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Muirfield Construction Co., Inc. v. Essex County Improvement Authority

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 20, 2000

In this public contract bidding dispute, plaintiff Muirfield Construction Co., Inc., a plumbing contractor, appeals from the denial of its protest of defendant Essex County Improvement Authority’s (ECIA) award of a contract for plumbing and fire protection work at the Support Building for the County Correctional Facility to defendant, Thomas H. Barham Co., Inc. (Barham). Barham submitted a bid including a notarized Disclosure of Ownership form and affidavit attesting that 100% of its stock was owned by PSEG Energy Technologies, Inc. (PSEG). The bid failed to comply with the requirement of N.J.S.A. 45:14C- 2(h) which mandates that a licensed master plumber hold at least a 10% interest in an entity performing plumbing work in this State “[i]n order to act as “a plumbing contractor.”(1) After the bids were opened, ECIA relied upon an uncertified representation from Barham and PSEG’s attorney in permitting Barham to “cure” this defect. Following an action by plaintiff in the Law Division, the trial judge concluded that while Barham’s bid defect was material and non-waivable, it was nevertheless curable. He thereafter dismissed the complaint. Plaintiff appeals, and we reverse, concluding that the defect was incurable and that Barham’s bid should have been rejected.

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