On appeal from the former Supreme Court, whose opinion is reported in 137 N.J.L. 535.
For reversal: Chief Justice Vanderbilt and Justices Case, Heher, Oliphant, Wachenfeld, Burling, and Ackerson. For affirmance: None. The opinion of the court was delivered by Oliphant, J.
This is an appeal from a judgment of the former Supreme Court dismissing a writ of certiorari allowed to review a resolution and the award of a contract, made pursuant to that resolution, for the removal and disposal of the garbage of the City of Atlantic City, New Jersey, by the Board of Commissioners of that municipality.
The prosecutor-appellants below attacked the specifications in several important particulars but the old Supreme Court generally held that the alleged irregularities in the specifications were not of such a substantial nature as would operate to affect fair and competitive bidding and that in such minor details of complicated specifications the court ordinarily would not interfere with the discretion of the governing body and cited the cases of Schwitzer v. Board of Education, 79 N.J.L. 342
(Sup. Ct. 1910) and Phifer v. Bayonne, 105 N.J.L. 524 (Sup. Ct. 1929). With this view we are not entirely in accord and a careful consideration of the entire record leads us to a contrary conclusion.
The prosecutor-appellants, the Waszens, were unsuccessful bidders though they had submitted the low bid for the garbage removal contract. The other prosecutor-appellant, Fischer, is alleged to be a citizen and taxpayer of Atlantic City and no question has been raised with respect to his qualification as a party to this suit.
Admittedly the Waszens did not conform with certain of the specifications and the Board found that they were not responsible bidders within the meaning of the statutory requirements. R.S. 40:50-1; 40:66-4.
Since they were the unsuccessful bidders they therefore have no standing to challenge the award of the contract to a rival bidder or to attack allegedly illegal specifications. McGovern v. Trenton, 60 N.J.L. 402 (Sup. Ct. 1897); International Motor Co. v. Mayor, etc., 96 Id. 364 (Sup. Ct. 1921); Farrell, Inc. v. Board of Education of Newark, 137 Id. 408 (Sup. Ct. 1948). The rationale of such a holding is that one cannot endeavor to take advantage of a contract to be awarded under illegal specifications and then, when unsuccessful, seek to have the contract set aside. But Fischer was a citizen and taxpayer and as such he may attack the award and also raise the question of the illegality of the specifications. Schwitzer v. Board of Education, supra; McGovern v. Trenton, supra; West Essex B. & L. Asso. v. Caldwell, 112 N.J.L. 466 at 468 (Sup. Ct. 1934); Travis v. Highlands, 136 Id. 199, 201 (Sup. Ct. 1947).
Atlantic City admittedly has a serious garbage disposal problem since the amount of garbage is subject to sharp fluctuation due to peaks and lows of its floating population. For some time there has been operated there what is tritely referred to as the farmer-collector system, whereunder the holder of the contract makes arrangements with a number of pig raising farmers to collect the garbage and to whose farms it is brought and disposed of. The contract holder distributes
the collection routes to certain of these farmers, supervises the collection and disposition of the garbage and deals with all complaints with respect thereto. On his part he is required to have certain resources, equipment and personnel to take up any slack in the collection and disposal of the garbage. While it is true the city has had a bad experience with its garbage problem, nevertheless difficult situations of and by themselves do not always form the legal basis for an exception to controlling legal principles.
The city originally advertised for bids to be received for garbage collection disposal on a one year basis. Both the Waszens and Lawrence B. Haines, to whom the challenged contract has been awarded, submitted bids for the contract, that of the Waszens being the low bid. A hearing was held to determine the lowest responsible bidder and all bids were rejected. No reason was assigned by the city for this action but the record indicates that all parties agreed that a contract on a three year basis would be more advantageous to all concerned, including the city. It is important to note, in view of what will now be said, that a full hearing was held on the bids submitted under the original specifications.
When proposals were called for and advertised a short time later on a three year basis it appeared for the first time that several changes had been made in the specifications. (1) The number of trucks required to be owned outright by the bidding contractor were increased from six to twelve; (2) the bidder was required to be a freeholder in Atlantic County; (3) the farmer-collectors were required to have had experience in the collection of garbage in Atlantic City within the last five years; (4) the bidder was required to show a satisfactory past performance of a garbage contract, preferably a municipal contract; (5) the bidder was required to produce proof of the proper licensing of the trucks owned by him under the law of this state and evidence that these trucks were ...