Johnson v. City of Omaha

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
JOHNSON v. CITY OF OMAHA
Cite as 319 Neb. 402
Rodney Johnson, appellant, v. City of Omaha
and FCC Environmental Services
Nebraska, LLC, appellees.
___ N.W.3d ___
Filed July 11, 2025. 	No. S-23-923.
1. Standing: Jurisdiction: Parties. Standing is a jurisdictional component
of a party’s case, because only a party who has standing may invoke the
jurisdiction of a court; determination of a jurisdictional issue which does
not involve a factual dispute presents a question of law.
2. Rules of the Supreme Court: Pleadings: Appeal and Error. An appel-
late court reviews a district court’s denial of a motion to amend under
Neb. Ct. R. Pldg. § 6-1115(a) (rev. 2025) for an abuse of discretion.
3. Summary Judgment: Appeal and Error. An appellate court reviews
rulings on a motion for summary judgment de novo, viewing the record
in the light most favorable to the nonmoving party and drawing all rea-
sonable inferences in that party’s favor.
4. Statutes: Appeal and Error. Statutory interpretation is a question of
law that an appellate court resolves independently of the trial court.
5. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
6. Standing: Jurisdiction: Parties. Standing is a jurisdictional component
of a party’s case because only a party who has standing may invoke the
jurisdiction of a court.
7. Standing: Jurisdiction: Pleadings: Evidence: Proof: Words and
Phrases. If a motion challenging standing is made at the pleadings
stage, it is considered a “facial challenge” and a court will review
the pleadings to determine whether there are sufficient allegations to
establish the plaintiff’s standing. If a motion challenging standing, and
thus the court’s subject matter jurisdiction, is raised after the pleadings
stage and the court holds an evidentiary hearing and reviews evidence
outside the pleadings, it is considered a “factual challenge” and the
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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
JOHNSON v. CITY OF OMAHA
Cite as 319 Neb. 402
party opposing the challenge must offer evidence to support its burden
of establishing subject matter jurisdiction.
8. Jurisdiction: Pleadings: Appeal and Error. When an appellate court
reviews a trial court’s decision based on a factual challenge to standing,
it reviews any factual findings under the clearly erroneous standard but
reviews the ultimate standing determination de novo, because it presents
a question of law.
9. Standing: Claims. The general common-law standing inquiry focuses
on whether the party bringing the suit has suffered or will suffer an
injury in fact.
10. Standing: Municipal Corporations. To have standing to bring an
action to restrain an act of a municipal body, litigants must usually show
some injury peculiar to themselves.
11. Equity: Taxation: Injunction. Because taxpayers have an equitable
interest in public funds, a resident taxpayer may bring an action to
enjoin the illegal expenditure of public funds raised for governmental
purposes.
12. Standing: Taxation: Proof: Municipal Corporations. The mere alle-
gation of illegal expenditure by public officials is not sufficient in itself
to confer standing on a resident taxpayer. Instead, to assert standing, a
resident taxpayer must also allege that a demand was made upon the
municipal or public corporation and that the demand was refused, or
facts which show that such a demand would be useless.
13. Pleadings. Once a responsive pleading has been filed in a civil action, a
party may no longer amend its pleading as a matter of course.
14. ____. The denial of a motion seeking leave to amend pleadings is
appropriate only in those limited circumstances in which undue delay,
bad faith on the part of the moving party, futility of the amendment, or
unfair prejudice to the nonmoving party can be demonstrated.
15. Pleadings: Appeal and Error. Permission to amend pleadings is
addressed to the sound discretion of the trial court; absent an abuse of
that discretion, the trial court’s decision will be affirmed.
16. Judges: Words and Phrases. A judicial abuse of discretion exists if the
reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in matters
submitted for disposition.
17. Pleadings: Summary Judgment: Evidence. It is not an abuse of dis-
cretion to deny leave to amend when a party seeks to add a new claim
or defense after a motion for summary judgment has been heard and
submitted, unless evidence or testimony exists in the record indicating
that the proposed claim or defense was newly discovered or that counsel
was previously unaware of the claim.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
JOHNSON v. CITY OF OMAHA
Cite as 319 Neb. 402
18. Summary Judgment: Appeal and Error. An appellate court will affirm
a lower court’s grant of summary judgment if the pleadings and admit-
ted evidence show that there is no genuine issue as to any material facts
or as to the ultimate inferences that may be drawn from those facts and
that the moving party is entitled to judgment as a matter of law.
19. Summary Judgment. Summary judgment is proper only when the
pleadings, depositions, admissions, stipulations, and affidavits in the
record disclose that there is no genuine issue as to any material fact or
as to the ultimate inferences that may be drawn from those facts and that
the moving party is entitled to judgment as a matter of law.
20. Summary Judgment: Proof. The party moving for summary judgment
must make a prima facie case by producing enough evidence to show
the movant would be entitled to judgment if the evidence were uncon-
troverted at trial. If the moving party makes a prima facie case, the bur-
den shifts to the nonmovant to produce evidence showing the existence
of a material issue of fact that prevents judgment as a matter of law.
21. Summary Judgment. In the summary judgment context, a fact is mate-
rial only if it would affect the outcome of the case.
22. Statutes. The object of competitive bidding statutes is to invite competi-
tion and prevent favoritism and fraud.
23. Contracts: Statutes: Words and Phrases. Competitive bidding stat-
utes are enacted for the benefit of taxpayers and exist to invite competi-
tion; to guard against favoritism, improvidence, extravagance, fraud,
and corruption; and to secure the best work or supplies at the lowest
possible price.
24. Municipal Corporations: Contracts: Courts. Public bodies exercise
discretion when awarding bids under the competitive bidding process,
and courts will show deference when reviewing challenges to a public
body’s award decisions.
25. Municipal Corporations: Fraud: Courts. Where there is no show-
ing that the administrative body acts arbitrarily, or from favoritism, ill
will, fraud, collusion, or other such motives, it is not the province of a
court to interfere and substitute its judgment for that of the administra-
tive body.
26. Municipal Corporations: Courts: Appeal and Error. When a public
body has discretion to make a decision during the competitive bidding
process, a court is essentially limited to reviewing that decision for
bad faith.
27. Municipal Corporations: Contracts. Public bodies have discretion to
seek clarification of bids, even after bids have been opened, so long as
the bid is not substantively or materially altered.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
JOHNSON v. CITY OF OMAHA
Cite as 319 Neb. 402
28. Contracts. Bids cannot be substantively changed after opening because
otherwise the purpose of competitive bidding, which is to invite compe-
tition and prevent favoritism and fraud, would be completely thwarted.
29. ____. Although the substance of a bid cannot be changed after the time
for opening, mere irregularities in the form of a bid may still be cor-
rected or disregarded after bids are opened.
30. Contracts: Words and Phrases. The test for whether there has been
a “material variance” in a bid is whether it gives a bidder a substantial
advantage or benefit not enjoyed by the other bidders.
31. Statutes. Statutory interpretation begins with the text, and the text is to
be given its plain and ordinary meaning.
32. ____. It is not within the province of a court to read a meaning into
a statute that is not warranted by the language; neither is it within the
province of a court to read anything plain, direct, or unambiguous out of
a statute.
33. Statutes: Legislature: Intent. In construing a statute, the legislative
intention is to be determined from a general consideration of the whole
act with reference to the subject matter to which it applies and the
particular topic under which the language in question is found, and the
intent as deduced from the whole will prevail over that of a particular
part considered separately.
34. Statutes. Statutes pertaining to the same subject matter should be con-
strued together; such statutes, being in pari materia, must be construed
as if they were one law, and effect must be given to every provision.
35. ____. To give effect to all parts of a statute, a court will attempt to rec-
oncile different provisions so they are consistent, harmonious, and sen-
sible and will avoid rejecting as superfluous or meaningless any word,
clause, or sentence.
36. Municipal Corporations: Fees. The voter approval requirement in Neb.
Rev. Stat. § 13-2020(4) (Reissue 2022) applies only when a city of the
metropolitan class establishes rates or charges to be paid to the city by
each person whose premises are served.
Appeal from the District Court for Douglas County: James
M. Masteller, Judge. Affirmed.
Adam J. Sipple, of Sipple Law, for appellant.
Ryan J. Wiesen, Deputy Omaha City Attorney, for appellee
City of Omaha.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
JOHNSON v. CITY OF OMAHA
Cite as 319 Neb. 402
James G. Powers and Alexander K. Shaner, of McGrath,
North, 	Mullin 	& 	Kratz, 	P.C., 	L.L.O., 	for 	appellee 	FCC
Environmental Services Nebraska, LLC.
Funke, C.J., Miller-Lerman, Cassel, Stacy, Papik, and
Freudenberg, JJ.
Stacy, J.
In 2018, the City of Omaha (City) solicited competitive
bids for a contract to collect and dispose of residential solid
waste for the years 2021 through 2030. After the contract
was awarded, a resident taxpayer sued the City and others,
alleging that the contract was an illegal expenditure of public
funds and violated the Integrated Solid Waste Management
Act (ISWMA). 1 The district court granted summary judgment
in favor of the defendants and dismissed the action. The tax-
payer appeals. Finding no merit to any of the assigned errors,
we affirm.
I. BACKGROUND
1. Integrated Solid Waste
Management Act
The ISWMA was enacted in 1992, and it mandates that
“each county and municipality shall provide or contract for
facilities and systems as necessary for the safe and sanitary
disposal of solid waste generated within its solid waste juris-
diction area.” 2 The ISWMA allows flexibility in how a county
or municipality may meet its obligation to provide facilities
and systems for solid waste disposal. The primary provisions
in this regard are set out in § 13-2020(2) and (3) and state:
(2) A county, municipality, or agency may jointly
own, operate, or own and operate with any person any
facility or system and may enter into cooperative agree-
ments as necessary and appropriate for the ownership,
1 Neb. Rev. Stat. §§ 13-2001 to 13-2043 (Reissue 2022).
2 § 13-2020(1).

