NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2030-24
APPLIED LANDSCAPE TECHNOLOGIES,
Plaintiff-Appellant,
v.
COUNTY OF MIDDLESEX and TOMCO CONSTRUCTION,
Defendants-Respondents. ____________________________
Argued May 5, 2025 – Decided May 9, 2025
Before Judges Sumners and Perez Friscia.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7337-24.
John J. Lavin argued the cause for appellant (Lavin & Associates, PC, attorneys; John J. Lavin and Daniella Fischetti, on the brief).
Michael S. Williams, Deputy County Counsel, argued the cause for respondent County of Middlesex (Thomas F. Kelso, County Counsel, attorney; Michael S. Williams, on the brief). Mitchell W. Taraschi argued the cause for respondent Tomco Construction (Connell Foley, LLP, attorneys; Mark L. Fleder, of counsel; Mitchell W. Taraschi, of counsel and on the brief).
PER CURIAM
In this public bidding dispute, plaintiff Applied Landscape Technologies,
Inc. (ALT), appeals from the Law Division order denying its request to void
defendant County of Middlesex's contract award to codefendant Tomco
Construction and dismissing ALT's complaint with prejudice. We affirm.
I.
The essential facts are undisputed and readily summarized. ALT and
Tomco are general contractors that are familiar with submitting public bid
proposals. In October 2024, the County solicited bids for the Athletic Fields in
Thomas Edison Park, County Project #EDI8017 (park project). The County's
solicitation provided December 5 was the deadline to submit bids. The bid
solicitation section 103.01 provided that the park project would be awarded to
the "lowest responsible [b]idder" conforming to the requirements "in the
contract documents and bid documents submission check list."
The solicitation instructions included that bidders were required under
N.J.S.A. 40A:11-16 of the Local Public Contracts Law ("LPCL"), N.J.S.A.
40A:11-1 to -60, to provide all license numbers and "names of all subcontractors
A-2030-24 2 to whom the bidder will subcontract and furnish services, materials[,] and
kindred work," including for "electrical work." The County made clear that a
contractor's bid would be rejected for failing to submit the required
subcontractor information. Additionally, the bid solicitation instructions stated,
"If [b]idder is doing any of the above listed in-house, submit company name,
license number (if applicable)[,] and evidence of business permit/certificate of
authorization as may be necessary."
On December 5, 2024, after receiving five bids, the County determined
Tomco's proposed bid of $77,985,000 was the lowest bid, and ALT's proposed
bid of $78,147,543 was the second lowest. Tomco's bid included the
subcontractors form, dated December 5 and listed Quality Electrical
Construction (Quality) as its electrical work subcontractor.
On December 18, ALT filed a bid protest with the County arguing
Tomco's park project contract award was void because Tomco's defective bid
made it a non-responsive bidder and ALT should be awarded the park project
contract as "the next lowest responsive and responsible bidder." On December
19, the County Board of Commissioners awarded its park project contract to
Tomco as the lowest responsible bidder.
A-2030-24 3 On December 26, ALT filed an order to show cause and verified complaint
seeking to void the County's park project contract award to Tomco. ALT alleged
the County's park project award was void because Tomco's bid was materially
defective and non-responsive to the bid specifications based on Tomco's failure
to: include its New Jersey Landscape Irrigation License; 1 and list all electrical
work subcontractors for the park project in violation of N.J.S.A. 40A:11-16.
Additionally, ALT requested discovery, alleging "[t]he communications and
negotiations between Quality and Tomco [we]re critical" because "they could
prove that Tomco improperly identified Quality as its electrical subcontractor ."
On January 7, 2025, the Honorable Benjamin S. Bucca, Jr., with the
consent of the parties, issued the order to show cause with temporary restraints,
enjoining the County from entering the park project contract with Tomco and
setting a January 28 hearing date to address ALT's requested permanent
restraints. Thereafter, the parties conducted limited discovery, which included
the deposition of Quality's representative, John Faccas.
Faccas testified Quality provided Tomco a gross bid number of
$11,850,753 for the electrical work. Quality's bid specifically excluded the
1 ALT does not appeal the trial judge's order dismissing its claim that Tomco's bid had an irrigation license defect. A-2030-24 4 "excavation" and "underground conduits and [junction] boxes" work. Faccas
described the park project conduits as "tak[ing] the infrastructure underground
to all the facilities electrically." Further, he explained in the "past history with
them, [Tomco] performed that work with their own forces." He maintained
Quality remained ready to complete the electrical work under the bid.
