N.E.R.I. Corp. v. New Jersey Highway Authority

STEIN, J.,

dissenting.

In a class with motherhood and apple pie, the mandate that governmental contracts be subject to public bidding is almost sacrosanct. Its purpose is “to secure competition and to guard against favoritism, improvidence, extravagance and corruption.” Hillside Township v. Sternin, 25 N.J. 317, 322, 136 A.2d 265 (1957). Statutes mandating public bidding should be “construed *246with sole reference to the public good ... [and] should be rigidly adhered to by the courts.” Ibid. But on occasion, insistence on competitive public bidding can be impractical, formalistic, and inconsistent with the public interest.

Motorists on the Garden State Parkway whose disabled cars require removal by a tow truck — and there were over 50,000 such motorists in 1993 — will now have abundant reason to be apprehensive about the reliability of the tow-truck operator who is dispatched to retrieve their vehicle. The Court today orders the New Jersey Highway Authority (Authority) to select towers in the future not on the basis of competence and reliability, as the Authority proposes, but rather on the basis of which tower offers the lowest rates. Because the Authority has regulated towing rates since 1975, and will still be authorized to set maximum rates, the likelihood that the Court’s mandate for competitive bidding on towing rates will achieve significant savings is minimal indeed. Moreover, because the Authority is understandably concerned about the safety of motorists whose cars break down late at night or in severe weather conditions, the Authority pragmatically concluded that to select towers in an open, competitive process based on objective criteria intended to measure competence and reliability would better serve the public interest than would selection based only on towing rates.

The Court’s decision may be defensible under a literal reading of the Authority’s bidding statute. But the Court displays an unwieldy, inflexible preference for competitive bidding on price when application of standard statutory interpretation principles would permit a result far more protective of the motoring public. I suspect that the Authority will promptly solicit legislative intervention to permit the selection of towers by a competitive process that focuses on competence rather than price.

I

As the majority opinion demonstrates, the facts pertinent to our disposition of this appeal have changed radically since suit was *247initiated. Prior to 1990, the Authority did not advertise for bids or publicly solicit applications for towing contracts. Towing companies that previously had been awarded contracts for towing services could anticipate renewal of their contracts unless complaints concerning the quality of their service induced the Authority to seek a replacement. Charges for towing services have been regulated by the Authority since 1975. The facts stipulated before the Law Division indicate that companies providing Authority towing services prior to 1990 paid the Authority a percentage of their revenues.

Beginning in 1990, the Authority instituted an informal rating system pursuant to which interested towing companies were numerically ranked by an Authority employee on the basis of criteria that included experience, safety, availability and quality of equipment and facilities, and proximity to the Parkway, although not all of those criteria were considered in evaluating each applicant. The Authority employee recommended that the contract be awarded to the tower with the highest point score, but her supervisor could make adjustments in the evaluations and the Authority’s Executive Director approved all contracts.

The current system instituted in 1994 constitutes a substantial improvement over past practices. Requests for towing proposals are now solicited by the Authority by advertisements in designated newspapers. A six-member committee evaluates each proposal based on weighted criteria, assigning each applicant a rating on a scale of one to five on each factor and multiplying the rating by that factor’s weighted value to calculate an aggregate score. The criteria include reliability, experience, equipment and personnel, response time, location of facilities, and security of towed and stored vehicles. The committee recommends the award of a contract to the tower with the highest score. Since the establishment of this evaluation process, the Authority has awarded five towing contracts and each was awarded to the highest scoring qualified contractor.

*248The Authority’s current system of awarding towing contracts to the towing company ranked highest on the basis of qualitative criteria responsibly and directly addresses the public’s need for safe and reliable towing service. Counsel for the Authority represents that more than 50,000 motorists required emergency services in 1993. As the Appellate Division observed:

The motorist whose ear breaks down on the Garden State Parkway is vulnerable, especially in the late evening or early morning hours. The Parkway is a limited access highway and the motorist is cut off from help except for the assistance provided by the Authority. The motorist is required to depend on the services of a contractor imposed on him or her by the Authority. In those circumstances the opportunity for overreaching and exploitation by the contractor is substantial. Moreover, there is a legitimate concern for the personal security of the stranded motorist. This is a particularly important factor in the selection process because the contractor not only removes the vehicle from the Parkway, either to the nearest exit or to the contractor’s garage, but may transport the motorist as well. Under those circumstances, character and integrity are critical elements in the Authority’s selection of a towing contractor.
[ 282 N.J.Super. 460, 468, 660 A.2d 564 (1995).]

