't of Envtl. Prot., 202 N.J. 533, 544 (2010) (citation omitted). 

"When resolution of a legal question turns on factual issues within the special 

province of an administrative agency, those mixed questions of law and fact 

are to be resolved based on the agency's fact finding." Campbell v. N.J. 

Racing Comm'n, 169 N.J. 579, 588 (2001). Nevertheless, we are not bound by 

an agency's strictly legal determinations. A.B. v. Div. of Med. Assistance & 

Health Servs., 407 N.J. Super. 330, 340 (App. Div. 2009) (quoting Levine v. 

State Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div. 2001)). 
A-1193-19T1 16

III.

We first address whether the appeal is moot. Hall argues that the 

Appellate Division should consider the merits of this appeal notwithstanding 

our decision denying Hall's emergent appeal to stay the contract award. Hall 

contends that, absent resolution, the issue of statutory interpretation regarding 

public bidding will likely reoccur. Hall notes that the issue involves the 

"interpretation of the 'subcontractor naming' statute, which is implicated in 

virtually all public bids." It further asserts that "[a]lmost all governmental 

entities in this State have bidding laws which require the naming of 

subcontractors in the bid." 

DPMC argues that Hall's appeal is "moot because the contract award has 

already been made, performance of the Project is well under way, and 

substantial expenditures of time and resources have been incurred by the State 

and Keating." DPMC also contends that this appeal "presents no recurring 

question of public importance that might otherwise evade judicial review." 

Similarly, Keating argues that Hall's appeal is moot because the contract 

award has already been made and Keating has performed substantial work. 

Keating notes that any order to rebid or award the uncompleted portion of the 

Project to another bidder or otherwise interrupt the construction "would be 

completely untenable for the State in added cost, loss of warranty coverage 
A-1193-19T1 17

and most importantly, potential damage and irreparable harm to the historic 

State House due to work delay, loss of progress, weather impact, and change 

of contractors." In addition, Keating argues that the DPMC's decision is 

entitled to deference and that this appeal does not present an issue capable of 

repetition while evading review. 

"Moot or academic appeals are generally dismissed." Advance Elec. Co. 

v. Montgomery Twp. Bd. of Educ., 351 N.J. Super. 160, 166 (App. Div. 2002) 

(citing Cinque v. N.J. Dep't of Corrs., 261 N.J. Super. 242, 243 (App. Div.

1993)). "[A] court will not decide a case if the issues are hypothetical, a 

judgment cannot grant effective relief, or there is no concrete adversity of 

interest between the parties." Ibid. (citing Anderson v. Sills, 143 N.J. Super. 

432, 437 (Ch. Div. 1976)). It is the policy of this State to refrain from 

rendering advisory opinions or exercising jurisdiction in the abstract. State v. 

Abeskaron, 326 N.J. Super. 110, 117 (App. Div. 1999). Nevertheless, 

"[c]ourts occasionally will rule on such matters where they are of substantial 

importance and are capable of repetition while evading review." Advance 

Elec., 351 N.J. Super. at 166 (citing Mistrick v. Div. of Med. Assistance and 

Health Servs., 154 N.J. 158, 165 (1998); Zirger v. Gen. Accident Ins. Co., 144 

N.J. 327, 330 (1996)). In that regard, an issue that implicates the public 

bidding process may be a matter of great public interest. Id. at 167.
A-1193-19T1 18

However, "[c]ontractual matters in which the State and its public entities 

engage must proceed with alacrity." Barrick v. State, Dep't of Treasury, 218 

N.J. 247, 264 (2014). To that end, "[t]he State's business and the public 

interest in the State's contractual endeavors should not be unreasonably 

delayed while an unsuccessful bidder seeks another level of review." Ibid. 

For example, in Statewide Hi-Way Safety, Inc. v. N.J. Dep't of Transp., 

we dismissed as moot an appeal challenging the award of a highway 

construction contract because the project was "substantially completed." 283 

N.J. Super. 223, 226 (App. Div. 1995). In that case, we had denied the 

appellant's emergent application to stay the contract award and later, during 

oral argument, discovered that a substantial portion of the project had already 

been completed. Id. at 225. We recognized that it was "too late to order 

rebidding or to award the contract to another bidder" because any order to 

terminate the project "would be contrary to the public interest." Ibid. 

