New Orleans, La. (April 7, 2010) – Councilmember Head plans to call for a vote to override the administration’s veto of the ordinance prohibiting the City from contracting with certain felons. Specifically, this ordinance prohibits City contracting with “any person, corporation, or entity, whose principal(s), member(s) and/or officer(s) have within the preceding five years been convicted of, or pled guilty to, a felony under state or federal statutes for embezzlement, theft of public funds, bribery, falsification or destruction of public records.” Cal. No. 27-892 as amended. Councilmember Head stated, “good judgment requires that the Council act to prohibit the Administration from entering into certain contracts where it has been shown that the principals of the contracting entity have engaged in public corruption. The citizens of our City should not see their tax dollars spent in such irresponsible ways.”
Louisiana Public Bid Law (R.S. 38:2211-2296), applies to all public subdivisions, such as the City of New Orleans and allows for the subdivision to contract with “responsible bidders.” “Responsible bidder,” defined in R.S. 38:2216 (2)(a), “means a contractor or subcontractor who has an established business and who has demonstrated the capability to provide goods and services in accordance with the terms of the contract, plan, and specifications without excessive delays, extensions, cost overruns . . ..” It is elementary that a contractor with a felony conviction related to stealing public funds or bribery is not a “responsible bidder.”
The Louisiana Attorney General and the Louisiana Supreme Court have further illustrated what “responsible bidder” means. The Attorney General states that “responsibility refers to the character or quality of the bidder – whether it is an entity with which you are safe doing business.” See, “Understanding the Public Bid Law” presented by Michael J. Vallan, Assistant Attorney General, February 20, 2008. The Supreme Court has consistently provided that the term “lowest responsible bidder” does not require the public authority to merely accept the lowest monetary bid. Instead, the public entity has “wide discretion to determine bidder responsibility.” Louisiana Associated General Contractors v. Calcasieu Parish School Board, 586 So. 2d 1354, 1362-63 (La. 1991), citing Haughton Elevator Div. v. State Division of Administration, 367 So.2d 1161 (La. 1979). In determining bidder responsibility, the public entity may look to “financial ability, skill, integrity, business judgment, experience, reputation, quality of previous work on contracts, and other similar factors bearing on the bidder’s ability to successfully perform the contract.” Id.
In sum, the well settled interpretation of “responsible bidder” coupled with the fact that the City regularly places restrictions or requirements on public-bid contracts, such as DBE or tax payment requirements, proves that Councilmember Head’s legislation is both legal and good for our City.