TITLE 67

STATE GOVERNMENT AND STATE AFFAIRS

CHAPTER 28

PURCHASING BY POLITICAL SUBDIVISIONS

67-2809.  legislative intent — public works — agreements — savings — severability. (1) It is the intent of the legislature to provide for the efficient and cost-effective procurement of goods and services by political subdivisions as market participants.

(2)  Notwithstanding any other provision found in chapter 10, title 44, Idaho Code, chapter 28, title 67, Idaho Code, and chapter 57, title 67, Idaho Code, the following shall apply:

(a)  This act shall be known as the "Open Access to Work Act."

(b)  For purposes of this section, the following terms have the following meanings:

(i)   "Political subdivision" means the state of Idaho, or any county, city, school district, sewer district, fire district or any other taxing subdivision or district of any public or quasi-public corporation of the state, or any agency thereof, or with any other public board, body, commission, department or agency, or officer or representative thereof;

(ii)  "Public works" shall have the same meaning as that provided for "public works construction" in section 54-1901, Idaho Code.

(c)  (i)   Except as provided in subsection (2)(c)(ii) of this section or as required by federal or state law, the state or any political subdivision that contracts for the construction, alteration, equipping, furnishing, maintenance, repair or improvement of public works shall not require that a contractor, subcontractor, material supplier or carrier engaged in the construction, alteration, equipping, furnishing, maintenance, repair or improvement of public works pay its employees:

1.  A predetermined amount of wages or wage rate; or

2.  A type, amount or rate of employee benefits.

(ii)  Subsection (2)(c)(i) of this section shall not apply when federal law requires the payment of prevailing or minimum wages to persons working on projects funded in whole or in part by federal funds.

(d)  The state or any political subdivision that contracts for the construction, alteration, equipping, furnishing, maintenance, repair or improvement of public works or obligates funds pursuant to such a contract shall ensure that neither the awarding governmental entity nor any construction manager acting on the governmental entity’s behalf shall:

(i)   In its bid documents, specifications, project agreements or other controlling documents for a public works construction contract, require or prohibit bidders, offerors, contractors, subcontractors or material suppliers to enter into or adhere to prehire agreements, project labor agreements, collective bargaining agreements or any other agreement with one (1) or more labor organizations on the same or other related construction projects;

(ii)  Discriminate against, or treat differently, bidders, offerors, contractors, subcontractors or material suppliers for becoming or refusing to become or remain signatories or otherwise to adhere to agreements with one (1) or more labor organizations on the same or other related construction projects; or

(iii) Discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin unless permitted by an exception described in section 67-5909A, Idaho Code.

Nothing in subsection (2)(d) of this section shall prohibit bidders, offerors, contractors, subcontractors or material suppliers from voluntarily entering into agreements described in subparagraph (i) of this paragraph.

(e)  Any interested party, which shall include a bidder, offeror, contractor, subcontractor or taxpayer, shall have standing to challenge any bid award, specification, project agreement, controlling document, grant or cooperative agreement that violates the provisions of this section, and such interested party shall be awarded costs and attorney’s fees in the event that such challenge prevails.

(f)  The provisions of this section apply to any contract executed after the effective date of this act.

(3)  This act does not prohibit or interfere with the rights of employers or other parties to enter into agreements or engage in any other activity protected by the national labor relations act, 29 U.S.C. section 151, et seq.

(4)  The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.

History:

[67-2809, added 2012, ch. 312, sec. 3, p. 861; am. 2020, ch. 331, sec. 3, p. 964.]