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Waszen v. City of Atlantic City

Decided: August 30, 1948.

STEVE WASZEN AND STEVE WASZEN, JR., CO-PARTNERS, TRADING AS STEVE WASZEN & SON, AND ALEX FISCHER, PROSECUTORS,
v.
CITY OF ATLANTIC CITY AND LAWRENCE B. HAINES, RESPONDENTS



On certiorari.

For the prosecutors, Isaac C. Ginsburg.

For the City of Atlantic City, Leon Leonard (Chaim H. Sandler, of counsel).

For the respondent Haines, Stephen A. Damico.

Before Justices Donges, Colie and Eastwood.

Colie

The opinion of the court was delivered by

COLIE, J. This writ of certiorari was allowed to review a resolution of the Board of Commissioners of Atlantic City awarding to Lawrence B. Haines the garbage disposal contract in Atlantic City for a period of three years. The prosecutors are Steve Waszen and Steve Waszen, Jr., unsuccessful bidders for the contract which was awarded to respondent Haines, and Alex Fischer said to be a taxpayer in Atlantic City.

The municipality in accordance with the requirement of R.S. 40:50-1 advertised for bids on a one year contract for the collection and disposal of garbage with the city. Three bids were received, one from Waszen for $10,400, another from Haines for $15,990, and a third from Riddle for $19,600. All three bids were rejected. Thereafter the city advertised for a three year contract. Specifications were adopted "for the doing of the work in a sanitary and inoffensive manner." R.S. 40:66-4. For the three year contract Waszen tendered a bid of $31,200 and Haines a bid of $45,600. The commission then held a hearing at which witnesses on behalf of both bidders and the city were examined and subsequently the resolution awarding the contract to Haines as the lowest responsible bidder was passed. The prosecutors attacked the award to Haines on the ground that the specifications were illegal; that Haines was unlawfully preferred and, finally, that he did not comply with the specifications. One of the reasons filed in this certiorari proceeding was that prosecutor Waszen was the lowest responsible bidder. This point is not briefed and therefore is considered to be abandoned.

The main attack centers about the illegality of the specifications. In drawing specifications to conform with the statutory requirement of a "sanitary and inoffensive manner" the municipality is to be guided by the standard of reasonableness. What is a reasonable specification will depend upon the particular local situation. Atlantic City has some reputation as a health resort and in the past it has had trouble in devising a satisfactory system of garbage collection. It has apparently worked out to its satisfaction the present "farmer-collector" system. That this decision has not been arrived at without considerable thought is evidenced by the fact that Atlantic City and its garbage disposal problems have been the subject of litigation in the courts of New Jersey as far back as 1905, Townsend v. Atlantic City, &c., Co., 72 N.J.L. 474, and as recently as Sandfort v. Atlantic City, 134 Id. 311. The latter case, decided in 1946, gives a graphic description of the unwholesome conditions that prevailed when the garbage collection system broke down. The court in that opinion described it as follows: "In many parts of the city the garbage was uncollected, householders burned it in shallow plots of ground, some took it to the dump; it was dumped in the thoroughfares and basins around the town. The city was overrun with maggots, vermin and rats, due to the non-collection of garbage. Large sums were expended in an effort to exterminate the rats. The office of the Board of Health received 4,698 complaints respecting the manner in which the garbage was left to ferment upon the sidewalks." With this prior history in the minds of the commissioners, the specifications prepared for the three year contract were more stringent than theretofore.

The courts have established certain requirements as to specifications. They must be as definite, precise and full as practicable in view of the character of the work, the quality and quantity and the materials to be furnished. Furthermore, specifications must furnish the same information so that prospective bids may be made intelligently. Schwitzer v. Board of Education, 79 N.J.L. 342; Phifer v. Bayonne, 105 Id. 524. A slight irregularity in specifications for proposed public work will not, of necessity, void the award of

the contract. The alleged irregularity must be of a substantial nature such as will operate to affect fair and competitive bidding. Phifer v. Bayonne, supra. In testing the legality of a specification, the court will not, in the absence of a showing of bad faith, substitute its judgment on such an administrative matter concerning the internal affairs of the municipality for the reason that the decision as to what specification shall be drawn rests within ...


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