By Kevin Kelley
Republicans frequently criticize government regulations as a hindrance to business and the cause of wasted time and money. Democrats, too, have sought to rid the government of unnecessary rules and regulations in an effort to streamline government and save money.
In his State of the Union address in January, President Barack Obama noted that the federal government recently eliminated a rule that required dairy farmers to spend $10,000 a year proving they could contain a spill because milk was classified as an oil.
Fairview Park City Council must decide whether a proposed ordinance that would scrutinize potential contract bidders shores up existing restrictions or places an unnecessary burden on businesses.
Proposed by Council President Mike Kilbane, the “responsible bidder” ordinance would require bidders on municipal contracts to provide the city with extensive documentation on their experience, financial health and past violations of laws and regulations.
Kilbane said the ordinance simply levels the playing field for union and nonunion companies by making them all operate by the same set of rules.
“When you have a very sparse and negotiable definition of ‘responsible bidder’ on the books, as we have in Fairview Park, corners are going to be cut somewhere to give the low bidder a competitive edge, and it’s certainly not going to come out of the profits,” Kilbane told West Life. “In most cases it’s in the areas of workers’ wages, worker training, drug testing, worker benefits and worker safety.”
Kilbane, a union ironworker, acknowledges his pro-labor sentiments inspired his introduction of the ordinance.
“Trade unionism is something I am very passionate about and believe in deeply,” he said.
Michael Mackay, whose firm handles engineering matters for the city, said in a letter to council that requirements would pose an undue burden on potential bidders, who have only two weeks to prepare formal bids. The result, he said, would be fewer bids and therefore higher prices.
“I didn’t realize work was so good that contractors could balk at work,” Kilbane said when asked about the argument that potential bidders might balk at the proposed disclosure requirements.
Mackay also stated that much of the information required under Kilbane’s proposal is already required in the current bidding process, but in less detail.
Kilbane noted that similar requirements have been passed in cities across the country, including North Olmsted.
“If you look at it, it’s mostly common sense,” the council president said.
But during a council committee meeting Monday night, Law Director Sara Fagnilli said those communities are the exception.
“There are only a few of those ordinances in the county,” she said.
And Mayor Eileen Patton asked why the ordinance was being proposed when her administration now carefully checks references on municipal bidders.
“Please identify what is not working here,” the mayor told council members. “What needs to be fixed?”
Kilbane said the proposed ordinance would also give council members a greater say over the awarding of contracts. Currently, council authorizes the solicitation of bids and approves contracts greater than $15,000 in value. Following the recommendation of department directors, selection of bids is officially approved by a board of control, made up of the mayor, a council representative and members of the mayor’s cabinet.
The law currently awards contracts to the “lowest responsive and responsible bidder” based on “the experience, financial condition, conduct and performance on prior contracts, facilities, management skills and the ability to execute the contract.”
No problems with current or past Fairview Park contractors led to the introduction of the ordinance, Kilbane said.
At Monday’s committee meeting, members reviewed each of the ordinance’s proposed 17 disclosure points with Fagnilli and Mackay. The plan now is to redraft the ordinance, with the goal being to clarify and streamline the wording.
Mackay suggested that only the apparent low bidder, instead of all bidders, be required to submit all the disclosures Kilbane seeks. Council appeared willing to go along with that suggestion.
The ordinance had its second reading at council’s March 19 meeting and will remain in committee. Kilbane said he does not know if he has the votes to pass it.
The mayor, who has never vetoed an ordinance during her 12 years in office, declined to say whether she would veto this ordinance if passed in its current form.
Sample of required disclosures
Proposed by Council President Michael Kilbane, the “responsible bidder ordinance” includes 17 disclosures that would be required of firms that bid on city contracts. Seven are listed below. Full text: RESPONSIBLE BIDDER ORDINANCE
• Documentation from previous projects regarding timeliness of performance, quality of work, extension requests, fines and penalties imposed and payment thereof, history of claims for extra work, contract defaults, together with explanations of same
• Disclosure of any suspension or revocation of any professional license of any director, officer, owner, or managerial employee of the bidder, to the extent that any work to be performed is within the field of such licensed profession
• Disclosure of any and all violations within the previous five years pertaining to unlawful intimidation or discrimination against any employee by reason of race, creed, color, disability, sex, or national origin and/or violations of an employee’s civil or labor rights or equal employment opportunities
• Disclosure of any litigation (including copies of pleadings) in which the bidder has been named as a defendant or third party defendant in an action involving a claim for personal injury or wrongful death arising from performance of work related to any project in which it has been engaged within the previous five years
• Disclosure of violations of the prevailing wage law and any other state or federal labor law, including, but not limited to, child labor violations, failure to pay wages, or unemployment insurance tax delinquencies or unfair labor practices within the past five years
• Disclosure of violations of the Workers Compensation law
• Documentation that the bidder is in compliance with all provisions of the state of Ohio Prevailing Wage Act and provides health insurance and retirement benefits to its employees