Since the election of 2017, the issue of my company, McClendon Construction, performing work for the City of Burleson while I serve on its council has been brought up, and frankly, cast in as negative a light as possible.
I was a construction contractor to the city of Burleson, as well as just about every other city in the Tarrant county area, for many years before running for council. When it was suggested to me in 2006 that I run for council, the first question I asked our city secretary was whether I could continue to fill that role if elected. Amanda assured me that the law was clear, and there was no legal issue with that. It's never been any kind of secret, as my name is clearly displayed on every job site, truck, equipment, and even the safety vests and hard hats of the workers who perform this work in clear view of the citizens. And through four reelection cycles, no one, not even my opponents, has called this situation into question.
But now it's out there, so in the spirit of transparency and absolute full disclosure, I'd like to take the time to explain how the bid process for these projects work. My company has never done any work for Burleson that was not bid through the public bidding process, but I think many people may not know this process. For your interest and understanding, I hope you'll give me the time to explain by reading this post. It's long, so please be patient. The process is essentially the same in Burleson for any public works project as it is in any city in Texas. Here is a description of the process:
The Public Bidding Process and How it Protects the Interest of the Taxpayer:
1. The Advertisement for Bids:
Bids must be publicly advertised. The letter of the law requires that an ad be placed in a newspaper of local circulation, but the more common means of getting the word out nowadays is through web-based information services that contractors subscribe to. The point of this is that any interested bidder is made aware of the bid offering and has a chance to bid, so that the best competitor will offer the lowest price, and the more bids received, the better. The time and place of bid receipt is clearly spelled out in the advertisement. The bidder can turn in a bid early, but any bid submitted one second after the deadline will be returned unopened to the offerer. Bids must be submitted in a sealed envelope, so that no one other than the submitter can have any knowledge of the bid before the time and date of public opening.
All bidders are given the exact same packet of information, which will include a set of plans and the specifications for the work, and a list of items of work to be bid on and the quantities of those items. This is called a "unit-price" contract offering, meaning that every bidder is required to bid his price per unit for the same number of square yards of paving, cubic yards of excavation, linear feet of pipe, etc. The contract offering states that the contract will be awarded to the lowest responsible bidder, but the city reserves the right to reject any or all bids.
2. The bid opening:
At the deadline for bids, the sealed bid envelopes are opened publicly and the bidders' totals are immediately read aloud. Any person may attend these bid openings, which are held at city hall or another public place. An apparent low bidder (more on that later) is recognized at that time. Any bid received that is incomplete or contains any kind of condition or qualification (a "conditional bid") will be rejected or not read at all.
3. The evaluation process:
Following receipt and opening of bids, city staff or their engineer will tabulate the bids for correctness. Mistakes in bids aren't common, but they do happen if the bidder makes a math error in arriving at his written total bid amount. Since the oldest trick in the book is for a shady bidder to have a different total for his bid than the number his unit prices add up to (so that he can claim whichever total most advantageous to him is the correct one), the law prescribes that the correct total is the corrected multiplication of the bidders' unit prices times the quantities set out in the bid. After this process has been carried out, the tabulation is made available to the public, including all the bidders, and a bona fide low bidder is announced.
The low bidder, unless the engineer has sufficient familiarity with the company to recommend award based on his or her own knowledge and experience, will then be asked to submit information as to his or her completed projects, financial qualification, equipment availability, personnel, existing backlog, and any other factor that the engineer feels is relevant to the successful timely completion of the project. This hopefully weeds out companies who have a history of shoddy workmanship, non-completion or non-timely completion of projects, or who may be in financial peril that might make them unable to complete the work. These conditions are rare as well, but they do occur.
4. The award of contract:
At the end of this process, the engineer is required to make a recommendation to the city council as to whether or not to award a contract at all (in case the lowest bidder's price is just too high) or to award to the lowest bidder, or, in rare cases where the low bidder is determined to be unqualified, the second lowest bidder. Unless there are unusual circumstances (as in the case of a recommendation to reject a low bid) these are usually placed on a consent agenda along with other items that are considered routine and not expected to require discussion.
Of course, as in any consent agenda item, the award can be taken off consent agenda and discussed separately upon the request of any council member or any citizen. It is very rare, in Burleson or any other city, for a council to decide against the recommendation of the staff or engineer to whom the task of evaluation and recommendation has been entrusted; in fact, I don't know of an instance in any city where that has ever happened.
This process is time-honored and clearly prescribed by law. Violations of these laws can carry serious criminal penalties. I personally know of one instance in the area, decades ago in Denton County, when a contractor colluded with another one to set the low bid price of a job for the State. The plan was revealed, charges brought, and penitentiary time was served. These are not matters to be trifled with.
Some words have been spoken about the level of trust in our city between our people and our elected officials, with this condition (of my company working for the City while I serve as a council member) being mentioned in respect to that level of trust. It's been said that an "arm's length" between elected officials and the business of the city should be maintained, a statement that I don't disagree with.
I know I have the trust of the community, as evidenced by my being returned to office five times, and I work hard to maintain that trust. I will continue to do so in honoring my duties as a council member. But I would have to say that the "long arm of the law" pretty generally suffices as that "arm's length" in the case of work that is awarded through the public bid process.
The taxpayers of the city have received an inarguable benefit by the money my company has saved on the projects we have performed and the level of service we have given, and (I think anyway) another benefit from the service I have given on council and the experience and industry expertise in infrastructure matters that I bring to the council.
The ethical conundrum of dual service to the City of Burleson.
So where is the conundrum?
This: While serving as a council member, it is my imperative to seek out the best use of city funds and resources and to do my best to help the City avail itself of those. As a Council member, I realize that the City is best served in performing the projects that our citizens need by the use of the public bidding process to seek out the lowest qualified bidder for these projects. Even if it is a Council member's company? Yes.
I have from the beginning had to make a choice to do what was best for the City whether or not that could appear to be questionably ethical. I have chosen to serve the city in two ways, because I am of the firm belief that to do so is the course of action that follows the highest ethical calling. If I chose to give up serving as a Council member in order to continue serving as a Contractor, the City loses a council member with a lot to offer. If I choose to be a Council member and withhold my company's bids to avoid the appearance of possible impropriety, the City loses a good local contractor with an impeccable reputation, and its capital dollars leave the city and support an economy elsewhere.
It was my choice to serve the City both ways. And I believe that was the most ethical thing I could do.
If you have any questions or would like to drill down into the facts of the contracts performed and the beneficial results of my dual service to the City, send me an email. I'll answer any question you'd like to ask.
Copyright © 2018 Dan McClendon - All Rights Reserved.