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Town Manager warns against in-kind services for library survey


May 22, 2019
MEREDITH — The town manager is cautioning against the library using donated services for a construction survey due to a myriad of liability concerns.

Library Trustees Chair Anne Butler and Library Director Erin Apostolos spoke with the selectmen during Monday's workshop about the ongoing steps toward renovating and expanding the building.

Butler said they have the opportunity to receive donated services for a survey of the property.

She said they understood that the town's major concern was the possibility for liability. Butler said she spoke with an attorney at the New Hampshire Municipal Association and was told there were no statutes governing things like this as long as the contract was written in a way the town could approve it from a liability standpoint.

Town Manager Phil Warren said professional services like this are usually put out for a Request for Qualifications and the companies are primarily chosen based on qualifications. Warren said he has concerns that receiving donated professional services could open the town up for a lot of liability of something went wrong with the project.

He said choosing a surveyor based on donated services could put them in a position where they chose the professional based on price and not qualifications.

"There's reams of evidence of how doing architectural and engineering based on price, it falls on its face," Warren said.

If something went wrong with the project that resulted in a lawsuit, Warren said one of the first questions that would be asked in a deposition is how much the surveyor was paid for their services. If the answer is the services were donated that would be damaging.

Warren said a cleaner method would be to use donated funds and items. For example, the climbing wall at the community center was donated, if a liability claim was made because of the climbing wall they could go after the manufacturer of the climbing wall and not the town.

He said if this were a situation where a landscaper was donating services it would be a much different scenario. He said there is much less risk if a landscaper puts mulch in the wrong place as opposed to if a surveyor puts the foundation in the wrong place.

Apostolos asked if it would be different if the architect in question is someone well known in town for their qualifications. Warren said that still creates an issue with liability.

Warren said the town can waive its purchasing policy and go forward with this, though he cautioned against it in this case.

Another question came up if they could accept a bid of $1 or if they could put in the RFQ they were looking for donated services. Warren said they were still running the risk of getting a less qualified surveyor and putting any professional in the position of having to give away their services. The most qualified surveyor could say they won't give away their services and the result would be going to a less qualified one.

"As number one, I've got a case against the town, why should I be expected to give my professional services?" Warren said.

This will be discussed at a later time.

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