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Waste Management of New Jersey, Inc. v. Morris County Municipal Utilities Authority

Superior Court of New Jersey, Appellate Division

December 16, 2013

WASTE MANAGEMENT OF NEW JERSEY, INC., Plaintiff-Appellant,
v.
MORRIS COUNTY MUNICIPAL UTILITIES AUTHORITY, and SOLID WASTE SERVICES, INC. d/b/a J.P. MASCARO & SONS, Defendants-Respondents COVANTA 4RECOVERY, L.P., Plaintiff-Appellant,
v.
MORRIS COUNTY MUNICIPAL UTILITIES AUTHORITY, SOLID WASTE SERVICES, INC. d/b/a J.P. MASCARO & SONS, and WASTE MANAGEMENT OF NEW JERSEY, INC., Defendants-Respondents

Argued December 3, 2013

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket Nos. L-2627-12 and L-2868-12.

Maeve E. Cannon argued the cause for appellant Waste Management of New Jersey, Inc. (Hill Wallack, LLP, attorneys; Patrick D. Kennedy, and Jamie G. O'Donohue, of counsel; Ms. Cannon and Susan L. Swatski, of counsel and on the brief).

Jeffrey J. Greenbaum argued the cause for appellant Covanta 4Recovery, L.P. (Sills Cummis & Gross, P.C., attorneys; Mr. Greenbaum and Kenneth F. Oettle, of counsel and on the brief).

Brent T. Carney argued the cause for respondent Morris County Municipal Utilities Authority (Maraziti, Falcon & Healey, LLP, attorneys; Joseph J. Maraziti, Mr. Carney, and Joanne Vos, of counsel and on the brief).

Thomas P. Scrivo argued the cause for respondent Solid Waste Services, Inc. d/b/a J.P. Mascaro & Sons (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Edward B. Deutsch and Mr. Scrivo, of counsel and on the brief).

Before Judges Fisher, Espinosa and Koblitz.

FISHER, P.J.A.D.

In this public bidding matter, we granted leave to appeal the denial of an interlocutory injunction based solely on the trial judge's determination that plaintiffs were not likely to succeed on the merits. Because the judge mistakenly overlooked his authority to impose interlocutory injunctive relief to preserve the parties' positions and subject matter of the suit – even when there are legitimate doubts about plaintiffs' likelihood of success – we reverse.

I

The record reveals that, on July 9, 2012, defendant Morris County Municipal Utilities Authority (the Authority) issued a public notice seeking sealed bids for a five-year contract to operate the two Morris County solid waste transfer stations and to provide related transportation and disposal services. The request for bids mandated, among other things, that bidders "[s]upply . . . the certified financial statement of the Bidder and/or, if applicable, the Guarantor for each of the three (3) recent fiscal years" (emphasis added). This request for bids did not define what was meant by a "certified financial statement, " stating only that undefined terms were to be afforded "the meaning normally ascribed to them in the trade, profession or business with which they are associated."

The Authority received sealed bids in September 2012. Plaintiff Covanta 4Recovery, L.P. (Covanta) submitted the lowest bid ($131, 004, 000), defendant Solid Waste Services, Inc. d/b/a J.P. Mascaro & Sons (Mascaro) submitted the second lowest bid ($134, 380, 000), and plaintiff Waste Management of New Jersey, Inc. (Waste Management) submitted the third lowest bid ($137, 952, 000). The Authority determined that Mascaro submitted the lowest responsible bid, and the losing bidders objected, arguing, among other things, that Mascaro included in its bid package only two pages of uncertified "condensed financial information" for the years ending March 31, 2010, 2011 and 2012. Upon further consideration, public comment and the presentations of the interested parties, as well as additional information from Mascaro, the Authority again concluded Mascaro was the lowest responsible bid.

On October 23, 2012, Waste Management filed a verified complaint and sought entry of an order to show cause. On November 5, 2012, Covanta filed a similar complaint, which included a claim that its bid should not have been rejected; Covanta also sought entry of an order to show cause. The judge heard argument on November 8, 2012, and, on November 15, 2012, entered an order that: memorialized the Authority's consent not to enter into a contract with Mascaro until the court ruled on the applications for interlocutory injunctive relief; scheduled the production of expert reports; and specified questions of interest the experts were to address in their anticipated testimony. Expert testimony was heard on November 29, 2012, regarding, among other things, the meaning of the phrase "certified financial statement."

On December 12, 2012, the trial judge issued a written opinion regarding the applications for interlocutory injunctive relief. The judge concluded that Waste Management and Covanta "failed to satisfy by clear and convincing evidence a likelihood of success on the merits" and, consequently, he "need not address the remaining ...


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