Ethics

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.