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Two bidders seek to halt liquor contract award in court

New Hampshire Union Leader

May 01. 2013 8:09PM

CONCORD - Judges in two venues are deliberating on separate lawsuits filed by losing bidders for a $200 million warehouse contract with the state Liquor Commission.

While third-place bidder Law Warehouses presses its case through a lawsuit filed in Hillsborough County Superior Court South (Nashua), second-place bidder XTL-NH has sued in Merrimack County Superior Court in Concord.

Law wants the bidding process to restart from scratch, while lawyers for XTL-NH at an April 15 hearing argued that the Pennsylvania-based logistics company should be granted the contract by the courts because it was by all accounts the lowest bidder.

Both companies seek an injunction to stop the transfer of the work from Law to the Liquor Commission's chosen bidder, Exel of Westerville, Ohio, pending resolution of the legal challenges. The transfer was scheduled to take place this fall, upon completion of a new warehouse Exel is building in Bow.

XTL-NH attorney James Bianco of Concord said he is still waiting for a ruling from Judge Richard McNamara, who heard arguments on April 15. Meanwhile, Law Warehouses and its attorneys await a ruling by Judge Diane Nicolosi on their arguments heard Wednesday (see related story).

Attorneys for the Liquor Commission, represented by the Attorney General's Office, maintain that the request-for-proposal process complied with the letter and spirit of the bidding statutes, which allow for a state agency requesting bids to modify its requirements as the process moves forward. Bianco argues that the process was modified so aggressively that, in the end, the RFP looked like Exel's bid.

If either of the two judges grants an injunction, the transfer of the contract to Exel could be held up for years as the case works its way through the courts.

Bianco cites at least 13 instances in which he said Exel failed to comply with the RFP and should have been disqualified.

"The NHLC unlawfully waived Exel's material non-compliance with and non-responsivness to the RFP's minimum, mandatory requirements, which allowed Exel to win the contract based on its own specifications and not that of the RFP, in violation of competitive bidding principles," he wrote in his brief for the April 15 hearing.

Bianco said the commission "fell in love with Exel."

While Law Warehouses and XTL-NH both say that the RFP process was rigged to favor Exel, they are seeking very different outcomes.

"Rebid is not in the public's nor the state's interest in this case because XTL-NH is the lowest-priced and highest-scored qualified and responsive bidder, and likely would have received the contract but for the NHLC's violations during the RFP evaluation process," wrote Bianco.

The Liquor Commission Evaluation Committee rated XTL-NH the best on price, but decided that Exel had the best "overall solution."

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