ALT's expert Frederick Porcello, a licensed professional engineer and
planner, authored an expert report dated January 23. Porcello opined Tomco's
bid proposal did not include the "entire electrical scope of work for the [park
p]roject[,] as it expressly identified four exclusions" for the "installation of
underground conduits and junction boxes." He further opined the "installation
of conduit and electrical junction boxes . . . must be carried out by a licensed
electrician," citing the New Jersey Uniform Construction Code (UCC), N.J.S.A.
52:27D-119 to -141, which incorporates the National Electric Code (NEC).2
ALT's expert relied on NEC provisions regarding the installation of conduits
and junction boxes.
2 The NEC "is the standard accepted safety code in the electrical industry throughout the United States and indeed forms the basis for those municipal electrical codes existing in New Jersey." Indep. Electricians & Elec. Contractors' Ass'n v. N.J. Bd. of Exam'rs of Elec. Contractors, 54 N.J. 466, 483 (1969); see also Brown v. Jersey Cent. Power & Light Co., 163 N.J. Super. 179, 196 n.3 (App. Div. 1978) (stating the NEC is "the controlling electrical construction code in New Jersey"). A-2030-24 5 After argument on January 28, Judge Bucca ordered a limited testimonial
hearing to address whether Tomco had listed Quality knowing "it was not going
to perform all the [electrical] work that . . . the County was led to believe by the
bid" and whether Tomco's self-performance of conduit and junction box work
falls under the category of "electrical work that must be performed under the
license of . . . [an] electrician." ALT relied on Tomco's text messages with
Quality and its expert report in arguing factual issues existed regarding whether
"Quality . . . would perform all the work" that a licensed electrician was required
to perform. Mindful of the time constraints the County faced, because the park
project relies on grant funding and requires closure to the public, the judge
appropriately ordered an expedited hearing date.
On February 24, Thomas Schoonmaker, Jr., Vice President of Tomco,
provided a supplemental certification stating that the "[i]nstallation of
underground and empty conduits and junction boxes does not need to be
installed by a licensed electrician and []is work . . . routinely performed by non-
licensed contractors and laborers in New Jersey." He represented Tomco would
install the "empty electrical conduit and junction boxes," and Quality's electrical
work included "supervising and inspecting Tomco's . . . work to ensure" it met
"Code requirements" and would "pass inspection."
A-2030-24 6 During the March 5 hearing, ALT argued Tomco could not self-perform
electrical work on the project, as Tomco failed to include in its bid that it was
performing "in-house" work and was unlicensed. ALT alternatively argued that
even if Tomco was licensed and able to self-perform the electrical work, its bid
was still materially defective because Tomco failed to identify itself in the bid
as a licensed electrician.
Schoonmaker testified that Tomco would install the park project's
underground conduits and junction boxes, and Quality would perform the
electrical work. He described that Tomco installs conduits, which are pipes
made from steel, plastic Polyvinyl Chloride (PVC), or other material that wires
are placed inside of, and electrical inspectors examine the installation. On this
project, he maintained Quality's bid included supervising and inspecting
Tomco's installation work. He averred Tomco commonly used this arrangement
with Quality and other electrical subcontractors for its different projects.
Schoonmaker asserted Tomco was not required to list itself as an electrical
subcontractor because it would "not [be] performing any electrical work."
Porcello testified that the installation of conduits, circuits, and junction
boxes is electrical work, which a licensed electrician is required to perform, as
it falls under the auspices of the Board of Examiners for electrical contractors.
A-2030-24 7 Regarding the purpose of a conduit, he explained it protects wiring. He opined
that the installation of conduits, circuits, and junction boxes was electrical work
because there are "safety features that are inherent in this type of work that
require[] a knowledgeable individual . . . do[] the work." Porcello clarified that
installers did not have to be licensed so long as they are supervised employees
of the licensed electrician permit holder. He opined that the installation of
conduits is part of an electrical branch circuit, and "electrical contracting work
includes the installation, erection, repair, [and] alteration of electrical
equipment, which . . . provid[e] electrical energy from the overcurrent
protection to the receptacle switch or other device."
In his view, the installation of a conduit requires electrical expertise
because specialized skill is needed "to make sure it is properly supported, that
the joints are properly glued, [and] that the bedding material is the correct
bedding material." Acknowledging that the foundation for his opinion was that
conduit installation requires an electrical permit, Porcello conceded that an
unsupervised laborer could install conduits if installation was not considered
electrical work requiring a permit. He also admitted that the Electrical
Contractor's Licensing Act (Act), N.J.S.A. 45:5A-1 to -55, "defines what
electrical work is required to be performed by a licensed electrical contractor"
A-2030-24 8 and acknowledged that the Act does not specifically include that conduit work
is considered an item under electrical work.
