Updated 1:03 p.m. July 11 with comment from Seven Mountains AFL-CIO.
State College is considering modifying its Responsible Contractor Ordinance after failing to get qualified bidders for multiple projects since it went into effect this spring.
The issue was raised on Monday night when borough council authorized waiving the ordinance requirements for bids on a road reconstruction and sewer replacement project on West Foster Avenue between South Atherton and South Fraser streets.
Staff had previously solicited bids for the project twice, once in May and again in June. Both times, HRI Inc., which did not qualify under the requirements of the ordinance, was the only respondent, with a bid of $1.4 million, according to information included in Monday’s agenda.
The Responsible Contractor Ordinance, which was approved by council last fall and went into effect in March, 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.
A provision of the ordinance allows the requirements to be waived if no bids are received from a bidder who meets the responsible contractor requirements.
Since it went into effect, the borough has advertised five projects that met the ordinance’s financial threshold and none have received a qualified bidder, Borough Manager Tom Fountaine said.
One of those projects was for construction of the Action Sports Park at High Point Park. Council authorized bidding the work a second time with the ordinance provisions waived in early May after only two nonqualified bids were received, though Fountaine noted at the time that few contractors specialize in skatepark construction. The project was ultimately awarded to New Line Skateparks for $1.37 million in June.
The other three projects that did not receive qualified bidders have not been re-advertised, Fountaine said.
For the Foster Avenue project, the borough sent notices directly to contractors who would be qualified from a list provided by the Seven Mountains AFL-CIO, but did not receive bids from any of them.
“This one is not a real large project,” Fountaine said. “I don’t think it has anything to do with the size of the project. It’s the bidders that are available for the work, is what we’re seeing.”
Seven Mountains AFL-CIO wrote in a statement to StateCollege.com that it sent Fountaine “an exhaustive list of contractors qualified to bid on a wide range of construction and trades projects, and asked him to reach out to the leadership Central Pennsylvania Building Trades Council for help identifying and building relationships with contractors that bid as general contractors for road projects.
“To date, the Borough Manager has declined to do so. We believe that his characterization to Council of our role and his efforts are inaccurate, and we hope that we are able to work with him to identify qualified bidders moving forward.”
In a follow-up message, Seven Mountains AFL-CIO President Connor Lewis said he and Fountaine “have since had a good discussion about the RCO and the meeting.”
“I believe all parties are committed to the RCO working as intended, and fully agree that ensuring that the Borough can complete time-sensitive and critical work is a priority,” Lewis said. The organization later released a longer statement about its support of the ordinance on its website.
Asked during the council meeting if there are specific aspects of the ordinance at issue, Fountaine said it seemed to be the apprenticeship requirement, which was not in the original proposed version developed by staff but was added at the direction of council before passage, mirroring a similar ordinance adopted by Centre County government in 2023.
“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.”
State law requires contracts to be awarded to the lowest responsible bidder but does not define “responsible.” Ordinances like State College’s 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.
Borough staff and solicitor Terry Williams are 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.
Council member Nalini Krishnankutty called the lack of RCO-qualified bidders “disheartening.” John Hayes called it “sub-optimal,” and said the ordinance was “well-intentioned, but it’s clearly not resulting in the preferred outcome.”
“This is a perfect example of the national discussion we’re having over our inability to get anything built in a timely manner in this country because we’ve layered on so many well-intentioned regulations that the weight of them collectively slows this down,” Hayes said.
Council President Evan Myers said the ordinance was “the right thing to do,” and that council should continue “standing by our principles,” but recognized that the borough needs to be able to move forward with contracted public works projects.
“If in fact we’re unable to find those contractors, there should be a quick way to expedite and not have it be a delay,” Myers said. “Perhaps one thing staff could look at is 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, however, noted that giving preference in that way comes with challenges.
“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.”
He added that some contractors might not bid because they do not meet the ordinance requirements, only to find the requirements were waived with no chance to submit a bid.
Williams said there has been “agony” among staff and his office over trying “to find a way to do this so we don’t run into a three-time bidding problem again.”
Council member Kevin Kassab, who expressed reservations about some aspects of the ordinance before it was passed, said he has concerns about expending staff resources on multiple bidding rounds.
“I’m assuming it’s taking a lot of staff time having to re-bid,” Kassab said. “With the way things are moving forward I think we really need to look at cost and staff time that’s involved with this.”
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.”