The Authority’s current Request for Proposal form eliminates any variable concerning compensation to the Authority. The form stipulates that each towing company awarded a contract will pay to the Authority the following percentages of its gross receipts:

0 to $12,000 3%

$12,001 to $16,000 4%

Over $16,000 5%

Similarly, all prospective towers must agree to “adhere to Parkway regulated rates for services provided.” The applicable regulation, N.J.AC. 19:8-2.12, prescribes flat rates for towing charges based on the towed vehicle’s gross weight, and also mandates that charges for parts and labor in connection with repair services conform to those set forth in Chilton’s Labor Guide and Parts Manual. The Court’s decision mandates that those regulated towing charges must be subjected to competitive bidding, at rates not to exceed the regulated rate.

II

A fundamental tenet of statutory construction is that “every effort should be made to harmonize the law relating to the same *249subject matter. Statutes in pari materia are to be construed together when helpful in resolving doubts or uncertainties and the ascertainment of legislative intent.” State v. Green, 62 N.J. 547, 554-55, 303 A.2d 312 (1973). We have often observed that “statutes [that] deal with the same matter or subject ... and which seek to achieve the same overall legislative purpose ... should and must be read in pari materia.” Mimkon v. Ford, 66 N.J. 426, 433, 332 A.2d 199 (1975). Although that principle applies most forcefully when the statutes were enacted at the same time, “it may appropriately be applied even when the statutes were adopted at different times and make no reference to each other.” Id. at 434, 332 A.2d 199.

The Court acknowledges that the Legislature specifically has exempted municipal and county towing contracts from the competitive bidding requirements of the Local Public Contracts Law, N.J.S.A. 40A:11-1 to -49, imposing as requirements for such exemption that the contracts be awarded on non-exclusionary and non-discriminatory terms and conditions and that the rates to be charged are regulated. N.J.S.A 40A:ll-5(l)(u). The Court concludes that the Legislature did not intend that the exemption permitting local governments to award towing contracts without competitive bidding on towing rates should also apply to the Authority. Ante at 244-245, 686 A 2d at 339.

The legislative history pertinent to the statutory exemption of municipal and county towing contracts from the Local Public Contracts Law bidding requirements, enacted as L. 1991, c. 142, demonstrates that the legislative rationale for the exemption applies with equal, if not greater, force to the Authority. The source Assembly Bill, A-3011, was introduced in response to a 1989 Opinion of the Attorney General concluding that municipalities that failed to publicly bid contracts for towing services acted in violation of the Local Public Contracts Law. Application of Local Public Contracts Law to Municipal Towing Services, Op. N.J. Att’y Gen. No. 180 (Sept. 5, 1989). That opinion concluded that municipalities were required to solicit competitive bids and to *250award towing contracts to the lowest responsible bidder based on the rates charged for towing services. Ibid. The Attorney General observed that to avoid favoritism and corruption specifications should be “designed to promote the broadest possible competition,” and cautioned municipalities to “avoid the use of unnecessarily exclusionary specifications and bidder requirements.” Ibid.

The exemption legislation, introduced to limit the effect of the Attorney General’s opinion, was intended to allow municipalities and counties additional flexibility in the award of towing contracts.

The amendments I propose would permit municipalities and counties which have found the bidding process inadequate in then- attempt to fulfill their statutory obligations with respect to towing services to utilize a reasonable non-exclusionary and non-discriminatory process which may include the use of a rotating list as an option. I am confident that this option will ensure that the underlying goals of the Local Public Contracts Law are met and will ensure competition in the marketplace.
[Governor’s Reconsideration and Recommendation Statement to Assembly No. 3011, repiintedfollomng N.J.S.A 40A:ll-5.]

An internal memorandum to the Governor’s Counsel for Legislation and Policy disclosed, for example, that local governments that selected towers based only on competitive bids “are at a severe disadvantage during times of inclement weather or major accidents in obtaining towing services from other vendors.” Memorandum from Assistant Counsel Christopher Palodino to Counsel for Legislation and Policy Gregory Lawler (Apr. 22,1991). Subsequent to the Legislature’s concurrence with the terms of the Governor’s Conditional Veto of A-3011, Governor’s Counsel recommended approval of the legislation, noting that towing contracts implicated factors such as equipment, experience, response time, and location of facilities that were not necessarily addressed by the constraints of the bidding process, and observing that the proposed legislation permitted local governments to choose between competitive bidding and the award of contracts on a nondiscriminatory and non-exclusive basis at regulated rates. Memorandum from Assistant Counsel Christopher Palodino to Special Assistant Diane Russell (May 9, 1991); Memorandum from Coun*251sel for Legislation and Policy Gregory Lawler to Governor Jim Florio (May 23,1991).

