Legislature should bid farewell to bidding secrecy...
A case filed in Superior Court in Sacramento this week could
reveal which state legislator or legislators are responsible
for avoiding the competitive bidding process mandated by the
California Public Contract Code.
The purposes of the
Contract Code are to “[protect] the
public from misuse of public funds,” to “provide
all qualified bidders with a fair opportunity to enter the bidding
process, thereby stimulating competition in a manner conducive
to sound fiscal practices” and to “eliminate favoritism,
fraud, and corruption in the awarding of public contracts.”
According to the case, the California legislature has been disregarding
these principles and getting away with it.
Consider the 1975
restoration of the California State Capitol. Instead of using
competitive bidding as required by law, certain
members of the Legislature took control of the project bidding
from the California Department of General Services (DGS). These
legislators determined who would receive the contracts and subcontracts,
and inserted questionable terms into the contract requirements.
All internal legislative documents relating to the bidding process “disappeared” shortly
after the contract was awarded. Courts invalidated the questionable
contract terms, but the bidding procedures could not be reviewed
because the documents were gone.
In 2005, an unidentified
legislator or legislators on the Senate Rules Committee pulled
out the 1975 playbook and manipulated
the bidding for a construction contract on the $6.8 million Capitol
Security Fence. With no accountability, these individuals took
charge of the project from DGS and invited bids from a select
few contractors. They also inserted a requirement into the contract
terms that the contractor use an “all-union” workforce.
Neither the Legislature nor any individual committee ever voted
on this policy. Republican committee members and staff claimed
to be unaware of it. It remains unclear which legislator or legislators
made these decisions, because the Senate Rules Committee has
refused to release pertinent records as required under the California
Legislative Open Records Act. However, an internal DGS e-mail
dated December 21, 2004, and released under the California Public
Records Act reveals the details and political motivation of the
plot to cut out competition for the Capitol Security Fence contract.
The email reveals
that state contracting laws do not allow the DGS to discriminate
against a non-union contractor. However,
they are required to pay prevailing wages. In 2002 the successful
low bidder to repaint the Capitol was a non-union contractor,
which raised "significant political issues." For the
upcoming project the DGS developed a "selective bidders
list." The email says the legislature is "leaning towards
exclusion of non-union contractors from bid process" and
expects a decision on "how the legislature will select contractors
for this project."
In the end, the Legislature never made a final decision or gave
an answer about how the project would be bid. That decision was
apparently made unilaterally and privately by one or more legislators,
and then Senate Rules Committee staffer Keith Felte relayed the
union-only requirement to the DGS for inclusion in bid documents.
On February 27, the Zumbrun Law Firm, a public issues firm,
filed a complaint in Sacramento County Superior Court that would
force the California State Legislature and the Senate Rules Committee
to release documents revealing which legislator or legislators
gave the directive for restrictive, union-only bidding on the
Capitol Security Fence.
Ron Zumbrun, then
working for the Pacific Legal Foundation, was the attorney
who successfully challenged the 1975 bidding
procedure. Thirty years later he is again challenging the legislature’s
illegal bidding practices for construction at the Capitol. Californians
will soon know who is responsible for this under-the-table, anti-competitive
bid scheme that earns PRI's California Golden Fleece Award. The
question will then become what the legislature or the court is
going to do about it. -one-
is a Senior Fellow in Labor Union Studies at the California-based
Pacific Research Institute and government affairs director
for Associated Builders and Contractors of California.
copyright 2006 Pacific Research Institute