Delaware River Joint Toll Bridge Commission v. George Harms Construction Co., Inc.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1484-20 DELAWARE RIVER JOINT TOLL BRIDGE COMMISSION, WADUD AHMAD, ESQ., individually and in his official capacity, PAM JANVEY, individually and in her official capacity, DANIEL H. GRACE, APPROVED FOR PUBLICATION individually and in his official April 4, 2023 capacity, JOHN SIPTROTH, APPELLATE DIVISION individually and in his official capacity, GARRETT LEONARD VAN VLIET, individually and in his official capacity, GEOFFREY S. STANLEY, individually and in his official capacity, LORI CIESLA, individually and in her official capacity, YUKI MOORE LAURENTI, individually and in her official capacity, MICHAEL B. LAVERY, individually and in his official capacity, and JOSEPH J. RESTA, individually and in his official capacity, Plaintiffs-Respondents, v. GEORGE HARMS CONSTRUCTION CO., INC., and MICHAEL RAINVILLE, Defendants-Appellants. __________________________________  Argued January 25, 2023 – Decided April 4, 2023 Before Judges Currier, Enright and Bishop-Thompson. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2394-16. Francis V. Cook argued the cause for appellants (Fox Rothschild LLP, attorneys; Francis V. Cook, of counsel and on the briefs; Corinne B. DeBerry and Ian C. Gillen, on the briefs). Brian P. O'Neill argued the cause for respondents (Chiesa Shahinian & Giantomasi PC, attorneys; Brian P. O'Neill, John F. Casey and Chelsea P. Jasnoff, on the briefs). Nathan Kilbert, Assistant General Counsel, (United Steelworkers) of the Pennsylvania bar, admitted pro hac vice, argued the cause for amicus curiae United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, and Allied Industrial and Service Workers International Union (David Tykulsker & Associates and Nathan Kilbert, attorneys; David Tykulsker, on the briefs). The opinion of the court was delivered by CURRIER, P.J.A.D. Plaintiff Delaware River Joint Toll Bridge Commission (Commission) is a bi-state entity created by an interstate compact between the State of New Jersey and the Commonwealth of Pennsylvania and approved by the United States Congress. In this matter, arising out of a construction project to replace the Scudder Falls Bridge that connects the two states, we consider whether the A-1484-20 2 Commission was authorized to approve, use, and enforce a project labor agreement (PLA) as a mandatory requirement in its bid specifications. This mandate required all bidding contractors and subcontractors to enter into a PLA with certain named unions affiliated with the local building and construction trades councils, recognizing those unions as the sole and exclusive bargaining representatives of the bidder's project workforce. After defendant George Harms Construction Co., Inc. (Harms) threatened to seek an injunction, the Commission filed a verified complaint seeking a declaratory judgment affirming its actions and the PLA. Harms answered the complaint and asserted multiple counterclaims. The court initially dismissed all but one of the counterclaims without prejudice but later dismissed all of the counterclaims with prejudice as well as the complaint. Because we find the Commission did not have the authority to approve, use, and enforce a PLA and, therefore, failed to state a cause of action upon which relief may be granted, we affirm the order dismissing the Commission's complaint, albeit for different reasons than articulated by the trial court. In light of our conclusion regarding the Commission's actions, we reverse the order dismissing defendants' amended counterclaims and their motion for sanctions, and remand for a consideration of certain counterclaims. A-1484-20 3  I. The Commission was created by an interstate compact in 1934-35 between New Jersey and Pennsylvania, which was incorporated in parallel legislation enacted by each state and then approved by Congress pursuant to the Compact Clause of the United States Constitution. 1 N.J.S.A. 32:8-1 to -30 (New Jersey); 36 Pa. Stat. and Cons. Stat. Ann. §§ 3401-17 (Pennsylvania); Act of Aug. 30, 1935, Pub. L. No. 74-411 § 9, 49 Stat. 1051, 1058-64, ch. 833 (1935) (Congress). The State Legislatures thereafter amended the original compact, and those amendments were subsequently approved by acts of Congress. See, e.g., Act of Aug. 4, 1947, Pub. L. No. 80-355, 61 Stat. 752, 752-56, ch. 480 (1947); Act of Mar. 31, 1952, Pub. L. No. 82-287, 66 Stat. 28, 28-32, ch. 124 (1952). The Commission was created to acquire, construct, maintain, rehabilitate, remove, and replace bridges over certain portions of the Delaware River. N.J.S.A. 32:8-11; 36 Pa. Stat. and Cons. Stat. Ann. § 3401. The Commission's jurisdiction extends from the Philadelphia-Bucks County line to the New Jersey-New York state border, with the exceptions of the Burlington-Bristol Toll Bridge, the Turnpike Bridge, and the Dingman's Ferry Bridge. 