This support comes despite union claims that if Proposition A is adopted, the city risks losing future state construction funding due to a new state law signed by Gov. Jerry Brown last week.

Here are the highlights from the Union-Tribune‘s editorial announcing the paper’s support for Proposition A:

We acknowledge that Proposition A puts state construction funding at risk. Former Councilwoman Donna Frye points out that Mayor Jerry Sanders’ administration considered the funding threat significant enough that it was mentioned in a disclosure document for an upcoming bond offering.

But this bullying of local governments and taxpayers should not be accepted as a legitimate tactic, especially when the law used to execute the bullying is so susceptible to a court challenge.

Beyond that, the concern that Proposition A addresses – that union-allied elected city officials could began mandating PLAs – is real. Such a local union power play would be nothing new.

For four years, union-allied City Council members helped stall the implementation of a 2006 voter initiative meant to downsize city government by creating “managed competition” between private companies and government workers to provide city services. Union-allied members of the San Diego school board pushed through a version of a PLA for projects built with the $2.1 billion Proposition S bond approved in 2008 – after never mentioning their intentions during the campaign for the measure.

If we can pre-emptively block such power plays, let’s do so. The U-T San Diego Editorial Board urges a yes vote on Proposition A. Don’t let the bullies win.

Proposition A will help guarantee San Diego taxpayers the best construction at the best price.

To learn more, visit their website www.fairandopencompetition.com or their Facebook page.

Here are the highlights from The LA Times, with my emphasis added:

Gov. Jerry Brown announced on Saturday that the state’s deficit has ballooned to $16 billion, a huge increase over his $9.2-billion estimate in January.

<snip>

“This means we will have to go much further, and make cuts far greater, than I asked for at the beginning of the year,” Brown said in the video.

Lawmakers and others were hoping that a rebounding economy would help the state avoid steep cuts to social services. But revenue in April, the most important month of the year for income taxes, fell far short of expectations, leading to a shortfall of at least $3 billion in the current fiscal year.

The state has also spent $2.1 billion more than expected, according to the controller, further worsening California’s financial health.

Advocates involved in budget discussions say they expect deeper cuts to social services than Brown originally proposed in January. Union officials are also in negotiations with administration officials about ways to reduce state payroll costs, an issue that wasn’t on the table earlier this year.

Brown has said there will be even deeper cuts, mostly to public education, if voters do not improve tax hikes in November. He is seeking a quarter-cent increase in the state sales tax for four years and a seven-year hike on incomes of $250,000 or more that will range from 1 to 3 percentage points. He says the measure would raise $9 billion in the upcoming budget year.

What does this have to do with wasteful and discriminatory project labor agreements (PLAs)?

Regular readers of this blog know that many California leaders at the state and local levels go out of their way to mandate the use of PLAs on public construction.  Recently, Gov. Brown signed bills that attempt to overturn the will of local voters and elected officials in 12 California communities by nullifying PLA mandate bans in general law localities, and attempting to deprive charter cities of state funding for construction.

California has the most dire state budget situation in America, at a time when most states have already turned the corner.  This should not be a surprise to anyone.  Governing has consequences.  If government officials are comfortable spending nearly 20 percent more for public construction projects just to help out construction union bosses, it is obviously that getting value for the taxpayers’ money is not a priority.

And that is how you end up with a $16 billion budget deficit.

Eric Christen, executive director of the Coalition for Fair Employment in Construction (CFEC) recently debated former San Diego City Council Member Donna Frye on the merits of Proposition A, which would ban government-mandated project labor agreements on city funded projects.

To learn more, visit their website www.fairandopencompetition.com or their Facebook page.

While Oklahoma does not have a history of problems with PLA mandates, this statute will ensure taxpayers continue to enjoy the value and accountability resulting from public construction that is awarded based on contractors’ ability to provide the best construction at the best price.

This law also ensures neither the state government nor local government entities will be in a position to pick winners and losers for public construction projects based on a contractor’s affiliation with a labor union.

