This Maine Municipal Association publication is presented for "Classroom Use Only."  Its intended use is to stimulate and aid in discussion and role playing within a classroom setting.

Municipalities without their own highway equipment usually contract with a private contractor or another town for road maintenance and repairs. A one year road maintenance contract is not required to be in writing, but we strongly recommend a written contract as oral contracts are difficult to enforce if there is a dispute because there is no record of the terms. Contracts which will not be performed within one year must be in writing, see 33 MRSA § 51. A road maintenance contract need not be filled with unintelligible legal language. A simple, "plain English" contract will protect the municipality and make it easier for the contractor to understand his rights and obligations. A sample plowing contract (which can be modified for summer maintenance) is found in Appendix G, along with a Townsman article on bidding.

Contracts for one year or less do not need specific voter approval. For example, if the voters in Meddybemps raise and appropriate $25,000 for winter and summer road maintenance for 1992, but the town has no equipment of its own, the selectmen have the implied approval of the voters to contract out for the work, as long as not more than $25,000 is spent.

It is the opinion of MMA Legal Services Division that to enter a multi-year contract, the municipal officers need the express approval of the legislative body. For example, if Contractor Johnson will do road maintenance at a good price, but insists on a 3 year commitment from the town, the selectmen must obtain voter approval. The voters need not approve a particular contract, but the municipal officers need at a minimum the authority to bind the town beyond the next annual town meeting.  A recent case, Boudreau v. Town of Princeton, Law Docket No. Was-91-590 (July 21, 1992) upheld the validity of a multi-year plowing contract which was entered into without clear authority from the voters, but the safe and prudent advice is to obtain voter authority for all multi-year contracts.

The bid process. A commonly asked question is whether road maintenance contracts must be put out to public bid. Maine law contains no general requirement that municipal road maintenance work be put out to public bid. Bidding is required if State funds are being used for certain public improvements under 5 MRSA § 1741 et seq. The term "public improvements" generally includes construction, major alterations and repairs but does not apply to road maintenance. A municipality may, by charter, ordinance or article, require a bid process, but in the absence of a local requirement it is up to the municipal officers or road commissioner to decide who will do the work [23 MRSA § 2701 ]. Competitive bidding can save money, however, so the municipal officers may want to go this route even if it is not required.

Surety bond requirement. 14 MRSA § 871 requires that any contract exceeding $50,000.00 for the construction, alteration or repair of any public work, including highways, be accompanied by a bond from the contractor to the municipality. This law actually requires two bonds: a performance bond to assure that the work will be done, and a payment bond to guarantee that subcontractors and vendors of materials will be paid. This law is criticized by many municipal officials as driving up the cost of road work. That is, local officials want the option of foregoing a bond (which will undoubtedly be added to the contract price) when dealing with a reputable, solid and dependable contractor. Under home rule, a town can authorize the municipal officers or road commissioner to require a bond if they see fit, so there is some question about the real need for this law. In any event, the law is on the books.