Bidder for a Public Contract Need Not Provide Home Addresses of Persons Owning More Than 10% of the Bidding Company

Asphalt Paving Systems, Inc. v. The Borough of Stone Harbor, 474 N.J. Super. 56 (App. Div. 2022). This opinion by Judge Fisher today consumed only six pages. The issue was a relatively simple one: whether the requirement of N.J.S.A. 52:25-24.2 that a business entity that bids on a public contract submit “a statement setting forth the names and addresses” of the individuals owning more than ten percent of the entity means that home addresses of those persons must be supplied.

Affirming the Law Division, the Appellate Division held that home addresses are not required. Instead, business or mailing addresses suffice. The successful bidder had provided mailing addresses. Thus, the challenge by plaintiff, the second-lowest bidder, which argued that home addresses were required, failed.

In fact, Stone Harbor’s bid specifications called for “home addresses.” But “in applying the test first described by Judge Pressler in River Vale v. R.J. Constr. Co., 127 N.J. Super. 207, 216 (Law Div. 1974), and later adopted in Meadowbrook Carting Co. v. Bor. of Island Heights, 138 N.J. 307, 315 (1994), the [Law Division] judge recognized that Stone Harbor’s home-address requirement was waivable because waiver would not ‘deprive the municipality of its assurance that the contract will be entered into, performed and guaranteed according to its specified requirements’ and would not give the bidder ‘a position of advantage over other bidders or . . . undermin[e] the necessary common standard of competition.’ 127 N.J. Super. at 216.”

Citing R. 2:11-3(e)(1)(E), the Appellate Division affirmed that ruling, finding it without sufficient merit to warrant discussion. Judge Fisher also rejected plaintiff’s argument that although N.J.S.A. 52:25-24.2 called only for “addresses,” the Legislature intended that “home addresses” be provided. Looking at the plain language of the statute, and recognizing that a bidder may have multiple types of addresses, including a home address, business address, mailing address, and e-mail address, “[t]here is no evidence in the enactment itself, and nothing about the statutory goals the Legislature was pursuing by enacting the statute, to suggest a desire to compel the production of only one of these types of addresses.”

As a result, the panel “conclude[d] that the Legislature intended that a bid would comply with N.J.S.A. 52:25-24.2, so long as the bidder provided the home, business or mailing address for each owner of ten or more percent. Had the Legislature meant to require the owners’ home addresses it would have said ‘home addresses’ rather than ‘addresses.’”

One last note. As a preliminary matter, the Appellate Division rebuffed Stone Harbor’s argument that the appeal should be dismissed as moot since that court denied plaintiff’s motion for a stay pending appeal and the winning bidder began work. “To be sure, there would be no relief we could award Asphalt Paving if it were correct about the merits, but we decline the invitation to dismiss the appeal because our declaration of the statute’s meaning is of public importance and yet the opportunity to opine on the matter is capable of evading review if we adhered to the usual notion of mootness. Seee.g.In re Commitment of C.M., 458 N.J. Super. 563, 568-69 (App. Div. 2019).”