United States v. New York (799 F. Supp. 1308, 1992)

MEMORANDUM OF DECISION AND ORDER

MISHLER, District Judge.

Defendants-Respondents City of New York, New York City Department of Environmental Protection and Albert F. Appleton move this court for an order dismissing the petition of New York City Council Member Carolyn Maloney pursuant to Fed. R.Civ.P. 12(b) or, alternatively, for an order granting them summary judgment pursuant to Fed.R.Civ.P. 56. Intervenors-Respondents, Chambers Services, Inc. (“Chambers”), New York Organic Fertilizer Company (“NYOFCO”) and the Merco Joint Venture (“Merco”) join in opposition of the petition and similarly move to dismiss.

BACKGROUND

Petitioners commenced this Article 78 proceeding in state court to challenge the process used by the New York City Department of Environmental Protection (“DEP”) in awarding three contracts for interim sludge management services. The petition seeks to invalidate the contracts on the ground that: (1) the City violated N.Y. General Municipal Law (“GML”) § 103 by not awarding the contracts through a competitive bidding process; (2) there is no exception applicable which would permit the City to circumvent the competitive bidding requirements of § 103; and (3) even if the contracts did qualify as a “special case” exception to § 103, the City did not comply with the procedures required in awarding such a contract.

By virtue of this court’s jurisdiction under the Ocean Dumping Ban Act, Council Member Maloney’s petition was removed to this court on November 27, 1991 pursuant to the All Writs Act. The matter was then referred to Magistrate Judge Michael L. Orenstein for a Report and Recommendation. In response to respondents’ motions to dismiss and/or for summary judgment, Magistrate Judge Orenstein issued a Report on December 27,1991 which concluded that: (1) the City was not required to use competitive bidding since it was “attempting to develop an interim integrated sludge disposal system with emphasis on beneficial end-use that would guarantee compliance with the Consent Decree”, Report at 46-47; (2) the three contracts awarded pursuant to the Request for Proposal (“RFP”) procedure qualified as “special case” exceptions to the competitive bidding requirements of GML § 103, Report at 44-53; and (3) the City “adequately and reasonably” followed the procedures necessary to qualify as a “special case exception” under section 312(b)(1) of the New York City Charter, Report at 54.

Based on these findings, Magistrate Judge Orenstein recommended that the petition be dismissed and that the Chambers, Merco and NYOFCO contracts be declared valid and binding. Report at 55. The petitioners were then required to file any objections they had within 10 days of receipt of the Report or risk waiving their right to appeal the court’s final order. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. Accordingly, on January 6, 1992, the petitioners filed their objections with the court. Because many of the petitioner’s objections overlap each other and are not succinctly framed, we will attempt to briefly summarize them.

Procedural Objections

Procedurally, the petitioner objects to Magistrate Judge Orenstein’s refusal to: (1) conduct evidentiary hearings; (2) grant Petitioner leave to serve document demands and subpoenas; and (3) hear Petitioner’s motion to compel compliance with a Freedom of Information request served on the City. Objections at 2-3. Petitioner claims the denial of her discovery requests, coupled with the absence of an evidentiary hearing, constitutes a denial of her right to due process of law. Id.

Substantive Objections

Substantively, the petitioner objects to the following aspects of Magistrate Judge Orenstein’s Report: (1) the finding that Chapter 13 of the current New York City Charter is “a mere revision, simplification, codification or restatement” of New York City Charter § 343; (2) the use of GML § 120-w to find that the holding of Associated Builders v. City of Rochester, 67 N.Y.2d 854, 501 N.Y.S.2d 653, 492 N.E.2d 781 (1986), was not applicable to this case; (3) the determination that a City agency may not switch to competitive bidding once it has initiated an RFP process; (4) the finding that the “special case” test applies to the entire procurement process and not just to the product procured; (5) the finding that “it was impractical for DEP to develop specifications for, and let for publicly advertised bidding, contracts incorporating the methods of sludge disposal provided by Chambers, NYOFCO and Merco”; and (6) the conclusion that there was insufficient evidence to support the petitioners’ allegations of conflict of interest, fraud and corruption in the awarding of the contracts.

Miscellaneous Objections

The petitioners also raise a plethora of objections relating to: (1) the fact findings in the Report; (2) the application of law to facts by Magistrate Judge Orenstein; (3) the rationale used by Magistrate Judge Orenstein in sustaining the contracts; and (4) the failure by the Magistrate Judge to decide several legal issues which Petitioner believes are relevant to the proceeding.

DISCUSSION

1. Standard of Review

The court’s authority to review a magistrate judge’s report and recommendation is governed by Fed.R.Civ.P. 72. Under Rule 72, the court is required to conduct a de novo review of those portions of the magistrate’s decision to which objection has been made. See Pan American World Airways, Inc. v. International Brotherhood of Teamsters, 894 F.2d 36 (2d Cir.1990). The de novo standard requires that the court reach an “independent determination” of the issues presented, without giving any deference to the magistrate judge’s findings. United States v. First City Nat. Bank, 386 U.S. 361, 87 S.Ct. 1088, 18 L.Ed.2d 151 (1967); Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458 (10th Cir.1988). The court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” See 28 U.S.C. § 636(b)(1).

2. Summary Judgment

Summary judgment is proper when no material questions of fact remain to be decided by the factfinder and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Bay v. Times Mirror Magazine, Inc., 936 F.2d 112-116 (2d Cir.1991). The nonmovant’s evidence is to be believed, and all ambiguities and justifiable inferences to be drawn from the underlying facts should be resolved in favor of the nonmovant. Anderson v. Liber ty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); General Electric Co. v. New York State Department of Labor, 936 F.2d 1448, 1452 (2d Cir.1991).

When the nonmovant bears the burden of proof on an issue, the movant can discharge the burden imposed by Rule 56 by showing that there is no proof to support the nonmovant’s case. Celotex, 477 U.S. at 325, 106 S.Ct. at 2554. If the movant sustains its initial burden, the burden shifts to the nonmovant to produce evidence of a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The nonmovant must “do more than simply show that there is some metaphysical doubt as to the material facts.” Id., 475 U.S. at 582, 106 S.Ct. at 1356.

The answering affidavits submitted by the petitioners are insufficient to create an issue of material fact. Instead of presenting specific facts showing that there is a real need for trial, petitioners have made blanket assertions that the City’s procurement process was tainted by fraud, corruption and a conflict of interest. Such conclusory allegations are insufficient to withstand a summary judgment motion. See National Westminster Bank USA v. Ross, 676 F.Supp. 48, 51 (S.D.N.Y.1987).