Oklahoma’s leaders continue to be champions of open competition on public construction projects. If Gov. Fallin’s name sounds familiar to readers of this blog, it is because she spearheaded a proposal in former U.S. House Minority Whip Eric Cantor’s (R-Va.) YouCut program when she was a member of the U.S. House of Representatives. The YouCut website, launched in May 2010, featured a list of five proposals aimed at reducing federal spending. The public was encouraged to vote for the proposal it would most like to see eliminated by Congress. The YouCut program highlighted some of the ridiculous ways the federal government spends taxpayer money.

Gov. Fallin is not the only champion of free enterprise from the Sooner State. Oklahoma is also home to Congressman John Sullivan, who is the lead sponsor on the U.S. House version of The Government Neutrality in Contracting Act (H.R. 735). This bill would prohibit government-mandated PLAs on federal and federally assisted construction, guaranteeing Americans the best construction at the best price.

Here at TheTruthAboutPLAs.com, we are pleased that responsible state leaders continue to stand up for free enterprise despite strong opposition from organized labor and their allies.

From 2000 to 2011, the merit shop construction community helped local leaders and voters across the state understand that government-mandated project labor agreements (PLAs) deprive taxpayers of the opportunity to get the best construction at the best price. Eight local communities enacted bans on PLA mandates, including three that did so through citizen initiatives.

Union bosses could feel the ground shifting under them, but were not going to take an assault on their monopoly lying down. As a major political contributor to most of the Democrats in the legislature’s majorities, Big Labor used its leverage to get state legislators to approve S.B. 922 in the closing days of the 2011 legislative session.

This bill was a clear special interest handout. From a policy standpoint, it nullified PLA mandate bans in localities controlled by the state government and was designed to deprive charter cities (i.e., cities where voters opted for local control by adopting a city charter) of state funding for future construction projects unless city leaders could consider the use of a PLA mandate.

If the policy wasn’t bad enough, this language was amended into an unrelated bill during the twilight of the legislative session, depriving taxpayers of the time to learn what the Democrats were really trying to pull, and then passed on party-line votes.

It turns out that Democrats in the legislature and their Big Labor allies moved the 2011 bill so quickly that the statute was not as air-tight as they wanted. Luckily for them, that is an easy fix for a state in which Big Labor calls the shots. On April 25, Gov. Jerry Brown (D) signed S.B. 829, which is designed to strip charter cities of state construction funds if the city cannot institute a government-mandated PLA.

Here are more details from a press release issued by Associated Builders and Contractors’ (ABC) Golden Gate Chapter:

Gut and Amend Bill interferes with local control for California Charter

Livermore, CA– Today, the Governor signed Senate Bill 829 (Rubio-Fresno), which intends to cut off all state funds from charter cities that ban Project Labor Agreements (PLAs). This is a follow-up bill to the original Union-Backed Senate Bill 922 signed by the Governor in 2011, intended to End Local Project Labor Agreement Bans or Fair and Open Competition ordinances for taxpayers at local governments.

SB 829 is the latest attempt by labor-backed lawmakers in Sacramento to limit state funds paid to any charter city that enacts restrictions on costly PLAs – including initiatives approved by voters. After heavy lobbying by labor unions and with minimal public debate, a maneuver called “gut and amend” was used to pass this bill in the State Senate last Thursday. The bill was passed on a straight party line vote.

“The bill has serious constitutional defects. However, that has not stopped some in the Legislature from backing what should be a non-starter. SB829 is a power grab by Sacramento politicians that will certainly be overturned by the courts,” said Nicole Goehring, Government Affairs Director, Associated Builders and Contractors Golden Gate Chapter.

SB829 is an attempt to undercut Proposition A in San Diego and similar Fair and Open Competition reforms gaining traction across the state. The bill was backed by the State Building & Construction Trades Unions in an attempt to gain state control of local construction money and block savings for local taxpayers.

