State College officials will consider temporarily suspending the borough’s Responsible Contractor Ordinance after multiple projects failed to get bidders who met its conditions since it went into effect in March.
A proposal to suspend the ordinance “as we continue to work through the issues that we have had securing bids from the contractors that do meet the qualifications” will be presented to Borough Council at its Aug. 4 meeting, Borough Manager Tom Fountaine said on Monday night.
The Responsible Contractor Ordinance, which was approved by council last fall, includes requirements related to safety training and prevailing wage payments, as well as that 70% of the craft labor workforce on projects over $250,000 be journeypersons who have completed a state- or federally-approved apprenticeship training program or registered apprentices currently enrolled in such a program.
State law requires contracts to be awarded to the lowest responsible bidder but does not define “responsible.” Ordinances like State College’s and a similar measure adopted by Centre County Government in 2023 define it in a way that proponents, like labor unions, say helps to ensure worker safety and timely, cost-effective work on public projects. The measure was generally opposed by groups like the Associated Builders & Contractors Keystone, which typically represents nonunion shops and said it freezes out otherwise qualified contractors who meet safety and quality standards through different means.
State College has had five projects since March that met the ordinance’s threshold and received no bids from contractors who met the conditions, as previously reported by StateCollege.com. Council authorized rebidding two of them — a West Foster Avenue street reconstruction project and construction of the High Point skatepark — with the responsible contractor provisions waived, and the other three have not be re-advertised.
As staff and the borough solicitor continue to evaluate how the ordinance can be modified, State College has at least two upcoming construction projects that need to have contracts awarded in a timely manner, Fountaine said.
“We have some deadlines that we’re up against with respect to construction contracts or risk losing several million dollars worth of grants,” he said. “… One is for the Calder Way phase two project, which is the one where the grants are at risk, and the other is the annual [street] repaving contract. It’s possible that other things will come up between now and the end of the year but those are the two that we have on the calendar right now.”
Council did not discuss the matter during its meeting on Monday, but did during its July 7 meeting, when it waived the RCO for the Foster Avenue contract after the project was bid twice with no ordinance-qualified respondents.
The borough sent notices about the project directly to contractors who would be qualified, but did not receive bids from any of them, Fountaine said at that meeting, adding that the contractors who did bid on projects since the ordinance began did not meet the apprenticeship requirements, which was not in the original proposed version developed by staff but was added at the direction of council before passage.
“I’m not sure that the local contractors are attempting to do the apprenticeship,” he said. “They’re investing in safety programs through the vo-tech school and doing it in a different means other than the apprenticeship program. I know they expressed a lot of concern when this was enacted because of the amount of money they’re already spending on those safety issues.”
Council members generally agreed with President Evan Myers’ sentiment at the July 7 meeting that the RCO was “the right thing to do,” and that council should continue “standing by our principles,” but that the borough needs to be able to move forward with construction projects on time.
Council member Matt Herndon said he hopes the borough can “streamline” the ordinance so that contractors who meet the provision are encouraged to bid but that the project can move forward in a timely manner if they don’t.
“We shouldn’t be wasting our time over this,” Herndon said. “We should be pushing for good, safe work and if no [ordinance-qualified contractor] is going to do it, we’ve got to get it done somehow.”
Council member Kevin Kassab said he was concerned about about expending staff resources on multiple bidding rounds.
Borough staff and solicitor Terry Williams have working on proposed amendments to the ordinance “that allow for waivers in a more timely manner so that we don’t go through this process again and again,” Fountaine said.
Myers suggested “a provision that talks about, all things being equal, if there’s a responsible contractor they qualify. If there are none we move forward with the process so that it doesn’t delay it.”
Williams, though, said awarding a contract that way could be legally problematic, and that contractors might not bid because they do not meet the ordinance requirements only to find the conditions were waived.
“The law is to produce a contract from a responsible bidder capable of doing the work at the lowest possible cost to the borough,” Williams said. “When you talk about we’re going to have a selection process based on something other than that, we have to look at that very, very closely, because I think that probably will run afoul of the bidding requirements.”