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
JOHNSON v. CITY OF OMAHA
Cite as 319 Neb. 402
operation, or ownership and operation of any facility
or system.
(3) A county, municipality, or agency may, either alone
or in combination with any other county, municipality, or
agency, contract with any person to provide any service,
facility, or system required by the [ISWMA].
The ISWMA also allows flexibility in how those receiving
solid waste disposal services may be charged. The primary
provisions in this regard are found in § 13-2020(4) and (5).
Section 13-2020(4) addresses charges established by and paid
to the governing body of a county, municipality or agency, and
it states, in relevant part:
(4) The governing body of a county, municipality, or
agency may make all necessary rules and regulations
governing the use, operation, and control of a facility
or system [for disposal of solid waste]. Such governing
body may establish just and equitable rates or charges
to be paid to it for the use of such facility or system by
each person whose premises are served by the facility or
system, including charges for late payments, except that
no city of the metropolitan class shall impose any rate or
charge upon individual residences unless a majority of
those voting in a regular or special election vote affirma-
tively to approve or authorize establishment of such a rate
or charge. . . . If the service charge so established is not
paid when due, such sum may be recovered by the county,
municipality, or agency in a civil action or, following
notice by regular United States mail to the last-known
address of the property owner of record and an oppor-
tunity for a hearing, may be certified by the governing
body of the county, municipality, or agency to the county
treasurer and assessed against the premises served and
collected or returned in the same manner as other taxes
are certified, assessed, collected, and returned.
(Emphasis supplied.) Section 13-2020(5) addresses charges
when a governing body contracts to provide waste disposal
facilities or systems, and it provides:

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
JOHNSON v. CITY OF OMAHA
Cite as 319 Neb. 402
(5) If the county, municipality, or agency enters into
a contract with a person to provide a facility or system,
such contract may authorize the person to charge the own-
ers of premises served such a service rate therefor as the
governing body determines to be just and reasonable or
the county, municipality, or agency may pay therefor out
of its general fund or the proceeds of any tax levy appli-
cable to the purposes of such contract or assess the own-
ers of the premises served a reasonable charge therefor
to be collected as provided in this section and paid into a
fund to be used to defray such contract charges.
One of the central issues in this appeal is whether cer-
tain charges are subject to the voter approval requirement in
§ 13-2020(4) for cities of the metropolitan class. Currently,
Omaha is the only city in Nebraska that meets the population
threshold for cities of the metropolitan class. 3
2. Bid Package and Contract
The parties generally agree that both before and after the
ISWMA was enacted, the City provided curbside collection
of residential solid waste through a service funded by munici-
pal tax dollars. At oral argument before this court, the parties
agreed that, historically, the City has used its general funds
to provide this service and that Omaha residents have not
paid a fee to the City for the curbside collection of residential
solid waste. 4
In October 2018, the City published bid specifications 5 for
a new contract for the “curbside collection of residential Solid
Waste, which includes Garbage, Recyclables and Yardwaste
3 See Neb. Rev. Stat. § 14-101 (Reissue 2022) (city of metropolitan class
has “population of four hundred thousand inhabitants or more”).
4 See, also, Floor Debate, L.B. 1257, 92d Leg., 2d Sess. 11160-70 (Mar. 23,
1992).
5 See, generally, Omaha City Charter, art. V, § 5:16 (2024) (requiring
contract over $50,000 to be subject to competitive bidding process and
awarded to lowest and best bidder).

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
JOHNSON v. CITY OF OMAHA
Cite as 319 Neb. 402
and delivery of collected Solid Waste to the City specified
disposal facility.” The contract was for the years 2021 through
2030, and the published bid specifications included four sepa-
rate packages:
• “Bid Package A” was for “Solid Waste Collection”;
• “Bid Package B” was for “Collection Carts Procurement and
Distribution”;
• “Bid Package C” was for “Spring and Fall Cleanup”; and
• “Bid Package D” was for “Extraordinary Contractor Services.”
Pursuant to the bid specifications, a contractor could be awarded
Bid Packages B through D only if it was also awarded Bid
Package A. Because only Bid Packages A and D are directly
relevant to this appeal, we address those in more detail.
Bid Package A was generally described as the “Base Level
of Service,” and two alternatives were included in the bid
specifications. Under the first alternative, the contractor would
be paid by the City to provide weekly collection of three
96-gallon carts: one for garbage, one for yard waste, 6 and one
for recyclables. Under the second alternative, the contractor
would be paid by the City to provide weekly collection of two
96-gallon carts: one cart for commingled garbage and yard
waste and the other cart for recycling.
Bid Package D was generally described as “Extraordinary
Contractor Services,” and it required the contractor to “admin-
ister and operate” a program under which residents could
purchase “additional curbside collection and hauling services
for Solid Wastes beyond the Base Level of Service selected
from Bid Package A.” Under Bid Package D, contractors
would be paid for extraordinary services by the “[r]esidents
who have selected and agreed to purchase these services,
at the Unit Prices indicated on the Agreement.” More spe-
cifically, in exchange for payments directly from the residents,
the contractor would either (1) provide the resident with one
6 See § 13-2016.01 (defining yard waste as “grass and leaves”). See, also,
§ 13-2039 (generally categorizing yard waste as type of solid waste).