The sole issue to be decided by the court, and one which is appropriate on a summary judgment motion, is whether the City complied with applicable law in awarding the sludge management contracts to Chambers, Merco and NYOFCO. After reviewing the pleadings, affidavits and exhibits submitted to the court, we find that the City’s decision to use the RFP procedure in awarding the sludge contracts was neither illegal, arbitrary nor capricious.

Furthermore, we find the petitioner’s procedural objections relating to the absence of discovery to be without merit. Although the court may permit a nonmoving party to conduct additional discovery before deciding a summary judgment motion, see Fed.R.Civ.P. 56(f), such a rule is not an inviolate one. The party seeking discovery must first file an affidavit explaining: (1) what facts are sought and how they are to be obtained; (2) how those facts are reasonably expected to create a genuine issue of material fact; (3) what effort the affiant has made to obtain them; and (4) why the affiant was unsuccessful in those efforts. Hudson River Sloop Clearwater, Inc. v. Department of Navy, 891 F. 2d 414, 422 (2d Cir.1989); Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 926 (2d Cir.1985). Petitioners, here, have made no such showing.

ORDER

Upon careful review of the record, we conclude that the findings of Magistrate Judge Orenstein are amply supported by both the evidence and applicable law. Accordingly, we adopt his recommendation to uphold as valid the contracts entered into between the City of New York and Chambers, Merco and NYOFCO. The Clerk of the Court is directed to enter judgment in favor of defendants-respondents City of New York, New York City Department of Environmental Protection and Albert F. Appleton dismissing the petition of Carolyn Maloney and Fernando Ferrer.

SO ORDERED.

REPORT

ORENSTEIN, United States Magistrate Judge.

On October 29, 1991, New York City Council Member Carolyn Maloney, individually, and in her capacity as a member of the New York City Council, filed suit against the City of New York (the “City”), the New York City Department of Environmental Protection (“DEP”) and Albert F. Appleton, Commissioner of DEP (“Appleton”), in Supreme Court, New York County (29824/91 N.Y.Sup.Ct., N.Y. County) pursuant to New York C.P.L.R. Art. 78 and New York G. M.L. § 51 alleging that the City and DEP violated New York G.M.L. § 103 which requires that municipal contracts be competitively bid. On December 17, 1991, Fernando Ferrer, the Bronx Borough President, was permitted to intervene as a petitioner, individually, and in his capacity as the Bronx Borough President, in so far as the relief he seeks is identical to that of New York City Council Member Carolyn Maloney.

Petitioners seek to enjoin the City and DEP from “enforcing, performing and disbursing funds” upon certain land-based sludge management contracts awarded in accordance with a certain Consent Decree and Enforcement Agreement entered into by the United States Department of Justice (the “DOJ”), United States Environmental Protection Agency (“EPA”), New York State (“NYS”), the City and DEP and filed in the Eastern District of New York on August 10, 1989 before United States District Judge Jacob Mishler (the “Consent Decree”).

On November 27, 1991, pursuant to the All Writs Act, (28 U.S.C. § 1651), United States District Judge Jacob Mishler removed New York City Council Member Maloney’s petition to this court. On the same day, Chambers Services, Inc. (“Chambers”), the Merco Joint Venture (“Merco”), New York Organic Fertilizer Company (“NYOFCO”) and Renewable Earth Products of New York City (“REPNYC”) were permitted, with consent of petitioner Maloney, to intervene in the removed action. Petitioner seeks to enjoin the contracts the City awarded to Chambers, Merco and NYOFCO and to enjoin further negotiations with REPNYC. At the time of the instant motions, the City and REPNYC have not executed a contract relevant to the instant proceedings.

The City, DEP and Appleton, all represented by the New York City Corporation Counsel move to dismiss the petition, or, in the alternative, for summary judgment. Chambers opposes the petition and (1) moves to dismiss the action or, in the alternative, moves for summary judgment, (2) cross claims against the City, DEP and all other appointed City officials seeking a declaration that the contract is binding and (3) requests injunctive relief against said persons from interfering with the Chambers contract. Merco opposes the petition, and moves to dismiss the action. NYOFCO opposes the petition and cross-claims against the City for declaratory and injunctive relief. REPNYC, having been granted intervenor status, has not appeared in this action.

NYS and the DOJ, representing the United States of America and EPA, are parties to the action in accordance with their obligations under the Consent Decree and as a result of the petition’s removal to federal court. Neither the DOJ nor NYS have taken a position in this lawsuit. On December 13, 1991, the case was referred to the undersigned to report and recommend on all dispositive motions. See 28 U.S.C. § 636(b)(1)(B). Based upon the facts and circumstances described herein and the discussion of the law, I recommend that the petition be dismissed and that the applications of Chambers, Merco, NYOFCO be granted declaring their respective contracts valid and enforceable.

INTRODUCTION

A. Historical Background

New York City processes about 1.7 billion gallons of wastewater per day at 14 water pollution control plants throughout the City. These plants generate about 335,000 cubic feet (10,700 wet tons) of sludge per day. It is anticipated that production will increase to about 458,300 cubic feet (14,650 wet tons) per day by the year 2000.

Since 1938, the City has disposed of its sewage sludge in the ocean. From 1938 to 1986, this was done at a site 12 miles offshore in an area first permitted by the Army Corps of Engineers and then by EPA. In 1984, EPA designated the Deep-water Municipal Sludge Dump Site 106 miles offshore for this purpose. In April 1986, the City began to move its disposal operation to this new site and by November 1987 ceased disposal at the 12 mile site.

After designation of the 106 mile site, EPA required all ocean dumpers to apply for permits to continue this practice. The permit requirements included an evaluation of land-based sludge management alternatives, the intent being to weigh the impact of land-based options against those of ocean disposal to justify the need for ocean disposal.

New York City’s first permit application for the 106 mile site, submitted in 1986, was determined to be insufficient because it contained a land-based alternative comparison that was completed in 1980. EPA asked that the City conduct a more current evaluation. The City agreed to conduct an extensive land-based sludge management alternative evaluation provided that EPA would grant it the permit while the study was performed. It was agreed that this study would take one to two years to complete. While the protocols for this study were being discussed with EPA in early 1988, Congress began to formulate language for what was to become the Ocean Dumping Ban Act (“ODBA”) of 1988, which was signed by President Reagan on November 18, 1988. See 33 U.S.C. §§ 1412-1416.

