Added: Farrell Mcwilliams - Date: 06.10.2021 17:33 - Views: 20467 - Clicks: 9729
This opinion shall not "constitute precedent or be binding upon any court. Gabriel H. Halpern, on the brief. Handel T. Stewart, Acting Corporation Counsel, attorney; Mr. Destinvil, on the brief. By our leave granted, plaintiff United Services Inc. USI appeals from a December 16, Law Division order which vacated temporary restraints ly entered against defendant City of Newark, and denied plaintiff's application for a preliminary injunction to prevent Newark from proceeding with public contracting for janitorial services for city-owned buildings.
After granting leave to appeal, we filed an amended order denying USI's request to en Newark from receiving responses to its solicitation for proposals, but ened Newark from awarding a contract based on those solicitations pending this appeal. USI has been providing janitorial and maintenance services for Newark since approximately , after a contractor defaulted on its contract. These services have been provided pursuant to emergency contract extensions.
On March 29, , Newark advertised bid specifications for contracts to provide "Janitorial Services Part A and B" and "Germicide" services for forty-eight of its buildings. The specifications provided that "[Newark] reserves the right to reject any and all bids as is in the best interest of the City.
Eight proposals were received for janitorial services, and seven proposals were received for germicide services. Following the opening of the bids, an Evaluation Committee reviewed the bid packages to determine the "lowest responsible bidder. It is not disputed that USI was the successful bidder for the contract. On June 28, , Jerome Wakefield, the Supervising Procurement Specialist in Newark's Department of Purchasing, sent a letter to all bidders notifying them of Newark's intention to reject all bids to allow Newark to revise the specifications.
In a certification dated October 6, , Wakefield stated the Evaluation Committee determined there were a of "ambiguities" in the bid specifications "that may have had the potential to discourage potential bidders. One of the ambiguities Wakefield identified in the March 29, bid specifications stated: "[b]idders may bid on individual items, except as otherwise specified" and "[i]f not specified, no bid shall be accepted which seeks to sub-divide any section or grouping of related items.
On July 19, , USI filed a complaint against Newark seeking to en the rebidding of the janitorial contracts, and to compel defendant to award the contract to plaintiff because plaintiff was the lowest bidder. On August 3, , the Newark Municipal Council passed a resolution authorizing the use of competitive contracting pursuant to N. Newark issued a competitive contract request for proposals RFP on September 13, , with a due date of October 13, The new RFP indicated that "the City will make its final selection based upon such factors as deemed by the City to be in its best interests.
The revised bid specifications also eliminated the requirements of posting surety and performance bonds. On September 23, , USI filed an order to show cause to en Newark from soliciting and receiving bids through the competitive contracting process. USI argued that it would suffer irreparable harm if it is not awarded the contract it is entitled to. USI further argued that because this is a public bidding issue, public interests are at stake. On September 26, , the motion judge granted temporary restraints against Newark.
On October 14, , the judge denied USI's motion for expedited discovery, finding that the motion would "overly burden the defendant" and that the opposition papers would provide names of those involved in the matter. On December 9, , the judge vacated the temporary restraints and denied USI's application for a preliminary injunction.
In its complaint, USI alleged its bid was the lowest by a substantial margin and would have resulted in millions of dollars in savings by Newark. Newark does not deny this claim. USI also claimed Newark's asserted reason for rejecting all bids was a "subterfuge" and it sought to direct the bids to a company which is unionized and represented by Local 32BJ which "directly or indirectly contributed hundreds of thousands of dollars to the election campaigns of Newark officials.
Afterward, Mayor Baraka stated that he was "look[ing] forward to working with 32BJ as part of the movement to create a more fair and just city. In support of this claim, USI submits a certification of its president, Raymond Pardo alleging Newark has intentionally withheld payments to USI to cause financial hardship; between and , Newark attempted to direct janitorial bids to a favored bidder; Newark attempted to bribe a USI employee to divulge confidential information; and USI was excluded from secret meetings Newark held with contractors to discuss information about the bid.
Most troubling is Pardo's allegation that he was advised by a Newark official that representatives of Local 32BJ were attending meetings to draft new specifications which were tailored to eliminate USI as the successful bidder. The motion judge rejected USI's claim that it was disadvantaged by the opening of the public bids, because USI was privy to the amounts submitted by the unsuccessful bidders.
We disagree. It is not disputed that USI's bid was substantially lower than the next lowest bid. In any rebid, the unsuccessful bidders now have the advantage of knowing the lowest bid. By contrast, USI's knowledge of the unsuccessful bids is useless. USI also maintained that Newark violated N.
The judge rejected this claim finding that the Local Contracts Law "does not prohibit a specification from requiring a bidder be a resident of a state. Although this residency requirement has apparently been removed from subsequent RFPs, USI would have been permitted at trial to prove that the specification did not meet the N.
Applications for a stay pending appeal are governed by the standard outlined in Crowe v. De Gioia, 90 N. A party seeking a stay must demonstrate that " 1 relief is needed to prevent irreparable harm; 2 the applicant's claim rests on settled law and has a reasonable probability of succeeding on the merits; and 3 balancing the relative hardships to the parties reveals that greater harm would occur if a stay is not granted than if it were.
Dow, N. Each of these factors must be "clearly and convincingly" demonstrated. McKenzie v. Corzine, N. Although generally, all four factors must weigh in favor of injunctive relief, ibid. Morris Cty. Union Cty. Clearly, USI seeks to preserve the status quo and its application must be examined under the more relaxed standard.
It is not. See N. The motion judge also determined that the legal right underlying USI's claim is unsettled. However, "the basis for the claim that a publicly-advertised contract should. Borough of Island Heights, N. This right is subject only to Newark's ability to either reject all bids and proceed to competitive contracting, or otherwise to conclude USI is not a "responsible" bidder.
Particularly when the public interest is at stake, "[t]he power to impose restraints pending the disposition of a claim on its merits is flexible[. This less rigid approach, for example, permits injunctive relief preserving the status quo even if the claim appears doubtful when a balancing of the relative hardships substantially favors the movant, or the irreparable injury to be suffered by the movant in the absence of the injunction would be imminent and grave, or the subject matter of the suit would be impaired or destroyed.
We perceive no harm to any of the parties by reinstating the stay, and the balancing of the equities involved militate in favor of injunctive relief. That portion of the December 16, order denying USI's application for a preliminary injunction against Newark is reversed, and our January 31, order ening Newark from making any award of the contract is continued until resolution of the underlying complaint.
The matter is remanded to the trial court. We do not retain jurisdiction. Absent proof in the record, we adopt the motion judge's figure. Justia Legal Resources. Find a Lawyer. Law Students. US Federal Law. US State Law. Other Databases. Marketing Solutions.Sub f seeks Newark
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ASSOCIATES v. City of Newark, F. Supp. (D.N.J. )