SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1117-16T4

 

IN THE MATTER OF 

RM-124635/2016-2019

SNOW REMOVAL AND

SALTING SERVICES CONTRACT.

________________________________

Submitted August 21, 2018 – Decided

Before Judges Sumners and Gilson.

On appeal from the New Jersey Turnpike Authority.

Mattleman, Weinroth & Miller, PC, attorneys for 

appellant Elite Investors, Inc. (Jeffrey A. Malatesta, of 

counsel and on the brief).

Chiesa Shahinian & Giantomasi, PC, attorneys for 

respondent New Jersey Turnpike Authority (John F. 

Casey, on the brief).

PER CURIAM

Elite Investors, Inc. (Elite), the lowest bidder to the New Jersey Turnpike 

Authority's (the Authority) Request for Bids (bid specifications) for a snow 

removal and salting services contract, appeals from the final agency decision 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

September 12, 2018
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rejecting its bid because there were material deviations from the bid 

specifications. We affirm.

The general purpose of all public bidding laws is to "secure for the 

taxpayers the benefits of competition and to promote the honesty and integrity 

of the bidders and the system." In re Protest of the Award of On-Line Games 

Prod. & Operation Servs. Contract, Bid No. 95-X-20175, 279 N.J. Super. 566, 

589 (App. Div. 1995). The laws are to be "construed as nearly as possible with 

sole reference to the public good. Their objects are to guard against favoritism, 

improvidence, extravagance and corruption; their aim is to secure for the public 

the benefits of unfettered competition." Ibid. (quoting Keyes Martin & Co. v. 

Dir., Div. of Purchase & Prop., 99 N.J. 244, 256 (1985)). "The preliminary 

inquiry is, of course, whether the bid actually deviated from the solicitation for 

bids." In re Request for Proposals #17DPP00144, 454 N.J. Super. 527, 560 

(App. Div. 2018) (citing Twp. of River Vale v. R.J. Longo Constr. Co., 127 N.J. 

Super. 207, 215-16 (Law Div. 1974)). The conditions and specifications of a 

bid "must apply equally to all prospective bidders; the individual bidder cannot 

decide to follow or ignore these conditions." Hall Constr. Co. v. N.J. Sports & 

Exposition Auth., 295 N.J. Super. 629, 635 (App. Div. 1996). Moreover, any 

material departure from the bid specifications renders a bid non-conforming and 
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invalid. Ibid. Although minor or inconsequential discrepancies and technical 

omissions can be waived, material conditions cannot be waived by the 

contracting authority. Meadowbrook Carting Co. v. Borough of Island Heights, 

138 N.J. 307, 314 (1994). 

On June 16, 2016, the Authority received three bids: (1) Elite at 

$24,530.00; (2) Defino Contracting Company (Defino) at $24,740.00; and (3) 

Triple C Nurseries at $26,894.00. Although Elite's bid was the lowest bid, the 

Authority's Board of Commissioners later determined on July 26, that the bid 

deviated from the bid specifications – "untimely submission of its vehicles' 

registration and insurance information and its vehicles failed the Authority's 

inspection" – and rejected the bid and awarded the contract to Defino. Elite 

protested the bid award; contending that its bid satisfied the bid specifications. 

After having an informal meeting with Elite and giving it the opportunity to 

provide an additional written submission, the Authority issued a final agency 

decision on October 7, rejecting Elite's protest. 

Before us, Elite argues that the Authority's rejection of its low bid was 

arbitrary, capricious, and unreasonable. Elite also argues that its past history of 

providing the same services with a sister company demonstrates its ability to 

perform the services required by the Authority. We are unpersuaded.
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The Authority's decision detailed its reasons for determining that Elite's 

bid did not comply with two material components of the bid specifications. 

First, the bid specifications required that the registration and insurance 

information for the required vehicles – "six Class 8, 11-ft manual reversing 

heavy duty, tandem rear-axle plow trucks of minimum ten-yard capacity with a 

minimum gross weight of 55,000 pounds when loaded with their ballast " – to 

perform the snow removal and salting services was due no later than June 17, 

one business day after the bid submission deadline. The bid specifications stated 

in bold lettering: "Failure to submit the completed information within one (1) 

business day of the bid opening will result in bid rejection." 

