A controversial proposed ordinance that would establish new requirements for contractors to be eligible to bid on some Centre County government construction projects took a step forward on Tuesday.
The Board of Commissioners voted 2-1 to advertise the proposed Responsible Contractor Ordinance (RCO) governing county construction projects over $250,000. After a 30-day public review period, a public hearing on the ordinance will be held on June 27 at a time to be determined.
Board Chair Mark Higgins and Vice-chair Amber Concepcion voted in favor, while Commissioner Steve Dershem voted against.
The county is currently required to accept the lowest responsible bidder for any given construction project, but the county code and relevant statutes and regulations provide little guidance for defining “responsible.” The proposed ordinance would, among other things, require that 70% of the craft labor workforce on projects over $250,000 be certified journeypersons, workers who have completed a state- or federally-approved apprenticeship training or those currently enrolled in such an apprenticeship program.
Contractors would self-certify with a notarized statement that they are in compliance with the conditions.
Proponents of the ordinance, which is based on similar ordinances in several other Pennsylvania counties, say it would cut waste, ensure work quality and worker safety and promote local skilled workforce development.
“This helps to ensure that quality work in highly skilled and technical fields is being done on our projects,” Concepcion said. “And by using this third-party verification of their training, it does not require the county to then have to make its own evaluations of worker training. Setting these benchmarks for participating in apprenticeship programs incentivizes employers and workers towards skilled workforce development and better ensures worker safety on sometimes hazardous jobs.”
Opponents argue it would unfairly exclude otherwise qualified local, nonunion contractors and alleged it favors unions that have contributed to Higgins’ and Concepcion’s election campaigns. Unions offer apprenticeship programs, while non-union shops typically would need to seek them out from organizations like the Associated Builders & Contractors (ABC).
“There’s no fairness, there’s no equity, and quite frankly this really doesn’t demonstrate good governance,” Dershem said during a sometimes contentious meeting on Tuesday. “I think what it does is it demonstrates favorable treatment.”
In addition to the apprentice provision, other requirements in the proposed ordinance include:
• The contractor has not been debarred or suspended by any federal, state or local government agency or authority, or had any type of license or registration revoked in the past three years.
• The contractor has not defaulted on any project in the past three years.
• The company and its principals have not been convicted of any crime relating to the contracting business in the past 10 years.
• The company has not been found in violation of any law applicable to its contracting business such as licensing, tax laws, wage and hour, prevailing wage or environmental laws, where the result was the payment of a fine, damages or penalty of of $5,000 or more.
• All craft labor on a project must have completed the OSHA 10-hour training course for safety and at least one person must have OSHA 30 training.
• All workers on a project, including those performing custom fabrication for non-standard components, must be paid applicable prevailing wage rates.
“This is good government,” Higgins said. “At this point we get a low bid, we have to take it, even if that contractor has not performed well on other public projects, even if that particular contractor has broken a number of state laws for public bids.”
He added that very few Centre County government projects are over $250,000 and represent a small portion of total construction in Centre County.
“There have been years in the past where Centre County government would not have had even one construction project over $250,000,” Higgins said. “We’re very happy to work directly with small contractors on contracts below $250,000. Usually if it gets much over that we’re working with a general contractor. Centre County government construction projects over a quarter of a million dollars are a tiny, tiny, tiny fraction of construction projects in Centre County.”
Dershem, however, pointed out that after the potential passage of the ordinance, the county will be bidding later this summer the $30 million renovation project for the former Centre Crest building in Bellefonte, which will be mostly converted into county government offices.
“…To dismiss a $250,000 number and say that’s a mere pittance, we are looking at a $30 million project, which as far as I’m concerned or to the best of my knowledge is probably the largest construction project in our county history,” Dershem said.
Having the requirements in place for the Centre Crest project is important, Higgins said.
“We would like to have a lot of safety on the project,” he said. “We’d like to have the ability if we do receive bids where we have concerns about the quality and legality of that particular bidder to be able to turn down the low bid and go with the next highest bid.
