AUGUSTA — A judge has ordered Farmingdale selectmen to specify why they rejected bids from Ellis Construction for mowing and sewer contracts in September 2016.
Ellis Construction, through attorneys Matthew Morgan and Walter McKee, appealed the award of the contracts to a higher bidder and sought a court order requiring the town to contract with Ellis.
Justice William Stokes’ order, dated Tuesday, sends the case back to the Farmingdale Board of Selectmen “to state the factual reasons for its decision of Sept. 7, 2016, to reject the petitioner’s bids for the Roadside Mowing and Sewer Maintenance contracts and support the record with those factual findings.”
After that, both sides have 14 days to submit additional material before Stokes issues an opinion.
Farmingdale’s attorney, Mary Denison, welcomed the order.
“This is the outcome we expected,” she said on Tuesday. “The town has no objection to making findings on the record already established, and is pleased the court has retained jurisdiction in the matter.”
On Wednesday, McKee said via email, “We are very disappointed with this decision. The town flat-out played games here and rejected the Ellis bids — that were clearly the lowest bids — for no good reason. The court has given the town a chance, months later, to put a reason on the record even though the town never gave one before. I can’t wait to hear what they now come up with.”
Stokes’ order follows an April 5 hearing.
At that hearing, Denison noted the town’s selectmen already were being sued by Ellis at the time these contracts were being awarded.
Ellis Construction claims in that separate case the town owes it $3,300, plus payment for labor and materials, that it would have received beginning in July 2015 when the sewer inspection and maintenance contract was not renewed for 2015-2016. Trial is set for September 2017.
At the oral argument in the appeals case, Stokes asked Denison, “How do I engage in meaningful judicial review if I can’t figure out why they awarded the bid to someone other than the lowest bidder?”
“I know they consulted with you; that’s in the record.” Stokes added. “If they reject all bids, they have to give a reason.”
He also said the town does not have to do business “with someone they have a litigious relationship with.”
Stokes quoted from Denison’s brief, which said that “requiring the town to award contract to (Ellis Construction) is tantamount to ‘holding it hostage’ by forcing ‘it to engage in additional business transactions with an adversarial party.'”
Matthew Morgan, who represented Ellis Construction at the April 5 hearing, maintained the town’s own ordinance required it to accept Ellis Construction’s bid.
Ellis Construction is owned and operated by Christopher and Angenette Ellis, of Farmingdale. Ellis Construction maintains it was a qualified bidder when it submitted a bid of $24,900 — $8,300 for each of three years — for the sewer maintenance contract.
Excalibur, operated by Tony Barry, of Farmingdale, bid a total of $36,000, or $12,000 per year; and Ted Berry Co. bid a total of $63,000, with $20,000 for the first year, $21,000 for the second year and $22,000 for the third year. Those two bids were sent on to the town’s Sewer Committee for review, according to the minutes of the meeting. At that same meeting, selectmen voted 3-0 to reject the roadside mowing bid from Ellis Construction, according to the minutes posted on the town’s website.
Excalibur was awarded the sewer maintenance contract.
For the roadside mowing contract, Ellis Construction had bid $10,500, or $3,500 per year; Excalibur had bid $11,700, or $3,900 per year; and Crockett Contractors, operated by Bruce Crockett, had bid $11,740, which included $3,780 for the first year and $3,980 for the second and third years. The contract also was awarded to Excalibur.
“Can a town take into account the fact that it’s had prior dealings with a bidder?” Stokes asked Morgan.
Morgan said the town should have followed its own competitive bid ordinance and that there were no findings that Ellis Construction was unqualified.
“There’s no need for a competitive bid ordinance if it can pick and choose,” Morgan said.
Morgan also said the issue is particularly timely now with the mowing season beginning.
Stokes also quoted from the town ordinance that describes competitive bidding: “Except as provided herein, contracts of $5,000 or more, shall be awarded to a qualified bidder making the lowest responsible bid.”
The disputes come a few years after controversy erupted in Farmingdale about the town’s winter snowplowing contract with Ellis. In August 2014, the Farmingdale Board of Selectmen and Ellis Construction agreed to terminate their three-year plowing contract after only one year.
Betty Adams — 621-5631
Twitter: @betadams
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