Following the testimonial hearing, Judge Bucca found Tomco's bid was
not materially defective after determining that a licensed electrician is not
required to perform conduit installation because it is not considered electrical
work. The judge noted that it was undisputed Tomco listed Quality as the
electrical subcontractor bound to complete the park project's electrical work and
that Quality's "pre-bid price quote obtained by Tomco . . . specifically excluded
the conduit work." In finding conduit work did not constitute electrical work,
the judge ruled that the Act controls "who can perform the [electrical] work"
and that the UCC and NEC are irrelevant because they "control the manner in
which electrical work is to be performed." He determined legal precedent is
clear that "[c]onduit work in and of itself is not electrical work" because "[t]his
work can be performed by a laborer" without any "require[d] . . . special skill,
experience or training." The judge denied ALT's application for permanent
restraints and dismissed its complaint.
On appeal, ALT contends the judge erred in: finding that the installation
of conduit and junction boxes is not electrical work under the LPCL; failing to
find Tomco's bid is materially defective because installing conduit and junction
A-2030-24 9 boxes for branch circuits requires an electrical permit and Tomco is not licensed
to do electrical work; and dismissing its complaint because Tomco's bid is non-
responsive based on failing to list itself as an electrical contractor.
II.
"We use a deferential standard of review for governmental decisions in
bidding cases." Anselmi & DeCicco, Inc. v. J. Fletcher Creamer & Son, Inc.,
480 N.J. Super. 454, 462 (App. Div. 2025) (quoting Ernest Bock & Sons-Dobco
Pennsauken Joint Venture v. Township of Pennsauken, 477 N.J. Super. 254, 263
(App. Div. 2023)). "[T]he standard of review on the matter of whether a bid on
a local public contract conforms to specifications (which is a component of the
ultimate issue of who is the lowest responsible bidder) is whether the decision
was arbitrary, unreasonable[,] or capricious." Waste Mgmt. of N.J., Inc. v.
Union Cnty. Utils. Auth., 399 N.J. Super. 508, 525 (App. Div. 2008) (quoting
In re Protest of Award of On-Line Games Prod. & Operation Servs. Cont., Bid
No. 95-X-20175, 279 N.J. Super. 566, 590 (App. Div. 1995)). "If a public
entity's decision is grounded rationally in the record and does not violate the
applicable law, it must be upheld." Anselmi & DeCicco, Inc., 480 N.J. Super.
at 462 (quoting Ernest Bock & Sons-Dobco Pennsauken Joint Venture, 477 N.J.
Super. at 263). "[W]e review issues of statutory interpretation de novo." Ibid.
A-2030-24 10 "When interpreting a statute, [the] aim [is] to effectuate the Legislature's
intent, which is best indicated by the statutory text." Id. at 463 (alterations in
original) (quoting Keyworth v. CareOne at Madison Ave., 258 N.J. 359, 379
(2024)). "If the text's plain meaning is clear and unambiguous, we apply the law
as written." Id. at 464 (quoting Keyworth, 258 N.J. at 380). "Statutory
interpretation in public bidding disputes can be 'a matter of great public
interest.'" In re Protest of Cont. Award for Project A1150-08, N.J. Exec. State
House Comprehensive Renovation and Restoration, 466 N.J. Super. 244, 264
(App. Div. 2021) (quoting Advance Elec. Co. v. Montgomery Twp. Bd. of
Educ., 351 N.J. Super. 160, 167 (App. Div. 2002)).
The objectives of the public bidding statutes are "to promote the honesty
and integrity of those bidding and of the system itself," Keyes Martin & Co. v.
Dir., Div. of Purchase & Prop., 99 N.J. 244, 256 (1985), "to guard against
favoritism, improvidence, extravagance and corruption," and "to secure for the
public the benefits of unfettered competition." Ibid. (quoting Terminal Constr.
Corp. v. Atl. Cnty. Sewerage Auth., 67 N.J. 403, 410 (1975)). "The purpose of
such statutes is 'to secure the benefits of competition for the public, and they are
to be strictly construed to achieve this end.'" Clyde N. Lattimer & Son Const.