The Legislature’s willingness to exempt municipal and county towing contracts from mandatory competitive public bidding strongly suggests that a parallel exemption for the Authority’s towing contracts would be consistent with the Legislature’s objective. The danger of favoritism and corruption in the award of towing contracts by local governments, although of paramount public concern, is diminished by the legislative requirement that such contracts be awarded on a non-exclusive and non-discriminatory basis and at regulated rates. Moreover, municipal and county towing contracts do not implicate the serious safety concerns that affect the award of towing contracts by the Authority. A motorist whose vehicle is disabled in a municipality has the option of requesting assistance from a service station or tower known to the motorist, and reliance on the municipality’s designated tower is simply an available alternative. On the Garden State Parkway, motorists whose cars are disabled have only one option, and that is to seek assistance from the Authority’s designated tower. That the Legislature permitted municipalities to bypass competitive bidding for towing services virtually compels the conclusion that the Legislature would have intended to make available a similar exemption for the Authority. The legislative history conclusively demonstrates that the exemption statute was limited to local governments because the 1989 Attorney General’s opinion dealt only with local governments.

We often have observed that “statutes are to be read sensibly rather than literally and the controlling legislative intent is to be presumed as ‘consonant to reason and good discretion.’ ” Schierstead v. City of Brigantine, 29 N.J. 220, 230, 148 A.2d 591 (1959) (quoting Morris Canal & Banking Co. v. Central R.R., 16 N.J. Eq. 419, 428 (Ch.1863)). “Our task is to have the law make sense[.]” In re Executive Comm’n on Ethical Standards, 116 N.J. 216, 221, 561 A.2d 542 (1989). “We will enforce the legislative will even *252when the language of the statute is in conflict therewith.” Id. at 227, 561 A.2d 542.

We applied that sound principle of statutory construction in Fidelity Union Trust Co. v. New Jersey Highway Authority, 85 N.J. 277, 426 A.2d 488, appeal dismissed for want of substantial federal question, 454 U.S. 804, 102 S.Ct. 76, 70 L.Ed.2d 73 (1981), involving a challenge by Authority bond issue trustees to the validity of an amendment to the Authority’s enabling legislation that allowed the Governor and either the State Treasurer or Comptroller to veto all Authority toll increases or decreases. The Trustees contended that the amendment was inconsistent with the bond indenture that incorporated the provisions of the Authority’s enabling legislation, specifically N.J.S.A 27:12B-14, pursuant to which tolls “shall not be subject to supervision or regulation by any other commission, board, bureau or agency of the State.” Id. at 292, 426 A.2d 488. We rejected the trustees’ contention that that section was violated by authorizing the Governor and another official to veto a modification of the tolls:

Literally read, this might be so. However, that provision must be interpreted in pan materia with provisions authorizing a transfer of the Authority’s functions to others and granting the Governor authority to nominate the Authority’s members and to designate the chairman and vice-chairman. Therefore the language should not be given that broad interpretation derived from a literal reading.
Ubid.]

Ill

Advocates of good government are likely to applaud the Court’s conclusion that the Authority must engage in competitive public bidding on rates before awarding towing contracts. Only on close scrutiny does it become evident that the Court’s holding is likely to do more harm than good.

The record before us demonstrates that the Authority’s pre1990 system for selecting towers has been abandoned and replaced by a system of public solicitation of towing service proposals and a comprehensive ranking system for evaluating the competence and responsibility of towers responding to such solicitations. The Authority has removed towing and repair charges as a criterion *253for selecting towers, having established by regulation, N.J.AC. 19:8-2.12, the precise fees to be charged for Parkway towing services based on the registered gross weight of the towed vehicle. In addition, repair charges for parts and labor are required to conform to those prescribed by the current edition of Chilton’s Labor Guide and Parts Manual. The Authority’s discretionary decision to exclude towing and repair rates from the criteria to be used in selecting towers obviously reflects the Authority’s informed judgment that minor variations in rates are less significant than responsibility, experience and competence in selecting towing companies to serve Parkway motorists.

The Court overrides the Authority’s informed judgment and requires that the Authority award towing contracts only to those towers who bid the lowest rates. The Court implies that the Authority can address reliability by pre-qualification of bidders but, as the Attorney General’s 1989 opinion explains, overwriting bid specifications to exclude potential bidders is merely another form of prohibited favoritism. In fact, the Court has forced the Authority to select towers based on price rather than competence, a result that can hardly be understood to advance the best interests of Parkway motorists.

In my view, the Authority’s bidding statute should be interpreted pragmatically, and harmoniously with the Local Public Contracts Law, to confer on the Authority the same exemption now available to all municipalities and counties. That exemption would permit the Authority to avoid competitive public bidding of towing rates if the Authority continued to select towers based on competence in accordance with its current system. That interpretation of the Authority’s bidding statute would better reflect the likely intent of the Legislature and would better serve the public interest than does the Court’s mandate that the Authority select towers on the basis of rates rather than reliability.

For reversal — Chief Justice PORITZ, and Justices HANDLER, POLLOCK, O’HERN, GARIBALDI and COLEMAN — 6.

For affirmance — Justice STEIN — 1.