Consequently, we dismissed the appeal as moot but, nevertheless, addressed an 

issue raised on appeal because of its public importance. Id. at 226 (citations 

omitted). In addressing the remaining issue, we acknowledged the purpose of 

public bidding laws and the policy of strict compliance with both the 

substantive and procedural requirements of bid advertisements and 

specifications. Id. at 230-31. We held that the agency's failure to read the 
A-1193-19T1 19

elements of the bid constituted a material deviation from the governing statute 

and that a party with standing could, in the future, prevail under similar 

circumstances. Id. at 232. 

Similarly, in Advance Electric, we considered the merits of an otherwise 

moot appeal even though the project had been completed. 351 N.J. Super. at

166-67. There, the unsuccessful bidder, a primary contractor, challenged the 

award of a public-school contract because there were no regulations governing 

subcontractor qualifications. Id. at 163. We concluded that the issue was 

capable of "frequent recurrence" until either the State Department of Education 

adopted regulations concerning subcontractor qualifications or judicial review 

of the issue. Id. at 167. We explained that, given the time it takes to hear and 

decide appeals, "future appeals on the same issue would not be decided until 

the construction was completed." Ibid.

"When a party seeks review of the award of construction contracts for 

projects of the type involved here, the attack must be made with the 'utmost 

promptitude.'" Richardson Eng'g Co. v. Rutgers, State Univ., 51 N.J. 207, 219 

(1968) (quoting Bullwinkel v. City of E. Orange, 4 N.J. Misc. 593 (Sup. Ct. 

1926)). Thus, "[w]henever public money is to be expended or if the successful 

bidder has made substantial preparations for the work, incurred considerable 

expenses and obligated himself still further in undertaking to carry out the 
A-1193-19T1 20

contract, ordinarily, review of the award will be denied unless sought 

promptly." Ibid. (citations omitted). 

Here, unlike in Richardson Engineering, Hall's first protest promptly 

challenged the award of a public construction project. Id. at 219. On the same 

day that DPMC issued its final agency decision, Hall requested that DPMC 

stay its contract award to Keating pending appellate review. After DPMC 

denied the request, Hall swiftly moved for leave to file an emergent motion to 

stay the award and accelerate its appeal. Just a few days later, Hall filed this 

appeal. 

On the other hand, Hall failed to satisfy the necessary factual and legal 

basis for a stay of the contract award under Crowe, 90 N.J. at 132-34. As a 

result, the Project commenced and continued while this case has been pending. 

The record on appeal includes the certifications of Craig Hunt, Keating's 

Director of Construction, and Raymond A. Arcario, the Executive Director of 

the New Jersey Building Authority.3 They establish that Keating has already 

spent millions on the Project in preparation, demolition, renovation, and 

construction and has obligated itself still further. Keating has issued at least 

thirty-six subcontracts at an approximate total value of $161,000,000 for 

3

 Pursuant to Rule 2:5-4(a), the certifications, which Keating filed in support 

of its motion to dismiss the appeal, are part of the record on appeal. 
A-1193-19T1 21

various trade works and nine purchase orders through May 2020. It has 

completed an estimated $10,245,000 worth of work on the Project by that date. 

Work continued thereafter at a substantial pace. Terminating Keating from the 

project would subject the Executive State House to risk of damage and 

generate significant additional costs to mitigate those risks. 

Aside from the substantial work on the Project already performed by 

Keating and its numerous subcontractors and the large sums expended by 

Keating, the record demonstrates that setting aside the award of the contract 

would severely impact the Executive State House, jeopardize the work already 

completed, the Project in general, and risk damage to this historical structure. 