Proposition A – the Fair and Open Competition Initiative – is on the June ballot in San Diego. It will prevent the City Council from imposing mandatory project labor agreements (PLAs) on city-funded construction projects and requires the Mayor to post construction contracts on-line for public review.

Senator Doug La Malfa and Assemblymembers Bill Berryhill, Connie Conway, Linda Halderman, Shannon Grove and Jim Nielsen among others in the State Legislature are to be applauded for opposing SB 829 and defending the rights of charter cities to exercise local control.

“We owe our duty to the constitution, not the unions,” said Assemblymember Shannon Grove, who spoke against the bill on the floor of the state Assembly. Grove represents part of the Central Valley where fair and open competition in construction is considered the best value for taxpayers.

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The Problem with Project Labor Agreements

All construction work done under a Project Labor Agreement (PLA) must be performed by union-only signatory construction workers. The PLA will force non-union contractors and their workers to pay union dues, pay into union benefit programs, require all employees to be hired through a union-hiring hall to get work, and would allow for union-only apprentices on the project. By unnecessarily limiting bidders and following outdated and inefficient union work rules, union-only PLAs consistently drive up costs to the taxpayers. Several academic studies indicate PLAs increase the cost of construction between 10 percent and 20 percent when compared to similar projects not subject to union-only PLAs.

ABC of California also issued a statement.

Here is some great video of Sens. Anderson and Wyland, both Republicans from the San Diego area, speaking out against this bill:

There is also good video of Assemblywoman Shannon Grove (R) correctly characterizing the bill as unconstitutional.

This is just another example of how California is broken. When you put special interest groups in the driver’s seat, taxpayers get left behind.

Let’s just hope San Diego voters can see through the smokescreen on June 6.

Read more from TheTruthAboutPLAs:

• WSJ Editorial Blasts California SB 922
• California Governor Signs Union-Backed Senate Bill 922, Intended to End Local Project Labor Agreement Bans
• California Governor Jerry Brown Will Decide Fate of Local Voter Rebellions Against Project Labor Agreements
• All California posts

The prior piece of legislation (S.B. 1006 of 2011) Gov. Otter signed on March 3, 2011 to ban these taxpayer-funded handouts was invalidated in December 2011 in a legal ruling favoring the Idaho Building and Construction Trades Council, AFL-CIO. A federal judge in Michigan issued a similar decision on its law to ban government-mandated PLAs in February 2012.

The Idaho and Michigan courts’ decisions directly conflict with settled case law on this issue.

In September 2011, a federal judge in Iowa dismissed a union lawsuit against Gov. Terry Branstad’s Executive Order 69, which prohibits government-mandated PLAs on state and state-funded construction. It is the first court to address whether a state executive order or statute guaranteeing government neutrality with regard to PLAs is preempted by federal law.

More importantly, the Idaho and Michigan decisions conflict with the U.S. Circuit Court of Appeals for the D.C. Circuit’s opinion in Building and Construction Trades Dep’t, AFL-CIO v. Allbaugh, 295 F.3d 28 (D.C. Cir. 2002), in which the court upheld President George W. Bush’s Executive Order 13202, which banned government-mandated PLAs on federal and federally assisted construction. To date, this is the highest court to consider whether the National Labor Relations Act (NLRA) preempts executive orders and statutes guaranteeing government neutrality with regard to PLAs. The judge in the Michigan lawsuit went so far as to say the Allbaugh decision was ruled incorrectly.

Associated Builders and Contractors (ABC) agrees with the Allbaugh decision, in which the court states government entities have the right to make their own procurement decisions with regard to PLAs through their proprietary interest in the construction services marketplace. While the NLRA expressly allows for pre-hire agreements (i.e. PLAs) in the construction industry, it does not authorize government entities to require pre-hire agreements as a condition of performing work on public construction projects.

