When the Selectmen are elected they take, along with all other elected officials, a solemn oath to follow the laws of the State of New Hampshire and the Town of Hampton. I am going to address the comments of Town Attorney Gearreald who spoke last week at the BOS meeting.
- Section 718-3.A of the Purchasing Policy states that “All purchases of supplies, materials, and services, including professional services, the cost of which is estimated to exceed $15,000 shall be allowed only after competitive sealed bids or sealed written professional proposals have been solicited.” Section 718-3.C includes the language “if the purchase does not comply with the purchasing policy it requires a waiver voted by the Board of Selectmen before action can be taken by a department to purchase.” 718-3.C was an amendment introduced in 2013 by Selectmen Bean in reaction to past problems.
- The Town Attorney stated last week “I believe it was implicit in the vote that was taken on 12/21/15 to approve encumbrances that this policy was waived and was not going to be required to be followed to implement these encumbrances.” The motion that was approved at the 12/21/15 meeting that the Town Attorney was referencing is “Selectman Bean MOTIONED to take $444,500 from the budget for the purchase of the above-mentioned equipment SECONDED by Selectman Bridle. VOTE: 5-0-0.” The only reference to the Purchasing Policy in the entire discussion of the of the $444,500 encumbrance was the Town Manager commenting that he would have to sign the PO’s by December 31st. It’s worth noting that immediately preceding the 12/21/15 discussion of the encumbrances there was a legitimate Purchasing Policy waiver approved for an unrelated purchase of a Scarifier with the following motion “Selectman Bridle MOTIONED to APPROVE the Purchasing Policy Waiver Section 718-4.B (2) for Bid 2015-011 Scarifier SECONDED by Selectman Woolsey VOTE: 5-0-0”, the point is Town Officials know what they need to do to construct a proper Purchasing Policy waiver motion. Since when does the Board of Selectmen do business on an “implicit in the vote” manner?
- The Town Attorney also stated last week that “there is no State law that requires competitive bidding; this arises only if the Board or a Town charter authorizes that.” While we agree that there is no explicit language in the statutes, there is in fact Case Law that addresses the subject, specifically Gerard Construction v. City of Manchester. In its Declaratory Judgment for this case the New Hampshire Supreme Court stated, “municipalities, like private parties, generally are free to contract without the requirement of advertisement and competitive bidding. Where such provisions are in force, however, strict compliance with the municipal scheme (the Purchasing Policy) is required.” The court goes on to state “We are buttressed in our view by an analysis of the purposes of requiring competitive bidding. These procedures serve to invite competition, guard against favoritism, improvidence, extravagance, fraud and corruption, and secure the best work or supplies at the lowest price practicable.”
- To the Police Department video system encumbrance, the Chief indicated on January 25, 2016 that he had not even started looking into the requirement, stated he didn’t know how many cameras he needed. There was no spec of what the vendor was going to provide in the 91-A information I reviewed. To RSA 32:7, how can there be a legally enforceable obligation if there is no definition of what the vendor is to provide in return for the $110,000 in the Purchase Order? There was no signature on the purchase order.
- To the Fire Department phone system December Encumbrance, the Town Attorney stated last week, “the replacement of the fire telephone system acceptance was in fact not communicated.” That being the case, why is 2015 PO# 15-446 for a $27,000 Fire department phone system contained on a January 23, 2016 Purchase Order list attached to the 2015 “Final Pass” Expense statement if it was not a legal encumbrance? Of greater concern is why this $27,000 encumbrance for the phone system is still included in the Fire Department Communications replacement equipment encumbrance line item in the April 2016 Expenditure report. The April report was distributed to the Selectmen less than two weeks ago.
It appeared to us that the Town Attorney’s intent last week was to defend the actions of the Town Manager, Finance Director and Board of Selectmen related to the $444,000 encumbered on December 21, 2015. While we understand and accept that the Town Attorney may receive direction from the Board of Selectmen, we believe his clients are ultimately the citizens of the Town of Hampton. In our opinion, the presentation by the Town Attorney last week was designed to put Town Officials in a positive light and mislead the public. An objective legal opinion looking out for the interest of the citizens of Hampton would have been more appropriate.
Before embarking on a course of making changes that would weaken and reduce the benefits to the taxpayers from the Purchasing Policy by increasing the dollar threshold and/or reducing the required number of bidders, wouldn’t it make more sense to conduct an investigation and analysis to get to the bottom of why Hampton is having so much trouble getting 3 qualified bidders on projects exceeding $15,000. Thus far all we’ve heard is “off the cuff” opinions from the Town Manager and some of the Selectmen.