Local Bidder Preference Statute Introduced in North Carolina State Senate

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Guest editorial by Matthew Bouchard, Lewis & Roberts, PLLC.

A bill was introduced in the North Carolina Senate yesterday that would give “local” bidders on public construction projects an advantage over “non-local” bidders.  A copy of Senate Bill 232 can be found here.

SB 232 would give the lowest responsible, responsive “local bidder” the opportunity to match the bid of the lowest responsible, responsive “non-local” bidder, but only if the local low bid is no greater than five percent (5%) or ten thousand dollars ($10,000) of the bid of the “non-local” low bid.  “Local bidder” would be defined as a bidder that has paid unemployment or income taxes in North Carolina and whose principal place of business is located within the boundaries of the county or municipality giving the preference.  A “non-local bidder” would be any entity other than a “local bidder.”

Proponents of local bidder preference statutes like SB 232 typically cite the following two advantages of such legislation:

  • Local bidder preferences provide business development opportunities for local companies, potentially resulting in a broader local tax base; and
  • Bidder preference legislation could provide an incentive for businesses to stay in North Carolina, rather than relocate out-of-state.

Opponents of such preferences typically cite the following three primary disadvantages:

  • Bidder preferences decrease competition on public construction project by discouraging “non-local” businesses from bidding in the first place, thereby driving up project costs ultimately borne by taxpayers;
  • Neighboring states will reciprocate, potentially reducing out-of-state opportunities for in-state contractors; and
  • Giving the low “local bidder” a “second bite at the apple” runs contrary to the primary public policies underpinning the public bid statutes: open competition, equal footing, impartiality and best value.

Where do I stand?  At the moment, I lack research suggesting that the potential benefits of SB 232 would outweigh its potential costs.  In the absense of such research, my suspicion is that if “non-local” bidders are discouraged from submitting proposals on any given city, town or county procurement, the result will be higher prices on North Carolina school, criminal justice and other public facilities.  That would be bad news for taxpayers, and bad news for prime contractors, particularly if the overall effect of higher per-project costs is a reduction in the total number of public construction projects bid annually.  Then there’s the issue of underserved rural communities that may have few experienced, high-quality commercial general contracting firms within their borders.  Providing a bidding advantage to inexperienced local firms might not only drive up costs, but also compromise quality.

At a minimum, then, I believe that the potential costs and benefits of SB 232 should be thoroughly studied by NCGA’s legislative research service before any votes are taken, in committee or otherwise.  And so for now, and in the absence of research demonstrating that the benefits of SB 232 would outweigh its costs, I stand with Carolinas AGC, in opposing the bill (full disclosure: Lewis & Roberts is a member of CAGC).  The association has expressed its opposition to the legislation here. I’m keenly interested in hearing other viewpoints on this issue.  Email me at MatthewBouchard@lewis-roberts.com. As always, your comments are welcome.  Read More.