SSB 1145, a bill that was recently introduced in the Iowa Legislature, will deprive local public entities of the vitally important discretion they exercise in determining which contractor to award a public construction project. SSB 1145 would prohibit local public entities from using project labor agreements, known as PLAs and bidder qualification programs, on construction projects undertaken by that public entity. Such legislation is in opposition to the concept of responsive, local government fostered by Iowa’s constitutionally established tradition of Home Rule. In short, legislation of this type seeks to fix a problem that does not exist, at a steep price to sound public policy.
In essence, a PLA is a discretionary prequalification tool available to both public and private entities to manage complex or time-sensitive construction projects. PLAs have been routinely applied in the private sector on major projects by companies such as General Motors, Toyota, Walt Disney, and the major oil companies. They have also been used by the federal, state, and municipal governments on projects ranging from the Cape Kennedy Space Center, to the Nuclear Research Facility at Oak Ridge, to the Southern Nevada Water Authority District Improvements Project, to the T.F. Green Airport.
The use of a PLA is the sole decision of the public entity constructing a particular project. Unless public bodies such as school boards, boards of supervisors, or city councilors decide that using a PLA promotes the interests of their constituents, there will be no PLA on a particular project. The same is true at the State level; if the Governor does not want a PLA, he/she is not compelled to use one. Understanding that PLAs are strictly an optional tool is critical to considering any legislation to outlaw them.
It is ironic that although Iowa’s competitive bid statute empowers locally elected bodies to exercise broad discretion, legislation would be introduced to curtail or substantially restrict that discretion. By seeking to ban local governments from even considering a PLA for a given project, all public debate over utilizing a tool that has regularly proved valuable to private industry would be foreclosed. Are we to anticipate that the legislature will further erode the ability of locally elected officials to manage their construction projects whenever local officials exercise their discretion in a manner that does not conform to the agenda of certain special interest groups? Any law prohibiting the use of PLAs or other bidder prequalification programs by public bodies belies a “we know better than you” attitude by the legislature.
Only in the public sector have PLAs drawn legal and legislative attention. Along with the Iowa Supreme Court, the overwhelming majority of courts in the overwhelming majority of states, from coast to coast, from Right to Work states to non-Right to Work states, have concluded PLAs are legal and comply with state competitive bid statutes. Considering the nationwide support PLAs have received, the question arises: Why would any legislature consider outlawing their use by local governmental bodies? Unfortunately, there is only one answer: Special interests seek to accomplish by legislative approval what they might not achieve before a local public body. Certainly, there is no outcry among the Iowa’s mayors, city councils, county supervisors, or school boards for such legislation. And with good reason: they do not need or want this intrusion on their discretion to act on behalf of their local constituents. The use of a PLA and/or bidder prequalification programs is entirely discretionary and requires majority action by locally elected officials. If they are not convinced of the value of these tools, they don’t have to use them. Clearly then, the talked about legislation is a solution in search of a problem which simply does not exist.
Iowa has long recognized the value of local autonomy over local matters and held the belief that governmental power is best exercised by elected officials closest to the people. The Iowa Constitution expressly grants cities and counties “home rule power and authority to determine their own affairs and government.” A prohibition on PLAs is fundamentally at odds with these Iowan values. By enacting a ban on PLAs, the legislature would pre-empt local public entities of decision-making authority they have on local construction matters with its own determination.
PLAs and bidder qualification programs are legal, voluntary tools with proven benefits when used on complex or time-sensitive construction projects. Any bill seeking to outlaw their use by local government on local construction projects is fundamentally at odds with Iowa’s proud tradition of Home Rule, and worse yet, completely unnecessary.
• Bill Gerhard is president of the Iowa State Building and Construction Trades Council