A-2030-24 11 Co. v. Twp. of Monroe Utils. Auth., 370 N.J. Super. 130, 137 (App. Div. 2004)
(quoting Stano v. Soldo Const. Co., 187 N.J. Super. 524, 535 (App. Div. 1983)).
We are also guided by well-established principles governing public
bidding disputes. A public contract shall be awarded to "the lowest responsible
bidder," N.J.S.A. 40A:11-4(a), where "'[l]owest responsible bidder'. . . means
the bidder or vendor: (a) whose response to a request for bids offers the lowest
price and is responsive; and (b) who is responsible." N.J.S.A. 40A:11-2(27).
"'Responsive' means conforming in all material respects to the terms and
conditions, specifications, legal requirements, and other provisions of the
request." N.J.S.A. 40A:11-2(33). "[A] public contract award is not determined
simply by the lowest bid, but rather by the lowest bid that 'complies with the
substantive and procedural requirements in the bid advertisements and
specifications.'" Muirfield Constr. Co. v. Essex Cnty. Improvement Auth., 336
N.J. Super. 126, 132 (App. Div. 2000) (quoting Gaglioti Contracting, Inc. v.
City of Hoboken, 307 N.J. Super. 421, 431 (App. Div. 1997)) (internal quotation
marks omitted). "[A]ll bids must comply with the terms imposed, and any
material departure invalidates a nonconforming bid as well as any contract based
upon it." CFG Health Sys., LLC v. County of Hudson, 413 N.J. Super. 306, 315
A-2030-24 12 (App. Div. 2010) (quoting Meadowbrook Carting v. Borough of Island Heights,
138 N.J. 307, 314 (1994)).
N.J.S.A. 40A:11-23.2 provides that "[w]hen required by the bid plans and
specifications," certain "requirements shall be considered mandatory items to be
submitted at the time specified . . . for the receipt of the bids." One of the five
enumerated requirements is "[a] listing of subcontractors pursuant to . . .
[N.J.S.A. 40A:11-16]." N.J.S.A. 40A:11-23.2(d). "[T]he failure to submit any
one of the mandatory items shall be deemed a fatal defect that shall render the
bid proposal unresponsive and that cannot be cured by the governing body ."
N.J.S.A. 40A:11-23.2. The question of materiality arises only after a
determination is made that a bid deviates from the bid specifications. See
Weidner v. Tully Env't, Inc., 372 N.J. Super. 315, 323 (App. Div. 2004). "[A]
public entity may not waive any material departure from bid specifications or
requirements of law, and is bound to reject a non-conforming bid with such
defects." Ernest Bock & Sons-Dobco Pennsauken Joint Venture, 477 N.J. Super.
at 256 (quoting Serenity Contracting Grp., Inc. v. Borough of Fort Lee, 306 N.J.
Super. 151, 156 (App. Div. 1997)).
A-2030-24 13 "N.J.S.A. 40A:11-16 [is] commonly referred to as the [a]nti-[b]id
[s]hopping [l]aw." Clyde N. Lattimer & Son Constr. Co., 370 N.J. Super. at
133. It provides in relevant part:
(1) In the preparation of plans and specifications for the construction, alteration or repair of any public building by any contracting unit, . . . the architect, engineer or other person preparing the plans and specifications may prepare separate plans and specifications for branches of work in the following categories:
....
(3) Electrical work, including any electrical power plants, tele-data, fire alarm, or security system.
[N.J.S.A. 40A:11-16(a).]
A bidder's failure to submit "a subcontractors list, in violation of N.J.S.A.
40A:11-16, is a material and non-waivable irregularity." Gaglioti Contracting,
Inc., 307 N.J. Super. at 434.
"An electrical contractor is defined as 'a person who engages in the
business of contracting to install, erect, repair or alter electrical equipment for
the generation, transmission or utilization of electrical energy.'" In re Final
Agency Decision as to Conduit Installation by J. Fletcher Creamer & Son, 356
N.J. Super. 42, 50 (App. Div. 2002) (quoting N.J.S.A. 45:5A-2(d)). N.J.S.A.
45:5A-18 enumerates the electrical work exempt from established permit and
A-2030-24 14 licensure requirements in N.J.S.A. 45:5A-9(a). Ibid. N.J.S.A. 45:5A-18(j)
provides in pertinent part that "[a]ny work with a potential of less than 10 volts"
"shall not be included within the business of electrical contracting so as to
require the securing of a business permit."
III.