1 The Compact Clause states: "No State shall, without the consent of Congress, . . . enter into any Agreement or Compact with another State, or with a foreign Power . . . ." U.S. Const. art. I, § 10, cl. 3. A-1484-20 4  The Commission is governed by a board of ten commissioners, five from each state. New Jersey's members are nominated by the Governor and confirmed by the Senate for three-year terms. Pennsylvania's members are appointed by the Governor and serve at the Governor's pleasure. Each Governor has "a veto power . . . over any action of any commissioner from that state at any time within [ten] days . . . after receipt at the Governor's office of a certified copy of the minutes of the meeting at which such vote was taken ." N.J.S.A. 32:8-3; 36 Pa. Stat. and Cons. Stat. Ann. § 3503, art. III. In both states' implementing statutes, the respective Legislatures stated, "[n]otwithstanding the delegation of power to the commission, it is incumbent upon [New Jersey and Pennsylvania] to ensure that the commission carries out its duties in a manner which ensures prudent use of toll payer monies." N.J.S.A. 32:8-3.8(c); 36 Pa. Stat. and Cons. Stat. Ann. § 3401.11(3). Toll revenues are the Commission's sole source of financial support. A. In September 2000, the Commission identified the Scudder Falls Bridge as a "high priority for improvement." Therefore, it began the planning, permitting and design of a construction project to replace the bridge with an expanded, twin-span structure (the project). In 2010, the commissioners unanimously voted to use bridge tolls to fund the project. Although A-1484-20 5 Commission staff initially estimated the project's cost at $260 million, the figure was later revised to $327 million. In 2013, Joseph Resta, the Commission's Executive Director, hired Keystone Research Center (Keystone) to study the feasibility of using a PLA for the project. Resta had previously used Keystone to evaluate a proposed PLA when he was the project executive for the Pennsylvania Convention Center expansion project. In its January 2016 report to the Commission, Keystone concluded that a PLA was appropriate because it would guarantee a high-quality and diverse skilled workforce for the project, ensure regular and effective communication between labor and management, prohibit work stoppages and disruptions, ensure standardization and consistency, and promote efficiency and smooth project operation. Resta also solicited a Labor Quantification Analysis and Report from Hill International (Hill) to "identify the skilled and unskilled labor that [would] be needed to construct the new Scudder Falls Bridge and related work on both sides of the Delaware River." Hill identified the Philadelphia Building and Construction Trades Council, the Mercer County Building and Construction Trades Council, and United Steel Workers (USW), Local 15024 as "[t]he labor organizations which [would] provide workers for the project." A-1484-20 6  In September 2016, the Commission sent out a notice advertising the bidding for the project. The notice informed potential bidders that the Commission was "contemplating the use of a [PLA] for this Contract," and "the terms, conditions, requirements and obligation of the Contractor under the PLA" would be issued via an addendum. Bids were due by November 22, 2016.2 The PLA, which covered all craft labor services for the project, was between the Commission and two local building and construction trades councils and their affiliated local unions: the Mercer-Burlington Counties and Vicinity Building Trades Council, AFL-CIO; and the Building and Construction Trades Council of Philadelphia and Vicinity, AFL-CIO. The PLA required the successful bidder's contractor and all subcontractors to hire their project workforce through the identified signatory local unions. However, contractors were also permitted to hire up to twenty-five percent of the project workforce from other unidentified unions or non-union laborers. The PLA stated the Commission had resolved to enter into the agreement because "the timely and proper completion of the construction" was "necessary to control construction costs and institute tolling of the bridge ." Those goals were dependent upon, in addition to other bases: (1) "an adequate supply of 2 The bidding date was later extended. A-1484-20 7 consistently high quality skilled labor"; (2) a prohibition on work stoppages and other disruptions; and (3) the "standardization and consistency of work rules across all participating trades." On November 10, 2016, the Commission issued Addendum No. 5 to the bid documents, advising it was using a PLA for the contract and attaching a copy of the agreement. Harms is a heavy construction business associated with numerous major bridge and highway projects in New Jersey since 1960. Harms has a collective bargaining agreement with the USW naming it as the "sole bargaining representative" for