Procurement Mandate Adds Administrative Burden and Liability Concerns

MACo’s Associate Director, Kevin Kinnally, testified in opposition to HB 24, Procurement – Public Work Contracts – Contractor Occupational Safety and Health Requirements, on January 24, 2019.

Current law ensures that all businesses must comply with both Federal and State Occupational Safety and Health Standards. This bill attempts to further regulate standards through a public body’s procurement process in an attempt to achieve the same outcome.

From the MACo testimony,

Local government procurement policies promote fiscal stewardship by applying a fair, open, and transparent process to improve efficiency and promote healthy competition—with the award in most cases going to the lowest bidder. Adding requirements to make it more difficult for businesses to comply only inflates contract costs. Imposing state requirements onto the local procurement process would limit local flexibility and reduce the number of competitive bids, undermining the spirit and intent of the procurement process.

Counties are concerned that HB 24 places an undue burden on small and minority contractors. Although larger companies may have the resources to develop and monitor the rigorous safety plans envisioned under the bill, smaller vendors may not be able to adhere to the bill’s arduous requirements, even if they engage in safe practices. This administrative burden could make it extremely difficult for a smaller contractor to comply, subjecting the contractor to civil penalties and possibly affecting the contractor’s ability to bid on future contracts.

Also of concern is the requirement that a prospective bidder or offeror submit a safety plan and an attestation at the time of responding to a Request for Proposal. This approach not only places an onerous requirement on a prospective bidder, it also burdens procurement officials with responsibilities they are not able to fulfill. Procurement officials do not have the expertise to adequately review the sufficiency of an occupational safety and health plan. MACo is concerned that the submission of these plans at the time of response could lead to a local jurisdiction being held liable for deficiencies in the plan or any safety-related issues that may occur at a worksite.

For more on 2019 MACo legislation, visit the Legislative Database.

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