A communication transmitted from Louis A. DePasquale, City Manager, relative to Awaiting Report Item Number 20-54, regarding a report on drafting an ordinance requiring the city to only purchase goods that are made in full compliance with USA environmental and labor standards

Assistant City Solicitors Nancy E. Glowa Paul S. Kawai ANTIC City Solicitor Keplin K. U. Allwaters Sean M. McKendry Arthur J. Goldberg Megan B. Bayer Deputy City Solicitor Brian A. Schwartz Katherine Sarmini Hoffman Samuel A. Aylesworth First Assistant City Solicitor Public Records Access Officer Seah Levy CITY OF CAMBRIDGE Office of the City Solicitor 795 Massachusetts Avenue Cambridge, Massachusetts 02139 December 14, 2020 Louis A. DePasquale City Manager Cambridge City Hall 795 Massachusetts Avenue Cambridge, MA 02139 Re: Response to Awaiting Report No. 20-54 Re: Report on Drafting an Ordinance Requiring the City to Only Purchase Goods that are Made in Full Compliance with USA Environmental and Labor Standards Dear Mr. DePasquale: We have prepared this memorandum in response to Council Order O-3 of October 19, 2020 (hereinafter, "Council Order"). The Council Order requests the City Manager "to confer with the City Solicitor on an ordinance requiring the [C]ity to only purchase goods that are made in full compliance with USA environmental and labor standards." It is our belief that it would be difficult and problematic to draft and thereafter enact such an ordinance. Specifically, the City is required to follow G.L. c. 30B when purchasing goods. G.L. c. 30B, § 1. G.L. c. 30B "is a public bidding statute designed to prevent favoritism, to secure honest methods of letting contracts in the public interest, to obtain the most favorable price, and to treat all persons equally." Northeast Energy Partners, LLC v. Mahar Reg'l Sch. Dist., 462 Mass. 687, 693(2012) (internal quotation marks omitted). An ordinance that requires the City to only purchase goods that are made in compliance with United States ("U.S.") environmental and labor standards could result in circumstances where some vendors are not able to participate in City bids because the goods said vendors are selling are not made in compliance with those standards. A situation like the aforementioned could be considered unfair to vendors and thus violative of G.L. c. 30B. Thus, despite the good intentions of an ordinance that obligates the City to only purchase goods made in compliance with U.S. environmental and labor standards, an ordinance that imposes such a requirement could result in situations where the City is forced to put out bids for goods that do comply with G.L. c. 30B. See White's Farm Dairy. Inc. v. City of Facsimile [phone removed] TTY/TTD [phone removed] Telephone [phone removed]

New Bedford, No. Civ. A. B98-01481, 1999 WL 823885, *9 (Mass. Super. Ct. Aug. 25 1999) (noting good motives cannot excuse contravention of public bidding laws). Additionally, an ordinance that requires the City to only purchase goods that are made in compliance with U.S. environmental and labor standards would be a broad obligation. It would be difficult to uniformly apply such a requirement because it is possible that not all manufacturers of goods that the City purchases are subject to the same environmental and labor standards. Such may require a separate legal analysis for each purchase either prior to conducting the procurement process or before recommendation for award, which would impact the ability of the City to procure necessary supplies when needed. Any enforcement process would require significant staff time and resources of City staff at the specification writing level, post procurement, or both in order to certify that the offered supplies meet the stipulated standards. This would lekely significantly impact the City's ability to award contracts within the necessary time frames. Further, a requirement that the City only purchase goods that are made in compliance with U.S. environmental and labor standards could lead to situations where either: (A) a City department is unable to purchase a good it regularly purchases (or needs to purchase) because the only available version(s) of that good is(are) not made in compliance with such standards; or (B) costs for a City department increase because the only available version of a sought good that is made in compliance with such standards is more expensive than alternative versions of the good that are not necessarily made in compliance with those standards. Accordingly, for the reasons discussed above, it is our belief that drafting and enacting an ordinance that requires the City to only purchase goods that are made in compliance with US environmental and labor standards would be difficult and problematic. Very truly yours, Nancy E. Glowa City Solieitor