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
JOHNSON v. CITY OF OMAHA
Cite as 319 Neb. 402
additional 96-gallon cart for weekly curbside collection of
commingled solid waste or (2) provide curbside collection
of bundles of additional yard waste affixed with stickers pur-
chased by the residents. For purposes of Bid Package D, addi-
tional yard waste was described as the “volume[] . . . in excess
of the Base Level of Service provided by Bid Package A.”
The bidding documents required each bidder to specify a unit
price for each yard waste sticker and to propose an operational
plan for administering the yard waste sticker program; the
program was to “be fully funded by [s]ticker sales purchased
by residents.”
The City received bids from four entities. Those bids were
publicly opened on January 30, 2019, and were thereafter
transmitted to Omaha’s public works department for evalu-
ation. During the evaluation process, it was discovered that
when bidding on the yard waste sticker program, three of the
four bidders each based their sticker price on a 30-gallon unit,
and one bidder based its sticker price on a unit of 3 cubic yards.
More specifically, three bidders proposed selling stickers
to residents that could be affixed to bundles of yard waste
up to 30 gallons, and each bidder submitted a bid price
between $1.50 and $2 per sticker. One bidder, Fomento de
Construcciones y Contratas, S.A. (FCC-Spain), based its bid
for yard waste stickers on a unit price of 3 cubic yards, or
606 gallons per unit. FCC-Spain proposed selling stickers to
residents that could be affixed to bundles of yard waste up to
606 gallons, and it submitted a bid price of $40 per sticker. It
also proposed that residents would call to schedule collection
of this volume of yard waste.
It is undisputed that for purposes of the yard waste sticker
program in Bid Package D, the City intended the bid speci-
fications to include a standard 30-gallon unit for the sticker
price, but it mistakenly failed to do so. It is also undisputed
that after the bids were opened, the City recognized its error
and sent a letter to FCC-Spain “requesting a clarification” of
its bid for the yard waste sticker program.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
JOHNSON v. CITY OF OMAHA
Cite as 319 Neb. 402
The City’s letter to FCC-Spain acknowledged that in con-
nection with Bid Package D, it had failed to “indicate a limit
to the bag size a resident could set out.” The letter stated that
the city “envisioned that residents would use the commer-
cially available paper bags which hold a volume of 30 gallons
each” and stated that the City planned to “codify a limit of 30
gallons per yard waste bag that residents could use.” The let-
ter expressly asked FCC-Spain to clarify its bid price for the
yard waste sticker using a standard 30-gallon yard waste bag
and to clarify how residents would schedule collection of such
bags. In doing so, the letter suggested that if FCC-Spain’s
original bid of $40 per sticker for 606 gallons was converted
to a 30-gallon unit, the sticker price would be $1.98.
FCC-Spain responded to the bid clarification request in
writing, stating that its bid price for yard waste stickers would
be “$1.98 per sticker for each 30 gallon bag.” The parties
appear to agree that, mathematically, the clarified sticker price
of $1.98 per 30-gallon unit represents the same price per gal-
lon as the original sticker price of $40 per 606-gallon unit.
FCC-Spain also clarified that residents would not need to
schedule collection of 30-gallon yard waste bags and, instead,
could place such bags out for curbside collection on the “nor-
mally scheduled yard waste service day.”
Ultimately, the City decided to go with the two-cart option
for Bid Package A, and it determined that FCC-Spain’s bid
for the entire contract was the lowest and best bid. In August
2019, the Omaha City Council passed “Ordinance No. 41925”
(the ordinance), awarding the contract of approximately $227
million to FCC-Spain. 7 At the time, the Omaha City Council
knew that FCC-Spain intended to form a subsidiary Nebraska
corporation headquartered in Omaha to perform the contract.
The 	record 	establishes 	that 	FCC-Spain 	ultimately 	formed
7 See Omaha Mun. Code, ch. 10, art. IV, § 10-107 (2024) (providing award
of contract for $50,000 or more shall be awarded to lowest and best bid by
resolution of city council).

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
JOHNSON v. CITY OF OMAHA
Cite as 319 Neb. 402
FCC Environmental Services Nebraska, LLC (FCC-Nebraska),
for that purpose.
Two days after the ordinance was enacted, Rodney Johnson
hand-delivered a taxpayer letter to the Omaha City Council
demanding recission of the ordinance and the contract. The city
attorney denied that demand in September 2019. One month
later, the City and FCC-Nebraska executed a written contract
for the curbside collection of residential solid waste.
3. Complaint and Answers
In December 2020, Johnson filed this lawsuit in the district
court for Douglas County, challenging the ordinance and seek-
ing to void the contract. Johnson filed an amended complaint
that named additional defendants, but after successful motions
to dismiss that are not challenged on appeal, only two defend-
ants remained: the City and FCC-Nebraska.
Johnson’s operative amended complaint, filed in June 2021,
referred to FCC-Nebraska as “the successful bidder” and made
no mention of FCC-Spain, impliedly treating the two entities
as interchangeable. Relatedly, the record shows that during
most of the time this case was pending before the trial court,
the parties and the court referred collectively to both entities as
“FCC.” We will do the same except when necessary to address
a proposed claim specifically directed at one FCC entity but
not the other.
Johnson’s operative complaint sought a declaration that the
ordinance, and the related contract between the City and FCC,
amounted to an “illegal and unauthorized expenditure of pub-
lic funds,” and he sought to void the contract on that basis.
Johnson alleged that as a municipal taxpayer, he had standing
to bring the action.
The operative complaint was styled as six separate counts.
Some counts were expressly abandoned by Johnson prior to
the summary judgment ruling, and only two of the remain-
ing counts are relevant to the issues raised on appeal. One
count challenged the City’s request for a postopening bid