The ODBA required all current ocean dumpers to obtain a permit for this activity by August 14, 1989. Additionally, each municipality under such a permit had to enter into either an enforcement agreement or a compliance agreement which committed the municipality to phase out ocean disposal. If a municipality could implement a long term sludge management alternative by December 31, 1991, it could enter a compliance agreement and avoid the payment of fees for disposal between August 14, 1989 and the date it ceased ocean disposal. If a municipality had to implement an interim short term solution by December 31, 1991, while developing a long term plan that would be implemented at a later date, it had to enter into an enforcement agreement and be subject to increasing fees through 1991 and then rapid acceleration beyond 1992. The City had to opt for the latter alternative.

B. The Consent Decree And Enforcement Agreement

Accordingly, New York City entered into the Consent Decree on August 10, 1989. The Consent Decree contains four schedules with 49 milestone dates. The first schedule sets forth milestone dates for the City to implement dewatering measures for land-based sludge management. See Consent Decree at IV. Under this schedule, the City is to substantially complete construction of and place into operation sludge dewatering facilities capable of processing at least 20% of all sludge produced by the City by December 31, 1991 and substantially complete construction of and place into operation all sludge dewatering facilities capable of dewatering 100% of the City’s sludge by June 30, 1992.

The second schedule {see Consent Decree at V) pertains to the solicitation of proposals from the private sector for the implementation of sludge management options for the City’s Interim Sludge Management Plan (the “Interim Plan”). This Interim Plan is needed to process the dewatered sludge. The Consent Decree recited that the City “has solicited proposals for land-based sludge management” {see Consent Decree at V.A.) and went on to spell out the milestones in the Request for Proposals (“RFP”) procedure which petitioner and the petitioner-intervenor attacks in this proceeding:

C. The defendant shall comply with the following schedule for issuance and review of its Request for Proposals:

1. Receive initial proposals in response to issuance of Request for Proposals by July 7, 1989.

2. Evaluate initial proposals and request final technical and cost proposals by October 4, 1989.

3. Receive final technical and cost proposals by February 24, 1990.

4. Report to the United States and the State concerning the proposals submitted and the City’s preliminary recommendations by June 15, 1990.

5. Notify the public of the proposals and begin to receive public comments by July 6, 1990.

6. Conclude public review by November 15, 1990.

7. Report to the United States and State concerning the proposals submitted, the proposals recommended by the City, including sufficient measures to ensure back-up capacity, and any proposed modifications of the schedules for implementation of land based sludge management of sewage sludge by December 15, 1990.

8. If any party proposes any modification of the schedules for implementation of land-based sludge management of sewage sludge as a result of the process set forth in this paragraph V, the parties agree to discuss such proposals and conclude discussions on technology and schedules by January 15, 1991.

See Consent Decree at V.C.

The third schedule (see Consent Decree at VI) requires the City to take the following measures to implement the land-based Interim Sludge Management Plan:

1. The City shall have fully executed contracts, which shall include sufficient measures to ensure back-up capacity, necessary for the interim land-based management of the City’s sewage sludge by September 15, 1991.

2. The City shall cease ocean dumping of at least 20% of all sludge disposed of by the City by weight in dry tons in each calendar month from January 1,1992 until June 30, 1992 by December 31, 1991.

3. The City shall cease ocean dumping of all sewage sludge by June 30, 1992.

See Consent Decree at VI. Under the Consent Decree, failure to meet these milestones would result in substantial monetary penalties. See Consent Decree at IX.

C. New York City’s Three Tiered Sludge Management Program

However, even before the City entered into the Consent Decree, the City had developed a three tiered strategy to meet the needs of implementing a land-based sludge management program. These three tiers consisted of (i) the development of a dewatering program, (ii) the development of an Interim Sludge Management Program to meet the December 31, 1991 deadline for cessation of ocean disposal and (iii) the development of a Long Term Sludge Management Program.

1. Interim Sludge Management Program

Fundamental to DEP’s approach to the problem of how to manage approximately 1600 dry tons of sludge per day produced by over eight million residents and a significant number of other people who work in or visit the City was the commitment to finding methods of putting the sludge to some beneficial use. This commitment grew out of genuine concerns for the environmental impacts of disposal options such as landfilling and incineration. Furthermore, DEP recognized that sludge had some nutrient value.

DEP determined that selecting just one method and one contractor to be responsible for all sludge management could be extremely risky. Given the enormous quantity of sludge generated by the City’s plants, DEP did not want to run the risk of committing to just one contractor using just one type of sludge management method.

Moreover, the Consent Decree required that the City’s contracts “include sufficient measure to ensure back-up capacity, necessary for the interim land-based management of the City’s sewage sludge.” See Consent Decree at VI.l. DEP, therefore, determined that it would search for not just one, but a number of different contractors using different technologies and sites to insure that the City could make beneficial use of its sludge to the maximum extent possible.

The Stage I RFP indicated that both beneficial and non-beneficial uses of sludge would be considered. At the onset of the contracting process DEP sought a diversity of beneficial uses. Accordingly, DEP requested proposals from contractors who could explain both how they would propose to deal with the City’s sludge, what amounts they could handle, and what their qualifications and financial resources were. The judgment of a committee of professional engineers was used to evaluate competing proposals based on an extensive list of criteria. DEP settled on a two-step procedure to choose its vendors.

a. The Stage I RFP

In December 1988, following the enactment of the ODBA, the City published a notice of availability of a RFP for private sector vendors to manage New York City’s land-based sludge reuse/disposal program from January 1, 1992 until such time as the City could implement its Long Term Program. The notice was published in the City Record, Amsterdam News, El Diario, and the Engineering News Record and requested that any parties interested in receiving DEP’s RFP so indicate by December 31, 1988. As a result of this solicitation, 150 responses were received from organizations requesting copies of the RFP.

In May, 1989 DEP released the first stage of the RFP to the 150 responders. The Stage I RFP requested that the responders submit conceptual proposals including an outline of the proposed sludge management program concept, financial information, prior related experience and an implementation plan. The implementation plan was required to address permitting and environmental issues, siting considerations, schedule constraints and perceived risks and liabilities. Each responder was to provide details of its corporate organization including annual reports or audited financial statements. The RFP described the team evaluation procedure which would be used to rate the proposals and spelled out the criteria the evaluators would use in rating proposals. While beneficial uses were preferred, both beneficial and non-beneficial methods of sludge management were to be considered.