its covered employees. Defendant Michael Rainville worked at Harms for many years and has been a USW member since 1989. He is also a bridge toll payer, and a Pennsylvania resident. Several days after the issuance of Addendum No. 5, USW's counsel sent Resta a letter explaining that, although USW was not affiliated with the local building and construction trades councils, there was a "Harmony Agreement" existing "between the USW and AFL-CIO's Building and Construction Trades Department and its affiliates (BCTD) permitting workers represented by the BCTD and USW to work side by side on the same work projects." Therefore, counsel asked Resta to include USW in the PLA as a signatory union. The Commission did not reply to USW's letter. A-1484-20 8  According to John E. Shinn, Director of USW's District 4, the Harmony Agreement was "negotiated for the express purpose of allowing [USW and BCTD] to work side by side on projects," such as this one. He explained in a certification that, because Harms is a party to a collective bargaining agreement with USW, it could not bid on any project where USW was excluded from the PLA. During this same time, Harms's counsel sent letters to the Commission advising that Harms was prevented from bidding on the project because it was a party to a collective bargaining agreement with USW, which was excluded from the PLA. Counsel referred to the Harmony Agreement, stating there was "a private agreement between USW and the Building and Construction Trades Department that specifically allow[ed] for USW to be included in PLAs like the one for this Project." Harms threatened to seek an injunction to prevent the project from moving forward with the PLA unless the Commission added USW as a signatory union to the PLA. B. On December 2, 2016, the Commission filed a single count verified complaint, alleging it would suffer irreparable financial harm if Harms was successful in obtaining an injunction based upon its "faulty premise, first, that the PLA being utilized by the . . . Commission in this matter is barred by New A-1484-20 9 Jersey law, and more fundamentally, that the . . . Commission is even subject to New Jersey law." The complaint stated that the Commission was "governed by its Compact as approved by the United States Congress and that, unless there is complimentary, and identical, legislation in both States, which is incorporated into the Compact, and is further approved by the United States Congress, that no such laws apply to the Commission." The Commission further alleged its use of a PLA was "in no way restricted by federal law" and it was "entitled to a declaration that it may proceed to receive bids and award the contract in this matter, including the PLA." Therefore, the Commission sought an order: (1) declaring it was "entitled to proceed with receipt of bids and award of the contract to perform the reconstruction of the Scudder Falls Bridge, including the use of the [PLA] included within the specifications issued to bidders"; and (2) for costs of suit and any other relief the court deemed proper against Harms. Thereafter, Harms filed an answer with affirmative defenses and a verified counterclaim against the Commission alleging violations of competitive bidding laws, 42 U.S.C. § 1983, the State Constitution, and preemption pursuant to the National Labor Relations Act, 29 U.S.C. §§ 151- 169 (NLRA), and seeking a declaratory judgment enjoining the bid opening A-1484-20 10 and an award of compensatory and punitive damages and attorney's fees. Harms also filed an application for temporary restraints and a preliminary injunction to prevent the Commission from accepting and opening bids and awarding a contract for the project. On January 5, 2017, the court denied Harms's application for a preliminary injunction. Five days later, the Commission opened the sole bid—from Trumbull Corporation (Trumbull) for $396 million. Harms's president and chief operating officer certified that, if permitted to bid, Harms would have submitted a bid for $325 million—$71 million less than the successful bid. Because there was only one bid, the Commission hired two engineering firms, Hill and Michael Baker International, to evaluate whether to award the project to Trumbull or rebid the contract. The firms both recommended awarding the bid to Trumbull. In September 2017, the court permitted Harms to amend its answer and counterclaim to add: claims for punitive and compensatory damages, and breach of fiduciary duty against the Commission; designate Rainville as a "[c]ounterclaimant"; and name the individual commissioners and Resta as "[c]ounterclaim [d]efendants." In its counterclaim, defendants alleged that, by failing or refusing to include USW as a signatory union to the PLA, which precluded Harms from A-1484-20 11 bidding due to its preexisting union affiliation with USW, and then proceeding with the bid opening and award, which was higher