The ordinance does include a stipulation that if no bids or only one bid above budget are received, a project can be bid again with the ordinance requirements waived. Concepcion said it offers a kind of “insurance policy,” and Higgins said it is one of the ways flexibility is built into the proposed ordinance.
Dershem called it “hypocrisy.”
“Either you want it one way or you want it another,” he said. “I don’t know how you can have that schizophrenic association of saying ‘If this doesn’t work then we’ll try something different.’”
At a work session discussing the ordinance earlier this month, a number of people spoke in favor of the ordinance and against it. On Tuesday, most of the public comment was in opposition.
Jim Willshier, director of government affairs for the ABC Keystone chapter, said his organization has “strong concerns about the apprenticeship threshold.”
“… We have seen this be introduced in other areas and even union labor is not able to meet that standard of 70%,” Willshier said. “With there being 18,000 apprentices in the state, however many there may be in a county, there’s not enough to really meet that threshold. It’s still going to be a problem here in Centre County.”
The Pennsylvania Department of Labor and Industry’s Apprenticeship and Training Program Office supports 868 unduplicated program sponsors and 1,573 registered apprenticeship programs, Higgins said, and organizations like ABC have training programs accredited with the labor department.
Higgins argued the requirement would also support greater use of in-state labor.
“With 70% of the employees needed to be Pennsylvania-certified or in Pennsylvania training programs, it makes it more difficult for contractors to hire an out-of-state workforce,” Higgins said. “Those of you in the field know there’s a lot of out-of-state workforce working construction projects in State College right now. There are many certified tradespeople in central Pennsylvania. There are over 900 apprenticeship and journeyman carpenters in the laborshed area of Centre County and State College alone.”
Michael Hawbaker, vice president of Glenn O. Hawbaker, said it would take at least a year for his company to get employees onto apprenticeship programs and to certify journeyman status of more senior, experienced workers.
Both Hawbaker and Willshier said the prevailing wage requirement for custom fabrication is unclear and would result in confusion. They also questioned why a provision for submitting the company’s safety program and Experience Modification Rate, which measures safety incidents and workers’ compensation claims, included in a previous draft was eliminated from the current version of the ordinance.
“Safety is talked about a lot with this. EMR is a great way to have an objective standard to measure safety,” Willshier said. “… For it to not be here, we question how important safety is with this ordinance.”
Several speakers suggested the ordinance would invite legal challenges. In Pennsylvania, at least five counties and multiple cities have passed RCOs. Northampton County’s ordinance was upheld as constitutional by a federal district court after ABC filed a lawsuit over it in 2018.
“I think you probably are going to see a lot of legal challenges and it won’t necessarily be to have anyone be difficult, but it’s going to be a lot of questions because there’s a lot of unclarity in this and I think there’s also going to be a lot of issues with people just wanting to be in compliance,” Willshier said.
Dershem added that he suspects there will be “numerous challenges to certifications from one contractor to another.”
Of the eight people who spoke Tuesday during public comment, Joe Hall, of Local 520 plumbers and pipefitters union, was the lone supporter.
The ordinance, Hall said, is a common sense measure to ensure quality work and should not be viewed as pitting union against nonunion labor.
“You want someone that’s competent installing your stuff,” Hall said. “If you go to Mount Nittany Medical Center, we want Med Gas people putting in your medical gas. You don’t want people that aren’t trained doing it. And you want the best value for your buck.
“… I’ve worked around a lot of the nonunion people and they’re good people. I’m not here to say they’re not. But the union people, we’re not, like, the enemy. We train our people. I have pride in what I do for 33 years in September… People can attain an apprenticeship. It’s up to them. They can do it through the ABC, the union. They have choices. I just don’t see the problem where everything is spelled out. It’s to protect the county to get a quality product at the end of the day.”
Dershem said he is not anti-union, but that he questions the fairness and motivation of the ordinance.
“I think this ordinance is unfair and discriminates against numerous Centre County contractors and tradespeople,” Dershem said. “I really find this to be bad governance.”