Thirty-nine proposals were received representing several different categories of sludge processing and end use. The Technical Advisory Subcommittee (“TAS”), which was formed to assist the Contract Selection Board (“CSB”) in the evaluation of responses to the RFP, rated the proposals on a predetermined standardized point system according to certain qualifications of the proposer and the proven nature of the proposed concept. As set forth in the Stage I RFP, the proposals were rated by the TAS based on the: (1) viability and technology proposed, (2) experience of proposer, (3) ability to meet environmental regulations, (4) reliance on City services and (5) understanding of the problem. See Stage I RFP at 7.1-5. DEP determined that all proposals would be grouped into two categories. The first was a process-related category and the second an end product use/disposal category.

b. The Stage II RFP

After evaluation of the thirty-nine proposals, twenty-four were determined to be qualified to go on to Stage II. The Stage II RFP required the twenty-four proposers to include the following information:

—Detailed description of the scheme, technology, transportation and product end use or disposal to be used.

—Detailed description and demonstration of the availability of reuse and disposal sites and/or markets for the end use schemes proposed.

—Detailed description of the methods to be used to meet all required environmental regulations and obtain required permits and licenses.

—Schedule for implementation including timetable for securing sites, marketing contracts and/or disposal capacities for ■ the term of the contract. This item should also identify and address similar schedules for subcontractors, if any.

—Detailed description of transportation, storage, processing and disposal sites.

—Operation and maintenance plan.

—Contract period.

—Warranties and guarantees.

—Organization chart.

—Qualifications and experience.

See Stage II RFP at 1.

DEP received eleven proposals from the group of twenty-four contractors who were sent the Stage II RFP. Several of the twenty-four decided to pool their efforts. As a result about fifteen of the original twenty-four were represented. Additionally, one proposer was added at this stage because it was able to conform to the schedule. The twelve proposals were reviewed and the proposers were invited for interviews to address additional information needs and reviewer questions. Each was required to submit a revised proposal within thirty days after its interview. Nine of the twelve submitted revised technical proposals. As set forth in the Stage II RFP, these nine proposals were then evaluated based on: (1) technical viability, (2) environmental impacts, (3) beneficial use, (4) risks, (5) qualifications, (6) completeness, (7) scheduling and (8) reliance on City services.

After evaluation of the technical proposals, the sealed cost proposals were opened and evaluated. Primary attention in the evaluation of the cost proposals was given to the viability and reasonableness of the provided pro-forma analysis, the firm’s financing ability and requirements, the adequacy of staffing levels and the cost of services to the City.

At the completion of the proposal evaluation process, five proposers were notified that the City intended to negotiate contracts with all five and that, subject to those negotiations, the City intended to contract with all five. The proposers and their respective plans were:

PROPOSER PROCESS END USE

Apex/Enviro-Gro (NYOFCO) Thermal Drying (pelletization) Marketing/Distribution

AWT/Chemfix (REPNYC) Chemical Stabilization Landfill Cover

WMI/Bird Composting Marketing/Distribution

Merco None Land Application

Chambers None Landfill Disposal

DEP then entered into negotiations with these five proposers. The negotiations involved such issues as environmental impact, feasibility, sites, the beneficial re-use of the sludge, potential markets for the sludge, costs, guarantees of financial responsibility and the severe penalties which would result to the City if the milestones set forth in the Consent Decree were not met. “It was only after evaluating all of the proposals DEP received as a result of its two-stage RFP that DEP determined that it could formulate a plan which involved a landfill backup.” Lutzic Aff. at ¶ 15. DEP’s aim was to put together a plan in which sufficient excess capacity could be made available to provide 200 percent of peak sludge production needs which occur on a seasonal basis, and provide enough redundant capacity among the five proposers to provide peak coverage if up to two of the five proposers dropped out for any reason. In fact, one proposer, WMI/ Bird, dropped out of the negotiations.

Numerous reporting procedures were included in the Consent Decree to keep the Court informed of the progress of the RFP procedure. A special master was appointed to “monitor the progress of the defendant in carrying out the tasks”, including the awarding of contracts pursuant to the procedure spelled out in the Consent Decree. Consent Decree at XIII. The City was required to submit reports “concerning the proposals submitted and the City’s preliminary recommendations by June 15, 1990.” Consent Decree at V.C.4. Thereafter, the City was required to submit reports concerning “the proposals recommended by the City, including sufficient measures to ensure back-up capacity, and any proposed modifications of the schedules for implementation of land-based sludge management of sewage sludge by December 15, 1990.” Consent Decree at V.C.7. The City complied and submitted to the Court both the preliminary and final reports on the progress of the RFP procedure.

DEP convened the New York City Sludge Management Citizens Advisory Committee (“CAC”). The CAC was provided with $300,000 to retain an independent consultant of its own choosing to evaluate DEP’s work. The CAC’s independent consultant described the methodology used by DEP to evaluate the sludge management proposals as “generally reasonable.”

STATEMENT OF FACTS

1988 — New York City established an Inter-Agency Work Group on Sludge. The Work Group “recommended that the city contract for interim land-based sludge management services through a multi-step competitive sealed proposal (request for proposal) process.” Torna Aff. at ¶ 11.

October — November 1988 Congress passed and President Reagan signed the ODBA which mandated that ocean dumping of sludge be ended in phases beginning on January 1, 1992.

December 1988 DEP advertised for private sector vendors who wanted to receive DEP’s RFP relating to management of New York City’s land-based sludge reuse/disposal program from January 1, 1992 until such time as the City could complete its long-term sludge management program. See Lutzic Aff. at 10. Responses were required by December 31, 1988. One hundred fifty responses to those advertisements were received and the responder’s names were placed on DEP’s mailing list to receive the RFP.

February 22, 1989 DEP submitted Stage I RFP to Mayor’s Office of Contracts. See Lanaghan Aff., Exh. C, April 11, 1990 Memo, p. 3.

March 16, 1989 DEP submitted to the Mayor’s Office of Contracts a Contracts Processing Questionnaire which spelled out the need for and the objective of the Stage I RFP. The completed questionnaire had been approved by the Commissioner of DEP who also indicated his approval of its submission to the Office of Contracts. The completed questionnaire described the work to be performed under the proposed contracts, stated the scope and objectives of the proposed RFP, described the need for the anticipated contracts, stated the reasons why agency personnel could not implement sludge processing options, described DEP’s plans for dissemination of the RFP, set forth the RFP timetable, described DEP’s procedures for providing equal access by all proposers to agency information, provided details of the contractor selection criteria, set forth the names and titles of the selection committee members and provided a sample of the rating sheet to be used in evaluating proposals. See Lanaghan Aff., Exh. A, Office of Contracts Questionnaire, Attachment # 2A, 2B, and transmittal letter. The transmittal letter indicated that “the resulting contract will be submitted to the Board of Estimate under section 349 of the [Former] City Charter.” Id.

