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Thursday, September 2, 2010

Serial emergency?

The Guam Department of Education started this school year with inadequately prepared buses and contracts for janitors and copiers.

It appears that contracts have been let on a monthly basis, with serial or sporadic declarations of emergency, pending the preparation and issuance of formal solicitations. The contracts have, however, all been renewed from prior contracts. It has been a rolling emergency.

GovGuam pays firms over $224K every month to clean schools
THE Guam Department of Education issued on Wednesday a stop work order on four private firms providing cleaning services to public schools but voided it later in the day after Governor Felix Camacho signed a certificate of emergency to rehire their services this month.

“We had to issue the notice because they can’t provide services until they have a purchase order for this month and we can’t issue a purchase order because the governor has not signed the certificate of emergency,” [DOE Superintendent Nerissa] Underwood explained.

She added that to continue their services would be in violation of Guam’s procurement law unless the governor signed the certificate of emergency.

The certificate allows GDOE to continue using the custodial services on a month-to-month arrangement until a contract is signed for their services.

She said that has been the arrangement for sometime now.

[The Governor's Legal Counsel, Ray] Haddock said although the governor had not issued an emergency certificate since April 30 for custodial services and the purchase of electronic copiers, and a letter was sent to GDOE, Lt. Gov. Mike Cruz, in his acting capacity as governor, did issue emergency certificates to GDOE for custodial and copier services after the letter was sent.

In the letter, the governor questioned why GDOE gave no explanation as to why they needed a declaration of emergency and were not going through the standard procurement process.

“Since March I’ve been telling them, if they want to do these emergency procurements, they have to complete the regular procurement,” said Haddock.

The governor wrote: “I do understand that circumstances beyond the control of DOE would necessitate the use of emergency procurement in some circumstances, but there is no explanation in your documentation why standard procurements could not be conducted for both copiers and custodial services.”

The governor further stated that “although I have no choice but to approve these declarations to keep DOE up and running while school is in session, I will not be able to approve additional certificates of emergency unless DOE, at the very least, begins to comply with the standard procurement process and releases non-emergency bids or RFPs for these procurements.”
Guam procurement law restricts emergency procurement to only a thirty day supply of goods and services, presumably adequate to both meet an emergency and commence any necessary usual procurement process.

These "emergencies" however were foreseeable, for the most part, and arose from failure to timely prepare for prior contract expiration.

Guam procurement law defines an emergency as meaning "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." (5 GCA § 5030(x).)

It is hard to see how a series of rolling declarations is at all an "imminent" condition. It may have been imminent the first time, but the second? The third? The fifth?

It is harder to justify how failure to prepare for a proper solicitation in the face of a known contract expiry would in any sense be "the use of reasonable and prudent management procedures".

I wonder what's in their cereal? Certainly not Wheaties.

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