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
JOHNSON v. CITY OF OMAHA
Cite as 319 Neb. 402
clarification, and the other challenged the legality of the rate
charged by FCC for yard waste stickers.
In the count challenging the bid clarification request, Johnson
alleged that it was improper for the City to request a “bid [u]nit
clarification” of the yard waste sticker from just one of the four
bidders and that by doing so, the City allowed FCC to materi-
ally alter its bid after the bids were opened.
In the count challenging the yard waste sticker fee, Johnson
alleged that the sticker rate of $1.98 per yard waste bag
was legally invalid because it had not “been put to a vote
of the people on a general or special election” pursuant to
§ 13-2020(4). Johnson’s operative amended complaint sought a
declaration that the yard waste sticker fee was
an illegal and unauthorized tax that the Court should
declare as invalid, not permissible without a vote of the
people, order that it cannot be now collected or required,
and order the return of all monies paid to those who paid
such tax believing that they were required to do so.
The City and FCC filed separate answers denying any
impropriety in either the bidding process, the postopening
bid clarification request, or the contract between the City
and FCC. The City and FCC also raised several affirmative
defenses, including that Johnson lacked taxpayer standing, that
the operative amended complaint failed to state a claim upon
which relief can be granted, and that the yard waste sticker
program did not require voter approval under § 13-2020(4).
4. Pretrial Motions
After conducting discovery, all parties moved for sum-
mary judgment, and a consolidated hearing on the motions
and cross-motion was set for October 2023. Shortly before
the scheduled hearing, Johnson filed a motion seeking leave
to amend his operative complaint to add a new claim. In this
appeal, Johnson assigns error to the district court’s ruling on
his motion to amend and its ruling on the cross-motions for
summary judgment. We summarize each in turn.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
JOHNSON v. CITY OF OMAHA
Cite as 319 Neb. 402
(a) Motion to Amend Operative Complaint
In September 2023, a few days before the scheduled sum-
mary judgment hearing and a few weeks before the sched-
uled trial date, Johnson filed a motion seeking leave to file
a second amended complaint. His proposed second amended
complaint sought to add a “count” alleging a new theory that
the contract between the City and FCC-Nebraska was invalid
because the successful bidder was FCC-Spain and that there-
fore, the City lacked authority to enter into an agreement with
any other entity.
Both the City and FCC objected to Johnson’s motion to
amend, arguing that the request was unduly delayed and that
allowing amendment would unfairly prejudice the City and
FCC, because they were just days away from having their sum-
mary judgment motions heard and submitted based on claims
as framed by the operative amended complaint. The district
court overruled Johnson’s motion to amend, and the parties’
motions and cross-motion for summary judgment proceeded on
the operative pleadings.
(b) Summary Judgment Motions
In July 2023, the City and FCC each filed motions for sum-
mary judgment on all counts of the operative amended com-
plaint. In August 2023, Johnson filed a cross-motion motion
for partial summary judgment seeking (1) a determination that
he had established taxpayer standing and (2) a declaration
that the contract between the City and FCC was void ab initio
because the rates charged by FCC for yard waste stickers had
not been approved by the voters.
At the hearing on the competing motions, all parties offered
evidence in support of, and in opposition to, summary judg-
ment. In an order entered October 27, 2023, the district court
granted summary judgment in favor of the City and FCC on
all claims, and it overruled Johnson’s motion as moot. As
relevant to the issues raised in this appeal, we summarize the
court’s reasoning.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
JOHNSON v. CITY OF OMAHA
Cite as 319 Neb. 402
(i) Standing
All parties moved for summary judgment regarding Johnson’s
standing to bring the action. The City and FCC argued that
Johnson had not established taxpayer standing. Johnson, on the
other hand, argued that his affidavit sufficiently proved both
taxpayer standing and injury-in-fact standing.
Johnson’s affidavit averred that at all relevant times, he
resided within the City; owned real and personal property
located within the City; purchased goods and services in the
City; and paid taxes to the City, including property taxes, sales
taxes, and fuel taxes. Johnson also averred that his Omaha resi-
dence “generates more solid waste . . . than can fit in the two
96-gallon carts the system allows for” and that he has had to
“purchase stickers to affix to paper bags for disposal of [addi-
tional] yard waste.”
The district court’s summary judgment order did not expressly
address the standing arguments of any party. However, because
the order proceeded to address the merits and dispose of the
case on summary judgment, we understand the court to have
impliedly determined that Johnson’s affidavit established his
standing to bring the action in the first instance. 8 No party
challenges the district court’s implicit standing determination,
but we nevertheless address Johnson’s standing as a threshold
matter later in this opinion.
(ii) Challenge to Bid Process
When considering Johnson’s claim challenging the bid pro-
cess, the court relied on a set of facts that had been agreed to
8 See Hauxwell v. Henning, 291 Neb. 1, 4-5, 863 N.W.2d 798, 801 (2015)
(observing that “given the district court’s ultimate disposition of the
case, it can be implied the district court determined that [plaintiff] had
standing”), disapproved on other grounds, Wisner v. Vandelay Investments,
300 Neb. 825, 916 N.W.2d 698 (2018) (superseded by statute on other
grounds as stated in Continental Resources v. Fair, 317 Neb. 391, 10
N.W.3d 510 (2024)).

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319 Nebraska Reports
JOHNSON v. CITY OF OMAHA
Cite as 319 Neb. 402
by the parties for purposes of summary judgment. Summarized,
the court found the following facts were undisputed:
• The City intended to specify a standard unit for the yard
waste sticker charge in Bid Package D but mistakenly failed
to do so.
• There was an inconsistency in how the four bidders inter-
preted the requirements of Bid Package D, with three bidders
basing their yard waste sticker charge on a 30-gallon unit and
FCC basing its sticker charge on a 606-gallon unit.
• When the City discovered this unit discrepancy, it exercised
its discretion to send FCC a bid clarification request, asking
FCC to use a standardized unit of 30 gallons to calculate the
yard waste sticker price, rather than using a 606-gallon unit.
• FCC agreed to clarify its bid by converting the previous
sticker price of $40 for a 606-gallon unit into a sticker price
of $1.98 for a 30-gallon unit.
• The price per gallon of FCC’s original bid and its clarified
bid was the same, at $0.066. Converting the sticker price to a
standardized 30-gallon unit did not alter the total amount of
FCC’s bid, and it enabled the City to evaluate all four bids
using the same unit of measurement.
Based on these undisputed facts, the court found the City
and FCC had established a prima facie case that FCC had not
materially altered its bid when responding to the clarification
request 9 and that the City had not acted in bad faith or with
favoritism in seeking clarification of the bid from FCC. 10 In
so holding, the court applied the general rule that a munici-
pality has discretion to seek postopening bid clarifications
but should reject bids that result in a substantive change or
9 See Fairbanks, Morse & Co. v. City of North Bend, 68 Neb. 560, 94 N.W.
537 (1903) (holding bids cannot be substantively changed after opening).
10 See Day v. City of Beatrice, 169 Neb. 858, 101 N.W.2d 481 (1960)
(holding court will not substitute its judgment for government entity
accepting competitive bid when there is no showing entity acted arbitrarily
or from favoritism, ill will, fraud, or collusion).