DEP submitted Stage II RFP to Mayor’s Office on Contracts. See Lanaghan Aff., Exh. C, April 11, 1990 Memo, p. 3.

March 19, 1989 The Mayor’s Office of Contracts gave its approval to DEP to release the Stage I RFP. See Lanaghan Aff., Exh. C, April 11, 1990 Memo, p. 3.

May 1989 — September 1989 Thirty-nine proposals were received representing several different categories of sludge processing and end use. The TAS, which was formed to assist the CSB in the evaluation of responses to the RFP, rated the proposals on a predetermined standardized point system according to the qualifications of the proposer and the proven nature of the proposed concept.

May 19, 1989 DEP sent out the Stage I RFP to the 150 responders. Mayor’s Office of Contracts approved the Stage II RFP. See Lanaghan Aff., Exh. C, April 11, 1990 Memo, p. 3.

DEP sent petitioner, Maloney, and other public officials a “Responsiveness Summary” which informed her that “DEP will be conducting a two-stage RFP (Request for Proposal) process” for Disposal [of Sludge] by Private Sector Operators.” Marabetti Aff., Exh. A.

June 1, 1989 DEP held a pre-proposal conference. See Lanaghan Aff., Exh. C, April 11, 1990 Memo, p. 3.

June 30, 1989 A proposed consent decree in the above-captioned federal action was published in the Federal Register.

July 7, 1989 Chambers submitted a proposal responding to the Stage I RFP.

August 10, 1989 The Consent Decree entered into among the DOJ, EPA, NYS, the City and DEP was filed. The Consent Decree was binding on all employees of the City. See Consent Decree at II.

September 5, 1989 DEP’s review of Stage I proposals was completed. See Lanaghan Aff., Exh. C, April 11,1990 Memo, p. 4.

September 21, 1989 Chambers was notified that it was qualified to proceed to Stage II of procurement process.

DEP submitted a second Contracts Processing Questionnaire relating to the Stage II RFP to the Mayor’s Office of Contracts, including score sheets completed by the members of the Stage I TAS which included a description of the rating system used to rate the 39 proposals submitted in response to the Stage I RFP as well as the score sheets completed by members of the Stage I TAS in rating the 39 firms. The completed questionnaire had been approved by the Commissioner of DEP who also indicated his approval of its submission to the Office of Contracts. See Lanaghan Aff., Exhibit B, Office of Contracts Processing Questionnaire.

October 4, 1989 The Mayor’s Office of Contracts gave its approval to DEP to release the Stage II RFP and DEP sent out the Stage II RFP to the remaining 24 contractors.

October 30, 1989 A Notice of Public Hearing on the Draft Generic Environmental Impact Statement for the New York City Land-Based Municipal Sewage Sludge Disposal Management Plan appeared in several New York City newspapers.

October 1989 — April 1990 Eleven proposals were submitted to DEP from this group of twenty-four. Additionally, one proposer was added at this stage because it was able to conform to the schedule. The twelve proposals were reviewed and the proposers were invited in for interviews to address additional information needs and reviewer questions. Each was required to submit a revised proposal within thirty days after its interview. Nine of the twelve submitted revised technical proposals.

November 1989 New York City voters adopted a new City Charter.

December 4, 1989 DEP received twelve proposals.

January 3, 1990 TAS completed its initial review of the submitted proposals and held clarification hearings on January 8 and January 19, 1990. See Lanaghan Aff., Exh. C, April 11, 1990 Memo, p. 4.

February 20, 1990 Additional information and revised technical proposals due at DEP. See Lanaghan Aff., Exh. C, April 11, 1990 Memo, p. 4.

February 23, 1990 Sealed cost proposals were submitted to Bureau of Water Treatment. See Lanaghan Aff., Exh. C., July 17, 1991 Memo, p. 3.

March 13, 1990 and April 9, 1990 George Lutzic, Deputy Director, Regulatory Management of DEP, requested, in writing, that DEP’s General Counsel, Richard Bowers, convene the CSB to hear the recommendations of the TAS for the selection of contractors for the Interim Sludge Management Program. The April 9,1990 memorandum requested that the “CSB approve our evaluation process, accept our recommendation to consider five of the top six rated proposers and recommend to the Commissioner that negotiations” with the five finalists go forward.

March 16, 1990 DEP’s review of the revised technical proposals was completed. See Lanaghan Aff., Exh. C, April 11, 1990 Memo, p. 4.

April 1990 Chambers began negotiating with DEP. Chambers rated fifth out of the nine firms evaluated based on their final technical and cost proposals. See Lanaghan Aff., Exh. C., July 17, 1991 Memo, p. 3.

April 3, 1990 DEP sent petitioner and other public officials a copy of the draft scope of work for the Generic Environmental Impact Statement II, which advised that “the RFP process for the Intermediate Range Plan’s privatized system has proceeded” and contained a table specifying and explaining the nine proposals which were being considered. Marabetti Aff., Exh. C.

April 5, 1990 CSB convened to consider the proposals from the final nine firms. See Lanaghan Aff., Exh. C., July 17, 1991 Memo, p. 3.

April 11, 1990 Richard Bowers wrote to Albert Appleton, the Commissioner of DEP, summarizing the RFP process, reporting that the CSB had met on April 5, 1990 and had unanimously voted to commence negotiations with the five finalists.

April 12, 1990 In accordance with the recommendation of the CSB, Commissioner Appleton gave his written approval of the CSB’s recommendation to Edward Wagner, Assistant Commissioner of DEP and Director of the Bureau of Wastewater Treatment, to begin negotiations with the five finalists as soon as possible.

May 25, 1990 Deputy Commissioner Holstein invited Council Member Maloney to attend a June 4, 1990 CAC meeting. There, George Lutzic, Deputy Director, Regulatory Management, Bureau of Wastewater treatment of DEP discussed, inter alia, “Vendor Selection and Negotiation Process for Intermediate Sludge Management Plan.” DEP sent petitioner its written responses to certain comments submitted by members of the CAC. Those responses included the following: “Sludge management options during the Intermediate Plan are determined by proposals submitted by private firms through the RFP process.” Marabetti Aff., Exh. D. Notice was sent to petitioner of meetings of the CAC. See Marabetti Aff. at ¶ 6.

June 1990 DEP filed its Interim Report on the RFP procedure with the court.

July 1990 Petitioner, Maloney, and all other City Council Members were sent a copy of the Draft Environmental Statement II for the New York City Sludge Management Program Intermediate Range Plan to review before the hearing scheduled for September 12, 1990.

