Dealing with the government? Get it in writing first

I've included this item because I've seen a couple of cases like it on Guam of late. There's one case making its way to the Supreme Court now, possibly.

The moral of the story is that government procurement requires authority and written contracts. And law trumps whatever moral rights you think might be appropriate.

Implied contracts and promissory estoppel are hard to enforce, if at all, because of sovereign immunity, claims acts and procurement rules that require audit tracking and accountability. Not to mention competitive processes that disfavor favoritism.

Sisson vows to take unpaid repair bill to voters

Highway Surveyor Jack Sisson says the Westport repair shop fixed his department’s battered dump truck a year ago and deserves to get paid $17,692 for his troubles.

Town Administrator Michael Coughlin says the transaction was illegal, the truck never should have been fixed that way, and there is no way the town will pay.

At issue is a Highway Department 1999 Freightliner 6-wheel dump truck that slammed into a utility pole while plowing snow. The front end was pushed in and the truck was totaled, Mr. Coughlin said — “but Mr. Sisson went ahead on his own and got it fixed anyway.”

Mr. Sisson said buying a new truck would have cost much more and the truck still had life in it.

He said he went to Henry’s Diesel, a Westport shop owned by Henry Majewski, because that’s where he has long gone for repairs of this nature.

“We go there because has always done a great job for us and for the fire department and the police.” Mr. Sisson said he didn’t get three bids because this is how we have always done it when we needed to obtain parts — “and Mr. Coughlin knows that.” He called it unlikely that anyone else around could have located the hard-to-find nose for that old truck.

But Mr. Coughlin said the rules are clear — that bids are needed for purchases or repairs of this sort.

He said the Mass. Inspector General’s Office blocked the expenditure because it violated procurement rules that require bids. In a March letter, that office stated that state law requires that no purchase may be made by a town employee without written permission from the town’s chief procurement officer. And any contract for goods or services valued at between $5,000 and $25,000 requires the solicitation of three price bids.

The town’s attorney, Kopelman and Paige, agrees that the bill should not be paid, Mr. Coughlin said.

“Services and equipment purchased by the Highway Surveyor were not in conformity with either state law oir town by-law and in excess of the authority granted to him,” Kopelman and Page wrote to the attorney for Henry’s Diesel. “Moreover, there is no written binding contractual relationship between the town and your client.”

Mr. Coughlin said Henry’s Diesel took the town to court over the payment and the town prevailed. In late May, a Fall River District Court Judge dismissed the claim saying that since the contract was not reduced to writing, it was not enforceable against a town.

Procurement law has many aims. One of its foremost goals is to avoid the kind of cavalier attitude and old boy network this controversy illustrates.

Government employees must be made to know, by proper education and training, that they are custodians of the public purse, with high ethical responsibilities, and accountable to make sure the public interests come first. Among the many policies in the ABA Model Procurement Code, not one of them say procurement must bend to the convenience of the government.

And, private vendors must also be made to know that there are rules of engagement when dealing commercially with the government that are different from the rules by which private parties do business.