WELLFLEET — The select board on Sept. 10 reviewed the only bid received for the leasing in 2025 of the town-owned sandy lot at 255 Commercial St. between Mac’s on the Pier and Mayo Beach.

The bid came from Mac Hay, who with his brother, Alex, opened a fish market next to the pier in 1995 and bought the building in 2001. Hay’s bid was $11,000, which was the minimum established by the town’s invitation to potential bidders.

“The selected lessee shall have exclusive use of the designated location for the sole purpose of operating a public lot,” the bid announcement had stated.

The leasing of the lot was not put out for bids for the 2024 season, but it was still used for seating by Mac’s, which submitted an application for a license for the use of town property. The license agreement was approved at an April 2 select board meeting.

In his bid, Hay wrote that the sandy lot would be used for patron seating with picnic tables and benches that are owned and put out each season by the town. This would be “similar to past uses,” he wrote.

He added that his business would provide portable restrooms, which was required in the invitation to bid, and may install town-approved fencing to “designate and define the area.”

The select board’s review concluded without its being able to approve Hay’s bid when it was discovered that the wording of the lease agreement for “exclusive use” of the lot violated Article 35 of the 2023 annual town meeting.

That article, which allows the sandy lot to be leased with certain restrictions, was unanimously recommended by the select board and the finance committee prior to being put to voters, who approved it.

“The town meeting article was specific in that it did not authorize exclusive use,” said select board member Ryan Curley. “It specifically says nonexclusive use.”

“Nonexclusive use” means that the sandy lot is open for use by the public, not just patrons of Mac’s on the Pier.

Town Administrator Tom Guerino responded that “the proprietor does have it open for public use,” but he acknowledged that Curley had made a good point.

Hay told the board that he was surprised that the invitation had said “exclusive use.”

“I want to get this done and over with,” said Hay. “However, I don’t know if we should be required to provide Porta Potties if it’s nonexclusive.”

The board decided to put the bid review on another meeting agenda to allow Guerino and Hay time to discuss the agreement and revise the language.

The documents will be redrafted by Guerino to clarify that the sandy lot will be leased for “nonexclusive use.” According to Guerino, the revised agreement will be presented to the board at its meeting on Oct. 1.

‘No Consistency’

The agreement with Mac’s comes after years of attempts to establish proper competitive procurement procedures for the sandy lot — and for town-owned property more broadly.

“It went from an informal verbal agreement [that had been in place] prior to when I owned it,” said Hay, to a more formal process over the last decade.

He emphasized that the picnic tables on the sandy lot had been maintained by his business and open to the public for nonexclusive use for the last 30 years.

“That was the understanding that we had for all the years we’ve been there,” said Hay. “Anyone is welcome to use those tables for any reasonable purpose.”

Board member Barbara Carboni, who is also Truro’s town planner and land use counsel, first raised concerns about whether Mac’s use of the sandy lot conformed to competitive procurement procedure in May 2022.

“I was the one who raised a fuss originally that it hadn’t been done in accordance with procurement law,” Carboni said at the Sept. 10 meeting. “I think this was done exactly right. I think it’s a great outcome.”

But the requirement of competitive procurement procedures remains unevenly enforced in Wellfleet.

Guerino wrote in an email to the Independent that he and interim Harbormaster Stuart Smith are looking into “what is and is not leased” on other parcels of town-owned property on or near the pier.

At least two other businesses — Erin-H Sportfishing and Wellfleet Marine Boat Rental Corp. — operate booths on the town-owned pier. Neither of the parcels on which the booths are located are subject to competitive bidding procedures.

“It appears this is an area that needs attention,” Guerino wrote. “I do not know why some things are bid and some not. There seems to be no consistency. We need to ascertain why.”

Guerino wrote that he is reviewing town financial data, past town meetings, select board meetings, and records from the marina advisory committee to determine whether any exemptions were previously granted to businesses operating at the marina. He noted that if this occurred before the town’s conversion to the Vadar accounting system in 2019, it would be “hard to find.”

Guerino added that an update and rewrite of the town’s harbor regulations would likely address “any inconsistencies or gaps in the regulatory area of the Marina and Pier.” This would require the approval of the select board, and Guerino wrote that there was no timeline for that as of now.