August 21, 1990 Deputy Commissioner Holstein informed petitioner that DEP had “scheduled a public hearing on the New York City Sludge Management Program on Wednesday, September 12, 1990 ... to receive the public’s comments on the Draft Generic Environmental Impact Statement II, (DGEIS II) which discloses the potential environmental impacts of the Program’s Intermediate Range Plan.” That same letter informed petitioner, Maloney, that “[proposals from qualified firms have been solicited and evaluated, and negotiations are currently underway with several firms.” A comprehensive description of the City’s Sludge Management Program was also enclosed. Marabetti Aff. Exh. E.

September 1, 1990 The New York City Board of Estimate ceased to exist.

December 1990 DEP filed its Final Report on the RFP Procedure with the Court.

December 17, 1990 DEP submitted a draft of the Recommendation for Award (“RFA”) of the NYOFCO contract to the Mayor's Office of Contract. See PPB Rule § 5-06.

December 26, 1990 Deputy Commissioner Holstein sent Council Member Maloney a copy of the Intermediate Range Plan for the NYC Land-Based Sludge Management Plan. That Plan comprehensively discussed the RFP process which DEP was using with respect to its Intermediate Sludge Management Plan and the status of the process. Thereafter, petitioner received a copy of the Final Generic Environmental Impact Statement II which addressed the public’s comments at the aforementioned September 12, 1990 hearing.

December 28, 1990 The Mayor’s Office of Contracts approved the preliminary NYOFCO RFA and that the NYOFCO contract would be on the agenda for a public hearing scheduled for January 10, 1991.

January 1991 The CAC’s independent consultant described the methodology used by DEP to evaluate sludge management proposals as “generally reasonable.”

January 10, 1991 and January 24, 1991 The Mayor’s Office of Contracts held public hearings on the proposed contracts to enable the public to testify regarding the proposed NYOFCO contract. See § 326 of the City Charter and § 5-06 of the PPB Rules. The hearings were publicly advertised in the City Record at least 10 days prior to each hearing. See § 14-06 of the PPB Rules; Lanaghan Aff. at 6.

January 15, 1991 All discussions concerning modification of the schedules set forth in the Consent Decree were concluded. See Consent Decree at V.C. 8. Petitioners made no objections to the schedules.

January 25, 1991 DEP submitted a draft of the RFA of the Chambers contract to the Mayor’s Office of Contracts. See PPB rule § 5-06.

February 1, 1991 The City’s Department of Investigation advised DEP that it had completed a review of the NYOFCO contractors and had found nothing of a derogatory nature. See PPB Rule § 5-03(b)(10).

February 8, 1991 The Mayor’s Office of Contracts approved the preliminary Chambers RFA and the Chambers contract would be on the agenda for a public hearing on March 14, 1991.

February 21, 1991 and March 14, 1991 The Mayor’s Office of Contracts held public hearings to enable the public to testify regarding the proposed Chambers contract. The hearings were publicly advertised in the City Record on February 11, 1991, at least 10 days prior to each hearing. See PPB Rule § 14-06. Council Member Carolyn Maloney testified at that hearing that she was

in strong opposition to the [Chambers] contract that is now before you and to ask that it be rescinded and immediately rebid in a competitive manner. The City has chosen an inappropriate method to select this contractor. I believe that the method used, a negotiated contract derived from an RFP process, has produced a contract price per ton of sludge that is far higher than the price that could have been obtained through competitive bidding. I believe that the results from competitive bids taken in adjacent communities, such as Nassau County, Westchester County and the Passaic Regional Sludge Authority in New Jersey, are so much lower than the priceds [sic] that the City has negotiated that the contract before you should be rejected out of hand.

Lanaghan Aff., Exh. C., Chambers Hearing at 6 (March 14, 1991).

March 4> 1991 The Mayor’s Office of Labor Services approved a waiver for the NYOFCO contract of the “Pre-award Submission and Review Requirement of City Charter, Chapter 13B and Executive Order 50” concerning equal employment opportunity requirements. See PPB Rules § 5-03(b)(10).

April 11 and 15, 1991 The City’s Department of Investigation advised DEP that it had completed a review of the Chambers contractors and had found nothing of a derogatory nature. See PPB Rule § 5-03(b)(10).

April 16, 1991 The Law Department certified the Chambers contract as to form and certified DEP’s legal authority to award the contract. See PPB Rule § 5-04(d).

April 22, 1991 The Law Department certified the NYOFCO contract as to form and certified DEP’s legal authority to award the contract. See PPB Rule § 5-04(d).

May 1, 1991 Commissioner Appleton wrote to petitioner and informed her that he had rejected her March 14, 1991 request to rebid the Chambers contract.

July 2, 1991 The Mayor’s Office of Labor Services approved a waiver for the Chambers contract of the “Pre-award Submission and Review Requirement of City Charter, Chapter 13B and Executive Order 50” concerning equal employment opportunity requirements. See PPB Rule § 5-03(10).

July 17, 1991 Iris Weinshall, DEP’s Deputy Commissioner and Chief Contracting Officer submitted the RFA for Chambers and NYOFCO contract to Michael Rogers, Director of the Mayor’s Office of Contracts and the City’s Chief Procurement Officer. See PPB Rules §§ 326(k) and 531(b).

July 18, 1991 The City’s Department of Investigation advised DEP that it had completed a review of the Merco contractors and had found nothing of a derogatory nature. See PPB Rule § 5-03(b)(10).

July 23, 1991 DEP submitted a draft of the RFA of the Merco contract to the May- or’s Office of Contracts. See PPB Rule § 5-06.

July 24, 1991 The Mayor’s Office of Contracts approved the preliminary Merco RFA and that the Merco contract would be on the agenda for a public hearing on August 8, 1991.

August 1, 1991 The City’s Chief Procurement Officer signed the Certificate of Procedural Requisites for the Chambers and NYOFCO contracts. See PPB Rule § 541(d)(2)(i).

August 8, 1991 The Mayor’s Office of Contracts held a public hearing to enable the public to testify regarding the proposed Merco contract. The hearings were publicly advertised in the City Record at least 10 days prior to each hearing. See PPB Rule § 14-06.

August 20, 1991 Deputy Mayor Barbara Fife signed the Certificates of Mayoral Approval for the Chambers and NYOFCO contracts. See PPB Rule § 541(d)(2)(h).

