Submitted: May 31, 2017
W. Paradee, Esquire Daniel F. McAllister, Esquire Baird
Mandalas Brockstedt, LLC.
P. Newell, Esquire Connolly Gallagher LLP.
T. Mantzavinos, Esquire Marks, O'Neill, O'Brien,
Doherty & Kelley, P.C.
C. Schoell, Esquire Michael J. Maimone, Esquire Drinker
Biddle & Reath LLP.
case arises from Kent County's solicitation of bids in
connection with Contract T-18 for FY2018-FY2020 Trash
Collection Services. Specifically, on February 8, 2017, Kent
County issued an invitation to submit sealed bids for a waste
removal services contract. According to the bid invitation,
the County advised interested bidders that two contracts
would be awarded to two bidders. Charlie's Waste
Services, LLC ("Charlie's") initiated this
action against Kent County Levy Court (the
"County"), Waste Industries of Delaware LLC
("Waste Industries") and BFI Industries, LLC d/b/a
Republic Services of Delmarva ("Republic") seeking
to enjoin the County from awarding the waste removal
contracts to Waste Industries or Republic, neither of which
submitted the lowest bid. Charlie's alleges that it was
the lowest responsible bidder and, therefore, the County was
required by statute to award the contract to Charlie's.
previously denied Charlie's motion for a temporary
restraining order/preliminary injunction upon finding that
Charlie's was, in essence, seeking permanent injunctive
relief. I did, however, grant Charlie's motion to
expedite so that a final adjudication of the matter could
occur prior to the effective date of the contracts at issue
here. Thereafter, I asked the parties to address
a threshold statutory issue so that I could determine the
applicable law and frame the factual issue(s) to be
decided. After offering that guidance, I allowed
limited discovery directed to the issue of whether the County
had complied with Section 4725 in awarding the bid to Waste
Industries and Republic. The parties completed that discovery
and then submitted briefs on the questions of whether the
County complied with the applicable statute and whether
Charlie's is entitled to the injunctive relief it seeks.
I heard oral argument on these issues on May 30, 2017.
letters dated May 31, 2017, all parties agreed that, given
the expedited nature of these proceedings, the Court should
consider the record as submitted to be a "stipulated
trial record" from which the Court may make a final
determination of whether the County complied with Section
4725 in its award of Contract T-18 to Waste Industries and
Republic. For the reasons that follow, I conclude
that the County has complied with its statutory mandate and
that Charlie's request for a permanent injunction,
therefore, must be denied.
to Contract T-18, the contract for the County's trash
collection services had always been awarded to the lowest
bidder. By all accounts, the County has been unhappy with the
current provider of trash collection services-the company
that submitted the lowest bid during the last procurement
process for this contract-and has, in fact, determined that
the contractor was not qualified to do the required work. The
problems with the current contractor have included missed
pickups, destruction of trashcans and other property, poor
vehicle maintenance and poorly trained personnel. In fact,
the County has had to hire others on an emergency basis to
fulfill the contract as a stopgap.
these past difficulties, the County determined that it was
best to take a different approach to procurement for Contract
T-18. Specifically, the County included the
following elements in its Invitation to Bid Contract T-18
(the "ITB") that all bidders would have to
i. Demonstrated history of providing equipment and services
of comparable specifications, scope and value.
ii. The background, experience, resources, reputation,
financial resources, years in business and references.
iii. Customer service, i.e., method of addressing
missed cans, special events, guaranteed turnaround times for
cart maintenance, and other customer service items.
iv. The bid and pricing structure.
addition to these evaluative criteria, the ITB also required
bidders to provide a Bid Bond, three work-related references,
three letters of recommendation from current municipal
contracts in the State of Delaware and documentation of
insurance coverage with a General Aggregate Limit of
Liability of $5, 000, 000.
were advised that the contract award would be based, in large
part, upon scores attributed to the bidder's ability to
satisfy the criteria outlined in the ITB as determined by
evaluators designated by the County. The County named three
evaluators-Andrew Jakubowitch, Director of Public Works for
Kent County; Susan L. Durham, Director of Finance for Kent
County; and Michael J. Petit de Mange, County Administrator
for Kent County. Nothing in the bid solicitation
materials states that the evaluators were to reject bidders
from the process that they deemed unqualified. Instead, the