By Bill Adams
The apparatus purchasing committee (APC) represents the authority having jurisdiction (AHJ), which in this article is any political subdivision subject to a competitive bidding protocol. It’s also referred to as the purchaser or the fire department. “Vendor” is synonymous with dealer, salesperson, manufacturer, or whoever sells fire trucks.
When writing fire apparatus purchasing specifications (specs), fire departments can initiate a bizarre chain of events that defies logic. Included are peculiar trends and strange changes in human behavior. Some are foreseeable while others are not. Everyone knows it happens; most don’t know why. Few admit it. Some don’t care. And, nobody wants to address legality and ethical correctness.
Welcome to the hidden world of spec writing where abnormal behavior can occur daily but is seldom acknowledged. Some in the fire service believe if the subject is ignored, it will quietly go away. Others erroneously believe APCs are immune from reality and reality’s ramifications. They may be sadly mistaken. The public bidding arena is becoming more competitive. The future may find purchasers held more accountable for their actions than they have been in the past. Times are changing-be prepared.
Many suburban volunteer and small career fire departments purchase fire apparatus on an infrequent basis. Consequently, some need help with their specs and select a preferred vendor “to work with.” That is a polite way of saying that the vendor is going to “help” the APC write its purchasing specifications. Quite often, the vendor physically writes the entire document. It’s a common practice of questionable legality that fire departments would rather not discuss. Nonpreferred vendors may grouse about the practice, but most reluctantly accept it. They’ve been on both sides of the fence.
After choosing a vendor, the APC makes a decision to write, or have written for it, an open or a proprietary spec or some combination thereof. In my opinion, most fire departments write specs tailored around a specific manufacturer. It’s commonplace and, again, most purchasers disavow knowledge of the practice. A trend of denial is becoming apparent. I am not criticizing purchasers who know whose rig they are going to buy and write proprietary specifications to ensure it. Judgment is not passed on using the public bidding process to legally justify a predetermined decision. Regardless of being right, wrong, or indifferent, those are local and personal decisions. However, there is a word of caution. Although purchasers may claim ignorance of their questionable spec-writing techniques, they should realize the rest of the world knows exactly what they are doing-and why. Vanity has no place in writing apparatus purchasing specifications. Fire departments adhering to a competitive public bidding protocol usually begrudge those that don’t. They wish they too could just buy what they want minus the red tape. Ironically, most deny being envious-it’s not professional. The denial trend continues.
Buyers, when asking a vendor to help write an open specification, exercise caution. Most vendors have been around the block more than once, and not every one of them qualifies for sainthood. They can influence specifications with astute usage of wording that promotes their products. Remember, their job is to sell, and most offer proprietary verbiage, albeit in disguise. Get over it. As a former dealer, I did it in the past, dealers do it today, and dealers will likely do it in the future. Most will not comment on the practice. The trend persists. Read vendor-prepared specifications very carefully. After an AHJ publishes a spec, it becomes a legal document with all parties playing in a highly regulated legal environment with real rules and real consequences.
Vendors can purposefully, as well as unintentionally, restrict competitive bidding with their recommended specifications. Proprietary and slanted verbiage is not limited to the physical attributes of the apparatus such as the pump, motor, body material, chassis, and myriad parts and pieces comprising a fire truck. It can include the front sheets, commonly known as the boilerplate and formally known as the “Instructions to the Bidders.”
Vendors can skew verbiage to influence other vendors from responding to a call for competitive bids. The intent is to beat the competition before they get to the bid table. It works. It may be not ethical for a vendor to do it, and in some political subdivisions it is illegal if the purchaser does it. Research before writing, and write carefully.
Except for metropolitan and densely populated urban areas, there probably aren’t too many fire truck salespeople living in or near one town. In rural and sparsely populated areas, dealerships may be hundreds of miles apart. Following are four illustrations of front sheet verbiage indirectly addressing distance that could influence potential vendors not to submit a proposal:
“Specifications are on file and available for review at the Municipal Offices from 9:00 am to 12:00 pm and from 1:00 pm to 5:00 pm Monday through Friday. They shall not be mailed, sent electronically, or via a parcel delivery service. Specifications must be signed for and picked up in person.” Add insult to injury and tell bidders it’ll cost them a modest nonrefundable fee to print the specs. It is legal to do so in many states.
“Sealed bids shall be hand delivered to the fire district secretary’s office between 12:00 pm and 4:00 pm on the last working day before the bid opening. Bids delivered via the United States Postal Service, parcel delivery services, or electronically shall be rejected as being informal. Bids submitted before or after the published time shall be rejected as being informal.” Really make life miserable: Schedule the bid opening on a Monday night. It’ll force the vendors to come to town on the Friday before the Monday night bid opening. Is there a good motel in town?
“The hosebed dimensions in length, width, and height shall be no less than the existing apparatus. Bidders may inspect the current apparatus by appointment between the hours of 1:00 pm and 4:00 pm on any weekday upon written request to the village clerk.”
“The gold leaf lettering and striping shall match the existing apparatus.” This is equally frustrating and uncalled for.
The first two examples require separate trips for nonlocal salespeople. The last two may necessitate additional trips. Be wary if the preferred vendor suggests any of the preceding verbiage. Consider the true intent when that vendor says, “If they really want your business, they’ll find time to come to you.” He probably lives in the next town over. If the objective is to receive competitive bids, do not make life difficult for prospective out-of-town bidders. Take some measurements and shoot a few photographs. It’s legal to include them in your purchasing specifications. Disseminate specifications electronically. You’ll be welcomed into the New World. Readers, take note: This is not an endorsement of out-of-town vendors.
