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Independent committees are way to depoliticize contracts

By David Marcello

Contributing Op-Ed columnist

NOLA.com | The Times-Picayune

November 29, 2013

All too often, Louisiana’s professional service providers — lawyers, architects, engineers, and others — believe they must “pay to play” when competing for government contracts. They’re not the losers in that process. We are.

The “Louisiana Purchased” report by NOLA.com and The Times-Picayune and WVUE Fox 8 News and a recent opinion column by Robert Mann analyzed how campaign contributions influence the award of professional services contracts.

The Times-Picayune, Bureau of Governmental Research and Citizens for Good Government have all supported common-sense contracting reforms over the years. Your Nov. 22 editorial recommended using “technical committees” with specialized expertise to evaluate proposals for government contracts.

But to accomplish your stated goal and “Take contributions out of the contracting process,” we need to know: Who appoints those evaluation committees? If the people who receive campaign contributions appoint the evaluation committees, an obvious conflict of interest remains at play in the contracting process.

When evaluation committees serve as the “alter ego” of elected officials, politics prevails in picking professional services contractors, and politics often produces poor outcomes.

We need to look for a better model, and we needn’t look far.

When metropolitan New Orleans created new flood protection authorities in a major post-Katrina reform several years ago, we didn’t entrust selection of board members exclusively to politicians. Instead, we created nominating committees to propose people for the flood protection boards.

By careful design, nominating committee members are chosen by 13 politically independent groups with specialized expertise: engineering departments at public and private colleges; state and national organizations of engineers, geologists, hydrologists and floodplain managers; the Public Affairs Research Council and Council for a Better Louisiana.

Why not adopt a similar model in creating independent technical committees to evaluate professional services contacts?

The specific areas of technical expertise would be very different. Evaluation committees should be shaped by the type of professional service being sought.

But the important principle “imported” from the flood protection model would be to let independent entities with specialized expertise designate evaluation committee members, thereby promoting politically independent evaluations.

No single political interest should dominate the evaluation process, because that produces “rubber-stamped” outcomes serving political rather than professional values.

When elected officials have unbridled power to award professional services contracts, even the most “enlightened” may be tempted to award contracts based on personal and political considerations rather than professional competence and the public interest.

We need systems that encourage good outcomes, regardless of whether the occupants of political office at any given moment are well-intentioned or not.

In creating such systems, we want to avoid a mistake made in earlier years (the 1950s come to mind), when we sometimes entrusted public power to what were styled “blue ribbon” boards. Many were more fairly described as “blue blood” boards whose members didn’t represent the democratic diversity of our community.

No one’s proposing a return to that misguided vision. Evaluation committees need to be technically competent, politically independent and demographically diverse. We can accomplish all three of these objectives.

How to get it done? First, all candidates in the upcoming municipal elections in New Orleans should pledge to support a Home Rule Charter proposition allowing voters to adopt a single citywide process for awarding professional service contracts.

The current system sets separate procurement policies by mayoral executive order or City Council rule. It hasn’t always worked well, as witness past and pending prosecutions arising out of corruption in professional services contracting.

Second, we must assure transparency in the procurement process. Requiring open meetings of technical committees and making their evaluation forms public records would let “sunshine” be the best disinfectant.

Finally, we need to maintain a role in the procurements process for “watchdog” agencies, like the Office of Inspector General.

We’ve made great strides in reforming city government during the past two decades. Here are some good examples.

The 1994-95 Charter revisions required “competitive selection” of professional services for the first time in New Orleans’ history. Post-Katrina ethics reforms produced three new watchdog agencies: the Ethics Review Board, Office of Inspector General and Independent Police Monitor.

And most recently, two federal consent decrees promise to produce significant improvements in police and prison operations over the next several years.

Let’s create another enduring ethics reform, by putting a City Charter proposition before New Orleans voters and enacting a single citywide process to govern the award of professional services contracts for all legislative and executive branch agencies, boards, and commissions.

Get that done in 2014, and we’ll have even more to cheer about when the city celebrates its 300th anniversary in 2018.

David Marcello is executive director of The Public Law Center at Tulane Law School. His email address is dmarcello@tulane.edu.

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