The executive orders and statutes adopted by 12 states to ban government-mandated PLAs (Montana, Utah, Arizona, Iowa, Missouri, Louisiana, Arkansas, Tennessee, Maine, Michigan, Idaho and now Virginia) simply require government neutrality with regard to PLAs. The orders and statutes say that government entities can neither prohibit nor require a contractor to enter into a PLA as a condition of performing public work. This allows contractors to configure their bids in a way that guarantees taxpayers the best construction at the best price, while still allowing government entities to accept bids that provide the most value for taxpayers regardless of whether they include a PLA.

ABC is pleased the Idaho Legislature re-affirmed its commitment to quality and accountability on public construction projects. ABC believes a positive solution for taxpayers is in the cards for Michigan as well.

Washington, D.C., spin doctors created the term “community workforce agreement” in an attempt to get around the much-deserved negative stigma associated with project labor agreements.

Santa Fe is the first government entity in New Mexico to adopt a policy to require or encourage PLA mandates on taxpayer-funded construction. The city council adopted this policy despite very little public commentary and virtually no input from the merit shop construction community. Many merit shop construction firms have a long history of building Santa Fe projects on time and on budget, without having to agree to Big Labor’s terms and conditions.

Here is a press release on the new mandate issued by Associated Builders and Contractors’ (ABC) New Mexico Chapter:

SANTA FE CITY COUNCIL ADOPTS NEW POLICY THAT WILL INCREASE COSTS AND

DISCRIMINATE AGAINST WORKERS

SANTA FE, N.M. – Associated Builders and Contractors’ (ABC) New Mexico Chapter today calls on the Santa Fe City Council to repeal its newly adopted policy requiring contractors to sign a wasteful and discriminatory community workforce agreement with the construction unions in order to work on Santa Fe city construction projects that cost more than $500,000.

A community workforce agreement is a special interest scheme that discourages competition from nonunion contractors and their workers by requiring a construction project to be awarded only to contractors and subcontractors that agree to recognize unions as the representatives of their employees on that job; use the union hall to obtain workers; obey the union’s restrictive apprenticeship and work rules; and contribute to union pension plans and other funds in which their nonunion employees will never benefit unless they join a union.

“The Santa Fe City Council adopted this policy after very little consideration and with no input from the merit shop construction community,” said ABC New Mexico Chapter President Roxanne Rivera-Wiest. “These mandates have a long public record of costing taxpayers and hurting the vast majority of the construction workforce in communities from coast to coast.”

“Numerous studies show these types of mandates increase construction costs by as much as 20 percent, which means taxpayers can expect four city buildings for the price of five under this policy,” Rivera-Wiest said. “Additionally, this policy will discriminate against the 97 percent of New Mexico’s construction workforce that chooses not to join a labor union. This means thousands of hardworking New Mexicans will be deprived of the opportunity to work on projects in their own backyard unless they give in to Big Labor’s demands.”

The ABC New Mexico Chapter urges the Santa Fe City Council to repeal this policy. In the meantime, ABC will do everything within its power to ensure Santa Fe residents are guaranteed the best construction at the best price.

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While aggressive Big Labor bullying is nothing new in New Mexico, this is the most significant public policy win in the state for union bosses since they successfully lobbied the legislature to abandon prevailing wage surveys and simply make the union wage rate the minimum wage for all state funded construction.

There is great concern in the merit shop construction community that union bosses could use the “success” of this requirement as evidence to support PLA requirements in other cities in New Mexico, or even for state-funded construction projects in the future. Readers of this blog know this requirement can never be truly successful because PLAs/CWAs have a well-established history of increasing construction costs and discriminating against the vast majority of the construction workforce that chooses not to join a labor union – 96.5 percent in New Mexico.

Even more troubling, contractors in Santa Fe report that due to budget issues, there are no projects costing more than $500,000 in the pipeline!