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“material variance” that gives a substantial advantage or ben-
efit not enjoyed by other bidders. 11
After concluding that the City and FCC met their burden to
present a prima facie case, the court found that Johnson failed
to adduce any evidence showing the existence of a genuine
dispute of material fact that would prevent judgment as a mat-
ter of law in favor of the City and FCC on Johnson’s claim
challenging the bid process. Applying the material variance
test, the court concluded that Johnson did not offer any evi-
dence showing that FCC’s clarified bid based on a 30-gallon
unit somehow gave FCC a substantial advantage or benefit
not enjoyed by the other bidders, all of whom had also based
their bid on a 30-gallon unit. And although the court acknowl-
edged Johnson’s argument that the bid clarification request
itself showed favoritism, it concluded there was no evidence
to support that argument, and it quoted the admonition from
Rath v. City of Sutton 12 that “courts should normally ignore
mere assertions of favoritism and waste, absent evidence to
the contrary.” Similarly, the court found that Johnson had
not offered any evidence to create a genuine issue of fact as
to whether the City acted in bad faith, noting there was no
evidence offered to rebut the legal presumption that the City
acted in good faith and with honest motives in seeking the bid
clarification. 13
11 See, generally, 10 Eugene McQuillin, The Law of Municipal Corporations
§§ 29:71 (3d ed. 2017 & Cum. Supp. 2024) (recognizing municipality
may allow clarification after bids are opened but before award made) and
29:66.50 at 689 (3d ed. 2017) (recognizing test for whether bid variance
is material is whether it “gives a bidder a substantial advantage or benefit
not enjoyed by the other bidders”).
12 Rath v. City of Sutton, 267 Neb. 265, 285, 673 N.W.2d 869, 888 (2004).
13 See Day, supra note 10, 169 Neb. at 865, 101 N.W.2d at 487 (when city
exercises discretion to determine lowest responsible bid, “[i]t is presumed
that a city council acts in good faith, with honest motives, and for the
purpose of promoting the public good and protecting the public interest”).

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(iii) Challenge to Rate of Yard Waste Sticker
The district court also entered summary judgment in favor
of the City and FCC on Johnson’s claim that § 13-2020(4)
required voter approval of the rate to be charged by FCC for
yard waste stickers. The parties generally presented this as
a question of statutory interpretation, and the district court
treated it as such.
The district court focused on the portion of § 13-2020(4)
that authorizes governing bodies to establish reasonable “rates
or charges to be paid to it” and states “no city of the metropol-
itan class shall impose any rate or charge upon individual resi-
dences unless a majority of those voting in a regular or special
election vote affirmatively to approve or authorize establish-
ment of such a rate or charge.” Construing this language, the
district court held, as a matter of law, that the voter approval
provision in § 13-2020(4) did not apply to FCC’s yard waste
sticker charge. This was so, the court reasoned, because the
City was not charging or collecting the sticker fees, but,
rather, the City had contracted with FCC to both administer
the program and to charge residents directly for yard waste
stickers. The evidence was undisputed that FCC made stick-
ers available for purchase by residents at local retailers and
that the City did not in any way pay for or subsidize the yard
waste stickers.
The court found that under the ISWMA, the rates that a
contractor may charge residents is governed by § 13-2020(5),
which states, in relevant part:
If the county, municipality, or agency enters into a con-
tract with a person to provide a facility or system, such
contract may authorize the person to charge the owners
of premises served such a service rate therefor as the
governing body determines to be just and reasonable . . . .
The district court concluded that because the yard waste
sticker rate was governed by § 13-2020(5), and because the
voter approval requirement for cities of the metropolitan class
was included only in § 13-2020(4) and not in § 13-2020(5),

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the ISWMA allowed the yard waste sticker fee to be charged
by the contractor and paid to the contractor without voter
approval. The court generally reasoned that if the Legislature
had intended the voter approval requirement in § 13-2020(4)
to apply to rates charged by contractors in § 13-2020(5), it
would have included the requirement in both subsections.
From the order granting summary judgment and dismissing
the operative amended complaint, Johnson filed this timely
appeal. We moved the case to our docket on our own motion.
II. ASSIGNMENTS OF ERROR
Johnson assigns, consolidated and restated, that the district
court erred in (1) denying leave to file a second amended com-
plaint adding a claim that the City lacked authority to contract
with FCC-Nebraska and (2) granting summary judgment in
favor of the City and FCC on Johnson’s claims challenging the
bidding process and the rate charged for yard waste stickers.
III. STANDARD OF REVIEW
[1] Standing is a jurisdictional component of a party’s case,
because only a party who has standing may invoke the juris-
diction of a court; determination of a jurisdictional issue which
does not involve a factual dispute presents a question of law. 14
[2] An appellate court reviews a district court’s denial of
a motion to amend under Neb. Ct. R. Pldg. § 6-1115(a) (rev.
2025) for an abuse of discretion. 15
[3] An appellate court reviews rulings on a motion for sum-
mary judgment de novo, viewing the record in the light most
favorable to the nonmoving party and drawing all reasonable
inferences in that party’s favor. 16
[4] Statutory interpretation is a question of law that an
appellate court resolves independently of the trial court. 17
14 Zeiler v. Reifschneider, 315 Neb. 880, 1 N.W.3d 880 (2024).
15 Sinu v. Concordia University, 313 Neb. 218, 983 N.W.2d 511 (2023).
16 Ronnfeldt Farms v. Arp, 317 Neb. 690, 11 N.W.3d 371 (2024).
17 Mullins v. Box Butte County, 317 Neb. 937, 13 N.W.3d 67 (2024).

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IV. ANALYSIS
1. Standing
[5,6] Although the parties’ appellate briefs do not address
standing, we address it as a threshold matter. Before reach-
ing the legal issues presented for review, it is the duty of an
appellate court to determine whether it has jurisdiction over the
matter before it. 18 Standing is a jurisdictional component of a
party’s case because only a party who has standing may invoke
the jurisdiction of a court. 19
[7] When reviewing a party’s standing, a court takes different
approaches depending on whether a facial challenge or a fac-
tual challenge has been presented. In Hawley v. Skradski, 20 we
explained the difference between facial and factual challenges:
If a motion challenging standing is made at the pleadings
stage, it is considered a “facial challenge” and a court
will review the pleadings to determine whether there are
sufficient allegations to establish the plaintiff’s standing.
But if the challenge to standing, and thus the court’s sub-
ject matter jurisdiction, is raised after the pleadings stage
and the court holds an evidentiary hearing and reviews
evidence outside the pleadings, it is considered a “factual
challenge” and the party opposing the challenge must
offer evidence to support its burden of establishing sub-
ject matter jurisdiction.
[8] When an appellate court reviews a trial court’s decision
based on a factual challenge to standing, it reviews any factual
findings under the clearly erroneous standard but reviews the
ultimate standing determination de novo, because it presents
a question of law. 21 Here, the trial court received evidence on
the issue of standing but made no express factual findings or
18 Castillo v. Libert Land Holdings 4, 316 Neb. 287, 4 N.W.3d 377 (2024).
19 Preserve the Sandhills v. Cherry County, 313 Neb. 590, 985 N.W.2d 599
(2023).
20 Hawley v. Skradski, 304 Neb. 488, 494, 935 N.W.2d 212, 217 (2019).
21 See id.

