Judge Throws Out
Contract To Build
Town Hall Addition
By M. D. Drysdale

A Superior Court judge ruled last month that the Town of Randolph did not follow its own purchasing policy in awarding a contract to design and build renovations to the Municipal Building in February, 2005.

As a result, said Judge Mary Miles Teachout, the contract awarded to DuBois & King (engineers), Scott & Partners (architects), and Professional Construction, Inc. (builders) is invalid.

Because it did not follow its own policy, "The selectboard did not have the proper authorization that was required to sign the contract," Judge Teachout ruled in her Feb. 26 opinion.

Selectboard Chair Jim Hutchinson said the board is disappointed in the ruling.

"We felt that we were acting in the best interests of the town in the process we used," he said.

The lawsuit was brought against the town on June 3, 2005, just two days after the general contractor announced bid packages and instructions to bidders for contract work. The suit has effectively stopped work on the addition and renovation for the last two years.

The petition to the court was brought by a group of citizens led by William Kevan of Stock Farm Road. Kevan, a contractor by trade, argued his own case—as he had previously argued a case involving destruction of a much-publicized crabapple tree.

So far, the scorecard in Superior Court reads: Kevan 2, Town of Randolph 0.

What's Next

Renovating and expanding the town offices have been a top priority for the Randolph selectboard for at least seven years. After four years of study, the Town in 2004 voted in favor of floating a $1.2 million bond for the project.

Judge Teachout explained in her decision what Randolph needs to do to be in compliance. Since it has decided to use the "design-build" procedure rather than the "straight design" method, the town must issue a Request for Proposals (RFP) alerting other architects, designers, and contractors of the opportunity and allowing them to come up with their own plans, she said.

Randolph officials have already "fixed" the problem regarding the crabapple tree, Judge Teachout had earlier ruled that an improper executive session was used in a selectboard hearing. That hearing resulted in approval that the tree could be cut down for the municipal building expansion. A new hearing has been held, arriving at the same conclusion, and that one has not been challenged in court.

It appears, then, that if the selectboard accepts a new design-build proposal, based on a new open-bid procedure, the project could go ahead.

The $1.2 million from the approved bond has been sitting in the bank since 2005. The selectboard borrowed a substantial amount from that fund to finance the rebuilding of the Chelsea Road, but that has been paid back.

So—the money's in place, the tree issue is settled. What is left now to do is to send out RFPs, approve a proposal, and sign a contract. It seems simple enough; but then it seemed simple enough back in 2005, too.

Hutchinson said the selectboard will take up the topic at its March 27 meeting.

A Flawed Process

The process that Judge Teachout disagreed with was this:

A RFP was sent out on Dec. 10, 2004 for architectual proposals for the renovation and expansion. Four architects responded with designs and were interviewed.

The team headed by DuBois & King, however, came in with an entirely different sort of proposal. It proposed a design-build procedure in which the three firms would take the project from the architechtural drawings right through to the final project, guaranteeing to come in under the $1.2 million that had been approved by the voters.

The Building Committee, under the leadership of Hutchinson, and the selectboard were impressed. It was noted that the design the D&K team presented would provide considerably more space than they thought they could get for $1.2 million.

As a result, the selectboard signed a contract with the three firms.

What the selectboard should have done at this point, however, according to Judge Teachout, was to send out another Request for Proposals. This second RFP would give other contractors, engineers and architects the opportunity to make their own proposals in competition with the D&K group's proposals.

"The problem is that the contract approved by the board was for a project and services that substantially exceeded the scope of the Dec. 10, 2004 RFP," she wrote. That RFP "was not designed to solicit proposals for a design-build project … No 'adequiate number' of engineers or construction contractors were solicited, or had a chance to submit a proposal for a design-build project."

Thus, she said, the procedure was invalid and so was the contract.

Public Notice

Judge Teachout also agreed with petitioner Kevan that the selectboard had issued an inadequate public announcement for the Feb. 15 meeting at which they chose the design-build team.

The special meeting notice described the meeting's purpose as "Municipal Building Architect." This notice "did not sufficiently notify the public of the actual purpose of the meeting," she said.

However, she said, the selectboard fixed that problem by later holding a properly-warned meeting and reaffirming its decision.

Hutchinson this week said he hadn't read the whole decision and can't comment in detail but said the board was merely trying to expedite a process that had already gone on a long time.

"We feel that the voters made their wishes clear during the nearly four years that meetings were held to discuss the project and in the bond vote," he said. "To have a much needed project like this needlessly delayed is both expensive and counterproductive for all the people of Randolph."