Judge's ruling allows county to move forward with solid waste contract


A trash service contract for unincorporated Valencia County got the green light from a district court judge last week when the county's award of a contract to Waste Management was affirmed.

On May 27, 13th Judicial District Court Judge Violet Otero's order was filed, bringing a 1 1/2 year of waiting to a close.

The battle began in 2012, after the county commissioners awarded a contract to Waste Management to be the exclusive trash hauler for the entire unincorporated area of Valencia County. New Mexico Disposal, the only other qualified respondent to the county's request for proposals, filed a protest to the contract.

The county eventually upheld it's decision, denying NMD's protest. On Feb. 14, 2013, NMD filed a notice of appeal of the protest decision in district court. New Mexico Disposal didn't file its statement of appellate issues with the courts until May 21, 2013.

In its filing, New Mexico Disposal requested the court order the county to cancel the contract with Waste Management and appoint a new evaluation committee to review and rescore the proposals.

With the judge's decision, NMD now has 30 days to file an appeal of the court's decision. However, that may be a moot point since local hauler AC Disposal has bought out the company's assets. Charles Montoya, owner of AC, said his company purchased NMD's assets at the beginning of May. Those assets included four trucks, numerous roll-off containers and a contract with the village of Los Lunas.

"We took over the assets, but not the lawsuit with Valencia County," Montoya said. "The one contract (NMD) had with the village (of Los Lunas), we took over."

Los Lunas has its own solid waste department, but does not provide large roll-off containers, Montoya said. The village has franchise agreements for those containers with Waste Management, AC, and New Mexico Disposal.

Since New Mexico Disposal was a franchise of California-based Rainbow Disposal, Montoya said the West Coast company is working with AC to make sure all the assets are transferred correctly.

The buy-out has been good for his company, Montoya said.

"We hired two more drivers, so we've seen some good growth," he said.

He added that the customer base from NMD was "not as much as we expected."

As the county moves forward with its contract with Waste Management, Montoya admits it's not going to be good for him as a businessman. He expects to lose about 1,000 customers.

"But I don't take it personally; it's just business. I still have concerns. I still don't think people will pay," he said.

Montoya's company won the hauler contract for the village of Bosque Farms last year, taking over for Waste Management.

"Just in that transition with an existing contract, people are still not paying. I can't imagine how hard it will be with a new contract," Montoya said.

County residents are currently required by ordinance to chose and contract with a curb side hauler of their choice. However, there are holdouts who use the Conejo Transfer Station for trash disposal and are resistant to curb side service.

Several years ago, the county commissioners decided to move to an exclusive hauler to serve the entire unincorporated area in an effort to cut down on illegal dumping and save the wear-and-tear of multiple heavy trucks on the roads. Different companies often served residents on the same street, resulting in trash trucks on one road several times a week.

County attorney Dave Pato said he appreciated Judge Otero's careful consideration of the merits of this lawsuit, and her thoughtful decision.

"This ruling is a substantial victory for the residents of Valencia County, and will assist the board of county commissioners in its efforts to clean up Valencia County," Pato said. "Residents in the unincorporated parts of the county will soon have curb side residential pickup, and will also have an additional convenience center in the near future."

According to the terms of the county's third contract extension with Waste Management, the company will begin service 100 days after the county lifts its stop-work order, which was put in place when NMD appealed the county's denial of its initial protest of the procurement.

"The county anticipates that it will lift the stop-work order shortly after it has an opportunity to have a preliminary meeting with Waste Management so that the county may ensure a seamless transition for the county's residents," Pato said.

The attorney for New Mexico Disposal, Amavalise Jaramillo, could not be reached for comment on the judge's decision before News-Bulletin press time.

The suit by NMD alleged that the county violated the Open Meetings Act when commissioners allowed former county manager Bruce Swingle to appoint a three-member evaluation committee outside of a public meeting, and that the committee's meetings, even though they were closed, were not publicized.

The county's purchasing policy allows the county manger to appoint an evaluation committee if the commissioners do not do so, but Jaramillo argued that since the commissioners have sole authority to establish a solid waste program, they cannot pass an ordinance that delegates that power to the manager.

"Only the commission has the authority to appoint an (evaluation committee) … and such an appointment is subject to public notice and meetings requirements of the Open Meetings Act," Jaramillo wrote in his brief. "… the commission violated the Open Meetings Act by appointing an (evaluation committee) through a process that was closed to the public."

The attorney also argued that various point designations and findings by the committee were not supported by substantial evidence or were arbitrary and capricious.

The brief went through all 11 areas the competing proposals were scored in and made the argument that NMD could have been awarded more points.

In Otero's ruling, she wrote that the commission delegated selection of the evaluation committee to the former county manager, his selection of an evaluation committee was not subject to the OMA and the committee's meetings to evaluate and score the bids were also not subject to the act.

She also wrote that NMD could have filed protests regarding the bidding process, but its failure to do so still left open the possibility of this appeal.

Otero wrote that the commission did not act fraudulently, arbitrarily or capriciously in making its decision, and the commission' decision was supported by substantial evidence.

After NMD's filing, the trash contract was extended and delayed several times. It was supposed to begin on April 1, 2013, but after the February court filing by NMD, the commissioners were hesitant to move forward.

In March 2013, the commissioners decided to push back the start of the contract to the end of June and allow the four franchise haulers in the county — AC Disposal, New Mexico Disposal, Valley Disposal and Waste Management — to continue operating until then.

As the July 1 start date loomed, there was no movement on the case. With all arguments filed, the commissioners decided to bump the date out again to Jan. 1, 2014.

With the case still stuck in court after those two contract extensions, instead of setting yet another start date for the Waste Management contract, commissioners voted 4-1 in December to amend the contract to begin 100 days after the resolution of a district court appeal.

-- Email the author at jdendinger@news-bulletin.com.