Then say what you mean

March Hare: `Why is a raven like a writing-desk?'
Alice: 'I believe I can guess that.'

`Do you mean that you think you can find out the answer to it?' said the March Hare.
`Exactly so,' said Alice.
`Then you should say what you mean,' the March Hare went on.
`I do,' Alice hastily replied; `at least--at least I mean what I say--that's the same thing, you know.'
`Not the same thing a bit!' said the Hatter. `You might just as well say that "I see what I eat" is the same thing as "I eat what I see"!'
`You might just as well say,' added the March Hare, `that "I like what I get" is the same thing as "I get what I like"!'
`You might just as well say,' added the Dormouse, who seemed to be talking in his sleep, `that "I breathe when I sleep" is the same thing as "I sleep when I breathe"!'
`It IS the same thing with you,' said the Hatter, and here the conversation dropped, and the party sat silent for a minute, while Alice thought over all she could remember about ravens and writing-desks, which wasn't much.

-- Lewis Carroll, Alice in Wonderland
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Suppose you have legislation that says, "In the event of A, B, or C, do this ...."

Subsequent legislation is then passed amending the first bit which says, "Notwithstanding any other law, in the event of C plus X, do this other thing...."

Suppose then that you have an 'A' event. Do you use the original legislation or do you use the subsequent one?

Would it make any difference to your decision if you knew in your heart of hearts that the Legislature really meant the subsequent legislation to also apply to 'A' when there was an A plus X event?

That is the question put to the Office of Public Accountability in a recent case. And the Public Auditor ruled, in the event of A plus X, use the subsequent legislation anyway.

This case was very Carroll-esque from the gitgo, from the time the subsequent legislation, Public Law 31-12, was conceived and sprang into being.

PL 31-12 (now codified as 5 GCA § 5425A) was the result of several belated attempts and bills to get a "take the money and run" expedited procurement procedure to exploit the ARRA funds available to Guam. Its final form was dramatically altered from its introduced form, as a review of the legislative file for PL 31-12 (see link above) reveals.

After running through the legislative concrete mixer, the ARRA law (§ 5425A) says the following:

"Notwithstanding any other provision of this Chapter and any rules promulgated therefore, if an actual or non-selected vendor, contractor, or service provider is aggrieved by an award or a contract funded, in whole or in part, by the funds allotted to the Guam Department of Education from the 2009 American Recovery and Reinvestment Act (ARRA), the procedure for protest outlined in this Section shall apply...."

Now compare that to the original, general "other provision of this Chapter" (§5425):

"Any actual or prospective bidder, offeror, or contractor who may be aggrieved in connection with the method of source selection, solicitation or award of a contract, may protest...."

As you see, the general provision applies to bidders and offerors as well as contractors, in respect of the source selection, solicitation or award of contract. The ARRA provision does not apply to bidders or offerors nor in respect of source selection or solicitation; it applies to contractors and awards and contracts.

Applying the effect of these different provisions, the general provision extends from pre-opening and pre-award issues all the way through the award of the contract to the contractor. The ARRA provision, however, by excluding its application to bidders and offerors or to protests over source selection and solicitation, does not apply to the full extent as does the general protest law; it does not apply to pre-opening and pre-award issues or bidders or offerors.

So, back to the simplified formula above (where A = source selection, B = solicitation and C = award of contract), the general law applies to A, B and C, and the ARRA law only applies to C but only when ARRA funds are used; it does not apply to A or B at all.

In the OPA case, OPA-PA-11-008, the Carroll-esque nature of this story continues.

Using the simple formula I started with, the issue could be framed like this: The general law would say, "in the event of A, B, or C, then do things this way" and the ARRA law would say, "notwithstanding the general law, in the event of C when the contract involves ARRA funds, then do things this way".

In the application of the real law, this formula is applied to the effect that, if you have a complaint with the (A) source selection, (B) solicitation or (C) contract award, protest to the head of the purchasing agency (or Chief Procurement Officer or Director Public Works if applicable) under the general law, but if you have a complaint with the (C) contract award, when ARRA monies are used to pay for that contract, protest to the Public Auditor.

The protester in the OPA case had a pre-opening, pre-award complaint about the solicitation, particularly the bid specification for bonding. Recognizing that the pre-opening condition was not expressly included in the ARRA law, but cautious about the reach of the law, the protester protested to the CPO and the Public Auditor, but not to the head of the purchasing agency, and asked the CPO and Public Auditor to sort things out.

The Public Auditor looked at the matter and essentially said, I know what the law says, but the Legislature intended to grant original protest jurisdiction to our office to allow quick access to the ARRA funding, so we're claiming jurisdiction over the protest, a jurisdiction the office does not have under the general procurement law. The purchasing agency said, that's OK with us, and the protester was just glad to have someone, anyone, deal with it.

The Public Auditor's Decision says point blank,

"[p]ersons aggrieved in connection with DOE contract awards or solicitations involving ARRA funds, in whole or in part, shall submit their protest to the Public Auditor. 5 G.C.A. § 5425A(a))."

Now, go back one last time to look at the actual wording in the general protest provision (§ 5425) and compare it with the ARRA protest provision (§ 5425A). Do you see the word "solicitation" in the general protest provision? Do you see that word anywhere in the ARRA protest provision?

The Public Auditor's analysis and conclusion on the bonding issue was spot on, but should it have any right of jurisdiction to make a decision over the protest?

Only the legislature can grant jurisdiction, and if it has not done so it cannot be granted by agreement nor proclamation. The Legislature, whatever its intent, did not grant jurisdiction over protests related to pre-opening and pre-award solicitation controversies to the Public Auditor. Even the March Hare could have seen that.