At the Guilford County Board of Commissioners Thursday, Sept. 1 meeting, the board’s three black commissioners – Carolyn Coleman, Ray Trapp and Carlvena Foster – peppered county staff with questions about the board’s lack of minority participation in county contracts and offered some advice on how the county might reshape its purchasing practices.
The amount of county business that goes to qualified black-owned businesses has been a sore spot, with black commissioners especially, for at least 15 years, and it has been an ongoing topic of discussion in recent years as well – as it was once again at the Sept. 1 commissioners meeting.
The State of North Carolina’s recommended goal for Minority and Women-owned Business Enterprise (MWBE) participation for counties is 10 percent, and in April the board heard a report that Guilford County had a participation rate of 8 percent for the first nine months of fiscal 2015-2016. Later, staff came back and said the number had been calculated wrong and it was actually closer to 6 percent. Purchasing officials say the office is doing more outreach to firms, but at the Sept. 1 meeting, it was clear that some commissioners don’t feel Guilford County has been making enough progress in that regard.
“Every time, I bring it up – and I’m tired of it,” a frustrated Coleman told county staff at the Sept. 1 meeting.
The county’s bidding and purchasing practices came up for discussion as staff presented the commissioners with the lowest three bids for repairs of the large parking deck next to the county’s courthouse in High Point. That deck serves the governmental plaza in downtown High Point and, after major sections were found to be structurally unsound earlier this year, Guilford County put out a request for bids to fix the deck.
The county got three bids for a major part of the project. Tendon Systems in Georgia bid $2,364,818, Stone Restoration of America in Charlotte bid $1,668,200, and Restocon Corporation of Tampa, Florida, the lowest bidder, submitted a bid of $1,639,820. In the end, the board chose Restocon, which had 10 percent MWBE participation, but that came after some commissioners gave staff an earful over the county’s purchasing practices.
After Guilford County Property Management Director Robert McNiece told the commissioners that Restocon, the lowest bidder, expected to use 10 percent MWBE participation, Coleman wanted to know how much of that 10 percent was minority business and how much was women-owned.
The plans submitted with the bid called for Restocon to use a female owned firm to handle 10 percent of the work. Coleman clearly didn’t like that answer and what she didn’t like more is the fact that staff wasn’t consistently breaking down the numbers in a way that showed minority versus female participation.
“How do we know African-American businesses get anything unless we say?” she said. Coleman said Guilford County already has low MWBE numbers – especially when women are taken out of the picture and the focus is on minorities. She added that, if the county doesn’t make a targeted effort to improve the minority participation, the situation will never get better.
“I certainly want to support women businesses – I’m sure everybody here does,” Coleman said, “but we want to see minority businesses get a percentage.”
McNiece pointed out to Coleman that, to a large degree, Guilford County’s hands are tied when it comes to awarding contracts, due to the state’s requirement that certain types of contracts must go to the lowest bidder –provided that it’s a competent company that followed the guidelines laid out in the bid.
“The regulation is we cannot award or not award based on beating or exceeding the goal,” McNiece said of MWBE participation in projects.
Trapp had another concern about Guilford County’s purchasing practices. He pointed out that a Charlotte-based company came in second for the project but their bid was not much higher, and he said he would like to go with a local company.
“How, legally, do we do that?” Trapp asked.
Guilford County Attorney Mark Payne spoke about the legal constraints the county is operating under.
“Case law is not very favorable to just going local for the sake of local,” Payne said. “It can be a consideration, but it has to be a consideration that relates not just to being local. There has to be a recognized advantage of local.”
Payne told the board that, if there was a specific advantage in, say, service response time, or there was more control or better supervision because a company was local, then those factors could be considered.
“It must be some rationale that is rational – not just that we like local,” Payne said. He added, “There can be some advantages to a local business.”
Trapp said that of course a giant firm in another state can come in and undercut the cost of local firms who operate on a smaller scale, but the board should be doing what it can to give business to local firms.
Coleman pointed out that making things local doesn’t solve the minority part of the equation since the county could use more local firms and still not make a dent in the minority participation numbers.
Like Colman, Foster asked for more clarity on future presentations in breaking out the minority numbers from the MWBE information.
McNiece said Guilford County does keep those stats and he informed the board that, on the bids for the High Point parking deck, the second lowest bidder had zero minority participation.
It wasn’t just the black commissioners who wanted to know a lot more about the board’s options in the future when doling out contracts. Chairman of the Board of Commissioners Jeff Phillips wanted to know the precise statutory requirements.
“I think that really gets to the point of what kind of attitude we as a board will have of this MWBE goals and requirements – or if it’s the lowest responsible bidder question,” the chairman said.
He said that, in the private sector, when bids are this close, business owners often choose by factoring in things like referrals and whether or not a company consistently comes in under budget.
Payne gave a long-winded answer of legalese that was on the one hand this and on the other hand that, that left everyone confused and didn’t really tell Phillips what he wanted to know, and then Payne added, “I get the feeling that sometimes you as a board often get frustrated because I don’t give black and white answers.”
Phillips said, “Don’t you think a black and white answer is good right now?” and got a laugh with that comment.
Payne said the commissioners can’t decide that the price on a project can be “x percentage higher” if MWBE numbers are better by a certain amount.
The county attorney told the board that state statute says they can give the contract to the second or third lowest bidder in some cases.
“You have to articulate some defensible rationale, but the statute does not go on to say what those are,” Payne said. “So that is the grey area that you have to deal with every time we have a bid,” he said, “and it’s all a balancing act and there are always so many particulars in each bid.”
He added, “That’s why what we really need to do is talk about guidelines and goals – not a bright line. The way statute reads is, OK, give it to the lowest bidder unless you’ve got a compelling reason to give it to somebody else. And it applies to all these other things like MWBE that could lead, in some circumstances, for you to go to somebody that’s not the lowest bidder.”
Guilford County Manager Marty Lawing said that he will discuss the issue with county purchasing officials to come up with some guidelines that might help address the commissioners’ concerns.
“I don’t have an answer right now,” he said at the meeting.