Tom Ada Attempts Procurement Reform, Again

Hagåtña, Guam: Senator Tom Ada is once again introducing a bill to reform the Appeals provisions of Guam’s 30-year old procurement law. “Bill No. 28-34 (COR) is important because resolving procurement protests efficiently is important to GovGuam’s ability to provide timely public services to the community,” said Senator Ada. “Over the past 30-years, much has been learned about the strengths and weaknesses of our procurement law; it is important that the lessons learned be incorporated into the procurement law” added Senator Ada. “We’re going to keep at this until a mutual agreement with all stake holders can be achieved,” said Senator Ada.

Bill No. 28-34 (COR) encourages the resolution of protests before the protest is elevated to the Office of the Public Auditor (OPA) or an action in court. Additionally, Bill No. 28-34 (COR) will require the government to act within prescribed timelines. Current law imposes deadlines only on the protesting entity, but no deadlines for the government to respond to the protest.

Procurement protests can be disruptive. “There’s a perception by many that numerous procurement protests filed are frivolous”, Sen. Ada commented. “Along with this perception comes the notion that by requiring a protest bond to be posted, many of the “frivolous” protests would be reconsidered and avoided.” The Public Auditor asserts that statistics do not support the notion of rampant frivolous protests being filed, and opposes the idea of requiring protest bonds because the requirement would tax all protests, not just “frivolous” ones.

To find a common ground, Bill No. 28-34 (COR) proposes to allow “protest bonds” only if the protest was being appealed to the Superior Court. In other words, a protest bond may be applied on judicial appeals, provided the court preliminarily determines that the judicial appeal appears to be frivolous.

Senator Ada further stated that the current law already gives the OPA “the power to assess costs incurred by the government… if the OPA finds that a protest was filed fraudulently or frivolously, or solely to disrupt the procurement process”. Debarment and suspension from consideration for award of contracts are further disincentives against frivolous protests that exist in the current procurement law.

Bill No. 28-34 (COR) proposes additional disincentives to procurement frivolity by entitling compensation to the protesting party, for reasonable costs incurred in filing a protest if it is determined by the OPA that action had been taken, by another party including the government, fraudulently, frivolously, or with the predominant intent to delay or disrupt the procurement process,” according to Sen. Tom Ada. “This provision serves as further disincentive for frivolity, on the part of a private competitor or the Government of Guam.”

Other sections of the Procurement law dealing with appeals and legal remedies have been amended to provide further clarification to the statutes and expeditious review by the court.

The Bill further addresses issues pertaining to the appointment of a Hearing Officer in the event of a Public Auditor recusal. To expedite replacement, the senior auditor in the Office of the Public Auditor will automatically be appointed as the Hearing Officer for the case.