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rulings on the issue. With no factual findings to review, we pro-
ceed directly to a de novo review of the court’s implicit con-
clusion that Johnson established standing to bring this action
either as one who suffered an injury in fact 22 or as a taxpayer
seeking to enjoin the illegal expenditure of public funds. 23
[9,10] The general common-law standing inquiry focuses on
whether the party bringing the suit has suffered or will suffer
an injury in fact. 24 Accordingly, to have standing to bring an
action to restrain an act of a municipal body, litigants must
usually show some injury peculiar to themselves. 25 In some
cases, however, we have recognized exceptions to the usual
requirement that a plaintiff demonstrate an injury in fact that
is actual, imminent, concrete, and particularized. 26
[11,12] One such exception is taxpayer standing. 27 Because
taxpayers have an equitable interest in public funds, a resident
taxpayer may bring an action to enjoin the illegal expenditure
of public funds raised for governmental purposes. 28 But the
mere allegation of illegal expenditure by public officials is not
sufficient in itself to confer standing on a resident taxpayer. 29
Instead, to assert standing, a resident taxpayer must also
22 See In re Application A-19594, 315 Neb. 311, 321, 995 N.W.2d 655, 667
(2023) (“[c]ommon-law standing generally focuses on whether the litigant
has suffered or will suffer an injury in fact”).
23 See, Thompson v. Heineman, 289 Neb. 798, 857 N.W.2d 731 (2015);
Chambers v. Lautenbaugh, 263 Neb. 920, 644 N.W.2d 540 (2002).
24 See, In re Application A-19594, supra note 22; Griffith v. Nebraska Dept.
of Corr. Servs., 304 Neb. 287, 934 N.W.2d 169 (2019).
25 See id.
26 See id.
27 See, Thompson, supra note 23; Chambers, supra note 23.
28 See Thompson, supra note 23 (citing Project Extra Mile v. Nebraska
Liquor Control Comm., 283 Neb. 379, 810 N.W.2d 149 (2012), overruled
on other grounds, Griffith, supra note 24 (holding common-law
exceptions to injury-in-fact standing do not apply to actions brought under
Administrative Procedure Act)). See, also, Chambers, supra note 23.
29 Chambers, supra note 23.

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allege that a demand was made upon the municipal or public
corporation and that the demand was refused, or facts which
show that such a demand would be useless. 30
Johnson’s evidence showed that at all relevant times, he
owned real and personal property in Omaha and paid taxes to
the City on such property. The City and FCC offered no evi-
dence to the contrary. Johnson’s evidence also showed that his
Omaha residence generates more solid waste than can fit into
two 96-gallon carts and that he has had to purchase stickers
for disposal of additional yard waste.
We conclude this evidence sufficiently established Johnson’s
standing to bring this action challenging the contract as an
illegal expenditure of public funds and challenging the legality
of the rate established for yard waste stickers. We turn now to
the merits of his assignments of error on appeal.
2. Denial of Leave to Amend
Operative Complaint
Johnson assigns that the district court erred in overruling his
motion seeking leave to file a second amended complaint that
alleged a new theory: that the contract between the City and
FCC-Nebraska should be declared void because FCC-Spain
was the successful bidder and the City lacked authority to
enter into a contract with FCC-Nebraska.
[13,14] It has long been the rule in Nebraska that once a
responsive pleading has been filed in a civil action, a party
may no longer amend its pleading as a matter of course. 31
The Nebraska Court Rules of Pleading in Civil Cases were
amended effective January 1, 2025, but the version in effect
30 Id.
31 Compare Neb. Ct. R. Pldg. § 6-1115(a) (codified in 2008) with § 6-1115(a)
(rev. 2025). See, also, Ferer v. Aaron Ferer & Sons, 278 Neb. 282, 770
N.W.2d 608 (2009) (holding court did not abuse its discretion in denying
motion to amend complaint for purpose of adding new basis for claim
when plaintiff knew about relevant facts for 5 years before seeking to
amend).

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when Johnson sought leave to amend his operative complaint
allowed parties to amend their pleadings “once as a matter of
course before a responsive pleading is served” and, thereafter,
permitted amendment “only by leave of court or by written
consent of the adverse party, and leave shall be freely given
when justice so requires.” 32 Under this standard, the general
rule is that courts should grant leave to amend “absent undue
delay, bad faith, unfair prejudice, or futility.” 33 Stated differ-
ently, the denial of a motion seeking leave to amend pleadings
is appropriate only in those limited circumstances in which
undue delay, bad faith on the part of the moving party, futility
of the amendment, or unfair prejudice to the nonmoving party
can be demonstrated. 34
[15,16] 	Ultimately, 	permission 	to 	amend 	pleadings 	is
addressed to the sound discretion of the trial court; absent
an abuse of that discretion, the trial court’s decision will be
affirmed. 35 A judicial abuse of discretion exists if the reasons
or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in
matters submitted for disposition. 36
Here, the district court articulated several reasons for deny-
ing Johnson’s motion to amend, but the primary reason was
undue delay in seeking leave to add a new theory. The court
recounted the procedural history of the case, noting that
Johnson’s motion to amend was filed several years into the
litigation and after deadlines to amend pleadings, add par-
ties, and complete fact discovery had expired. Moreover, the
motion to amend was filed just a few days before the hearing
32 § 6-1115(a) (codified in 2008).
33 Trausch v. Hagemeier, 313 Neb. 538, 549, 985 N.W.2d 402, 413 (2023).
34 See, e.g., Sinu, supra note 15; Jacob v. Nebraska Bd. of Parole, 313 Neb.
109, 982 N.W.2d 815 (2022); McCaulley v. C L Enters., 309 Neb. 141, 959
N.W.2d 225 (2021); InterCall, Inc. v. Egenera, Inc., 284 Neb. 801, 824
N.W.2d 12 (2012).
35 Jacob, supra note 34.
36 Id.

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on the motions and cross-motion for summary judgment and
after the parties had submitted their respective briefs, evidence
indexes, and statements of disputed and undisputed facts. Trial
in the case was scheduled for a few weeks after the summary
judgment hearing. The court also determined that Johnson’s
proposed new theory was not newly discovered and instead
was based on facts he had known since the inception of the
case. Finding that Johnson had not “proffered a satisfactory
explanation for his delay in seeking to amend his complaint to
add the [new theory] at this late stage of the proceedings,” the
court overruled his motion to amend.
[17] On this record, we do not find an abuse of discretion
in the court’s decision to overrule Johnson’s motion to amend
to add an entirely new legal theory on the eve of the sum-
mary judgment hearing. We have repeatedly held that it is not
an abuse of discretion to deny leave to amend when a party
seeks to add a new claim or defense after a motion for sum-
mary judgment has been heard and submitted, unless evidence
or testimony exists in the record indicating that the proposed
claim or defense was newly discovered or that counsel was
previously unaware of the claim. 37 This is based on recognition
that in the absence of evidence showing that a proposed new
claim or defense was recently discovered, a request to amend
the operative pleadings while the court is considering sum-
mary judgment is “merely a belated effort to inject issues of
material fact into a proceeding where previously the pleadings
revealed none.” 38 We have applied the same reasoning when a
37 See, Parnell v. Madonna Rehab. Hosp., 258 Neb. 125, 602 N.W.2d 461
(1999) (finding no abuse of discretion in denying leave to amend while
summary judgment pending); Darrah v. Bryan Memorial Hosp., 253 Neb.
710, 571 N.W.2d 783 (1998). See, also, John P. Lenich, Nebraska Civil
Procedure § 15:4 at 751 (2025) (“[a]n explanation for the party’s failure
to raise the new matter earlier becomes especially important if leave to
amend is sought while the court is considering a motion for summary
judgment”).
38 Parnell, supra note 37, 258 Neb. at 130, 602 N.W.2d at 465. Accord
Darrah, supra note 37.

