A municipality that frequently violates its own policies and procedures will be tainted with at least the appearance of impropriety.
Contractors will become confused and frustrated and, as I have mentioned many times before, will stop bidding for those cities.
As a result, fewer bids creates higher prices.
I have worked with so many contractors that suspect, and possibly with good reason, that there have been shenanigans in the contract award process.
If such suspicions do not lead to litigation, they may easily discourage participation in future competitions for municipal contracts.
Most of the contractors I work with have a list of municipal clients that they will not even pick up the tenders and RFPs to see what the project consists of.
This is a direct result of having issues with the award process on previous bids with that city. From what I have seen over the years with specific municipal contracts, I agree with the contractors not wasting time filling out contract documents they can never win.
I continue to promote standardized documents for all government agencies to use. The long-term interests of the municipality will be sacrificed for the short-term benefit that non-compliance allegedly generates.
In contrast, scrupulous adherence by a municipality to the rules it has set out to govern a tender also helps to discipline contractors into compliance with those rules.
What government staff should understand is that a municipality is more likely to be respected by the construction industry, at least in terms of demanding strict respect for its own rights, if it shows equal respect for their rights and expectations by requiring all competitors for municipal contracts to play by the same set of rules.
While there are countless cases in which a municipality has been sued successfully for non-compliance with its own policies and procedures, there are none in which a successful claim has been based on proper compliance.
Even where circumstances are truly exceptional, a major problem with countenancing a violation of policy or procedure is to know where to draw the line.
If respect is not to be lost, the process of drawing the line must itself be open and fair. There would need to be some objective standard by which one would decide whether to waive compliance or insist upon it.
It is far from clear how such a process would work. Contractors who did not secure a waiver would always insist that they had been treated unfairly because others had.
Moreover, those who complied with the rules would wonder why they had bothered to do so at all if the municipality was simply prepared to ignore them.
There is no doubt that there are exceptional cases. But in the eyes of a participant, every case is exceptional.
For over 40 years it has always been my feeling that both public and private sector organizations need to maintain the integrity of their own internal rules governing procurement.
However, the need to maintain public confidence in the municipal procurement system necessitates a far more rigorous approach than would likely be followed by a business corporation.
Consider, for instance, time limits on the submission of a tender. Prevailing practice among municipalities enforce such limits to the letter. Generally, if a bid is received a minute after the cutoff time, it will be rejected.
In contrast, private sector companies are more lenient in the application of such rules and will probably accept a late bid if it offered a better deal than those received within the cutoff time.
In this regard, I see a modified procurement practice resulting from the requirement that public procurement be carried on in a manner that is seen to be fair.
Stephen Bauld is a government procurement expert and can be reached at swbauld@purchasingci.com. Some of his columns may contain excerpts from The Municipal Procurement Handbook published by Butterworths.
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