than Harms would have bid, the counterclaim defendants: (1) violated the competitive bidding laws of New Jersey and Pennsylvania by transferring control over the bid specifications to the signatory unions (count I); (2) violated the NLRA by adopting a PLA that was preempted by federal law (count II); (3) violated 42 U.S.C. § 1983 by denying defendants' First Amendment Federal Constitutional rights to freedom of association and freedom from coerced association (count III); (4) violated 42 U.S.C. § 1983 by denying defendants' federal and state constitutional due process rights (count IV); (5) violated 42 U.S.C. § 1983 by denying defendants' federal constitutional equal protection rights (count V); (6) violated N.J.S.A. 10:6-2 by denying and interfering with defendants' federal and state constitutional rights and their rights in private employment to organize and bargain collectively (count VI); and (7) breached their fiduciary duty to the toll payers and users of the Scudder Falls Bridge, includin g Rainville, by defying N.J.S.A. 32:8-3.8 and 36 Pa. Stat. and Cons. Stat. Ann. § 3401.11 to "ensure prudent use of toll-payer moneys" in their "planning, construction, maintenance and rehabilitation of certain Delaware River crossings" (count VII). Defendants also alleged they were entitled to a declaratory judgment (count VIII) finding the Commission was bound by the A-1484-20 12 competitive bidding laws of New Jersey and Pennsylvania and that it implemented an unlawful PLA in violation of state constitutions, federal labor laws and the federal constitution. Defendants sought: (1) compensatory damages for Harms's lost profits and costs to prepare a bid proposal and for Rainville's lost wages and benefits; (2) the increased cost of the bridge construction paid by Rainville; (3) an award of costs and attorney's fees; and (4) an award of punitive damages against Resta and the commissioners in their individual capacities . Plaintiff and counterclaimants moved to dismiss the first amended counterclaim. On February 2, 2018, the court partially granted the motion and dismissed counts I-VI without prejudice. The court granted defendants leave to file a second amended answer and counterclaim. During the discovery period, defendants moved to compel depositions and discovery of other evidence, including letters, papers, emails, and text messages. The Commission produced ordered documents, which the court examined in camera and ordered the disclosure of some of them. Defendants deposed Resta, three commissioners and several staff members. C. In October 2020, defendants moved for summary judgment on counterclaim counts VII and VIII, and for a dismissal of the Commission's A-1484-20 13 verified complaint. The Commission and counterclaimants cross-moved for summary judgment. Defendants also moved for sanctions under the Frivolous Claims Act, N.J.S.A. 2A:15-59.1, and Rule 1:4-8. They contended the Commission filed its lawsuit against Harms "without first obtaining approval through a majority vote [of the commissioners, which] is not permitted under the Compact through which the Commission derives its power." They also asserted the commissioners had not voted on whether to exclude USW from the PLA. On December 18, 2020, the court issued an oral opinion (1) granting the Commission's cross-motion for summary judgment and dismissing the remaining counterclaims; (2) denying Harms's motions for summary judgment and to reinstate counterclaims and for sanctions; 3 and (3) dismissing the Commission's complaint for declaratory judgment as moot. The court's decisions were memorialized in three separate orders on December 23, 2020. In addressing the counterclaim that the Commission violated competitive bidding laws, the court noted the issue was subject to the laws construing interstate compacts. The court explained that "in order to be subject to 3 Defendants only challenge the denial of their motion to reinstate as to three counterclaims—violation of competitive bidding laws, infringement of First Amendment rights, and breach of fiduciary duty. Therefore, we do not include the court's reasoning for the dismissal of the additional counterclaims. A-1484-20 14 particular law[s] of one or the other state, the two states have to pass . . . substantially similar legislation or the compact has to authorize unilateral legislation or the substantive law of the two states needs to be the same." The court noted that although New Jersey and Pennsylvania have similar public bidding laws, the laws as to PLAs are "not the same . . . so . . . there is not the complementary legislation." New Jersey has a statute controlling PLAs while Pennsylvania only has case law and no legislation. Therefore, the court found "there was no unanimity of Pennsylvania and New Jersey law on the topic of [PLAs]." The court concluded that "[t]o apply the New Jersey precedents here would essentially authorize unilateral