Contract Raises New Questions

Dear Editorial Board Members:

A recently awarded contract by the Monmouth County Board of Chosen Freeholders raises some serious questions, as outlined in an Asbury Park Press editorial published March 7, 2010, about how we do business with private contractors in this State. That is why I have introduced legislation that would allow contracts to be awarded based on merit as well as price.

A few weeks ago the Monmouth County Freeholders voted to award a $3.5 million contract to Benjamin R. Harvey Co. of Ocean Township to expand the Monmouth County Prosecutor’s office. This is the same contractor to receive a $7.77 million county contract in 2007 but left it unfinished and over budget. Harvey Co. was the lowest bidder, and therefore, despite the one vote cast against by Freeholder John P. Curley, received the contract.

I am the first one to argue that government has a responsibility to be frugal with taxpayer dollars, but when a contract is awarded solely based on who offered the lowest bid, without consideration for the quality of their work, tax dollars are not necessarily being spent in the wisest manner. In fact, in some cases, additional tax dollars are spent to correct the mistakes that inadequate contractors make on government projects. However, the public contracting process must take into consideration the reputation of the contractors within the industry and his demonstrated ability to perform the work required. We must allow governing bodies some flexibility in awarding contracts, while remaining cognizant of the fact that taxpayers are bearing the burden. Governing bodies should be able to take into account other important factors, beyond lowest price, such as workmanship, reputation and reliability. These are the same factors that any homeowner would want to take into account when choosing a contractor to build an addition or fix a roof.

As the law stands, public contracts must be awarded to the lowest responsible bidders unless the government agency has had a prior bad experience with that bidder. That makes sense, except that the burden of proof is placed on the entity awarding the bid, and when the lowest bidder is not awarded the contract, the governing body is nearly always brought to court to prove its prior negative experience. This wastes even more money. While it is possible to choose other than lowest bidder currently, such decision frequently end up in litigation, resulting in the fact that most public entities simply award to lowest bidders to avoid the hassle and headache of legal action. 

The legislation I propose would mean that a contract may be awarded to any bidder whose bid falls within 10 percent of the lowest bid. If the contract is not awarded to the lowest bidder, the governing body awarding the bid must publically state that the contract was not awarded to the lowest bidder, state the difference in the price, and may only award the bid as a separate vote, and not as a part of a package of resolutions. This extra measure of transparency will ensure a higher and more appropriate level of public scrutiny if a bid is to be awarded to anyone who is not the lowest bidder. 

Governing bodies will still be encouraged to seek the lowest bids possible, but will not bound to do so if the lowest bidder does not have the professional reputation one would always like to see in a contractor. You wouldn’t want a builder with a poor track record to do work on your home, so why would you want him to work on your library, town hall or school? You wouldn’t, and you certainly wouldn’t want to pay for a job not well done.

Being responsible with taxpayer dollars goes beyond just getting the cheapest rate. It also means getting the most bang for you buck, and with this legislation, I think we help ensure that each tax payer dollar spent on contractors can be spent wiser.

 

Sincerely,

Declan J. O’Scanlon, Jr.

Assemblyman, District 12

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PAID FOR BY Assemblyman Declan O'Scanlon

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