With no projects subject to this CWA requirement expected in the near future—and the agreements’ proven track record of failure at achieving their promised public policy objectives—it is clear that this policy is nothing more than a politically motivated handout to Big Labor. It could potentially guarantee that only union workers have the opportunity to perform Santa Fe construction projects in the future. Additionally, this policy could be a springboard for Big Labor’s attempts to secure CWA/PLA requirements on state construction or in other communities.

Aside from being bad policy, ABC and the merit shop community believe this new requirement could have potential legal problems as well.

New Mexico taxpayers deserve the best construction at the best price. Additionally, the 96.5 percent of the state’s construction workforce that chooses not to join a union deserves the opportunity to compete for projects funded by their own tax dollars. The City of Santa Fe can accomplish neither with a CWA/PLA requirement in place.

We call on the Santa Fe City Council to rethink this discriminatory policy to ensure city residents get the most value for their local construction dollars.

On Friday, March 23, Meriden Record-Journal op-ed writer Eric Cotton authored a strong piece urging the city not to require a wasteful and discriminatory PLA on two future school construction projects.  Here are the highlights from his op-ed “Skip the PLA“:

The local building trades unions are looking for an exclusive deal that would guarantee they receive the lion’s share of $220 million in renovation work, overriding the normal bidding process. In return, the city would get access to qualified union contractors, a guarantee of no work stoppages and assurances that 30 percent of the work would go to local residents, if possible.

But there’s already an abundance of qualified contractors available. With jobs in the construction industry so scarce, it won’t be difficult to find good people — union or non-union — to work on the high schools. Strikes and other work stoppages are also unlikely. And city officials are already looking into other ways of setting goals for hiring local workers.

There’s little need, at least from the city’s perspective, for a project labor agreement, or PLA.

<Snip>

The city has to protect the interests of taxpayers. Residents can hardly afford to shoulder additional costs from the high school projects as they struggle to make ends meet. Controlling costs is a big part of making sure the renovations go smoothly and it starts with the competitive bidding process. But PLAs, by their very nature, eliminate competition.

“When you eliminate competition, prices go up,” Petro said.

The unions argue that non-union companies are welcome to bid on PLA projects, which is true. But those companies would need to abide by the terms of the agreement, which means they have to rely on the unions to provide most of the workers, all but a few essential supervisors. That makes submitting an accurate bid nearly impossible since the non-union companies will be using workers they’re unfamiliar with. Fringe benefits are also handled differently in union and non-union situations, putting non-union shops at a disadvantage when bidding on PLA projects. This effectively eliminates them from the equation.

Since Meriden happens to have a lot of non-union contractors, that could make it more difficult to meet local hiring goals.

<Snip>

At any rate, in this climate, the city will be better off handling the school projects through the normal bidding process and with union and non-union contractors ultimately working side by side at Platt and Maloney.

Mr. Cotton is exactly right.  PLAs have a long history of reducing competition, which leads to increased construction costs, and not guaranteeing a local workforce.

PLA mandates also discriminate against the 80 percent of Connecticut’s construction workforce that chooses not to join an union and won’t have the opportunity to fairly compete for projects funded by their own tax dollars.

We urge the Meriden City Council to stand firm against Big Labor’s pressure and say no to PLA requirements on future school construction.

Here is the recap.

On March 10, a public forum to discuss whether a PLA mandate is appropriate for two school projects that are expected to cost approximately $200 million was held in Meriden, Conn. Of note, Congressman Chris Murphy and state House Speaker Chris Donovan appeared to speak in support of the PLA mandates. Both officials are candidates for higher office – Murphy is running for the U.S. Senate and Donovan is running for Murphy’s seat in the U.S. House of Representatives.

It should come as no surprise that both have taken union campaign contributions.  Here is an interesting bit of information from the Record-Journal in Meriden:

Through Dec. 31, Donovan had brought in $708,815 in campaign contributions, according to OpenSecrets.org, a website maintained by the Center for Responsive Politics. Of that amount, about $124,000 came from organized labor, including trade unions such as the Service Employees International Union, the International Brotherhood of Electrical Workers, Sheet Metal Workers Union and the Plumbers and Pipefitters Union. In total, industrial unions have contributed more than $30,000 to Donovan’s war chest, while building trade unions have given $22,500. Of his 20 largest donors this year, 12 are unions.

