TAKING A BITE OUT OF THE BIG APPLE: LOCAL PROCUREMENT LESSONS FROM WASHINGTON, D.C., AND NEW YORK CITY

• Published in: Public contract law journal 2017-09, Vol.47 (1), p.143-165
• Main Author: Winkler, Stephanie A.
• Format: Article
• Language: English
• Subjects: Bids; Competition; Conflicts of interest; Contract proposals; Corruption; Councils; Government purchasing; Laws, regulations and rules; Lobbying; Local government; Management; Municipal government; Prevention; Purchasing; Remedies; Scandals
• ISSN: 0033-3441; 2162-8181

[...]much of the support for eliminating the Council from the contracting process relates to the idea that councilmembers may be beholden to contractors as the result of quid pro quo relationships.95 However, it is possible that such relationships would exist whether councilmembers or contracting officials made the awarding decisions.96 Contractors wishing to establish avenues for corruption do so, no matter the official title of the final decision-maker.97 In Robinson v. Cheney, a government contractor, Francis E. Heydt Company, was found to have paid an unelected government contracting official "as part of a bid rigging scheme. [...]while the additional "step" of Council review may have additional costs, including added time to the award process, it is justified because of the particular contract's importance and the probability that additional procedures could lead to the most accurate result-the correct bidder receiving the government contract. Regarding the importance of the interest at stake, cases in which the D.C. Council is statutorily allowed to be involved in the procurement process set a minimum threshold of importance because contracts that are considered inconsequential (because they implicate funds less than $1 million in total or will be completed within one calendar year) do not require council review.117 Further, cases in which the Council exercised its power of contract award nullification have been largely in excess of the $1 million threshold and therefore, the interest at stake, i.e., taxpayer funds, has been consequential.118 In his testimony before the roundtable on Public Oversight, Ramesh Butani, president of the HRGM Corporation, offered the following story: at one point a government contract in which he was involved had been "held up" by Councilmember Mary Cheh during the council contract review process.119 Mr. Butani asked about the delay and was informed that Councilmember Cheh was checking the sources available for the funding of the contract prior to its approval.120 In this instance, the councilmember's approval ensured that the funds needed were available-reducing the risk of awarding a contract to a contractor that would default on performance.121 The ability of councilmembers and their staff to individually check the funding and other related factors involved in the contract award will ensure that contracts are awarded to responsible bidders.122 Finally, the Mathews formula considers the burdens, both administrative and