Conversations on Politics, Policy in the Golden State

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By Todd Bloomstine

SB 30 Tests Commitment to Liberty and Freedom

SB 30, currently active in the California Legislature, tests the Legislature’s commitment to liberty and freedom. It prohibits contractors from bidding on any California public works construction project if they provided any goods or services in the construction of a wall along California’s southern border.

In addition to philosophical challenges related to protecting the freedom of contract, SB 30 poses significant policy problems for California.

The primary policy concern is the politicization of the Public Contract Code (PCC).  The PCC’s charges are many, but the most important is guaranteeing California’s taxpayers receive the best value for their tax dollars.

The PCC also allows qualified contractors to compete for California public works projects, as stated in the third sentence of the code, PCC 100 (c): “To provide all qualified bidders with a fair opportunity to enter the bidding process, thereby stimulating competition in a manner conducive to sound fiscal practices.”

Typically, a responsible bidder is a qualified contractor that has demonstrated the appropriate level of experience to complete a job, obtained licensure through the Contractors State License Board, completed registration with the Department of Industrial Relations, and maintains adequate bonding and insurance.

SB 30 expands these requirements into the political realm. Under SB 30, no longer will the state solely look at a bidder’s fiscal history and ability to complete a project. SB 30 injects politics into the bidding process. Now only contractors and material suppliers that have completed projects aligned with the political beliefs of the Legislature will be allowed to bid.
This is very dangerous. Politicizing the process in this way opens the door to a virtual infinite number of other socially unpopular projects that could be incorporated into the PCC.

Say the U.S. Marine Corp conducts an operation in the Middle East, which becomes unpopular with the California Legislature. Does the Legislature expand the SB 30 prohibition to include Camp Pendleton, 29 Palms Marine Corp Base or the Marine Corp Recruiting Depot in San Diego?

Or perhaps the Legislature finds the University of California has conducted ethically questionable animal testing. Should SB 30 be expanded to include UC construction projects?
Considering the range of issues the Legislature addresses every year, these are not farfetched examples. And this is exactly what SB 30 could do.

Remember, the government prioritizes public works construction by appropriating funds. The construction industry builds the projects. The industry is no more political than a hammer and nails or a yard of concrete. It just builds what the government prioritizes.

An additional concern under SB 30 is the question of enforcement and delays therein. Public agencies will always check to ensure their bidders are compliant with the law and regulations. But they are not the ones that have the final say when a dispute over bidding compliance occurs. The courts do that.

And frequently, the number two or three bidder protests the winning bid. Let me tell you, a scorned contractor that lost a bid is a motivated litigant. If there is any question of compliance, they file a bid protest. After all, a successful lawsuit could mean they win the bid.

Since SB 30 injects a new component into determining who is a responsible bidder, there will undoubtedly be challenges to a winning bidder’s complicity in the construction of a southern border wall. The courts will then have to determine the range of participation.

Not only will it include direct participation, such as providing direct construction, but the courts will have to consider the levels of participation. Did an employee working for a former employer help construct the wall? Is a specific heavy machine manufacturer that provided routine maintenance for a dozer at the wall complicit? The resulting litigation will resemble a contemporary witch hunt.

While litigation determines whether a company was involved in the construction of a southern border wall, the fire station, roadway, school or other public works project sits waiting to be constructed. Ultimately, the taxpayers suffer from the delays.
SB 30 is a misguided effort to oppose building a southern border wall. But SB 30 won’t stop its construction.  Political pressure, our system of governance and judicial review will ultimately determine that.  And when this futility is acknowledged, SB 30 is revealed as a vindictive and shortsighted proposal designed to harm those with an apparent different political view.
This bill is dangerous for a number of policy reasons.  But its true danger is the threat to the construction industry’s freedom to contract.  The Legislature should not eliminate this freedom due to the latest socially unpopular construction project. 
Freedom isn’t easy.

Todd Bloomstine is a California registered lobbyist. He is the owner of Bloomstine & Bloomstine and has represented Southern California Contractors Association in Sacramento since 2001. The opinions in this article are presented in the spirit of spurring discussion and reflect those of the author and not necessarily the Treasurer, his office or the State of California.

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By Kim Delfino

California Should Deliver Message It Will Not Support ‘The Wall’ With SB30

California has a policy of welcoming immigrants from all over the world as part of our commitment to the American values of inclusion, diversity, and freedom from oppression. Our state also leads in advancing important environmental policies that protection our natural resources.  California’s reward for welcoming immigrants and protecting our environment has been a thriving economy and rich culture.

In January, President Trump ordered the construction of a massive wall along the U.S. - Mexican border. This executive order advances a false narrative that armoring our border will somehow make us “safer” and it delivers a message that our country values exclusion and not inclusion.  This new federal policy undermines the American Dream -- the idea that you can be successful no matter where you come from.

The construction of a border wall also threatens California’s economy and environment.  In 2015, the value of California’s exports to Mexico was over $26 billion. Commerce, tourism and foreign direct investment from Mexico support more than 200,000 jobs in California.  A wall will slow border crossings and delay cargo delivery, slow down business, and cost valuable jobs.

Border barriers already affect more than a dozen endangered and rare species in California, including the endangered Arroyo toad and Quino checkerspot butterfly.  California has some of the most iconic and abundant wildlife in the country. Along our shared border with Mexico, we have vast stretches of desert wilderness, mountainous terrain, meandering river and stream corridors and fragile coastal estuaries.  An expansion of existing barriers along California’s border would bisect and isolate these iconic landscapes and push vulnerable borderland species to the brink of extinction, including cutting off important migration routes for the highly endangered Peninsular bighorn sheep.

In an effort to oppose this wrong-headed federal policy, Senator Ricardo Lara introduced Senate Bill 30, which would prohibit the state from awarding or renewing a contract with any person or corporation who is providing goods or services to the federal government in furtherance of the construction of the border wall.  

Historically, when faced with unethical policies, institutions have turned to economic tools such as divestment and regulation to pressure corporations and governments to advance improvements in social justice, and environmental protections. Public money should not be used to fund entities that financially benefit from the construction of the border wall and promote a federal policy of exclusion and environmental degradation.  The Legislature should pass, and Governor Brown should sign SB 30, and deliver the message that California will not support an outrageously expensive and impenetrable wall that would undermine our core American values – equality, justice, the preservation of our natural heritage – and the American Dream.

Kim Delfino is the California Program Director of Defenders of Wildlife. The opinions in this article are presented in the spirit of spurring discussion and reflect those of the author and not necessarily the Treasurer, his office or the State of California.