<snip>

Of the $3.4 million Murphy has raised for his Senate campaign, nearly $300,000 has come from unions, with more than $70,000 coming from building trade and industrial unions.

The merit shop construction industry was well represented at this event by Lelah Campo, president of the Connecticut Chapter of Associated Builders and Contractors (ABC), who called this more of a campaign event than an opportunity to learn the facts about PLAs.

This issue has arisen in part because of a petition to the Meriden City Council (initiated by union bosses) seeks a community workforce agreement mandate (a PLA by another name) on the construction of the two school projects. The City Council may not be required to take action on the petition because of a problem with its drafting. Regardless, the unions have successfully brought the issue to the forefront and the council is likely to consider a PLA mandate.

If adopted, this mandate will have a chilling effect on merit shop participation on these projects. In order to work on projects where contractors must agree to a PLA in order to perform work, contractors typically must recognize unions as the sole representative of their employees, hire from union hiring halls, pay into union pension and benefit plans, and follow wasteful union work rules.

From a practical standpoint, PLA mandates unfairly tip the scales in favor of unionized contractors. Merit shop employees, who make up nearly 80 percent of Connecticut’s construction workforce, are deprived of the opportunity to fairly compete for contracts and build projects funded by their own tax dollars.

In addition, these mandates have been found to increase construction costs.  A September 2004 study conducted by the Beacon Hill Institute at Suffolk University in Boston found that the use of PLAs on school construction projects in Connecticut increased the cost of the projects by nearly 18 percent.  The report concludes that the presence of a PLA increased the projects’ final base construction costs by $30 per square foot relative to non-PLA projects.

Unfortunately, the Meriden schools are not the only PLA threat in the state right now.

The Connecticut General Assembly’s Labor and Public Employees Committee held an informational hearing in Hartford on Monday, March 19, to learn more about wasteful and discriminatory PLA mandates.

Here is a great recap from CT News Junkies on what likely prompted the hearing:

The existence of PLAs, an issue that doesn’t come before the legislature very often, has come up in the wake of a January Connecticut Supreme Court decision. The decision gave standing to Electrical Contractors, Inc. (ECI), a nonunion Hartford company, that sued the Hartford Board of Education after winning a bid, but declining to sign a PLA for two school construction projects.

The Superior Court that first heard the trial decided that ECI did not have standing to bring the lawsuit, but the decision was overturned by the Supreme Court. It’s now back in trial court.

While the actual case may not be decided for years, the ruling on ECI’s standing creates the opportunity for other contractors to sue on account of PLAs.

Here is video of a few minutes of testimony by ABC Connecticut Chapter President Lelah Campo:

ABC was not the only group to speak out against PLAs at this hearing.  Connecticut’s Minority Construction Council wrote a strongly worded letter to voice its opposition to PLA mandates.  Here is an excerpt:

Not only do PLAs harm minority contractors who are not union contractors, they also harm non-union employees because if these employees work on a PLA project they must pay union benefits and become union members for each PLA project worked on. It is not fair for employees to pay into a union pension program they will never be able to collect from because they will never vest. This constitutes an unfair windfall for the union. Under current prevailing wage laws, fringe benefits are paid directly to the employee if the contractor he/she works for does not have benefit plans. It is better for employees under prevailing wage laws to be able to directly receive compensation in their paychecks for benefits rather than have their money go to a union’s irretrievable benefits program. The union benefits are payable to the union, even if the non-union employee is covered under the employer’s existing program (i .e., paying twice for the same benefit but only being able to collect to collect on one).