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motion to amend is raised at the summary judgment hearing
but before the motion is submitted. 39
The same reasoning applies here. Johnson was aware of the
facts supporting the proposed new theory when he filed this
action in 2020, yet he waited until a few days before the sum-
mary judgment hearing in the fall of 2023 to request leave to
amend the operative complaint to assert the new theory. By that
time, discovery had been completed, the deadline for amend-
ing pleadings and adding parties had passed, cross-motions
for summary judgment had been filed and briefed based on
the issues framed in the operative complaint, and the trial was
set to occur in a few weeks. On this record, the court did not
abuse its discretion in finding undue delay in seeking leave to
amend, and we need not address the other grounds relied upon
by the court to overrule the motion for leave to amend.
3. Summary Judgment Ruling
As stated, the City and FCC each filed motions for summary
judgment on all remaining counts of the operative amended
complaint. And Johnson filed a cross-motion motion for par-
tial summary judgment, seeking a determination that he had
taxpayer standing and a declaration that the contract between
the City and FCC was void ab initio because the yard waste
sticker rate charged by FCC had not been approved by the vot-
ers. The court entered summary judgment in favor of the City
and FCC and dismissed the complaint in its entirety.
On appeal, Johnson assigns error to the summary judgment
ruling as it regards his claim challenging the bidding process
and his claim challenging the rate charged by FCC for yard
waste stickers. Before addressing Johnson’s assignments of
error, we review the principles governing appellate review of a
summary judgment ruling.
39 McCaulley, supra note 34 (finding no abuse of discretion in denying oral
motion for leave to amend made at summary judgment hearing when
litigation had been pending for 5 years).

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[18,19] An appellate court will affirm a lower court’s grant
of summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from those
facts and that the moving party is entitled to judgment as a
matter of law. 40 Summary judgment is proper only when the
pleadings, depositions, admissions, stipulations, and affidavits
in the record disclose that there is no genuine issue as to any
material fact or as to the ultimate inferences that may be drawn
from those facts and that the moving party is entitled to judg-
ment as a matter of law. 41
[20,21] The party moving for summary judgment must make
a prima facie case by producing enough evidence to show the
movant would be entitled to judgment if the evidence were
uncontroverted at trial. 42 If the moving party makes a prima
facie case, the burden shifts to the nonmovant to produce evi-
dence showing the existence of a material issue of fact that pre-
vents judgment as a matter of law. 43 In the summary judgment
context, a fact is material only if it would affect the outcome
of the case. 44
(a) Challenge to Bid Process
[22,23] More than a century ago, we said the object of
competitive bidding statutes is “to invite competition and pre-
vent favoritism and fraud.” 45 More recently, we recognized
that competitive bidding statutes are enacted for the benefit of
taxpayers and “‘exist to invite competition, to guard against
favoritism, improvidence, extravagance, fraud, and corruption,
40 Galloway v. Husker Auto Group, 318 Neb. 178, 14 N.W.3d 218 (2024).
41 Id.
42 Id.
43 Id.
44 Id.
45 Fairbanks Morse & Co., supra note 9, 68 Neb. at 564, 94 N.W. at 539.

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and to secure the best work or supplies at the lowest possible
price.’” 46
[24-27] We have recognized that public bodies exercise
discretion when awarding bids under the competitive bidding
process, and we have said that “courts will show deference
when reviewing challenges to a public body’s . . . award
decisions.” 47
“[W]here there is no showing that the body acts arbi-
trarily, or from favoritism, ill will, fraud, collusion, or
other such motives, it is not the province of a court to
interfere and substitute its judgment for that of the admin-
istrative body.” . . . In other words, whenever a public
body has discretion to make a decision during the bidding
process, a court is essentially limited to reviewing that
decision for bad faith. 48
Additionally, public bodies also have discretion to seek clari-
fication of bids, even after bids have been opened, so long as
the bid is not substantively or materially altered. 49
In his claim seeking to void the contract based on alleged
impropriety in the bid process, Johnson alleged two related
theories: (1) The City should not have accepted FCC’s post-
opening altered bid because that bid materially varied from
FCC’s original bid, and (2) the City acted with bad faith and
favoritism in the bidding process by seeking a postopening
clarification of FCC’s bid on Bid Package D without notice to
other bidders. The district court addressed both theories and
found that the evidence entitled the City and FCC to summary
judgment as a matter of law.
46 Rath, supra note 12, 267 Neb. at 282, 673 N.W.2d at 886 (quoting
Anderson v. Peterson, 221 Neb. 149, 375 N.W.2d 901 (1985)).
47 Rath, supra note 12, 267 Neb. at 284, 673 N.W.2d at 887.
48 Id. at 284-85, 673 N.W.2d at 887 (quoting Best v. City of Omaha, 138 Neb.
325, 293 N.W. 116 (1940)).
49 See Fairbanks, Morse & Co., supra note 9.

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On appeal, Johnson does not contend that the City lacked
the general authority to exercise its discretion and seek a bid
clarification postopening. 50 We therefore limit our analysis to
his related contentions that (1) FCC’s postopening bid materi-
ally or substantively varied from its original bid and that (2)
the City demonstrated bad faith and favoritism toward FCC by
requesting clarification of FCC’s bid postopening.
(i) No Evidence of Material Variance
[28] Nebraska has long recognized that bids cannot be
substantively changed after opening because otherwise the
purpose of competitive bidding, which is to invite competi-
tion and prevent favoritism and fraud, would be completely
thwarted. 51 We applied this rule in Fairbanks, Morse & Co. v.
City of North Bend. 52
In Fairbanks, Morse & Co., the city solicited bids for labor
and materials to construct a water system. After the bids were
opened, the public body declined to accept either one. But the
next day, the city accepted a supplemental bid from one bidder
that contained substantially new terms, including supplying
additional machinery. On appeal, we found the supplemental
bid was an invalid new bid, emphasizing that it “materially
changed and modified” the original bid and that consequently,
the bidders “were not on equal terms, and were not bidding on
the same proposition.” 53
[29,30] Similarly, a leading treatise on municipal corpora-
tions states that the substance of a bid cannot be changed
after the time for opening, but it emphasizes that “mere
irregularities in [the] form” of a bid may still be corrected
50 See, generally, 10 McQuillin, supra note 11, § 29:71. See, also, Rath,
supra note 12 (holding when public body has discretion to make decision
during bidding process, court will review its exercise of discretion only for
bad faith).
51 Fairbanks, Morse & Co., supra note 9.
52 Id.
53 Id. at 564, 94 N.W. at 539.

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or disregarded after bids are opened. 54 This treatise generally
equates a prohibited substantive change in a bid with a “mate-
rial variance” in the bid and states that the test for whether a
variance is material is whether it “gives a bidder a substantial
advantage or benefit not enjoyed by the other bidders.” 55 The
district court applied this material variance test and determined
there was no evidence in the record to support Johnson’s claim
that FCC’s postopening bid clarification resulted in a mate-
rial variance.
Our de novo review leads us to the same conclusion. The
facts relating to Johnson’s material variance argument are
undisputed. The City intended to specify a standard unit for
the yard waste sticker charge in Bid Package D but mistak-
enly failed to do so. This led to an inconsistency in how the
four bidders interpreted the requirements of Bid Package D,
with three bidders basing their yard waste sticker price on a
30-gallon unit and FCC basing its sticker price on a 606-gallon
unit. When the City discovered this unit discrepancy, it exer-
cised its discretion to send FCC a postopening bid clarifica-
tion request, asking FCC to standardize the unit price to 30
gallons per unit, rather than 606 gallons per unit. FCC agreed
to clarify its bid by converting the previous sticker price of
$40 for a 606-gallon unit into a sticker price of $1.98 for a
30-gallon unit. The price per gallon of FCC’s original bid
and its clarified bid was the same, at $0.066. Converting the
sticker price to a standardized 30-gallon unit did not alter the
total amount of FCC’s bid, and it enabled the City to evaluate
all four bids using the same unit of measurement.
These undisputed facts show that FCC’s postopening bid
merely corrected what amounted to an irregularity in the unit
of measurement and mathematically converted its original
bid to reflect a standardized unit of 30 gallons instead of 606
gallons. Because the price per gallon remained unchanged
54 See 10 McQuillin, supra note 11, § 29:66.50 at 688.
55 Id. at 689.