September 4, 1991 The Mayor’s Office of Labor Services approved a waiver for Merco contract of the “Pre-award Submission and Review Requirement of City Charter, Chapter 13-B and Executive Order 50” concerning equal employment opportunity requirements. See PPB Rule § 5-03(10).

September 6, 1991 The Law Department certified the Merco contract as to form and certified DEP’s legal authority to award the contract. See PPB Rule § 5-04(d).

September 6, 1991 Iris Weinshall, DEP’s Deputy Commissioner and Chief Contracting Officer submitted RFA for Merco to Michael Rogers, Director of the Mayor’s Office of Contracts and the City’s Chief Procurement Officer. See PPB Rules §§ 326(k) and 531(b).

September 10, 1991 Comptroller Elizabeth Holtzman registered the Chambers and NYOFCO contracts. See PPB Rule § 5 — 07(h)(l)(ii).

September 13, 1991 The City’s Chief Procurement Officer signed the Certificate of Procedural Requisites for the Merco contract. See PPB Rule § 541(d)(2)(i).

September 13, 1991 Deputy Mayor Barbara Fife signed the certificate of Mayoral Approval for the Merco contract. See PPB Rule § 541(d)(2)(h).

September 18, 1991 Comptroller Elizabeth Holtzman registered the Merco contract. See PPB Rule § 5 — 07(h)(1)(h).

October 29, 1991 Council Member Carolyn Maloney commenced an Article 78 proceeding in New York State Supreme Court claiming that the Chambers, Merco and NYOFCO contracts are void because the City did not seek “competitive sealed bids.”

DISCUSSION

Petitioners claim that they are entitled to injunctive relief because the award of the Chambers, Merco and NYOFCO contracts violated section 103 of the New York General Municipal (“G.M.L.”). G.M.L. § 103 requires competitive bidding for all municipal contracts. Pursuant to section 103, “all contracts for public work involving an expenditure of more than seven thousand dollars and all purchase contracts involving an expenditure of more than five thousand dollars” must be awarded to the “lowest responsible bidder furnishing the required security after advertisement for sealed bids.” G.M.L. § 103(1). It is undisputed that the Chambers, Merco and NYOFCO contracts were not awarded “after advertisement for sealed bids.” G.M.L. § 103(1). Thus, the court must determine whether there is an applicable exception to section 103’s requirement to competitively bid municipal contracts.

In Pacificorp Capital, Inc. v. City of New York, 741 F.Supp. 481, 484-9 (S.D.N.Y.1990), Judge Cedarbaum in an excellent review of the law discussed the two exceptions to G.M.L. § 103. In Pacificorp, she noted that to be valid, a municipal contract which had not gone through the competitive sealed bidding process must fall within either of two recognized exceptions to G.M.L. § 103: (1) “service” contracts or (2) “contracts let pursuant to a local law enacted prior to September 1, 1953.” See G.M.L. § 103(1).

The judicially created “service” contract exception now exists with regard to New York City only insofar as the new New York City Charter, adopted November 7, 1989 (the “New Charter”), incorporates the “service” contract exception. See New Charter § 312(b)(l)(i). Under the New Charter, section 312(b)(l)(i) grants a “special case” exception to those contracts where “specifications cannot be made sufficiently definite and certain to permit selection based on price alone.” New Charter § 312(b)(l)(i). A review of the major cases construing the common law “service” contract exception and a comparison of those cases to section 312(b)(l)(i) of the New Charter reveals that the “service" contract exception has been incorporated into the New Charter.

A. Service Contract Exception

“[W]hen a municipality is purchasing services which require scientific knowledge, skill, expertise and experience, it is not required to award the contract to the lowest bidder.” Pacificorp, 741 F.Supp. at 485. For instance, in Burroughs Corp. v. New York State Higher Education Services Corp., 91 A.D.2d 1078, 458 N.Y.S.2d 702 (3rd Dept.), appeal denied, 58 N.Y.2d 609, 462 N.Y.S.2d 1025, 448 N.E.2d 1358 (1983), the court found that the purchase of computer hardware and software fell within the “service” contract exception to the competitive bidding requirements. As noted in Pacificorp, the

facts and the RFP in Burroughs showed that in that case the government agency was seeking the design of a computer system to meet its future needs. ‘Both the RFP and the undisputed facts contained in the record establish that, rather than a group of physical articles of electronic hardware, [the governmental agency] primarily was seeking the design of a computer system which would provide prompt, efficient, cost-effective computer services to satisfy its growing and increasingly complex needs for the next five years. Such a design required the employment of the highest skills in the field of computer science. Vendors were allowed considerable discretion in the RFP in proposing the hardware and software components of the system, and they were also encouraged by [agency] officials to be innovative and flexible in meeting the required specifications in their design proposals.’

Pacificorp, 741 F.Supp. at 485 (citing Burroughs, 91 A.D.2d at 1078, 458 N.Y.S.2d at 702 [bracketed text in original] [footnote and emphasis added]). Nonetheless, Judge Cedarbaum found in Pacificorp that the “service” contract exception did not apply because, there,

an examination of the RFP and the other evidence shows that the City knew the specific type of computer equipment it needed to meet its needs ... had conducted its own study of its computer needs and had hired an independent consultant ... to perform a capacity study____ The proposers had little discretion under the RFP in selecting the hardware or software. The RFP did not invite innovative design proposals for a computer system. The only services which the RFP called for were installation and maintenance, services which accompany many machine purchases.

Pacificorp, 741 F.Supp. at 485.

In American Totalisator Co. v. Western Regional Off-Track Betting Corp., 44 A.D.2d 750, 396 N.Y.S.2d 301, 302 (4th Dept.1974), the court noted

[a]n extremely high degree of technical and scientific skill and knowledge are necessary for the setting up and the operation of computer data control services for off-track betting and the providing of scientific and technical services has been uniformly held not to fall within the requirement of the competitive bidding statutes____ The computer services are not described conceptually as either the leasing or purchasing of computers but the providing of computer services which lends substance to the conclusion that we are dealing with an inextricable integration of scientific and technical skills used in conjunction with electronic hardware and software.

American Totalisator, 44 A.D.2d at 750, 396 N.Y.S.2d at 302 [emphasis added]. In Doyle Alarm Co. v. Reville, 65 A.D.2d 916, 410 N.Y.S.2d 466, 467 (4th Dept.1978), the court noted

[t]he specifications called for a ‘reliable security system and service to monitor foreign noises in selected buildings’, alerting school personnel and police to minimize property destruction and loss____ A high degree of skill is required in placing the audio equipment to insure that sounds of intrusion are not masked or, conversely, that the equipment does not transmit normal sounds such as wind upon the windows, expanding heating pipes, etc. in such a way as to make those sounds indistinguishable from attacks upon the building.

