By its express terms, the ACO provides that the parties agree to its terms and warrant that they “bind themselves to comply with” its terms. The “ACO represents the complete and integrated agreement of, and shall be binding upon, and/or inure to the benefit of, the State of New Jersey, and the NJDEP.”
As the court correctly found, the ACO is an agreement between defendants and the NJDEP which, by its express terms, may be enforced by the parties. In other words, under the common meaning of the term, the ACO is a contract as a matter of fact. Further, it is a “government contract” under the plain language of N.J.S.A. 2C:21-34(b), because it is a contract between the NJDEP and defendants.
The fact that the ACO also constitutes an order does not alter its status as an enforceable contract. Our Supreme Court has recognized that a consent judgment is “an agreement of the parties under the sanction of the court.” The ACO is no different than a consent order in that it incorporates the contractual agreement of the parties and also constitutes an order, enforceable by both parties, requiring compliance with its terms. The inclusion of the parties’ agreement into a binding order does not render the ACO something other than a contract. To the contrary, the ACO constitutes a contract which includes an agreed-upon method to ensure compliance with its terms – enforcement of the order.
We are not persuaded by defendants’ contention, which was accepted by the court, that a “government contract” is limited to those providing for the procurement of goods and services from vendors. In the first instance, and for the reasons noted, the plain language of the statute does not permit or require such an interpretation. The Legislature chose to prohibit “knowingly making a material representation that is false in connection with the negotiation, award or performance of a government contract,” but did not limit the statute’s application to government procurement contracts or government contracts with vendors for the purchase of goods or services. We cannot add to a statute that which the Legislature opted not to include or require, and there is nothing in the statute’s plain language supporting the court’s determination that N.J.S.A. 2C:21-34(b) applies only to government contracts for purchases of goods and services.
A counter-argument to the Court’s holding is that there is nothing in 2C:21-34(b)’s plain language that states that it applies to consent orders. Moreover, there was no citation to any language in the consent order that refers to the order as a contract or a criminal penalty as a remedy.
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