Prior to formally rejecting Elite's bid, the Authority's Superintendent of 

Snow Operations sent an email to Elite on June 23, inadvertently stating that 

proof of registration and insurance for the vehicles could be submitted by June 

28. The next day, however, the Superintendent sent an email clarifying that only 

equipment deficiencies were curable by the close of business on June 28. In 

fact, this correction email reiterated the instruction given to bidders at the June 

2 pre-bid meeting, which Elite's president attended. When Elite submitted the 

missing registration and insurance information on June 28, the Superintendent 
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responded that day with an email stating: "You're [sic] information was received 

[sic] and is under review." 

Second, the bid specifications stipulated that the Authority reserved the 

right to inspect each bidder's equipment. At the pre-bid meeting, prospective 

bidders were advised that equipment inspections would begin the week of June 

20 and that the deadline for any post-inspection deficiencies was June 28. On 

June 23, Authority personnel inspected Elite's equipment and determined Elite 

did not have six qualified trucks that were safe for road-readiness as required by 

the specifications. The Authority's Director of Maintenance determined the 

trucks were in extremely poor condition, beyond "normal wear and tear issues."

The inspection revealed a missing engine cover, a disassembled dashboard, 

ripped cushions, bald tires, headlights hanging out, missing body parts, fluid 

leaks and cracked or missing mirrors or glass. Three trucks were also unsuitable 

to accommodate the attachment of the Authority's salt spreaders without 

modification. Elite did not cure these deficiencies by the June 28 deadline as 

required in the bid specifications. 

In rejecting Elite's bid, the Authority relied upon the long-recognized twoprong test adopted by the Supreme Court in Meadowbrook Carting Co., to 
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determine whether the company's deviation from the bid specifications were 

material and not waivable.

[F]irst, whether the effect of a waiver would be to 

deprive the [public body] of its assurance that the 

contract will be entered into, performed and guaranteed 

according to its specified requirements, and second, 

whether [the defect] is of such a nature that its waiver 

would adversely affect competitive bidding by placing 

a bidder in a position of advantage over other bidders 

or by otherwise undermining the necessary common 

standard of competition.

[Meadowbrook Carting Co., Inc., 138 N.J. at 315.]

Finding the submission of the registration and insurance information for 

Elite's vehicles after the June 17 deadline was "a mandatory, non-waivable 

material deviation from the bid specifications," the Authority determined that to 

waive the requirement 

would result in [two] adverse effects. It would allow 

Elite the advantage over compliant bidders not only to 

shop for insurance rates and delay payment of 

registration fees, but also the power to determine 

unilaterally whether or not to honor its bid after seeing 

all bids upon opening. 

As for the inspection of Elite's trucks, the Authority noted that it exercised 

its discretion under the bid specifications to inspect and reject the required 

equipment found to be in such a poor, unsafe physical state. The Authority 

rejected Elite's mistaken belief that equipment defects could be cured by October 
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15, the date the bid specifications provided that the snow season began. The 

agency reasoned the 

contention misreads the specifications and would 

render certain language of the specifications a nullity. 

First, nowhere in the Request for Bid is there any 

reference to a "readiness date" or the suggestion that 

October 15, 2016 is the date to assess the quality of the 

equipment.

. . . .

More pertinent, however, is the [bid specification] 

language . . . , which identifies as one of the "Causes 

for Potential Rejection" if the Director of Maintenance 

finds the bidder's equipment to be inadequate.

. . . It does not make sense to suggest that the Authority 

must wait until an award is made and performance is 

required in order to judge the ability of the bidder to 

perform. In this case, it was a reasonable exercise of 

discretion to deem Elite's equipment was not road ready 

at the time of inspection and was the basis for rejection 

of Elite's bid. 

We are satisfied the Authority performed an appropriate Meadowbrook

analysis and determined, based upon substantial credible evidence before it, that 

Elite's deviation from the bid was a material, non-waivable condition for the 

cited reasons. Waste Mgmt. of N.J., Inc. v. Union Cty. Utils. Auth., 399 N.J. 

Super. 508, 525-26 (App. Div. 2008). There was nothing arbitrary, capricious, 
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or unreasonable about the Authority's rejection of Elite's bid. Barrick v. State, 

218 N.J. 247, 259 (App. Div. 1995). 

Affirmed.