A judge has denied an appeal by a Readfield contractor to overturn the town’s winter roads contract award and has upheld a Select Board decision not to open the bid from Reay Excavation & Trucking, Inc., after the contractor served on the committee that helped prepare the bid specifications.

Reay Excavation, owned by Linwood Reay Jr., appealed an Aug. 11, 2016, decision by the town manager not to open Reay’s company’s bid. Reay maintains his bid was the lowest of the three submitted and he should have been awarded the four-year Snow and Ice Control Contract. Instead, the contract, worth almost $1.2 million if the fifth year option is exercised, went to Cushing Construction, LLC, owned by John Cushing, of Readfield.

The decision issued Monday by Justice William Stokes says, “The particular facts of this case amply support the reasonableness of the Select Board’s ultimate exercise of discretion.”

Town Manager Eric Dyer said at the time he refused to open the bid because he had concerns that Reay had a conflict of interest. Reay resigned from the advisory Readfield Road Committee several hours before the bid opening.

Reay attended meetings where committee members worked on the contract specifications, and Stokes quoted from minutes of a May 19, 2016, meeting at which “Reay said he will not bid on the snow removal contract.”

A footnote in the decision says, “The plaintiff’s claim that he did not make a firm commitment at the meeting of May 19, 2016, not to bid, but reserved to himself the right to change his mind, is unconvincing.”

Stokes concluded the opinion by saying, “Indeed, this very controversy could have been easily avoided had Mr. Reay simply recused from any participation or involvement in the Snow and Ice Controls RFP and Contract as a member of the Town of Readfield Road Committee.” The word “any” was underlined.

The decision follows several hearings, plus written submissions from attorneys.

Stephen Langsdorf, who represented the town, said Thursday, “This decision supports the right of municipal officials to make determinations regarding awarding of contracts in the best interest of the town. Here it was important there not be the perception of any impropriety. The town manager was well within his rights not to allow a member of the Road Committee to be one of the bidders on the contract that the Road Committee was working on. It’s a perception of a conflict of interest and it’s important for other towns to avoid that as well.”

Langsdorf said the decision is particularly important “because this concept of perceived conflict of interest isn’t that well identified in the law, and municipal officials must be transparent and allowed to take actions so that the public has confidence in the process.”

Reay’s attorney, Phillip Johnson, did not return a phone message Thursday. It was also unclear whether he had received the decision yet from the court.

Reay did not respond to an email sent Thursday.

Oral arguments in the appeal were held Sept. 6, 2017, at the Capital Judicial Center.

At that time, Johnson argued that Dyer had an interpretation of the town’s conflict of interest ordinance from an attorney at the Maine Municipal Association that indicated there would be no conflict if a member of the Road Committee were to bid on the contract.

Stokes asked him, “Can a municipality have a legitimate concern that says we’re worried about the appearance of a potential conflict, potential impropriety and the perception the public might have?”

“It starts and ends with the ordinance, your honor,” Johnson replied.

Johnson told Stokes, “Reay has had the contract in past years and done a stellar job.” He also said all the members of the Road Committee wanted Reay’s bid opened.

At one point toward the end of that hearing, as Johnson was rebutting some of Langsdorf’s arguments, Reay stood up in the public area of the courtroom.

Stokes then told Johnson that it appeared his client wanted to speak to him.

Instead, Reay addressed the judge, “Can I talk to you?”

“No, you cannot,” Stokes told him.

Langsdorf argued at the same hearing that the town did not have an obligation to award a contract to the lowest bidder. He quoted from notes to bidders that were included in the request for proposal. They said, in part, “The town will consider awarding a contract to the lowest priced, responsible and responsive bid.” He also noted that it reserved “the right to reject any and all bids or portions thereof.”

He also said Reay resigned from the committee too late.

“The Maine Municipal Association opinion doesn’t say, ‘Three hours before the bid is due, you can quit the committee and you’re fine,'” Langsdorf said.

Betty Adams — 621-5631

[email protected]

Twitter: @betadams

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