When a vendor is selected to write a set of purchasing specifications, other strange phenomena can occur. For reasons unknown, some APCs believe everything the preferred vendor says henceforth is pure gospel. It’s almost considered sacrosanct. Equally puzzling is from that same point forward, they are convinced all other apparatus manufacturers are incapable of building a rig that can meet their needs. Completely baffling is that some believe whatever other vendors say now, have said in the past, or may say in the future is borderline irrational if not completely untruthful. Some APCs will rudely ignore nonpreferred vendors, not return their phone calls, and generally hope they will quietly fade into the sunset. That is questionable behavior. Perhaps those APCs have to discredit other manufacturers to justify their choices. It’s unfortunate and indefensible, but it’s part of the real apparatus purchasing world. It’s like a game-live with it. Nonpreferred vendors do every day.
A sensitive, contentious, and awkward topic for vendors to broach when interacting with an APC is the law. Regardless of a vendor’s honorable intentions in addressing the subject in good faith, the mere mention of legalities can cause violent reactions in some alpha dominant white coats. Dictatorial APC members may express outright contempt, to the point of rage, if they perceive anyone is questioning their authority, expertise, and right to spend hundreds of thousands of taxpayer dollars in any manner they personally deem appropriate. Regardless of backgrounds, personalities, lack of knowledge, or experience in public bidding, displaying a disregard of mandatory bidding protocol, whether intentional or not, is inexcusable. Being frequently exposed to governmental policies, the career side may be more cognizant of legalities than the volunteer sector. Limited exposure to the “law” is no excuse for flouting it.
Purchasers should seek legal counsel when working in the public bidding environment. An honest mistake causing embarrassment to the fire department and the AHJ is one thing-perhaps forgivable. Violating a legal statute because of arrogance or ignorance is another. Arrogance and ignorance are unacceptable excuses. An inference of impropriety in public bidding is unfortunate. An accusation of wrongdoing could be devastating. Bear in mind that in the media, the seriousness of a charge can be as detrimental as a finding of guilt. It would be tragic for a fire department to be wrongly convicted of improprieties solely in the court of public opinion. An APC’s “I don’t care” or “holier than thou” attitude can be prejudicial to the goodwill, morale, and discipline of the fire department. Reputations may be at stake including the spec writer’s, the APC’s, and the fire department’s.
Although it’s difficult for vendors to accept that a fire department wants another vendor’s rig, most would appreciate knowing it up front. It’ll save them time, effort, and expense. Therein lies a dilemma. Common decency says to tell the nonpreferred vendors what your intentions are. Be careful. In some political subdivisions, doing so may be violating legal statutes regarding collusion. Even if an APC tells a prospective bidder off the record with a wink and a nod that it is not going to purchase his fire truck, the APC might be held accountable. It may behoove purchasers to check. Doing so may keep names out of the newspaper.
Most political subdivisions require bidders to certify, under the penalty of perjury, that the bidder has not participated in any collusion, entered into any agreement, or taken any action that will restrain competitive bidding. What is little known and seldom addressed is a political subdivision can’t “collude” either. Be aware that that particular law may not be found under public bidding rules, regulations, and statutes. I found several examples of “official misconduct.”
In one, I interpret the State of Kansas Statutes, Chapter 21: Crimes and Punishments; Part 11-Prohibited Conduct; Article 39 Statute 21-3902 as saying public officials or an employee acting on behalf of a public official cannot restrict competition among prospective bidders. It appears the offense could range from a misdemeanor to a felony. APCs would serve themselves well if they checked their own state’s requirements.
Another reason to seek professional counsel is the vast amount of complex laws, rules, regulations, and ordinances pertaining to public bidding. Depending on the product, total cost, and funding, either federal, state, or local protocols or even all three may be applicable. The Firemen’s Association of New York publishes “The Fire Service Laws of the State of New York.” Buried somewhere inside the more than 700 pages are parts applicable to public bidding. It’s published annually. Good luck keeping track of those without the help of an attorney.
In a possible scenario, a fire department writes a purchasing specification requiring a mandatory prebid conference. The specs say if vendors do not attend the prebid conference, their bids will not be considered. Two bidders complain to the media that state law was violated. In New Jersey, as an example, the state’s guide for local public agencies under Goods and Services Bid Specifications specifically states, “State law does not permit mandatory attendance at a prebid conference.” It may be prudent to check before specifying a requirement that might not be legal.
In defining competitive bidding, the Tennessee Supreme Court in State ex rel. Wright v. Leech, 622 S.W.2d 807 (Tenn. 1981), stated in a portion of its opinion, “The request for bids must not unduly restrict competition. All persons or corporations having the ability to furnish the supplies or materials needed to perform the work to be done should be allowed to compete freely without any unreasonable restrictions.” The court went on to say that the standards for competitive bidding are not optional; they must be followed.
Prevent honest mistakes from giving the fire department negative publicity and a bad image. In today’s polarized political and depressed economic climate, politicians, the media, and the taxpayers may not take kindly to any inference of impropriety when public funding is involved no matter how slight, small, or insignificant it may be.
BILL ADAMS is a former fire apparatus salesman, a past chief, and an active member of the East Rochester (NY) Fire Department. He has more than 45 years of experience in the volunteer fire service.