SYLLABUS
(This syllabus is not part of the opinion of the Court. It has
been prepared by the Office of the Clerk for the convenience of the
reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not
have been summarized).
(NOTE: This Court wrote no full opinion in this case. Rather, the Court’s affirmance of the judgment of the Appellate Division is based substantially on the reasons expressed in Judge Havey’s opinion below.)
Argued October 7, 2002 -- Decided January 6, 2003
PER CURIAM
This is a public bidding case. On August 1, 2000, the Borough of
Keyport (Keyport or Borough) solicited bids for the construction of a new municipal
building complex. The bid advertisement provided that bidders had to comply with the
requirements of The Public Works Contractor Registration Act (PWCRA), which became effective April
2000. The PWCRA, specifically §56.51, provides that “no contractor shall bid on or
engage in any contract for public work … unless the contractor is registered pursuant
to this act.” The definition of contractor includes any subcontractor or lower tier
subcontractor of a contractor.
Seventeen bids were received, ranging from a bid price of $3,010,000 to $3,898,000.
The following parties to this appeal submitted the following bids: A & K
Excavating LLC (A&K) - $3,010,000; Maharaj Construction Inc. (Maharaj) - $3,082,000; and R.C.G.
Construction Co., Inc. (RCG) - $3,127,000. RCG filed written objections with Keyport, alleging
that it submitted the only fully compliant bid because, although A&K was registered
under the PWCRA at the time it submitted its bid proposal, its steel
subcontractor, Zagata, was not. RCG also claimed that A&K’s failure to include its
bid price in its corporate resolution was a material defect, and that Maharaj’s
bid was invalid because necessary information was not contained in its corporate resolution.
On December 19, 2000, Keyport awarded the contract to A&K. In its resolution,
the Borough stated that: 1) the registration of subcontractors was not expressly required
by the bid specifications and that, in fact, Zagata’s registration certificate had been
furnished by the Borough prior to its award of the contract to A&K;
and 2) A&K’s failure to include its bid price in its corporate resolution
was a waivable, nonmaterial defect.
The trial court vacated the award of the contract to A&K, interpreting §56.51
of the PWCRA as requiring the contractor and all subcontractors who will work
on the project to be registered before the contractor submits its bid proposal
to the public entity. The court concluded that §56.51 was clear and unambiguous
and that the definition of contractor includes subcontractor. Thus, as the subcontractor, Zagata,
was not registered under the PWCRA prior to A&K’s bid submission, the award
to A&K must be vacated.
On appeal, the Appellate Division reversed and remanded to the trial court for
an order reinstating the award of the Keyport contract to A&K. The Appellate
Division concluded that under § 56.51, a subcontractor is required to register before it
begins performing work on the project, not before the general contractor submits its
bid proposal. The court reasoned that the Legislature intended and the legislative scheme
demonstrates that “engage in” means “perform” work on the public work project. According
to the Appellate Division, the trial court’s interpretation of the phrase “engaged in”
would lead to practical difficulties in the enforcement of the PWCRA, especially since
contractors often do not know the identity of lower tier subcontractors at the
time they submit a bid proposal. The court noted its confidence that interpreting
§56.51 as requiring subcontractors to register before commencing performance on a public project
will not compromise the underlying goals of the Legislature. Finally, the Appellate Division
noted that safeguards are in place to assure that subcontractors have registered prior
to beginning work on a public project.
The Appellate Division also found that the omission of the bid price in
the corporate resolution was a waivable defect. Judge Coburn filed a concurring opinion
addressing whether an award of a contract to an unregistered contractor must be
vacated under the PWCRA.
HELD: Judgment of the Appellate Division is AFFIRMED for the reasons expressed in
Judge Havey’s opinion below. Under §56.51 of the Public Works Contractor Registration Act,
a subcontractor is required to register before it begins performing work on the
project, not before the general contractor submits its bid proposal.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG, VERNIERO, LaVECCHIA,
ZAZZALI and ALBIN join in this opinion.
SUPREME COURT OF NEW JERSEY
A-
100 September Term 2001
R.C.G. CONSTRUCTION COMPANY, INC., A New Jersey Corporation,
Plaintiff-Appellant,
v.
THE MAYOR AND COUNCIL OF THE BOROUGH OF KEYPORT; THE BOROUGH OF KEYPORT,
A Municipal Corporation and Corporate Body Politic and A & K EXCAVATING, L.L.C.,
A New Jersey Limited Liability Company;
Defendants-Respondents,
and
EMARA CONSTRUCTION CO., INC., A New Jersey Corporation and MAHARAJ CONSTRUCTION, INC., A
New Jersey Corporation,
Defendants.
Argued October 7, 2002 – Decided January 6, 2003
On certification to the Superior Court, Appellate Division, whose opinion is reported at
346 N.J. Super. 58 (2001).
Thomas Daniel McCloskey argued the cause for appellant (Greenbaum, Rowe, Smith, Ravin, Davis
& Himmel, attorneys).
Gordon N. Litwin argued the cause for respondents Mayor and Council of the
Borough of Keyport and the Borough of Keyport (Ansell Zaro Grimm & Aaron,
attorneys; Mr. Litwin and Andrew J. Provence, on the briefs).
Raymond Springberg argued the cause for respondent A & K Excavation, L.L.C.
Steven A. Berkowitz argued the cause for amici curiae, Plumbers & Pipefitters Local
Union 322 and Plumbers & Pipefitters Local Union 9.
PER CURIAM
The judgment is affirmed, substantially for the reasons expressed in Judge Havey’s opinion
of the Appellate Division, reported at
346 N.J. Super. 58 (2001).
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG, VERNIERO, LaVECCHIA, ZAZZALI and ALBIN join
in this opinion.
SUPREME COURT OF NEW JERSEY
NO. A-100 SEPTEMBER TERM 2001
ON CERTIFICATION TO Appellate Division, Superior Court
R.C.G. CONSTRUCTION COMPANY,
INC., A New Jersey
Corporation,
Plaintiff-Appellant,
v.
THE MAYOR AND COUNCIL OF THE
BOROUGH OF KEYPORT; THE
BOROUGH OF KEYPORT, A
Municipal Corporation and
Corporate Body Politic and A
& K EXCAVATING, L.L.C., A New
Jersey Limited Liability
Company;
Defendants-Respondents.
DECIDED January 6, 2003
Chief Justice Poritz PRESIDING
OPINION BY Per Curiam
CONCURRING OPINION BY
DISSENTING OPINION BY
CHECKLIST