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March 01, 2011 8:27 am

LIFE IN CHEYENNE The 70 percent rule: Fairness to Wyoming contractors

Written by Dave Bonner

The date of Jan. 17, 2011, was a beachhead day for employment of Wyoming contractors and the use of Wyoming suppliers on publicly-funded capital construction projects.

It puts into statute in capital letters the words “Wyoming Preference.”

With the passage of SF 144, any publicly-funded cap-con projects that were not under contract on Jan. 17, 2011, are now subject to new, tighter regulation requiring Wyoming preference. This covers projects by the State of Wyoming (including school capital construction), the University of Wyoming, community colleges, cities, towns and counties — the whole gamut.

Specifically, the law now requires that 70 percent of the total value of subcontract work go to Wyoming firms. The same 70 percent in-state requirement extends to awards to suppliers of furnishings, fixtures and equipments.

This is not a give-away to Wyoming subcontractors and suppliers. The 5 percent in-state preference rule, already on the books, still applies. If the in-state bids exceed 105 percent of the bids by out-of-state providers, the project owner may, of course, take the lower qualifying bid. That’s competitive bidding.

This new law simply guarantees that Wyoming bidders are on equal footing. It means all subcontractor and supplier bids will be opened at a public bid opening and made a part of the record, and where they meet the qualifying standard, 70 percent of the value of the project will go to in-state firms.

Of course, there are going to be some jobs where there is such a specialty required that Wyoming firms may not be able to comply, or even bid. The law provides for a waiver of the 70 percent rule in those cases, but only when the agency head documents the reason in writing to the governor and the respective joint appropriations committees of the House and Senate.

Some looseness in the system brings about this statute. Under the construction manager at risk and design-build contract award processes, the successful general contractor has, in some cases, been able to shop around the subcontractor bids to drive down costs. That has, in turn, resulted, in driving the work out of state in some cases.

This is what we heard from Wyoming subcontractors: They can sustain great cost to do the estimating inherent in putting together a bid and then become victims of bid shopping and lose out on the job after they have provided the figures to be used against them.

The state is going to cut loose half a billion cap-con dollars in the rest of the current biennium. That’s why this new law is effective immediately. Gov. Matt Mead and the Legislature are dead serious about an open bid process and compliance with Wyoming preference laws.

(Dave Bonner, publisher of the Tribune, is the representative for House District 25.)

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