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Local preference withstands latest appeal

By Sean Ryan

Milwaukee on Monday rejected D.C. Burbach Inc.’s appeal of a contract awarded according to the city’s local preference, the fourth time the law withstood such a challenge.

The ruling was enough for Peter Burbach, president of the Waukesha-based paving contractor. As he walked out of Monday’s hearing, he said he will not follow in the footsteps of two other contractors that sued the city over the law.

John Nass (left), a grader operator with D.C. Burbach Inc., Waukesha, prepares the road bed at 21st and Fond du Lac Avenue in Milwaukee recently. (File Photo by David La Haye)

John Nass (left), a grader operator with D.C. Burbach Inc., Waukesha, prepares the road bed at 21st and Fond du Lac Avenue in Milwaukee recently. The company on Monday lost its appeal of a contract awarded by Milwaukee's local preference law. (File Photo by David La Haye)

“I still will continue to work in the city of Milwaukee,” he said, “and I don’t want to make more waves for myself.”

Burbach is the low bidder on a city paving contract that, according to the city’s local bidding preference, will go to Milwaukee-based Stark Asphalt Service Inc. Burbach on Monday asked the city to reverse its decision to award Stark the paving contract because, Burbach argued, the project should go to the lowest responsible bidder.

After a 10minute hearing, the city’s Milwaukee Public Works Contract Appeals Committee rejected his appeal.

A city law gives Milwaukee-based companies a 5 percent bidding cushion, with a cap of $25,000, when bidding on city contracts. The preference means Stark’s $506,820 bid to pave West Tower Avenue is the winner even though the bid is $9,677 more than Burbach’s bid.

“It’s their legal right to do what they want as a city,” Burbach said.

Burbach’s appeal was the fourth the Milwaukee contract appeals committee has held in connection with the law. The committee has rejected all such appeals, resulting in two sewer contractors suing the city to get the preference blocked on sewer projects that receive state money.

Previous appeals argued state law prevents the city from applying the preference, challenged the city’s legal definition of a Milwaukee-based contractor and claimed the policy amounts to racial discrimination against minority-owned builders based in other cities.

Burbach’s three-point appeal is the shortest and simplest of the challenges. The company argued low bids are the fairest way of awarding contracts. Burbach, which has been working on Milwaukee projects for 40 years, is a qualified bidder with seven Milwaukee residents on staff.

“Between Stark’s office and mine, going west, is probably about five miles difference,” Burbach said during his appeal hearing. “I don’t see how he’s any better of a contractor.”

Milwaukee Alderman Joe Davis, chairman of the contract appeals committee, said the city only can consider the legalities of the law, not the policy questions around it, when hearing appeals.

“I think if contractors are going to appeal the local business enterprise preference,” Davis said, “then it needs to be spelled out.”

Davis said he is not prepared to re-open a debate in City Hall over whether the local preference is a good city policy.

“I think it’s too early to tell,” he said. “If you ask me, I think the LBE ordinance is working very well.”

Burbach, who spoke for himself at the hearing and did not bring a lawyer, said he does not agree with the city policy, but does not want to start a legal argument over the law.

“I just don’t need to get into it,” he said. “Everybody I’ve talked to said the city can do what they want. It’s their bidding process.”

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