Hefner defends bid process for water projects

CUMBERLAND - Town Solicitor Thomas Hefner wasn't hesitating last month when he told Town Council members he will happily defend the bid process used in choosing a contractor to link several water line intersections.

That said, councilors concluded more than an hour of discussion at the Oct. 22 council meeting and awarded the project to the highest bidder.

Now Hefner will have a chance to make good on his confident remarks.

American Site Corp. of Johnston, represented by attorney Michael Kelly, filed suit against Cumberland's Finance Director Thomas Bruce and Mayor Daniel McKee last Friday, claiming that Cumberland violated state law in the way officials evaluated the bids before choosing Boyle and Fogarty of Smithfield.

Bid results from three firms went to councilors in early October with Water Superintendent Alan Brodd telling them the project covers three dead-end water line configurations where ledge has interrupted connections and made flushing the lines difficult.

They are: Old Angell Road and Curtin Drive; Kay Street and Mount Pleasant View Drive; and Stella Drive and Louise Luther Drive.

American Site bid $285,236 to connect the lines compared to Boyle and Fogarty's $298,035. Also bidding was Smithfield Peat Co. of Smithfield at $288,330.

Although Boyle and Fogarty seemed to be highest, Brodd and Hefner told councilors an engineer's analysis determined that in the end, when the job was done, Boyle and Fogarty would bill the town the least.

Discussion over the bid award spanned both October council meetings and Kelly raised the same objections at both.

Kelly's complaint was that Cumberland didn't advise bidders in advance of the process it would use in comparing bids as is required by state law. The resulting evaluation was unfair and illegal, he said.

His Oct. 30 filing in Rhode Island Superior Court seeks to recoup $60,000 in damages plus attorney's fees and other costs related to the lawsuit.

The bid specifications were prepared by Pare Engineering of Lincoln, the same firm that later analyzed the results.

As they dug into the issues, one sticking point for town officials was within the breakdown of the varied jobs involved. American Site bid one cent per cubic yard for rock removal with explosives.

Kelly's explanation was that explosives won't be used because lines are near gas lines. And he countered that Boyle and Fogarty underbid a section on excavation costs.

Another difficulty is that the bid specifications stated the town could only estimate the amount of ledge to be removed so bidders were submitting a unit price, not a final number.

Town officials said the penny bid on rock removal tilted the bid results and didn't reflect the final cost of manually removing it.

But Kelly said town officials changed the rules midway through the process.

"The invitation shall state whether it's based on lowest bid price or lowest evaluated bid price. If you tell everyone up front, everyone can be on the same page and can all bid knowing what the rules are. If you are going to add and subtract bid items, you should have said that in your bid specs," said Kelly.

But Hefner was adamant.

He told councilors, "You're faced with three bids, no matter how you look at it American site is not the lowest bid. It's staring you right in the face."

Finally, Council President Higgins, also an attorney, asked Hefner, "The question is whether or not the bid is legal and it's your opinion, Mr. Hefner, that it is, and you're prepared to defend the town?"

Said Hefner, "That's correct, and at no cost to the town, I might add."

Councilor Kelley Nickson Morris, an attorney, cast the only vote against the bid award.