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from the original bid, and because the total amount of FCC’s
bid was not altered, there is no evidence to support the conten-
tion that this unit standardization permitted FCC to materially
change the price of its yard waste sticker bid. And because
all other bidders had used a 30-gallon unit to price their
yard waste stickers, asking FCC to convert its bid using the
same standardized unit did not give FCC any unfair or sub-
stantial advantage over the other bidders, but instead merely
enabled the City to evaluate all bids using the same unit of
measurement.
On this record, we agree with the district court that even
when Johnson is given all reasonable inferences, there is no
evidence to support Johnson’s claim that FCC’s clarified bid
resulted in a material variance from its original bid and no evi-
dence to support his contention that the clarified bid gave FCC
a substantial advantage not enjoyed by the other bidders. The
district court properly granted summary judgment in favor of
the City and FCC on this claim.
(ii) No Bad Faith or Favoritism
Johnson also argues the district court erred in granting sum-
mary judgment on his claim that the City acted in bad faith
and with favoritism by seeking the postopening bid clarifica-
tion from FCC. He argues the evidence “supports an inference
the City surreptitiously invited a material variance” 56 of FCC’s
submitted bid and that this provided FCC with “the substantial
advantages of an opportunity to correct their bidding error . . .
and to materially revise” its bid. 57
His argument in this regard is heavily dependent on the suc-
cess of his claim that FCC’s postopening bid substantially and
materially varied from its original bid and that the request for
bid clarification afforded FCC a substantial advantage that was
not enjoyed by the other bidders. Because we have already
concluded that the City and FCC were entitled to summary
56 Brief for appellant at 36.
57 Id. at 37.

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judgment on that claim, Johnson’s related claim that the City
acted in bad faith and with favoritism by requesting the bid
clarification similarly fails. 58 The district court did not err in
entering summary judgment in favor of the City and FCC on
this claim.
4. Voter Approval of FCC
Charge Not Required
In his second assignment of error, Johnson argues the district
court erred in granting summary judgment in favor of the City
and FCC on his claim that the yard waste sticker program is
void because the rates charged by FCC were not approved by
the voters under § 13-2020(4).
Regarding this claim, the evidence was undisputed that the
yard waste sticker program is administered exclusively by
FCC pursuant to a contract with the City, that FCC makes the
stickers available for purchase at authorized retail outlets, and
that the City does not in any way pay for or subsidize the yard
waste sticker program.
Johnson’s claim that the yard waste sticker charge is subject
to the voter approval requirement in § 13-2020(4) presents a
matter of statutory interpretation that we review independently
of the trial court. 59 In construing this statute, we are guided by
well-settled principles.
[31-35] Statutory interpretation begins with the text, and
the text is to be given its plain and ordinary meaning. 60 It
58 See, generally, Winter Brothers v. City of Beresford, 652 N.W.2d 99 (S.D.
2002) (reasoning no favoritism shown by public body in answering one
bidder’s questions when answers did not result in bidder obtaining a
competitive advantage); Cedar Bay Const. v. City of Fremont, 50 Ohio St.
3d 19, 22, 552 N.E.2d 202, 205 (1990) (finding public body did not act
in “‘“unreasonable, arbitrary or unconscionable”’” manner by meeting
with winning bidder when substantive terms of bid were not changed after
meeting).
59 See Mullins, supra note 17.
60 Dirt Road Development v. Hirschman, 316 Neb. 757, 7 N.W.3d 438
(2024).

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is not within the province of a court to read a meaning into
a statute that is not warranted by the language; neither is it
within the province of a court to read anything plain, direct,
or unambiguous out of a statute. 61 In construing a statute,
the legislative intention is to be determined from a general
consideration of the whole act with reference to the subject
matter to which it applies and the particular topic under which
the language in question is found, and the intent as deduced
from the whole will prevail over that of a particular part con-
sidered separately. 62 Statutes pertaining to the same subject
matter should be construed together; such statutes, being in
pari materia, must be construed as if they were one law, and
effect must be given to every provision. 63 To give effect to all
parts of a statute, a court will attempt to reconcile different
provisions so they are consistent, harmonious, and sensible
and will avoid rejecting as superfluous or meaningless any
word, clause, or sentence. 64
[36] Applying these principles, we conclude that Johnson’s
argument fails to properly consider the plain language of both
§ 13-2020(4) and § 13-2020(5) in pari materia. The voter
approval requirement upon which Johnson relies is codified
in § 13-2020(4), and the plain language of that subsection
applies when a governing body establishes “rates or charges to
be paid to it . . . by each person whose premises are served.”
(Emphasis supplied.) In this case, it is undisputed that the
yard waste sticker fees are neither charged by nor paid to the
City. Because the voter approval requirement in § 13-2020(4)
applies only when a city of the metropolitan class imposes
a rate or charge upon individual residences to be paid to the
city, it does not apply here.
61 Id.
62 Id.
63 Id.
64 Id.

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Instead, we agree with the district court that, under the
ISWMA, the rates a contractor may charge, including the yard
waste sticker fee at issue here, are governed by § 13-2020(5).
The relevant provisions of § 13-2020(5) authorize the govern-
ing body of a county or municipality to enter “into a contract
with a person to provide a facility or system” for solid waste
management and state that such contract “may authorize the
person to charge the owners of premises served such a ser-
vice rate therefor as the governing body determines to be just
and reasonable.” Unlike § 13-2020(4), § 13-2020(5) does not
contain an express requirement that service rates charged by
and paid to a contractor must be approved by the voters in
cities of the metropolitan class. To the extent Johnson’s argu-
ment asks us to read such a provision into § 13-2020(5), his
request is contrary to our well-established principles of statu-
tory interpretation. 65
To summarize, because the undisputed evidence established
that the rates for yard waste stickers are charged by and paid
to the contractor (FCC) and not to the City, the voter approval
requirement in § 13-2020(4) is not applicable. In reaching this
conclusion, we express no opinion on whether voter approval
might be required when a city of the metropolitan class enters
into a contract to provide services and then the city imposes
and collects a charge or assessment on individual residences to
defray the contract charges, 66 as there is no evidence that the
City is doing so.
Because the voter approval provision in § 13-2020(4) does
not apply to the yard waste sticker fee at issue here, the district
court did not err in granting summary judgment in favor of the
City and FCC on this claim.
65 See State v. Strawn, 318 Neb. 859, 19 N.W.3d 761 (2025) (emphasizing
court may not read meaning into statute not reflected in its text).
66 See § 13-2020(5).

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V. CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
Affirmed.