On appeal from Superior Court, Law Division, Essex County.
Long, Muir and Keefe. The opinion of the court was delivered by Keefe, J.A.D.
The ultimate issue to be decided on this appeal is whether a Process Residue Option contract between Essex County and Eastern Waste, Inc. is exempt from the provisions of the Local Public Contracts Law by reason of recent amendments to the Solid Waste Management Act. We conclude that it is exempt.
On October 7, 1987, Essex County (Essex) and Eastern Waste, Inc. (Eastern) entered into a Process Residue Option Agreement (Agreement) providing for the future disposal of residual ash and non-processable waste from the proposed Essex County Resource Recovery Facility. (Facility) The Facility is being developed pursuant to a joint venture of Essex, The Port Authority of New York and New Jersey (PA) and American
Ref-Fuel (American). The Agreement with Eastern was not awarded on the basis of formal public bidding, but, rather, pursuant to the provisions of the Solid Waste Management Act. (Act) N.J.S.A. 13:1E-1 et seq. The Act is the State's comprehensive legislation regulating and controlling collection and disposal of solid waste in New Jersey. Major amendments were made to the Act in 1985 (L.1985, c. 38, N.J.S.A. 13:1E-136 et seq.) The amended provisions permit governmental bodies, among other things, to enter into contracts "for the design, financing, construction, operations or maintenance, or any combination thereof, of a resource recovery facility, or for the provision of resource recovery services" without the requirement for public bidding under the Local Public Contracts Law, N.J.S.A. 40A:11-1 et seq. The procedures for entering into a resource recovery contract under the Act include issuance by the public body of a Request For Qualifications (RFQ) of interested vendors, N.J.S.A. 13:1E-154, issuance of a Request For Proposals (RFP) from qualified vendors, N.J.S.A. 13:1E-156, designation of most qualified vendors, N.J.S.A. 13-1E-157, and negotiation of a resource recovery contract, N.J.S.A. 13:1E-157. After a resource recovery contract is negotiated by a public body under the Act it is submitted to the State for hearing, review and approval by the Board of Public Utilities, Department of Environmental Protection and the Division of Local Government Services of the Department of Community Affairs, N.J.S.A. 13:1E-158-163.
In August, 1986, pursuant to the Act, Essex issued its RFQ for vendors interested in providing services for the removal and disposal of the residual incinerator ash and bypass waste to be generated at the Facility and for the reservation of landfill capacity for the resource recovery waste. The notice of the RFQ, published on August 8, September 22 and September 24, 1986, included the following provisions:
Some or all of the companies which demonstrate their qualifications by responding to this request for qualifications (RFQ) may be invited to submit further
information possibly in response to a request for proposals (RFP) leading to a cost proposal and a negotiated agreement. . . .
County may elect to utilize the procurement option allowed under Chapter 38 of the Laws of New Jersey of 1985, the so-called "McEnroe Process", in which proposed contracts relating to resource recovery are submitted to State agencies for review and approval.
In November, 1986, Essex issued an RFP for the resource recovery ash and bypass waste contract which included the following provisions:
State Regulations -- The County's current understanding is that the proposed contract under this procurement and the negotiated rates for hauling and disposal thereunder, are subject to a one-time review and approval by the Board of Public Utilities (BPU) and by the Department of Environmental Protection and the Department ...