At this juncture, it would be "contrary to the public interest to void the 

contract already awarded even for any remaining uncompleted portion of the 

. . . construction." Statewide Hi-Way Safety, 283 N.J. Super. at 232. Because 

the Project has proceeded so far, the equities weigh heavily "against the 

provision of relief on the merits." Barrick, 218 N.J. at 264. 

For these reasons, it is simply "too late to order rebidding or to award 

the contract to another bidder." Statewide Hi-Way Safety, 283 N.J. Super. at

225. Given these uncontroverted and compelling circumstances, "we must 

dismiss the appeal as moot." Id. at 226. 

IV. 
A-1193-19T1 22

We may, nonetheless, address the issue raised by Hall if we deem it to 

be of sufficient public importance. Ibid. Statutory interpretation in public 

bidding disputes can be "a matter of great public interest." Advance Elec., 351 

N.J. Super. at 167. Because the issues raised in this appeal arguably involve a 

matter of public importance that is "capable of repetition while evading 

review," and for sake of completeness, we will address the merits of Hall's 

claims. Abeskaron, 326 N.J. Super. at 117 (citations omitted). 

We find no merit in the arguments raised by Hall in this appeal. We 

conclude that the DPMC's final decision is not arbitrary, capricious, or 

unreasonable and is supported by substantial credible evidence in the record as 

a whole. The record amply supports Hearing Officer Martorelli's 

comprehensive and well-reasoned proposed findings and conclusion, which 

were accepted and adopted in their entirety by DPMC. Applying our 

deferential standard of review, we discern no factual or legal basis to overturn 

the DPMC's final decision. 

N.J.S.A. 52:32-2 governs the advertisement and bidding procedures for 

construction projects involving state buildings that exceed $2000. The statute

permits separate plans and specifications for: 

(1) the plumbing and gas fitting and all work kindred 

thereto; (2) the steam and hot water heating and 

ventilating apparatus, steam power plants and all work 

kindred thereto; (3) electrical work; (4) structural steel 
A-1193-19T1 23

and ornamental iron work; and (5) general 

construction, which shall include all other work and 

materials required for the completion of the project.

[N.J.S.A. 52:32-2(a) (emphasis added).]

In turn, N.J.S.A. 52:32-2(b) permits DPMC to advertise for bids for a "single 

over-all contract, in which case there shall be set forth in the bid the name or 

names of all subcontractors to whom the bidder will subcontract for the 

furnishing of any of the work and materials specified in" N.J.S.A. 52:32-

2(a)(1) to (4). Each subcontractor for the four trades enumerated in N.J.S.A. 

52:32-2(a) must be "qualified in accordance with chapter 35 of Title 52." 

N.J.S.A. 52:32-2(b)(2). 

The DPMC's final agency decision properly interpreted the 

subcontractor naming provisions of N.J.S.A. 52:32-2. Keating met those 

requirements. The plain language of the statute is not unclear or ambiguous 

and cannot be reasonably interpreted to require naming the subcontractors 

intended to perform building control system control work. Building control 

systems work is not a trade within the umbrella of HVACR work under the 

statute. On the contrary, Keating was only required to identify subcontractors 

who would install the actual HVACR system but not those who would engage 

in a separate trade by performing the more specialized work of installing 

building management control systems. 
A-1193-19T1 24

DPMC was correct in rejecting Hall's claim that the phrase "all work 

kindred thereto" found in N.J.S.A. 52:32-2 should be interpreted to include 

building control systems work. Hall's overly broad interpretation of the statute 

does not comport with the modern realities of complicated building control 

systems, which did not exist when the statute was adopted in 1915. It also 

attempts to incorporate different trade works under the umbrella of HVACR 

work. See Fisher v. Bd. of Educ., 94 N.J. Super. 359, 366-67 (Ch. Div. 1967), 

aff'd, 95 N.J. Super. 18 (App. Div. 1968) (interpreting an analogous provision 

in N.J.S.A. 18:11-10 (now repealed)). 

Hall's argument under N.J.S.A. 52:32-2 is likewise without merit. 

