A bill pending in the Georgia Legislature would allow state and local construction projects valued under $250,000 to be contracted without competitive bidding. It would bring about one of the most significant changes to public contracting in Georgia in decades.
House Bill 1044 looks a lot like a bill that passed the Legislature last year but was vetoed by Gov. Brian Kemp because, according to his veto statement, he wanted the increased no-bid threshold to apply to state contracts, too. Last year’s bill applied only to local government purchasing.
HB 1044 is the Legislature’s answer, and it’s moving fast. It already was approved by the Georgia House of Representatives by a huge margin: 154-8. In the Senate, it sailed through committee with no amendments.
Georgia’s Open Records Act, the public’s primary mechanism for obtaining documents from government agencies, isn’t mentioned in HB 1044. Yet the bill would harm the public’s right to access information about what government officials are doing. Competitive bidding creates a paper trail of crucial information — for example, why a government construction project is needed, who will benefit from it and how long the project will take.
Credit: handout
Credit: handout
The current no-bid threshold of $100,000 was established in 1996 for state agencies and in 2000 for local governments. That threshold is a reasonable compromise between speed and transparency, ensuring high-priced, publicly funded projects get the scrutiny they deserve.
The possibility of losing public access to these details should concern transparency advocates just as much as changes to the Open Records Act itself. It can already be surprisingly difficult to pry even the most basic records out of some agencies and localities. In a world in which government agencies all too often don’t take their public records obligations seriously, laws that require agencies to affirmatively disclose what they’re doing — without waiting for a public records request — are a powerful tool for transparency.
Under current law, competitive bidding requires the government to affirmatively disclose quite a bit about what it’s doing. It requires a state or local government entity to publicly advertise for bids, and those ads explain the criteria for how the contract will be awarded. At the state level, the Department of Administrative Services (DOAS) is required to announce the name of a successful bidder, the cost of the contract and the reasons for rejecting other bids. Local governments are required to open and evaluate bids publicly. And the public can typically obtain all of the actual bids by making public records requests after the contract is awarded — although bids are often heavily redacted.
In other words, the competitive bidding process creates visibility into government purchases each step of the way — from the announcement of a contract’s availability to the decision about who gets the contract and why. Increasing the bidding threshold whittles away at that transparency by requiring the government to do (and disclose) less.
Meanwhile, other bills introduced this session that would have required the government to do (and disclose) more have been left in the dust. For example, HB 112 would have required law enforcement agencies to use a uniform form for complaints alleging police misconduct. It also would have required those agencies to track complaints and release annual reports summarizing complaints and disciplinary action against police. HB 232 would have required penal institutions to produce de-identified data in response to requests for information on the health and safety of people who are detained. Those bills never moved out of committee.
That HB 1044 is gaining traction isn’t surprising. It certainly would make it easier to bid government-funded construction contracts. But making it easier comes at a cost — more decisions about how to spend public funds will occur in a black box. That should worry all of us.
Allyson Veile is a media lawyer and member of the Georgia First Amendment Foundation’s Legislative Watch team.
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