Solutions sought for government procurement process and delays created by protests

The Government of Guam's often-criticized procurement system was up for discussion again this week.

A public hearing was held Thursday on several bills, including a measure by committee chair Sabina Perez meant to expedite bid protests specifically for critical high-value contracts.

It's a complicated issue public officials have been weighing for quite a while -- how to strike a balance between an agency's urgent procurement needs and a contractor's right to challenge awards they believe were improper.

"So although protests are an essential part of the procurement process bill 36-37 was created in response to concerns of the delay in the ability to accomplish capital improvement projects due to lengthy protests with the potential to add the challenge of looming expiration of federal funding," Perez said. 

Public Auditor BJ Cruz supports the bill, with certain changes.

"It should be clearly stated in the procurement solicitation that it is a critical procurement and that any protest relative to the procurement will be treated in a special expedited process," he said.

Attorney John Brown is a longtime procurement law specialist.

"Everybody's gonna want to do t this way, they're not gonna want to go through the procurement protest method because this basically escapes that agency-level review and that could get burdensome after a while," he said. 

Guam Power Authority legal counsel Graham Botha cites a recent example of a renewable energy contract that was delayed by a protest. They won but it took 16 months in court to resolve.

GPA attempted to reinstate the award, however, the successful bidder refused the original project pricing arguing that prices ad increased after the two years had elapsed since the initial award," he said.

They figure it cost ratepayers about $17 million in potential savings.

Attorney Anthony Camacho also has extensive background in government procurement. He says what really should be addressed is the automatic stay. 

"The real delay once again is the Superior Court of Guam, which might take anywhere from a year and a half to decide the case," he said. "It does serve a purpose but where's the balance. Well, I think the balance really is at what point does the automatic stay no longer become automatic? And I think that point should be after the OPA issues his decision."

At that point, the procurement could proceed, while a protest continues.