legislation and that's not something that the [c]ourt can do. That's the choice of the Commission." The court held the Commission had the choice to use a PLA. The court further stated: I've gone over all the reasons why [the PLA] was adopted by the Commission, the reports on which it was based, the concerns about delaying costs and so forth and simply Harms has not met its burden of proof to show that it was an abuse of discretion, unreasonable or invalid, because the Commission retained the discretion as an independent bi-state agency that is not subject to [PLA] law. And where the states are not in agreement on [PLAs] in terms of the law that governs them, the Commission retains the right to follow its own policies which other Courts in other contexts have approved despite there being a difference of opinion on [PLAs] agreements generally A-1484-20 15  as an appropriate policy or not. The Commission had the authority to enact a [PLA]. In a supplemental oral decision issued on December 22, 2020, the court found the Commission's actions were "cloaked with a presumption of regularity" and "there's a heavy burden to show that the government action constitutes an abuse of the discretion that's vested in the governmental body." Furthermore, because the Commission established a need for promptness and timely completion of the project, the court found the Commission did not abuse its discretion in its unanimous decisions to adopt the PLA and to award the project to the sole bidder. Citing Bldg. Indus. Elec. Contractors Ass'n v. New York, 678 F.3d 184, 191-92 (2d Cir. 2012), the court explained it looked at the "objective factors . . . on the face of the action and not the allegations about individual official[s'] motivations in adopting the policy or action." The court also noted Colfax Corp. v. Ill. State Toll Highway Auth., 79 F.3d. 631, 635 (7th Cir. 1996), that concluded a court should not go behind a PLA to determine if its adoption was based on an improper motive. The court also addressed defendants' counterclaim that the PLA violated their First Amendment rights to freedom of association and speech. When the counterclaim was initially dismissed in 2018, the court found Harms chose to solely affiliate with USW and that there were no facts showing or alleging the Commission's "substantial interference or any . . . interference" with A-1484-20 16 Rainville's "ability to freely continue to associate with the [USW] and with Harms" or that he was "prevented from continuing to . . . be a member of the [USW]" or was "targeted by the Commission in any way." In its 2020 decision, the court reiterated that the PLA did not impinge on the freedoms of association and speech because it did not require that all of a contractor's employees participate in a particular union with opposite beliefs to their own. The court stated the PLA "does not require an employee to join a union . . . [or] require the contractor to do anything more than to agree to abide by the signatory union collective bargaining terms for this project and this project only." The court noted the PLA permitted a contractor to hire, up to twenty-five percent of its labor force, workers who were not members of the trade council. Not every person working on the project had to become a member of the building trades affiliated union. The third dismissed counterclaim defendants challenge is the Commission's breach of its fiduciary duty to the toll payers and users of the Scudder Falls Bridge, including Rainville. In considering the counterclaim, the court stated it was "clear" that the commissioners "had an obligation to serve the public with the highest fidelity," however there was "nothing in the record in this case to show any corrupting influence on the determination to do a [PLA] with . . . the trades union." A-1484-20 17 Nevertheless, the court agreed that the Commission had a duty to vote to approve the initiation of this action and it was "of concern to the [c]ourt" that it had failed to do so. Even so, the court declared that it "went over the facts of this case so carefully" and found nothing to suggest "some untoward agreement between [the] former Governors," or any "claims of political c[]ronyism or favoritism," or "improper action or influence by the Commission," such as any commissioner's promotion of the PLA or other possible conflict of interest. Additionally, the court's "review of the depositions showed that [the Commission's employees] were public servants doing their jobs." In its supplemental oral decision, the court explained that defendants' arguments were not persuasive. The court found the Commission's need for promptness and timely completion of the project were valid factors underlying its decisions to adopt the PLA and accept the sole bid. "[W]hile it may be difficult or distasteful for [defendants] to accept a [PLA], [that] does not mean that it's anticompetitive or discriminatory