The City of Austin is currently working on a revision to its Anti-Lobbying Ordinance (ALO) to complete an update in the 1st quarter of 2018 . The ALO governs the communication between respondents and City employees or City officials during the solicitation process to restrict lobbying and help ensure a level playing field for all participants.
BG Advisor Andy Cates offers his analysis below.
Back in October, I wrote an article about Texas Disposal System’s attempt to change the no-contact period at the city because of issues they had with it and to force a moratorium on all other contracts until they got their way.
New rules proposed this week to the Audit & Finance Committee at the city show revisions to the rules that allow vendors and the city more guidance in the contracting process.
While the state is amidst a years-long tightening of rules regarding purchasing & procurement contracting, the City of Austin is loosening theirs somewhat with these new rules.
The rules set out what is now called the Anti-Lobbying Ordinance, though like its predecessor, this new ordinance gives no enforcement authority to the Ethics Review Commission and vests it instead entirely with one person: the Purchasing Officer.
I have never been a fan of this; the state has the Texas Ethics Commission promulgate rules and issue opinions on procurement & state contracting. But then again, until the city gives the ERC some teeth I suppose it doesn’t matter that they don’t have jurisdiction.
Prior issues with the contracting process, like when a vendor was penalized for a city employee initiating contact and the vendor answering their question, have been addressed. Any violations that occur for that scenario now may be waived in the discretion of the Purchasing Officer.
Interestingly, the proposed rules strike at exactly the tactics employed by TDS to push for a rules change in the first place – using a bully pulpit to force a moratorium on new contracts. New rules prohibit city contractors-to-be from “encourag[ing] the City to reject all of the responses to the solicitation to which the communication relates.”
However, it seems as though TDS is getting everything it wants out of the rules anyway. In October of last year, TDS spokesman Michael Whellan stated that “the company insists that Council remove provisions of the current proposal that it says jeopardize its First Amendment rights by too vaguely defining what constitutes prohibited communications. It also demands that contractors be allowed to appeal violations determined by city staff. If those changes aren’t made, said Whellan, the company will continue to not bid on contracts.”
Well, the rules are certainly written in a clear manner to describe the precisely prohibited communications and those which are allowed. The rules also provide for a notice and protest process for any contractors who are disqualified under the rules.
While TDS didn’t get the ultimate trophy of an overall exemption from the ALO, they certainly got the city to blink.
For questions on how the proposed ordinance could impact you, please contact us here.
The Bingham Group, LLC is an Austin-based full service lobbying firm representing and advising clients on municipal, legislative, and regulatory matters throughout Texas.
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