Liquor commission issues statement against liability
Law Warehouses of Nashua has provided warehousing and transportation services for the commission for decades, but lost a bid to continue the warehouse work and is challenging that decision in court, along with another unsuccessful bidder.
As the NHLC prepares to accept bids for the transportation services, the request for proposals is raising red flags in some quarters.
On Page 8 of the 71-page RFP, posted on the NHLC website on March 8, the commission writes, "The vendor agrees that in the preparation of this proposal, and any resulting contract or order, the representatives of the state of NH and the liquor commission shall incur no liability of any sort associated with respect to the proposal or contract."
And on Page 16, the RFP states, "The decision of the NHLC shall be final. By submitting a proposal the vendor waives any other legal remedy, if any."
Rep. Lynne Ober, R-Hudson, one of the sponsors of pending legislation that would ensure future review of liquor commission contracts by the governor and Executive Council, said she found the language troubling. "I alerted House Republicans," she said. "I do not know if that (wording) is legal or not. I'm not an attorney, but I wonder if you can actually forbid any challenge by bidders."
Rep. Peter Leishman, D-Peterborough, a co-sponsor of the legislation, sounded even more concerned.
"The transportation RFP just issued by the liquor commission not only keeps the final approval with the commission, but the respondents are prevented from challenging the commission on their decision. It's just incredible," he wrote in an email. "I have asked to meet with the attorney general over what I see as a complete disregard for the concerns expressed by so many regarding the last liquor commission contract process."
Assistant Attorney General Michael Brown said the Page 8 language is "pretty common language in RFPs, generally," and is designed to ensure that the costs incurred by a bidder in preparing a bid are not passed onto the state.
He was less conclusive about the waiver language on Page 16, saying, "You have to read the entire section. As I read it, it's talking about the formal protest process." Brown said there was similar language in the warehouse RFP that directed vendors to the liquor commission's formal appeals process, over which the commission has final say.
"But there is different language with this one that says by submitting a proposal the vendor waives any other legal remedy," he said. "I don't know what the intent of that additional language is for sure, but I am of the belief that it is to encourage vendors to engage in the administrative remedy."
Brown said the language comes from attorney Stephen Judge, selected by the Attorney General's Office to serve as outside counsel to the liquor commission on the warehouse and transportation contracts. Judge was out of town and unavailable for comment Monday.
When asked if the language was intended to preclude legal challenges, Brown replied, "It is not my belief that that's what it is intended to do. But I will tell you, I am not the author of these, and I will be very curious to talk to the author."