While perhaps well intended, Boise City Councilors are set to consider an ordinance that very possibly is contrary to State bidding laws and the United States Constitution.
Calling it a “local preference ordinance,” Boise Councilors will hold a first reading of an ordinance revision that would deny EQUAL PROTECTION under the city bid law to any vendor living outside Ada, Boise, Canyon, Elmore, Gem and Payette counties. Vendors with a “significant economic presence” in those (local) counties get preferential treatment, even if underbid.
The GUARDIAN thinks this flies in the face of the equal protection clause of the 14th amendment to the U.S. Constitution. It is also not a wise move to limit competition. Can’t imagine the Feds standing still either if US tax money is sent to Boise for a project, but only those in 6 counties are allowed to bid.
We find it absurd to award contracts based on the geographical location of those providing the goods and services. Imagine if Twin Falls and Lewiston, for instance, passed ordinances cutting Boise area businesses from fair bid competition. Boise officials need to stop and consider their ill-advised actions before bringing full scale animosity on the city and starting municipal trade wars.
Introduced by Councilor Dave Eberle, the ordinance ALLOWS the city to award bids based upon geography, but does not MANDATE such action. In their zeal to help out local businesses, they have stricken a section of the present 17 page ordinance that further limits special treatment to IDAHO vendors in favor of just those in the specified counties. We suspect that provision is also ripe for challenge.
Here is the crux of the new language: “… Departments may limit solicitations of bids,
quotes and offers to entities with a significant local economic presence.”
They are relying upon a provision of Idaho state law which says in part, any political subdivision can choose to award a contract to a bidder other than the apparent low bidder, as long as “the political subdivision shall declare its reason or reasons on the record and shall communicate such reason or reasons in writing to all persons who have submitted a competing bid.”
They are missing the fact those reasons cannot violate other bid laws, the U.S. Constitution, or apply only to residents of certain geographical areas.
Boise is the first city in the state to consider a local preference ordinance and let’s hope it is the last. We advise a city attorney or elected official to seek an attorney general opinion before wasting more effort on this one. The City Council will vote on the ordinance following a public hearing at the third reading of the ordinance, currently scheduled for the May 5 council meeting.
Check out the PROPOSED ORDINANCE. Underlined portions are additions, strikeouts have line through middle of words. Changes begin on page 8.
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