AUGUSTA — A Readfield contractor who served on the town’s road committee and then bid on the town’s snow plowing contract is appealing a decision not to open his bid and award him the work, even though he was lowest bidder.
Reay Excavation & Trucking Inc., owned by Linwood Reay Jr. of Readfield, had appealed a decision by the town manager not to open the company’s bid at the scheduled bid opening on Aug. 11, 2016, a decision that was later upheld by the selectboard. Reay maintains his bid was the lowest of the three submitted and he should have been awarded the four-year contract.
The town manager said at the time he refused to open it because he had concerns that Reay had a conflict of interest. Reay resigned from the advisory Readfield Road Committee several hours prior to the bid opening.
Attorney Stephen Langsdorf, who represents the town, said Thursday, “It is important to avoid appearance of conflict of interest. The town manager just didn’t think it was right. You either work on (the contract) on behalf of the town or on the other side and bid.”
Langsdorf said Reay told the committee he was not going to bid.
“A town has the right to expect that there will be integrity in the process and there won’t be an appearance of an insider deal,” Langsdorf said.
The appeal, filed in September 2016 in Kennebec County Superior Court at the Capital Judicial Center, names the Town of Readfield as the defendant and Cushing Construction, LLC, the winning bidder, as an interested party. An appeal of a final agency action, such as the Town of Readfield’s, is heard by a justice in the superior court.
Earlier this month, Justice William Stokes issued an order denying a request by Reay’s attorney, Phillip Johnson, for a trial and indicated oral arguments would be heard in September.
The order follows an April 5 hearing where Johnson presented his argument in favor of a trial.
There Stokes noted, “Frankly we’re supposed to give deference to the administrative decision.”
He also told the attorneys that he was aware the issue was time-sensitive, saying, “You need to get a decision here before the end of the summer.”
At the April hearing Johnson indicated he alleged discrimination by the town manager, Eric Dyer, against Reay.
“I referenced that the town manager retaliated against Mr. Reay because (previously) he had not gone through appropriate channels for communication,” Johnson said, adding that Dyer apologized in an email May 20, 2016.
Records submitted to the court, including a series of facts which both sides agreed to, show that Reay emailed the selectboard May 16, 2016, saying the committee had not met to provide input on the RFP.
Dyer replied, asking if Reay planned to bid on the winter maintenance contract because “if he did, he would have a conflict of interest.”
An email from Dyer to the selectboard members Aug. 11, 2016, about Reay’s resignation says, “The conflict came about because of his significant involvement with the development of a potentially $1.25 million snow and ice control contract under a false pretense. If he had recused himself from the contract development or honored his statement that he would not bid, then no conflict would exist.”
Stokes’ order says Johnson has provided “an offer of proof ‘specifically identifying what evidence of bias (Reay) is seeking to uncover . . . . ‘ ”
Attorney Kristen Collins, defending the town’s actions at last month’s hearing, said the town had the authority to reject any and all bids.
Johnson also said Dyer obtained an opinion from Maine Municipal Association regarding the bid opening, but did not share it with selectmen.
Contained in the court file is an email to Dyer from Breana N. Behrens, staff attorney in the Legal Services Department at Maine Municipal Association, and dated Oct. 20, 2015.
It says, “If a Road Committee member expects to submit a bid for a project, the safest course of action would be to avoid any appearance of impropriety and recuse themselves from the discussion and development of the RFP. However, since the Road Committee is an advisory committee, it generally would not be considered a legal conflict of interest for a member to bid on an RFP that they helped develop or review. This is because the committee is only responsible for providing technical advice and expertise and it ultimately is up to the selectboard to approve the RFP and accept any bid pursuant to the RFP.”
She says it’s important “to review all the facts in the situation” and directs Dyer to the MMA’s “Municipal Officers Manual.”
Behrens also says, “I am not aware of any state law or rule that limits or prohibits a former selectperson’s spouse from working for the town.”
Reay’s wife, Sue, was on the selectboard for three years beginning in 2012, opted against running for re-election in June 2015. She was chairwoman for her final two years in office.
Betty Adams — 621-5631
Twitter: @betadams
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