City Councilors and Mayor Weinberger
City Hall, 149 Church Street
Burlington, VT 05401
Delivered via e-mail

Dear Councilors and Mayor Weinberger,

The New Hampshire/Vermont Chapter of Associated Builders and Contractors (ABC) represents hundreds of merit shop construction contractors and industry-affiliated firms that are committed to workforce development, safety training, and promoting fair and open competition. On behalf of the ABC, I write regarding the proposed amendments to Burlington’s “Prequalification of Construction Contractors-Responsible Contractors” ordinance.

From a practical perspective, this proposal will certainly deter competition from current and potential bidders. Our construction economy is robust and very competitive. Contractors are turning away lucrative projects because demand for their services are at an all time high. This legislation will limit the ability of the city of Burlington to secure multiple bidders and perhaps in some cases any at all.

We are concerned that the proposed changes to law are problematic in several ways. As written, the prequalification criteria, bidder/contractor to subcontractor liability, damages and debarment provisions are all substantially flawed.

Section 21073 “Employment practices” appears to be an improperly applied requirement to pay state-set prevailing wage and benefits on all work, public and private. This is a de facto mandate that all contractors pay Vermont’s government prevailing wages, specifically those paid in Burlington. As written the legislation requires a look-back period to prove a contractor’s history of paying government-set prevailing wage on past public and private construction projects. Here creates a problem: a new construction company with no employment/wage history qualifies; yet an established firm that does work for the city under current law could no longer qualify because they do not the specific Burlington-area prevailing wage on their private projects. Even after satisfactorily completing work for the City, a contractor will need to continue paying prevailing wage on all projects if they wish to bid a Burlington government job again.

There are multiple other problems with this requirement, though this is the most glaring concern, all of which will certainly restrict your qualified bidder pool. The current law provides the people of Burlington with legal surety that contractors working for the city are paying wages and benefits customary for the local market. Currently the law sets fair wages by asking a contractor to show they pay “consistent with” a standard that is easy to understand.

Customarily, liquated damages are not something enforced and may be questionable in its implementation if the city were to take action. Furthermore, it makes no practical sense to hold a general contractor equally liable for the actions of a subcontractor. Under this proposal, a long-standing responsible contractor can become debarred from the actions of a single subcontractor seems like a disproportionate punishment. In any other situation, violations are given to the immediate alleged offending party.

As drafted, we are concerned that a violation in another municipality, city or state could translate into a de facto debarment in Burlington. In effect, this provision subjects Burlington contractors to the rules and whims of other governments, thus doing a disservice to bidders and taxpayers.

From an implementation perspective, does the city have the infrastructure -human and technology resources- necessary to effectively and consistently execute the provisions outlined in the pre-qualification measures? Typically, municipalities with such requirements have dedicated departments or personnel that ensure compliance and assist contractors with the onerous regulations. Additionally, can it ensure effective oversight of projects to make sure all parties are adhering to the new standards as outlined in the proposal? What is the additional cost to taxpayers to ensure effective and appropriate resources are implemented to ensure the legislation reaches its intended success?

Lastly, Montpellier, which passed similar legislation in 2019 has yet to see how their version of this ordinance will impact city projects. Given the huge demand for construction services and that wages in the industry are rising rapidly, we caution the Council and ask that you consider our points and table this legislation.

Joshua Reap
President & CEO
New Hampshire / Vermont Chapter,
Associated Builders and Contractors