CITIZEN ADVOCACY CENTER
GUIDE TO PROCUREMENT
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HOW THE 1999 DUPAGE COUNTY PROCUREMENT
ORDINACE COMPARES TO OTHER COUNTY, STATE, AND MODEL PROCUREMENT ORDINANCES.
The Illinois Procurement Code vs. the DuPage County
Purchasing Ordinance
The ABA's Model Procurement Code vs. the DuPage
County Purchasing Ordinance
Suggestions for Improving DuPage County Procurement
The Procurement Policies of Kane, Lake, McHenry, and Will counties
are roughly equivalent to the 1999 DuPage County Procurement Ordinance.
Just as DuPage County has adopted a procurement ordinance, Kane, Lake,
McHenry and Will counties have also adopted procurement ordinances
that seek to maximize both economic efficiency and transparency. As
a result, each county has created similar procurement procedures.
While there are minor variations among the counties' bidding procedures,
each county requires competitive bidding for goods and services that
exceed $10,000, and at some value each county exempts professional
services from competitive sealed bidding.
The Illinois Procurement Code vs. the DuPage County
Purchasing Ordinance
Like the 1999 DuPage County Purchasing Ordinance, the Illinois Procurement
Code seeks to ensure that vendors compete for citizen's dollars, and
to prevent corruption from infecting the procurement process. Because
the Illinois Procurement Code guides the activity of several governmental
agencies and governs the selection of large value contracts, its provisions
are more extensive than the 1999 DuPage County Ordinance. The Illinois
Procurement Code establishes a Procurement Policy Board to review
the procurement practices of state agencies.
The Code divides responsibility for administering state procurement
into four departments: the Department of Central Management Services,
the Capital Development Board, the Department of Transportation, the
Department of Education. Each department is required to publish a
monthly procurement bulletin containing invitations to bid and notices
of awards given. Like the DuPage County Purchasing Ordinance, the
Illinois Procurement Code creates multiple procurement procedures
based on the type of good or service required, and the value of that
good or service.
Competitive sealed bidding is required for non professional goods
and services that cost in excess of $10,000, and for construction
related services that cost in excess of $30,000. The Illinois Procurement
Code requires that the four purchasing departments create procedures
for selecting professional service providers, but requires all proposals
for professional services that cost more than $25,000 to be ranked
by price. If a department selects a vendor other than lowest bidder,
a public explanation is required.
The ABA's Model Procurement Code vs. the DuPage
County Purchasing Ordinance
The American Bar Association's Model Procurement Code is designed
for use at the state, rather than county level. The Model Code suggests
that a state enact a single procurement code, and apply that code
to all of the state's political subdivisions to obtain uniformity
in government procurement. However, the Model Code acknowledges that
procurement practices that function smoothly on the state level may
prove to be awkward or impossible at the county level. Despite the
Model Code's focus on procurement at the state level, certain concepts
imbedded in the Model Code are worth noting in the analysis of the
DuPage County Ordinance.
While both the Model Procurement Code and the DuPage County Ordinance
assert that they are structured to promote transparency and continuous
improvement of procurement practices, the DuPage County Ordinance
does not create a formal mechanism for evaluating the County's procurement
practices as provided for in the Model Code. The Model Code also includes
a specific reporting procedure absent from the DuPage County Ordinance
that requires the purchasing department to maintain a list of all
contracts awarded under the sole source and emergency procurement
selection methods. Such a provision deters procurement officials from
manipulating the less rigorous selection procedures inherent in sole
source and emergency procurement to dole out political favors. The
Model Code also seeks to prevent favoritism from infecting the format
of procurement contracts by prohibiting the use of "cost plus percentage
contracts." These contracts provide for an automatic increase in the
contractor's fee with increase in a particular cost element. Profits
thereby increase in proportion to dollars spent, thereby providing
the contractor with an incentive to be inefficient. Another problem
is that the contractor's final costs might actually be less than the
percentage increase required by the contract, giving the contractor
extra profit at taxpayer expense.
The DuPage County Ordinance fails to expressly prohibit DuPage County
from entering into "cost plus percentage" contracts. In addition to
better translating a conceptual commitment to transparency and continuous
improvement of procurement practices into specific provisions, the
Model Code better addresses the task of selecting professional service
providers.
The Model Code separates the procurement of infrastructure facilities
and services from the procurement of all other goods and services.
The Model Code defines infrastructure facilities and services to include
design services, construction services, operations and maintenance
services, and financial services.
DuPage County Ordinance includes a highly discretionary selection
process for professional service providers while the Model Code suggests
formal selection procedures based on the type of infrastructure facility
or service required. These formal processes protect against awarding
a professional services contract to the most shrewd political donor
rather than the most skilled provider.
Finally, the Model Code includes a provision waiving sovereign immunity
for civil actions between a government entity and a prospective or
actual contractor to determine whether the solicitation or award of
a contract complied with the applicable statutes and regulations.
Such a provision prevents procurement decision makers from reviewing
their own decisions in the resolution of disputes. The DuPage County
Purchasing Ordinance lacks a similar provision.
SUGGESTIONS FOR IMPROVING DUPAGE COUNTY PROCUREMENT
Clarity
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