SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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STERLING CARTING, INC., and BARBARA ANN MILLER,

Plaintiff s

- Appel lant s ,

v.

BOROUGH OF LODI and JOSEPH SMENTKOWSKI, INC.,

Defendant s

- Respondent s

.

_______________________________

Argued October 31, 2018

- Decided July 31, 2019
Before Judges Fuentes, Accurso and Moynihan.
On appeal from the Superior Court of New Je rsey, Law Division, Bergen County, Docket No. L

- 2126

- 18.
Richard D. Trenk argued the cause for appellants (McManimon, Scotland & Baumann, LLC, attorneys; Richard D. Trenk, of counsel and on the brief; Mark Y. Moon, on the brief).
Alan P. Spiniello argued the cause for respondent Borough of Lodi.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

- 3.2 A

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- 17T4 Thomas S. Cosma argued the cause for respondent Joseph Smentkowski, Inc. (Connell Foley LLP, attorneys; Thomas S. Cosma, of counsel and on the brief; Michael J. Affrunti, on the brief).

PER CURIAM

Th is appeal arise s out of a competitive bidding dispute under the Local

Public Contracts Law, N.J.S.A. 40A:11

- 1 to

- 5 2

. Defendant Borough of Lodi

awarded a one

- year solid waste collection contract with the option to extend for
a second or third year to the lowest res ponsible bidder, defendant Joseph

Smentkowski, Inc. , in accordance with the bid notice and accompanying
specifications. Incumbent provider Sterling Carting, Inc. , the only other bidder,
and taxpayer Barbara Ann Miller 1 filed an action in lieu of prerogati ve writs to
enjoin the award of the contract based on the theory that S terling was the lowest
responsible bidder for the one year contract the Borough awarded . Plaintiffs
also argued the Borough mis interpreted an addendum requiring bidders to bid a

separa te amount for additional work of waste collection at eight schools by
adding the amounts it bid to its bid price instead of treating them " as an

1 Defendants challenged Miller's standing, and plaintiffs' candor, for failing to disclose to the court that Miller is married to a supervisor for Sterling and thus is not a disinterested taxpayer. Although "a little concerned" by the failure to disclose Miller's interest, the trial court judge declined to address the issue in light of its rejection of the bid challenge. We do the same. See Am. Motorists Ins. Co. v. L

- C

- A Sales Co. , 155 N.J. 29, 43 (1998).3 A

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apportionment." Miller also challenged the specifications themselves, claim ing

the ambiguities and inconsisten cies Sterling identified required that both bids be
rejected and the contract re

- bid.

The trial court temporarily restrained the contract award to permit it the
opportunity to fully review the bid challenge. After full briefing and oral
argument, the co urt denied plaintiffs' request for permanent injunctive relief and
dismissed the complaint with prejudice. Plaintiffs' applications for emergent

relief were denied by this court and the Supreme Court
, although we agreed to

accelerate their appeal. Having now had the opportunity to fully review
plaintiffs' claims, we find them without sufficient merit to warrant any extended
discussion in a written opinion. See R. 2:11

- 3(e)(1)(E).
The bid specifications in this case we re clear and unambiguous. The

p ro posal required bidders to bid on nine different service options
, divided into
categories
, for one year service periods for a total of three years. Bidders were
required to bid for all serv ice periods in all categories. The Borough retain ed
the right to a ward the contract based upon the lowest responsible bid for
whatever option it select ed . The specifications stated clearly that the Borough

could
award the contract to the bidder whose aggregate bid

price for a one year contract is the lowest responsible4 A

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- 17T4 bid, or to award the contract to the bidder whose aggregate bid price for a two year contract in the categories selected by the Borough for such service period is the l owest responsible bid, or to award the contract to the bidder whose aggregate bid price for a three year contract in the categories selected by the Borough for such service periods is the lowest responsible bid.
Although Sterling's bid for the first year service period for the service
option s the Borough chose was lower than Smentkowski ' s , its second and third
year prices were higher , resulting in Sterling's aggregate bid price exceeding

Smentkowski's. 2 Sterling's theory is that because the Borough awarded a one

2 The parties' bids on the options selected by the Borough were as follows:

Smentkowski Sterling Option Three Year One $653,622 $605,700
Option Three Year Two $653,622 $658,200
Option Three Year Three $669,564 $703,200
Option Three

- Total $1,976,808 $1,967,100

Attachment Five Year One $18,289 $42,000

Attachment Five Year One $18,289 $43,500

Attachment Five Year One $18,289 $45,000

Attachment Five

- Total $54,867 $130,500

Grand Total $2,031,675 $2 ,097,6005 A

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year contract to Sterling, with only options to award the second and third y ear
periods, the contract should have been awarded to Sterling because its first year
bid price was lower.
Besides being a thinly

- veiled challenge to the specifications prohibited by
Saturn Construction Company , Inc. v. B oar d of Chosen Freeholders , 181 N. J.
Super. 403, 40 7

- 0 8 (App. Div. 1981)
, Sterling's theory ignores that
Smentkowski is firmly bound to hold its second and third year bid prices in
accordance with the specifications. That the Borough left itself free not to
exercise those options does not change that Sterling and Smentkowski submitted

bids for a three

- year contract as required by the specifications
, and the Borough

chose to award the contract to the bidder whose aggregate bid price for a three

year contract constituted the lowest responsib le bid, Smentkowski

. See
Meadowbrook Carting Co. , Inc. v. Borough of Island Heights , 138 N.J. 307, 313

(1994) (explaining that a contract must be awarded to the lowest bidder that
complies with the requirements of the bid specifications )

. Sterling argu es the Borough could manipulate the bid process by awarding

the contract based on the three

- year aggregate price and then not exercise the
second or third year options

. We acknowledge that this is so. A contracting
entity could likewise manipulate the proc ess by awarding a three

- year contract6 A

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and cancelling for convenience after the first year. I n neither instance are the
public bidding laws offended because in each case the bidders competed on a
level playing field. 3 No one contests that a contracting en tity can favor a bidder
through its choice of bid alternatives. As Judge Pressler explained in Seacoast
Builders Corp oration v. Jackson T ownship B oard of Educ ation , 363 N.J. Super.
373, 380 (App. Div. 2003)
, however, " whatever manipulation may be possible
is inherent in the nature of specifying alternates in the first place, a practice
which is nevertheless accepted as a customary aspect of bidding. " As in

Seacoast Builders
, it does not appear to us that the spectre of the type of potential
manipulation S terling envisions by the inclusion of bid alternative s " outweigh [ s ]
what we perceive to be the other objectives of public bidding. " Ibid.
Sterling's other argument, that it intended the Borough to understand that

the price it bid for the "separate amo unt for the additional work described in

Attachment 5
, " which the Borough required by bid modification notice, was

a lready subsumed within its aggre gate bid price is frivolous.

3 This is not to say that a government entity would not otherwise have to answer for such conduct if motivated by favoritism or corruption.7 A

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Miller's challenge to the specifications based on the same arguments
Sterling raise s, and we reject here
, was also correctly dismissed by the trial court
judge

.
Affirmed.