As of press time this morning, a request from Waste Corporation of Missouri, Inc. for a temporary restraining order against the city of Trenton is still in the hands of Daviess County Associate Judge Daren Adkins.
Arguments for and against the request were heard Friday in Grundy County Circuit Court, with Judge Adkins assigned to the case after Third Circuit Judge Jack Peace recused himself. Judge Adkins heard the arguments in the suitby video conference due to his involvement in a trial and the slick condition of roadways.
WCM, represented by W. Joseph Hatley of the firm Spencer, Fane, Britt and Browne, LLC of Kansas City, is seeking the temporary restraining order or temporary injunction as a way to stop the city of Trenton from entering into a contract with Rapid Removal for residential trash pickup service. The city, represented by City Attorney Tara Walker, sought to have the suit dismissed, indicating that the city had the right to reject any and all bids in whole or in part, to waive any irregularities and to accept the bid deemed to be in the best interest of the city.
WCM is the current residential trash hauler for city customers and had submitted a lower bid than Rapid Removal, however the bid was awarded to Rapid Removal, in part because of its local presence within the city. Hatley argued that local presence was not listed in a section of the city ordinance for purchasing that includes seven factors to be considered.
In asking for the TRO, Hatley admitted that he needed to prove four factors are present: the likelihood that WCM would win the case on its merits; that irreparable harm would come to WCM if the contract was allowed to be executed; that in weighing the balances of harms that WCM would be more harmed than the city if the contract is executed; and public interest.
Hatley said the city did not follow its own ordinance by not selecting the “lowest responsible bidder” and used local presence, an arbitrary factor in the opinion of WCM, as a consideration in the selection of Rapid Removal. He argued that the ordinance limits the council to those factors specifically listed, with the only exception being the ability to choose a local contractor if the cost is within $1,000 of the low bid. In addition, he said the city did not follow its own ordinance because they did not provide a detailed, written explanation of its reasons for selecting a bidder other than the low bid.
“To this day, we don’t know why Rapid Removal got the bid when it is considerably more expensive,” Hatley said. “It seems irregular.”
Hatley went on to say that city council members, at their Nov. 25 meeting, said that because WCM submitted a bid lower than its current charge, the company must have been overcharging citizens all along. He indicated that the bid is lower because the company has found ways to be more efficient since the last bid cycle, including using a landfill closer to Trenton. He said that not only is WCM the lowest bidder, but there is also no proof to indicate that it is not a responsible bidder. No concerns or serious issues have been brought to the attention of WCM during the current contract, he said, and while one city councilman indicated that the trucks were too heavy for the city streets, that was not brought up to the company.
As for irreparable harm, Hatley said that once the contract is executed, WCM would not have any recourse. As a practical matter, he said, injunctive relief is the only possible way to halt the further process of the execution of the contract.
In addressing the issue of balancing the harms, the city, Hatley said, will not be harmed if the restraining order or injunction is granted, while WCM would be harmed. He noted, in fact, that if the matter is not settled by Jan. 1, when the new contract is to go into effect, WCM would continue picking up the trash at the new, lower bid price.
“The city and its residents would actually see some benefit,” he argued.
In discussing the factor of public interest, Hatley said that by granting the TRO, the public would benefit by getting service at the lowest possible price and following its own ordinances.
Judge Adkins asked Hatley why he could not come up with a monetary number for the “irreparable injury” that WCM would suffer if the TRO was not granted. Hatley said that believes that precedence prohibits a “disappointed bidder” from being entitled to monetary damages even if it is found out that the bid was awarded unfairly or arbitrarily.
“We don’t believe we’re entitled to seek damages,” he said.
In her argument, Mrs. Walker said that there is not a likelihood that WCM would win the case and that Hatley is reading into the purchasing policy what is not in it. She noted that the ordinance section being used against the city might not even pertain to this situation since no city funds are being expended for trash service, which is paid for by residents. She noted that the city takes “numerous” factors into consideration when comparing bids and that the drafters of the ordinance, all but two of whom voted for Rapid Removal, drafted it with the intent of doing what is in the best interest of the city, which does include buying locally. She noted that the difference in the bid price is $1 per month per household, not a “substantial” amount of money. She said buying locally is important not just from a business aspect, but also affects the quality of service, which is part of the purchasing policy ordinance.
“The evidence is clear that the council made a thoughtful decision, not arbitrarily,” she said.
In addressing the issue of price, she said it is the feeling of the city that if Rapid Removal had not entered into the market as a trash hauler, WCM would not have lowered its cost. She told Judge Adkins that granting the TRO would result in great harm to the citizens of Trenton by undermining the right of officials to choose the bidder that they deem is the best one for the city.
Hatley then went on to say that he felt Mrs. Walker’s assertion that the bid was not subject to the purchasing policy was “baffling” and noted that if the TRO is not granted, WCM would officially be without remedy. He also said that while the city has the right to reject any and all bids, they did, in fact, not reject any bids, but considered them on what WCM believes is an “improper basis.” Judge Adkins questioned Hatley about the plaintiff’s ability to prove the intent of any of the city councilmen as to what factors they might have used in making their decision. Adkins said without calling each one and having them say that they absolutely ignored the factors listed in the ordinance, he didn’t see how that could be proven.
“We do know they based it on an impermissible factor – the local presence which is not in Sec. 155.040,” replied Hatley, who also reiterated that the city had not followed its own ordinance that requires a written explanation for not selecting the lowest bid. He asked that the city be made to go “back to the drawing board and do it again and do it right.”
“We’ll still be the lowest bidder by a large margin,” he said.
Adkins, who had hoped to issue a ruling Friday evening, was given assurances by Mrs. Walker that the city would not take any action prior to the Dec. 23 city council meeting. She did indicate that the city would like to have the matter resolved by that meeting.
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