PLAs also harm minority contractors because the contractor has to get some or all of his/her employees from a union hall as opposed to directly hiring all employees. Consequently, a contractor is forced to bid a job without knowing his workforce or their work habits, because there is a great chance the minority contractor’s employees will come from the union hall as opposed to their regular workforce. Under this setup, the employee’s loyalty is to his union hall as opposed to the contractor. I can give you anecdotal evidence to support the harm suffered by minority contractors under a PLA because of union issues.

The merit shop construction community is concerned the General Assembly may take some action to undercut the ECI lawsuit or promote the use of anti-competitive and costly government-mandated PLAs on state and state-funded projects. Doing so would send a clear signal that Connecticut’s lawmakers are in the pockets of union bosses and special interests, and not looking out for the interests of taxpayers and free enterprise.

TheTruthAboutPLAs.com will be following the situation in Connecticut closely.

An Albany County Supreme Court ruled March 1 that the government-mandated PLA issued by NYS DOT violated state procurement laws. The court found that the NYS DOT failed to demonstrate that the decision to require a PLA advanced the state’s interests in the procurement of construction services. The court ordered NYS DOT to re-bid the project.

Here are the highlights from the press release issued by the Empire State Chapter of Associated Builders and Contractors (ABC):

“The ruling effectively means the DOT was flawed in its decision to add a project labor agreement to the job, which would cost taxpayers $4.5 million more than necessary,” said Mark Galasso, President of Lancaster Development, Inc. “As a contractor and taxpayer I am pleased by today’s decision.”

The court on Friday ruled the PLA illegal and thus nullified the existing contract. This means the state DOT must rebid the project.

“The ruling shows a failure by New York State Department of Transportation officials to comply with the competitive bidding rules set out by state law,” said Steve Lefebvre, President of ABC. “Thanks to the court’s decision the project will be rebid, to the benefit of the taxpayers. When this project goes out to be rebid, I would caution the DOT not to attempt the inclusion of a PLA, as we have just seen an open and fair bidding process is the best way to maximize cost savings on public work projects.”

Lefebvre further added that the decision rendered by the court confirms what the ABC has said right from the start, that Project Labor Agreements are subjective and subject to questionable insider negotiations.

In this ruling, the judge points out several alarming issues that arose during the court’s examination of NYS DOT’s attempt to implement a PLA mandate.

Throughout the legal process, the courts ordered NYS DOT to hand over correspondence and other documents surrounding the process used to determine that a PLA is appropriate for this project.  In the decision, the judge takes NYS DOT to task for not being able to produce all the documents involved in the decision to require a PLA despite repeated requests by the court.  At best, this is evidence of sloppiness on the part of NYS DOT.  At worst, it could indicate that they have something to hide.  Either way, it is troubling.

The court also criticized the department’s handling of its feasibility study process.  In New York, public entities are required to obtain a feasibility study prior to requiring contractors to sign a PLA as a condition of performing work.  The study must demonstrate that the PLA mandate will promote the public interest through the: “(1) protection of the public finances by obtaining the best work at the lowest possible price; and (2) prevention of favoritism, improvidence, fraud and corruption in the awarding of public contracts.”

The court found the decision to require a PLA was not supported by either the first draft of the feasibility study developed by Arace & Company Consulting, LLC or NYS DOT’s own initial research.  The department relied on the more PLA-friendly second draft of the Arace study to justify the PLA mandate.  This second study was released to the department approximately one month after the first draft and with virtually no new evidence, endorsed the PLA mandate to a degree that the initial draft did not.

Clearly, the department wanted a PLA mandate on this project.  You don’t need to look any further than the fact that they threw out a bid from a qualified contractor for nearly $5 million more than the next lowest bid to determine NYS DOT’s intent.

The project will now be rebid.  We hope fair and open competition will trump Big Labor favoritism this time.

We also hope this incident will prompt lawmakers to take a closer look at The Public Construction Savings Act (S. 4121/A. 7855).  This bill would prohibit government-mandated PLAs on public construction projects.  It would guarantee that PLAs would be used when they make sense and ensure that taxpayers get the best construction at the best price.