N.J.S.A. 52:35-11 provides that regulations may be adopted "for controlling 

the qualifications of prospective bidders. The regulations may fix the 

qualification requirements for bidders according to available capital and 

equipment, and with due regard to experience and records of past 

performance." In turn, regulations have been promulgated standards for the 

"classification and qualification" of all bidders for state contracts. See

N.J.A.C. 17:19-1.1 to -5.11. The regulations define "classification" as "the 

process and product of assigning specific construction categories or trades and 

the aggregate ratings that define the ineligibility of firms to engage in public 

work as determined by the DPMC in accordance with this chapter." N.J.A.C. 
A-1193-19T1 25

17:19-1.1. The 115 "trades for which an applicant may request classifications 

are as listed on the DPMC-27." N.J.A.C. 17:19-2.7(b). 

DPMC has created classifications for various construction trades that 

impose prior experience standards as a condition of classification. N.J.A.C. 

17:19-2.7. DPMC has created HVACR (C032) for "steam and hot water 

heating and ventilating apparatus" work. It has also created Electrical (C047). 

DPMC's "Request for Classification Form" (Form DPMC-27) lists all the 

trades for which a contractor can seek prequalification, including HVACR 

(C032), Electrical (C047), and Control Systems (C043). N.J.A.C. 17:19-

2.7(b). For the HVACR and electrical classifications, Form DPMC-27 sets 

forth specific classification standards, including the additional classifications 

they are automatically deemed classified to perform. 

Contractors classified in HVACR and electrical are eligible to bid on 

contracts that include control systems work but must retain a subcontractor 

classified in such trade to perform that work. Also, Form DPMC-27 requires 

subcontractors to possess special licenses to perform work under the HVACR 

and electrical trade classifications whereas the control systems classification 

requires no special license. 

DPMC's Bid Form requires the bidder to identify all classified 

subcontractors who would be performing HVACR (C032) – Mechanical and 
A-1193-19T1 26

HVACR (C032) – Duct Work. Because building control systems are not 

included within N.J.S.A. 52:32-2, DPMC did not require bidders to identify 

C043 classified subcontractors to be named in the bid. 

As correctly observed by the hearing officer, the Project's building 

control systems work is highly technical, specialized, and expansive. It 

requires integrating multiple systems installed by various other trades, 

including fire suppression, emergency access, and electrical systems. DPMC's 

classification system categorizes building control systems and HVACR work 

as wholly different trades that require different experience and expertise. This 

distinction is manifested in footnote 8 of DPMC Form-27, which provides that 

a contractor classified in trade C032 (HVACR) "shall also be eligible to bid on 

contracts including the following [certain] specialty trades, 4 but shall be 

required to engage a subcontractor who is classified in the specialty trades 

listed: C043, C090." Thus, footnote 8 reflects that HVACR C032 contractors 

are not classified to perform Control Systems (C043) work and must engage a 

classified Control Systems C043 contractor to perform that trade work unless 

4

 Classified HVACR contractors are deemed automatically classified in the 

following trades: Oil & Gas Burners (C031), Boilers (New Repair) (C033), 

Insulation (Mechanical) (C041), Fire Suppression Systems (C042), Sheet 

Metal (Mechanical) (C046), and Dust Collectors (C109). Similarly, classified 

Electrical (C047) contractors are deemed to be classified in Communications 

Systems (C048), Fire Alarm/Signal Systems (C049), and Security/Intrusion 

Alarms (C050) under Footnote 9. 
A-1193-19T1 27

they have been separately classified to perform Control Systems (C043) work. 

Overall, footnotes 8 and 9 clearly demarcate the distinction between the 

HVACR (C032), Electrical (C047), and Control Systems (C043) trade 

classifications. 

In addition, Hall argues that Keating engaged in impermissible bid 

shopping by not identifying its Control Systems (C043) subcontractor in its 

bid. We disagree. Although N.J.S.A. 52:32-2 requires that a prime 

contractor's bid identify its four prime subcontractors to discourage bid 

shopping as to those trades, that requirement does not extend to other 

subcontractors such as Control System (C043) subcontractors. To the 

contrary, as correctly noted by the hearing officer, HVACR (C032) 

subcontractors "cannot self-perform building controls system work but instead 

must subcontract with" a classified Control System (C043) contractor. 