Guided by these principles, we address the heart of ALT's contention that
Tomco's bid is defective because Tomco intends to self-perform conduit and
junction box installation work, which a licensed electrician is required to
perform. ALT argues the LPCL controls and provides a broader definition of
the scope of electrical work a licensed electrician must perform, including
conduit and junction box installation. We are not persuaded.
Judge Bucca correctly found Tomco's installation of conduits and junction
boxes does not constitute work a licensed electrician is required to perform. In
Creamer, we found persuasive the contention that:
[W]ork relating to the installation of conduit or pipe to carry wire, even that designed to carry electrical wire, is . . . work of a nature that in itself does not require the skills of workers or supervisors with experience or training in the handling of electrical power, electrical wire, its grounding or its connections.
[356 N.J. Super. at 54.]
A-2030-24 15 We concluded a licensed electrician is not required to install conduit piping
because no technical knowledge is needed. See id. at 52. ALT argues the
specific type of work that the conduits or pipes are installed for mandates a
different legal analysis and result. ALT highlights that Creamer involved
conduits for fiber optic cables, and the present facts involve conduits for
electrical wiring. This argument is unavailing because what the conduits will
later hold does not create a legal distinction. Relevantly, ALT provides no
supporting authority for its position.
Further, contrary to ALT's contention, the LPCL anti-bid shopping
provision, N.J.S.A. 40A:11-16(a)(3) states, "Electrical work, including any
electrical power plants, tele-data, fire alarm, or security system" but does not
specifically delineate that the installation of conduits and junction boxes is
electrical work. We also reject ALT's argument that the NEC governs and
dictates that conduit and junction box work is electrical work that a licensed
electrician must perform. The NEC "is an industry wide standard-setting
technical code. It does not purport to, nor can it, usurp the right of the states to
determine what licenses or permits authorize particular kinds of work."
Creamer, 356 N.J. Super. at 52. Thus, the NEC delineates the manner in which
A-2030-24 16 the electrical work is performed and does not dictate what constitutes electrical
work requiring licensure.
We commend Judge Bucca's decision to hold an expeditious testimonial
hearing, which permitted expansion of the record. We conclude the record
amply supports the judge's sound determination that Tomco was a responsive
bidder complying with providing the mandatory bid specifications, N.J.S.A.
40A:11-23.2(d), and the anti-bid shopping provision, N.J.S.A. 40A:11-16(a)(3),
by naming Quality as its electrical subcontractor. It is undisputed that Tomco
was not required to get a proposal from Quality as the licensed subcontractor.
Further, Faccas' deposition testimony demonstrates his electrical work proposal
to Tomco included all the electrical work, his "pricing [was] for the entire
project," including supervision and inspection of Tomco's work, and Quality
was ready and able to perform the park project's electrical work for Tomco.
Faccas established that Quality's bid proposal was for all the electrical work
excluding the park project "conduits that take the infrastructure underground to
all the facilities electrically, and excavation and installation of th ose conduits
and junction boxes." As Tomco's bid only listed Quality as the licensed
subcontractor for the park project's electrical work, it is undisputed that only
Quality can perform the electrical work required.
A-2030-24 17 If we were to accept ALT's argument that the work included in the
electrical sections of the plans and technical specifications of the bid dictates
whether work is electrical work, then all bidders would be required to list anyone
performing services that support an electrical subcontractor's work. Such a
requirement is not statutorily mandated and would be impracticable. Public
bidding statutes "are for the benefit of the taxpayers and are construed as nearly
as possible with sole reference to the public good." Keyes Martin & Co., 99
N.J. at 256 (quoting Terminal Constr. Corp., 67 N.J. at 409-10).
In sum, the record amply supports the judge's finding that ALT failed to
meet its burden of proving that the installation of conduits and junction boxes is
electrical work that a licensed electrician is required to perform. Specifically,
ALT failed to establish a distinction should not be found between the installation
of supporting components for electrical work that a laborer can perform and the
electrical work a licensed electrician is required to perform. The judge correctly
found the conduit work "can be performed by a laborer because it does not
require any special skill" and "Tomco does not need to be supervised [in
performing the conduit work] by a licensed electrician." As we concur that there
was no defect in Tomco's bid, the County's acceptance of Tomco's bid was not
arbitrary, capricious, or unreasonable.
A-2030-24 18 To the extent that we have not addressed plaintiff's remaining contentions,
it is because they lack sufficient merit to be discussed in a written opinion. R.
2:11-3(e)(1)(E).
Affirmed.
A-2030-24 19