or unreasonable or . . . an abuse of discretion." The court also considered defendants' assertion they were entitled to sanctions because the Commission filed its complaint without the A-1484-20 18 commissioners' required authorization and then attempted to cover up its actions. In denying the motion, the court found the Commission's claims were not frivolous. Although the court was troubled that the Commission had filed its verified complaint before getting the proper authorization from the commissioners, it found the suit was not filed in bad faith, as there was no indication of malicious intent or wrongful purpose. The court determined the Commission's claims were founded on credible information that Harms was going to try and stop the construction and, therefore, the application was well- grounded in the established law. The court also relied on the concepts of ratification and the failure of the commissioners to repudiate the suit after they learned of the filing of the action. II. On appeal, defendants contend the court erred because the Commission and the PLA violated competitive bidding laws, the First Amendment's constitutional freedoms of speech and association, and the fiduciary duty owed to bridge toll payers. They further assert the court erred by thwarting their discovery attempts at deposing all the commissioners and by denying their motion for sanctions. A-1484-20 19  We granted USW leave to appear as amicus curiae. USW supports the use of PLAs, asserting the agreements ensure that construction projects are completed quickly and efficiently. However, amicus contends that whether a PLA is legally permissible for a public sector construction project turns on an application of the state's competitive bidding laws. Here, amicus argues, the Commission exceeded its authority by entering into a PLA only with the local building and construction trade councils and their affiliated local unions and, therefore, requiring all bidders to accept those unions as the "sole and exclusive bargaining representatives" of their project workforce.4 Our review of the compact under contract principles and the interpretation of the applicable New Jersey and Pennsylvania statutes is de novo. See Checchio v. Evermore Fitness, LLC, 471 N.J. Super. 1, 6 (App Div. 2022); Real v. Radir Wheels, Inc., 198 N.J. 511, 524 (2009). In addition, when analyzing pure questions of law raised in a dismissal motion, we undertake a de novo review. Smith v. Datla, 451 N.J. Super. 82, 88 (App. Div. 2017). A "trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." 4 Amicus only addresses the court's order dismissing with prejudice amended counterclaim count I, the violation of competitive bidding laws. A-1484-20 20 Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). A. The project was completed and the bridge opened for use during the course of the trial court litigation. Therefore, we consider whether the matter is moot.5 See Advance Elec. Co. v. Montgomery Twp. Bd. of Educ., 351 N.J. Super. 160, 166 (App. Div. 2002) ("[A] court will not decide a case if the issues are hypothetical, a judgment cannot grant effective relief, or there is no concrete adversity of interest between the parties."). As we stated in Advance Elec., we will rule on potentially moot matters "where they are of substantial importance and are capable of repetition while evading review." Ibid. There, we found that issues squarely implicating the public bidding process were matters "of great public interest," and "given the time it takes to hear and decide appeals [on bidding matters], it is likely that future appeals on the same issue would not be decided until the construction was completed." Id. at 167. Similarly, in In re Protest of Cont. Award for Project A1150-08, N.J. Exec. State House Comprehensive Renovation & Restoration, 466 N.J. Super. 244, 263 (App. Div. 2021), we dismissed a bid 5 The Commission urged this court to refrain from considering the merits of this appeal as there was no contract to void, no work to enjoin, and no damages to award, thus rendering the matter moot. A-1484-20 21 protest as moot because it was too late to order rebidding or award the contract to another bidder. Nevertheless, we still addressed the issues because statutory interpretation in public bidding disputes is a matter "of sufficient public importance." Ibid. Here, we have addressed the threshold issue of the viability of the PLA because of the importance of interstate compacts. It is highly likely the Commission or another bi-state entity involving New Jersey may use a PLA during the bidding process for one of its projects, making the issue one of grave public importance. In fact, in its supplemental brief, the Commission implies it could use a PLA in its next solicitation. Therefore, the Commission has not met its heavy burden of persuasion by making it "absolutely clear" that its actions will not