BY JOHN T. BROWN
Sen. Thomas C. Ada has recast and reintroduced, as Bill 162-33, two procurement reform bills that were introduced in the 32nd Legislature. Each went through hearings and roundtables last year.
Bill 224-32 dealt with proposed changes to the review and remedies provisions of the Procurement Act, Articles 9 and 12, with its principal focus on protests. Bill 246-32 dealt with the procurement methods authorized in Article 3, the main focus of which was authorization of two new methods.
In the hearings and roundtables, the protest processes in Bill 224 drew most attention. The bill was passed unanimously but vetoed in the waning minutes of the 32nd Legislature. Ada revised the bill by taking out language specifically objected to by the governor and introduced the revised version as Bill 20-33 earlier this year. It, too, passed and was vetoed.
Principal among the reasons cited this time were the demand by the governor for a protest bond to be paid by every protestor — ostensibly to deter so-called frivolous protests — and opposition to language that said procurement time limits are what the U.S. Supreme Court has referred to as “quintessential” non-jurisdictional claim processing rules.
The Guam Chamber of Commerce was in full support of the bill. In his veto message, the governor said it was “unfortunate that the legislature appears to have responded to pressure of the private sector.” A chamber member facilitated an informal meeting of legal advisors to the administration with leadership and members of the chamber to seek common ground with the executive.
As a result, I was designated by the chamber to meet with the governor’s legal counsel to further develop some possibilities identified. I also met with the attorney general’s office. Although no firm agreement resulted, possibilities presented to move forward. Ada decided to again accommodate the governor’s expressed concerns, to advance the critical reforms needed.
Bill 162-33 reintroduces most of the elements of the prior bills, but it removes the contested language about the nature of the time limits, leaving the topic to the courts. It allows for a bond to be required if the protest goes to court, provided the judge preliminarily determines whether the protest appears frivolous. It also accepts the attorney general’s suggestion for dealing with the administrative review interruption by public auditor recusal.
It retains measures intended to expedite the resolution and settlement of protests and the review process all the way through the administrative and judicial reviews. It enhances existing measures concerning suspension and debarments of contractors and contract disputes.
Measures from Bill 246-32 bring back the previously repealed Request for Competitive Proposals method. This “RFCP” method is essential to the Public Infrastructure Procurement reforms introduced in the year 2000 ABA Model Procurement Code amendments, which have guided some of the reforms here. RFCP differs from the current RFP process most significantly in that it allows price to be one of other factors to determine the award. This is often referred to as the “best value” method.
It also adopts federal acquisition practice for dealing with unavoidable interruptions in supplies and services when a contract expires before its follow-on contract can be put in place. This “bridge contract” process is an attempt to legally do what is often illegally done by emergency and contract renewal processes. It provides a well-defined short-term process to transition to the new contract, with strict conditions for its utilization. There are many other provisions making clarifications and other refinements.
This bill reflects many hours of study and deliberation, debate and accommodation. It will not fully please everyone, thus reflects consensus. It will not cure all the problems that come of an intrinsically competitive process, but it will improve the system we operate under.
— John Thos. Brown is vice president and general counsel for Jones & Guerrero Co. Inc. He is the author of the “Guam Procurement Process Primer.” He teaches Procurement Basic Training at Guam Community College and has conducted and organized many procurement seminars on Guam. He has also conferred with and testified before the Guam Legislature on many procurement matters and consulted with Sen. Thomas C. Ada in the drafting of Bill 162-33.