Affidavit says liquor decisions were personalBy DAVE SOLOMON
New Hampshire Union Leader
April 27. 2013 12:21AM
NASHUA - State liquor Commissioners Joseph Mollica and Michael Milligan told fellow Commissioner Mark M. Bodi that they did not like Law Warehouses owner Brian Law and would do "whatever was necessary" to ensure that a lucrative warehouse contract was awarded to another company, according to Bodi's sworn affidavit.
The testimony was filed after Bodi responded to a subpoena and was deposed in connection with a lawsuit over the handling of a $200 million, 20-year contract awarded by the New Hampshire Liquor Commission.
"Between March 28 and June 7, 2012, the two commissioners who then served with me on the NHLC made statements in my presence in which they expressed their disdain and dislike for the company currently supplying liquor warehousing services to the state, Law Warehouses, as well as for Law Warehouses' owner, Brian Law," Bodi testified.
"On various occasions during this period, when discussing the award of a new contract, Mr. Mollica and Mr. Milligan stated that they wanted to do whatever was necessary to make sure that the warehouse contract was awarded to a company other than LWI."
If the case goes to court, those allegations may become a matter of his word against theirs, since Bodi goes on to say, "Mr. Mollica and Mr. Milligan made these statements in gatherings that involved the three of us alone, and that were not attended by NHLC's legal counsel or other NHLC staff members."
Senior Assistant Attorney General Mary Ann Dempsey, on the team representing the commission, said, "The state certainly disputes the representations that there was any bias."
The state attempted to block Bodi's subpoena in an April 4 filing that cited executive privilege and attorney-client privilege, and stated that, "Mr. Bodi should not be allowed to offer any testimony that would irreparably waive any privilege held by the NHLC."
The judge in the case, being heard in Hillsborough County South in Nashua, allowed the subpoena, and Bodi's affidavit was filed on April 5.
Judge Diane Nicolosi is scheduled to hear arguments on Wednesday as to whether the court should grant an injunction requested by Law. The injunction would stop the contract from being transferred to the liquor commission's selected bidder until the lawsuit is resolved.
If the injunction is not granted, the warehouse work is scheduled to transfer to Exel, a logistics company based in Westerville, Ohio, that is building a warehouse in Bow in anticipation of taking over the contract in the fall.
Law Warehouse, the third-place bidder on the commission's scorecard, held the warehouse and transportation contracts with the liquor commission for decades.
The second-place bidder, XTL-NH, a Pennsylvania-based logistics firm, has sued in Merrimack County Superior Court. It says the NHLC showed favoritism to Exel by modifying the request for proposals to such an extent that the final contract looks more like Exel's proposal than the liquor commission's request for proposal (RFP).
Outgoing Attorney General Michael Delaney told the Executive Council and governor recently that the RFP process was proper and that the liquor commission was within its rights in awarding the work to Exel.
Bodi said in an interview on Friday that Delaney was "not completely forthright."
"He failed to communicate to them information that I believe would have altered their perception and the actions they would have been willing to take at the time," Bodi said. "He (Delaney) was aware of serious internal concerns regarding that contract."
If Law is to succeed in its petition for an injunction, it will have to prove it is substantially likely to win at trial on the merits of its case.
"We conducted Mr. Bodi's deposition, and we believe his testimony supports our view that the competitive bid process orchestrated by the liquor commission did not comply with the prevailing legal statutes," said Law attorney Chris Carter of Concord.
Bodi resigned from the commission last July.
Carter confirmed that Eddie Edwards, the outgoing chief of enforcement for the commission, is scheduled to be deposed by the Law legal team on Monday, and is expected to be present with Bodi for the Wednesday hearing.
Edwards, who has been at odds with the remaining two commissioners on several issues in recent months, announced plans to retire at the end of June after eight years on the job.