Helping Contractors Rather Than the Public

One thing jumped out at me from an article on the front page of the New York Times today that deals with a common government ethics situation. The situation involves a lobbyist hired because he had a close personal and professional relationship with the head of a department that had to approve his client's project.

The ordinary issue here is that, while the lobbyist should certainly not have been allowed to lobby the head of the department, should he have been allowed to lobby officials and employees who would naturally want to make the department head happy?

The issue that jumped out, however, involved a deal that appears to have been made. There is serious environmental opposition to one aspect of the project. Therefore, that aspect was changed to lessen the opposition and make it easier to get the project approved. This is a good and common compromise.

But it appears not to have been a compromise at all, but a deal that would provide a way around the department's oversight. E-mail messages show that the department suggested the lobbyist's client may "reapply for the exception once the project had been cleared."

Offering this deal does two things. One, it changes the department's role from protecting the public from damaging aspects of the project to facilitating the company's approval. Two, it removes the department from its oversight role, because extensions are approved by another agency. And the decisions of this obscure agency are not as open to public scrutiny.

The project discussed in this article involves the federal government, but this sort of thing happens at the local level, as well. The typical situation is a contractor who wins a bid with the agreement or understanding that it will be allowed to apply for changes to the specifications or to the amount paid. In such a case, the bid is effectively meaningless. It is worse than a no-bid contract, because it appears to have been competitively bid. As with the federal situation, the attention paid to the bid process will not be paid to the apparently obscure changes in specifications or the provision of additional funds outside the bid process.

As with the federal situation, the local situation involves favoring a company while giving up the government's oversight responsibilities and failing to provide transparency.

Rarely do we see the communications between the contractor and government officials. But if we did, we would likely see an odd sort of conflict, where the official abandons her oversight role (protecting the public) in favor of representing the contractor by facilitating the contractor's bid and finding ways to allow the contractor to make a low bid without actually having to do the work for that amount of money. This may occur because the contractor has special relationships with someone high up, or an ongoing relationship with the official herself ("a trusted contractor I'm comfortable working with"), or is based in town while the other bidders are from out of town.

There are many reasons why a contractor or someone seeking a permit may be given preferential treatment, but none of them is adequate. If they were good reasons, they would be made public, and the official would explain to the public why she was suggesting a post-bid deal that would effectively change the bid without allowing other bidders to participate, causing taxpayers to either pay more or get less for their money.

This is why it is important to prevent this sort of communication, and to require that any communication that does occur be written down and disclosed to the public.

Robert Wechsler
Director of Research-Retired, City Ethics

203-859-1959