Judge OKs $200m liquor storage contract with Ohio firmBy DAVE SOLOMON
New Hampshire Union Leader
June 21. 2013 9:39PM
NASHUA - A Superior Court judge has denied an attempt by Law Warehouses of Nashua to block the state Liquor Commission from proceeding with a $200 million warehouse contract awarded to Exel Inc., of Westerville, Ohio.
In denying the request for an injunction from the trucking and warehouse company that's held the contract since the 1990s, Judge Diane Nicolosi wrote that Law "failed to produce compelling evidence of favoritism or material deviation from bidding requirements."
"In addition, granting an injunction at this point may actually undermine future competitive bidding, both in regards to this project and in general," she wrote in a 50-page order issued late Thursday afternoon. "Potential bidders must have some assurance that courts in this state will not lightly overturn partially performed contracts, especially of this magnitude."
Law appears determined to proceed to a jury trial in the case, with Excel set to begin operations in the fall at a new warehouse now under construction in Bow.
"Law Warehouses is disappointed with the decision denying a preliminary injunction. We are now reviewing the court's order to determine if any further action is warranted in regard to that decision," said company spokesman Paul Young. "We are fully confident that as the case proceeds, and additional evidence is brought to light about the bidding process, that evidence will confirm Law's position that the contract award to Exel was biased and illegal."
At a May 1 hearing on the injunction request, Law produced testimony from former commissioner Mark Bodi and former chief of enforcement Eddie Edwards to support its claim of prejudice.
Judge Nicolosi, while not dismissing that testimony, cited the testimony of eight other commission employees who contradicted Bodi and Edwards.
"To find that Law is likely to succeed in proving its bad faith claim, the court would have to disregard the state's proffer from eight witnesses, many of whom are long-time, dedicated state employees, and assume the worst of all of them," she wrote.
Lisa English, the assistant attorney general representing the Liquor Commisison in the case, said she was pleased with the order, even though Nicolosi denied the Liquor Commission's requests to dismiss the lawsuit or to transfer the case to Merrimack County Superior Court, where it could be consolidated with a similar challenge that has been filed by another unsuccessful bidder for the project, XTL-NH.
"It confirms the confidence we have in our client's position that the Liquor Commission conducted a fair and comprehensive review of all bids," she said. "The ruling of no likelihood of success on the merits is consistent with our view of the case today, and our view of the case if it proceeds to trial."
Exel spokesperson Lynn Anderson said work is progressing on the new warehouse on Route 3A in Bow, where the foundation is in and walls are up in anticipation of a Nov. 1 start email@example.com