The Augusta lawyer whose 2006 lawsuit prompted a federal court injunction against the use of race- or gender-based criteria in city government contracting says Augusta remains a model for the need to reform municipal procurement.
Robert A. Mullins makes his case in an article, “Corruption in Municipal Procurement: Foreclosing Challenges of Disappointed Bidders in Augusta, Georgia and the Need for Reform,” published in the Winter 2013 Public Contract Law Journal. The publication is a legal journal published by George Washington University Law School and the Public Contract Law section of the American Bar Association.
“A lot of it was motivated by the work that I had previously been involved in with the city,” Mullins said Wednesday. “It recognizes that the judicial system is not necessarily where the change needs to occur.”
The article challenges what Mullins calls “Augusta’s unassailable materiality provision,” implemented in 2007, which allows low bids to be thrown out on the slightest technicality such as a missing date or unsigned form, and the challenges that “disappointed bidders” face in seeking remedies under current laws.
“When you apply their materiality provision, you basically could throw anybody out,” Mullins said. “They will tell you it’s a very objective provision, but it’s not.”
The system means the city often rejects the lowest bidder, even when disqualified on a technicality, costing taxpayer money. It also gives rise to corruption, he said, as vendors seek to influence by other means a system they view as noncompetitive.
“One of the problems with the system here in Augusta, for example, is that for a bidder to actually challenge a wrongful rejection or something of that nature, it takes some time and some money and there are not currently any provisions out there that enable the bidder to recover their legal fees, so often their challenges go by the wayside,” Mullins said.
Augusta didn’t adopt the strict materiality provision until 2007, when the race- and gender-based criteria were rejected because they relied on disparity data that were more than 20 years old.
Estimating that he has represented clients in about 10 suits against Augusta, Mullins doesn’t have any current cases against the city but said perhaps the article, which will be available in law libraries and digital legal services, will make Augusta’s issues clear for all to see.
“I would hope that the article itself will help further the discussion about making Augusta’s procurement system better,” he said.
Augusta general counsel Andrew MacKenzie, who joined city government in 2007, said he hadn’t had a chance to read the 44-page article but expected its conclusions – made by opposing counsel in disputed litigation against the city – to differ from his. Procurement Director Geri Sams did not respond to a request for a comment.