reoccur. See Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (quoting United States v. Concentrated Phosphate Exp. Ass'n, 393 U.S. 199, 203 (1968)) ("The 'heavy burden of persuading' the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness."). B. Following the receipt of the merits briefs, we inquired of the pa rties whether we had jurisdiction to hear the appeal. Since an interstate compact is sanctioned through congressional consent, we questioned whether the A-1484-20 22 construction of an interstate compact was a question of federal law. See Cuyler v. Adams, 449 U.S. 433, 438 (1981); Del. River Joint Toll Bridge Comm'n v. Colburn, 310 U.S. 419, 427 (1940). Both parties agreed the matter was properly before the New Jersey state court. Clearly, the federal courts have jurisdiction to hear cases and appeals involving interstate compacts under 28 U.S.C. §§ 1331 and 1291. However, state courts have not been barred from construing compacts concerning bi -state agencies. In Int'l Union of Operating Eng'rs, Local 68, AFL-CIO v. Del. River & Bay Auth. (Local 68), 147 N.J. 433 (1997), our Supreme Court stated that "[u]nless a case involves a dispute between two states or an express statutory prohibition against the exercise of jurisdiction by the courts of either state, those courts may construe compacts concerning bi-state agencies." Id. at 442. The Court explained: For years, . . . both federal and state courts have construed the terms of interstate compacts. At no time has the United States Supreme Court ruled that state courts do not have jurisdiction to construe . . . compacts. Implicitly recognizing the powers of state courts, the Court has written that it has the final say in compact-construction cases even when the matter concerns a question on which a state court has already spoken. On occasion, the Court has even remanded a compact-construction case to a state court for reconsideration. A-1484-20 23  [Id. at 441-42 (citations omitted).] Although a state court has jurisdiction to consider disputes under a bi-state compact, the United States Supreme Court has the final say. Ballinger v. Del. River Port Auth., 172 N.J. 586, 593-94 (2002). At issue in Local 68 was the bi-state compact between New Jersey and Delaware for the Delaware River Bay Authority (DRBA). 147 N.J. at 437. The compact specifically provided: "Judicial proceedings to review any . . . action of the authority . . . , may be brought in such court of each state, and pursuant to such law or rules thereof, as a similar proceeding with respect to any agency of such state might be brought." Id. at 443 (quoting N.J.S.A. 32:11E-1, art. XV). Consequently, the Court found that "the [DRBA] Compact's plain language makes clear that the courts of New Jersey and Delaware have concurrent jurisdiction to review any action taken by the DRBA." Ibid. "Article XV vests the courts of New Jersey and Delaware with concurrent jurisdiction over the DRBA's labor disputes." Ibid. The Court explained: "When a state signs a compact, a court of that state may not construe the compact absent the Compact's recognition of that state's jurisdiction. Whether a creator state unilaterally may exercise jurisdiction over a bi-state agency depends, then, on the terms of the compact." Id. at 442-43 (citations omitted). A-1484-20 24 The Court stated that the compact itself determines whether the state courts could hear challenges to "action of the authority." -- Id. at 443 (quoting N.J.S.A. 32:11E-1, art. XV). In contrast, the compact at issue here contains no similar provision to that within the DRBA compact. There is no language at all regarding jurisdiction over disputes. This dispute concerns the Commission's authority and whether its creator states have expressly or implicitly granted it the powers to approve, use , and order the mandatory compliance with a PLA in its bidding specifications. Those are questions of federal law. We turn again to the compact to discern any basis for jurisdiction in state court. The compact grants the Commission the powers, among other things, "[t]o sue and be sued" and "[t]o enter into contracts." N.J.S.A. 32:8 -3(b) and (h); 36 Pa. Stat. and Cons. Stat. Ann. § 3401, art. II(b) and (h). N.J.S.A. 32:8- 12 states: Upon its signature on behalf of the state of New Jersey and the commonwealth of Pennsylvania, this compact or agreement shall become binding and shall have the force and effect of a statute of the state of New Jersey, and the commission shall thereupon become vested with all the powers, rights, and privileges, and be subject to the duties and obligations contained therein, as though the same were specifically authorized and imposed by statute, and the state of New Jersey shall A-1484-20 25  be bound by all of the obligations assumed by it under this compact or agreement. . . . The governor is hereby authorized to apply, on behalf of the state of New Jersey, to the congress of the United St