Accordingly, bid shopping for this trade work is permitted. 5 

Hall argues that DPMC's decision was contrary to the Licensing Law 

governing HVACR contractors. Hall contends that N.J.S.A. 52:32-2 and 

N.J.S.A. 45:16A-2, the HVACR Licensing Law, should be read in pari materia

5

 Notably, Hall's own named HVACR subcontractor is not classified by the 

DPMC to perform Control Systems (C043) work and Hall did not identify a 

separate Control Systems (C043) subcontractor in its bid. Thus, were Hall the 

lowest bidder, it would have had to have retained a separate, unnamed Control 

Systems (C043) subcontractor, allowing it to engage bid shopping.
A-1193-19T1 28

because they deal with the same subject matter. Hall contends that under the

Heating, Ventilating, Air Conditioning and Refrigeration Contracting License 

Law, N.J.S.A. 45:16A-1 to -41, HVACR work includes control systems work

by definition. Hall explains that the definition of HVACR, under N.J.S.A. 

45:16A-2, includes "controlling the temperature, humidity and cleanliness of 

air" and "control[ling] piping for the control of air, liquid or gas temperatures." 

We are unpersuaded. 

Hall's position is also contrary to the rules of statutory construction. 

These statutes were neither passed at the same time nor belong to the same 

Act. Marino v. Marino, 200 N.J. 315, 330 (2009). The statutes neither relate 

to the same subject matter nor serve the same purpose or objective. See ibid. 

The HVACR Licensing Laws created a Board of Examiners to establish 

HVACR licensing requirements and to oversee HVACR contractors. N.J.S.A. 

45:16A-3 and -4. In contrast, N.J.S.A. 52:32-2 requires bidders to list in their 

bid proposals the prime subcontractors that will perform electrical, plumbing, 

structural steel, and HVACR trade work but not control systems trade work. 

Mere "'adventitious occurrence[s] of like or similar phrases, or even of similar 

subject matter, in laws enacted for wholly different ends will normally not 

justify applying the rule' of in pari materia construction." Marino, 200 N.J. at 

331 (quoting State v. DiCarlo, 67 N.J. 321, 325 (1975)). 
A-1193-19T1 29

Lastly, amicus curiae ACCNJ asserts a new argument not raised during 

the hearing that is contrary to the position taken by the parties. ACCNJ argues 

that a general contractor is not permitted to directly retain the subcontractor 

that will perform the building control systems work. Instead, that 

subcontractor must be retained by either a licensed HVACR or electrical 

subcontractor. In explaining his findings, the hearing officer noted that "the 

subcontractor performing the Control System work need not be identified in 

the bid, regardless of whether that subcontractor is retained directly by the 

prime contractor or by the HVACR subcontractor." 

"[A]s a general rule, an amicus curiae must accept the case before the 

court as presented by the parties and cannot raise issues not raised by the 

parties." State v. O'Driscoll, 215 N.J. 461, 479 (2013) (quoting State v. Lazo, 

209 N.J. 9, 25 (2012)). See also Pressler & Verniero, Current N.J. Court 

Rules, cmt. on R. 1:13-9 (2021) (same); State v. J.R., 227 N.J. 393, 421 (2017) 

(declining to "consider arguments that have not been asserted by a party, and 

are raised for the first time by an amicus curiae"). We decline to consider this 

new argument that was not asserted by the parties before the hearing officer or 

the DPMC and is raised for the first time by an amicus. 
A-1193-19T1 30

To the extent we have not specifically addressed any of Hall's remaining 

arguments, we conclude they lack sufficient merit to warrant discussion in a 

written opinion. R. 2:11-3(e)(1)(E). 

In sum, we dismiss the appeal as moot. In addition, based upon our 

careful review of the record and applicable legal principles, and applying our 

deferential standard of review, we discern no basis to declare Keating's bid 

fatally deficient or to set aside the contract award. 

Appeal dismissed as moot.