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Tuesday, August 31, 2010

Since when is failure to manage and budget an emergency?

The latest Guam schools drama involves its school buses, which are supposed to be provided, not by the Department of Education, but the Department of Public Works.

Pacific News Center has reported that 60% of DPW 211 buses are inoperable. Only 87 buses in operation. 36 are awaiting repairs. But, it seems, that has been the status quo for some time.

This has resulted in many student's being stuck in bus stops for up to two hours, a condition that clearly raises concerns over their health and safety.

But wasn't that a foreseeable event with less than half the fleet operable?

An emergency is defined in the Guam Procurement Law(§ 5030(x)) as
"a condition posing an imminent threat to public health, welfare, or safety which could not have been foreseen through the use of reasonable and prudent management procedures, and which cannot be addressed by other procurement methods of source selection."
If this bus situation merely reflects the level of service that has been available since last school year, how can it now, suddenly be "imminent".

And since the situation is obviously detrimental, and has been for some time, it is merely the result of a failure of reasonable and prudent management, which disqualifies the situation from being an emergency if it can be addressed by other procurement methods. And this is where it gets a bit tricky, and requires focused procurement, not wholesale budgetary rewriting.

The commentary from the legislature suggests that the full amount of several hundred thousands dollars is required to bring all the buses up to speed. But is that required to alleviate the immediate concern?

If all the money appeared in a magic pudding, would that solve the problem immediately. Assuming all the various required parts could be ordered today, could the government even get them onto the buses immediately, or would it take a fair bit of time to complete the repairs?

The emergency procurement method is not intended to be a budgetary salve or crutch. It is intended only to do such critical amount as will alleviate the immediate crisis.

The Governor's spokesperson indicated an emergency declaration should not be used to rectify long term problems, and in that he was spot on.
See interview with Shawn Guamtaotao at the 2:45 minute mark in this report:

The Guam emergency procurement law (5 GCA § 5215) says
"No emergency procurement or combination of emergency procurements may be made for an amount of goods or supplies greater than the amount of such goods and supplies which is necessary to meet an emergency for the thirty (30) day period immediately following the procurement."
Since emergency procurements preempt the preferred competitive bidding and other forms of bidding, only the minimum amount of goods and services as will alleviate the "imminent" condition should be acquired by emergency, while the goods and services that cannot or need not be applied to the imminent condition should be acquired by other methods.

I would argue that this provision should be construed and applied to be strictly limited, by the policy of planned procurement (5 GCA § 5010) and the express definition of "emergency" set out above in conditions when, in the exercise of reasonable and prudent management procedures, the condition should never have arisen in the first place. Remember, the Procurement Law is intended to be construed and applied to promote its underlying purposes and policies. (5 GCA § 5001(a).)

The government should not be given the easy out to run roughshod over normal procurement safeguards and principles when it fails its essential management functions, or when the legislature fails its essential budgetary functions.

When the emergency procurement law is carefully applied, the truly imminent threat is ameliorated and those who failed us should be made to stand out and account for the failure. Otherwise, those who failed us are bailed out, to fail us again another day. It is a moral hazard to use emergency procurement to fix foreseeable faults; it should only be used for that very, very, very rainy day.

Recall this item along with the thought that emergency procurement should be tailored and proportionate to the imminent threat, not to conditions that can otherwise be addressed in the fullness of an appropriate time:
Buffalo, NY ordered to repay FEMA for improper emergency procurement

FURTHER ON THIS TOPIC: Pacific News Center is now reporting NO EMERGENCY

Governor Will Not Declare Emergency Over School Bus Crisis; Solution Lies With Legislature
Governor's Spokesman Shawn Gumataotao says an Emergency Declaration is not the solution to the school bus crisis.

When asked by PNC News how the Governor would respond to Senator Tom Ada's request for an Emergency Declaration over the issue which has seen up to 2 hours delays, Gumataotao responded, "We are currently working through the situation as it is. Will an emergency bring about the change they are looking for? It does not," he said.
COMMENT: Bravo, Governor.

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