Doyle, 65 A.D.2d at 916, 410 N.Y.S.2d at 467.

Based on the above analysis of Pacificorp, Burroughs, American Totalisator and Doyle, it is apparent that the “service” contract exception has now been incorporated in the New Charter as section 312(b)(l)(i) which provides that competitive bidding is not required where “specifications cannot be made sufficiently definite and certain to permit selection based on price alone.”

B. Special Case Exception Under the Old Charter

According to Judge Cedarbaum, the “special case” exception under section 343 of the New York City Charter (“Old Charter”) applies when (1) “only one manufacturer or producer can supply the product” (Pacificorp, 741 F.Supp. at 486 (citing Tinston v. City of New York, 17 A.D.2d 311, 234 N.Y.S.2d 730 [1st Dept.1962], aff'd, 13 N.Y.2d 850, 242 N.Y.S.2d 490, 192 N.E.2d 271 [1963] and Matter of Wade Electrical Contracting Co. v. Davis, No. 15576/82 [Sup.Ct.N.Y.Co. July 28, 1982])), (2) “the lowest bidder has given a prohibited gift to a public official” (Pacificorp, 741 F.Supp. at 486 (citing Kayfield, Const. Corp. v. Morris, 15 A.D.2d 373, 225 N.Y.S.2d 507 [1st Dept.1962])) and (3) time is of the essence (Pacificorp, 741 F.Supp. at 486 (citing Cascione v. Morris, 40 Misc.2d 431, 243 N.Y.S.2d 67 [Sup.Ct.Queens Co.1963])). As an example of a “special case,” Judge Cedarbaum referred to Matter of Emigrant Industrial Savings Bank, 75 N.Y. 388, 394 (1878) [emphasis added] where the court noted that “[a]s cases might arise where from the nature of the work, or other circumstances, it would be either impracticable or unsuitable to contract for work or supplies in that manner [i.e. via competitive bids], a discretion was lodged in the common council empowering them to direct otherwise in special cases ...” Pacificorp, 741 F.Supp. at 486 (citing Emigrant, 75 N.Y. at 394) [bracketed text in original] [emphasis added].

Judge Cedarbaum astutely noted that [although neither the statute nor the decisions clearly define the special case exception, both clearly suggest that a special case is limited to circumstances in which it can be demonstrated that it is impractical and inappropriate for price alone to be the determining factor.

Pacificorp, 741 F.Supp. at 486 [emphasis added]. In a case decided two years prior to Pacificorp, the court in General Electric Corp. v. Koch, No. 11470/88 (Sup.Ct.N.Y.Co. September 14, 1988) foreshadowed Judge Cedarbaum’s definition of the “special case” exception. There, the court found that the

procurement recommendations of the Police Department experts in selecting a system which was compatible with existing components already in use in the network of essential police communications coupled with the need, as shown, to maintain security from interception by persons such as drug dealers with technological ability of their own, bears witness to a justification for going beyond cost figures alone which, it is claimed, was done here.

General Electric, No. 11470/88 at 4 [emphasis added]. Judge Cedarbaum’s analysis of the law on the “special case” exception is consistent with section 312(b)(l)(ii) of the New Charter which provides that competitive bidding is not mandated when “judgment is required in evaluating competing proposals, and it is in the best judgment of the city to require a balancing of price, quality, and other factors.”

Having determined that the “service” contract exception is now incorporated in New Charter section 312(b)(l)(i) and that the “special case” exception of section 343 of the Old Charter is now incorporated into New Charter section 312(b)(l)(ii), the court must determine whether the New Charter is “a local law enacted prior to September 1, 1953.” G.M.L. § 103(1).

C. Does the New Charter fall within the Local Law Exception to Section 103?

In New York State Comptroller Opinion No. 81-109, 1981 WL 16682, the Comptroller’s Office indicated that G.M.L. section 103

“indicates a Legislative intent to preempt the field as to matters contained therein and that the pre-emption would seem to apply to county charter laws, [citation omitted] However, we do not believe that the Legislature intended to preclude a charter law adopted after September 1, 1953 which is essentially a mere revision, simplification, consolidation, codification or restatement of a preSeptember 1, 1953 special law or local law.”

Opns.St.Comp.1981 No. 81-109, 1981 WL 16682 at *1-2 [emphasis added]. Thus, this court must decide whether the applicable New Charter provisions are a “mere revision, simplification,' consolidation, codification or restatement” of the relevant Old Charter provisions.

Judge Cedarbaum’s comment in Pacificorp that a “special case” exists when it “is impractical and inappropriate for price alone to be a determining factor” (Pacificorp, 741 F.Supp. at 486) is extremely instructive when viewed in context of the wording of the New Charter. The New Charter provides that a “special case” exists when “competitive sealed bidding is not practicable or not advantageous ... [and] it is in the best judgment of the city to require a balancing of price, quality, and other factors.” New Charter § 312 [emphasis added]. Thus, Judge Cedarbaum’s review of the caselaw and her synthesis of their holdings supports this court’s finding that the “special case” exception under the New Charter is, in fact, merely a codification, restatement and revision of the meaning courts have given to section 343 of the Old Charter.

Accordingly, this court finds that the New Charter sections 312 and 313 should be deemed adopted the date the Old Charter section 343 became effective. Since section 343 of the Old Charter in the form relevant to this court’s inquiry became effective at a minimum in 1938 when the Old Charter had undergone a major revision, the New Charter provisions dealing with the “special case” exceptions are deemed “adopted prior to September first, nineteen hundred fifty-three” and are simply a recodification, restatement and revision of preSeptember 1, 1953 provisions. G.M.L. § 103(1).

D. City Charter Scheme

Having determined that the Old and New Charter falls within the local law exception to G.M.L. § 103, this court must review the City’s compliance therewith. Old Charter section 343(a) provides:

[i]f the several parts of the work, labor or the supplies, materials and equipment to be done or furnished shall together involve the expenditure of more than five thousand dollars, or in the case of construction, repair, rehabilitation or alteration, the expenditure of more than fifteen thousand dollars, such work or labor or supplies, materials, and equipment or construction, repair, rehabilitation or alteration shall be obtained only by contract on public letting founded on sealed bids under such regulations as shall be made by the board of estimate, except that in a special case the board of estimate by a two-thirds vote may order otherwise.

Old Charter § 343(a) [footnote and emphasis added].

In the instant case, the unique situation arose in that the City’s RFP process began while the New York City Board of