Massachusetts Town Procurement Officer turfs it out with Public Schools

CAVEAT: Be sure to read the FOLLOW UP added below 10 Feb. 2012 (Guam time).

Cast of characters:
Town Manager, Francis T. Crimmins, Jr
Acting Chief Procurement Officer, Lindsay Pope
Superintendent of Schools Dr. Marguerite Rizzi

Procurement Divides Town and School Department

Town Manager, Francis T. Crimmins, Jr, who serves as chief procurement officer for the town, has sought to tighten procurement policies and centralize purchasing for all departments in town, the schools included.

As stated in a memo Crimmins sent to all department heads, boards and committees on December 7, 2011:

Section C4-2(H) of the Town Charter states that the powers of the Town Manager are “To purchase all supplies for every department of the Town, except books for the schools or the public library. He may delegate the responsibility to purchase supplies to an authorized representative and may revoke such delegation at his will.”

According to a memo issued by Acting Chief Procurement Officer Lindsay Pope:

Awards for bids, proposal openings, and request for quotes must only be given by the Chief Procurement Officer (CPO) designated through the Inspector General’s Office by the Town in order for that procurement to be valid. If a procurement is not valid that procurement cannot be paid for or acquired in any way using public funds.

The schools have not complied with these efforts, town officials say, and therefore are in violation of state law. Pope points to multiple violations, the most recent being a bid opening for a $400,000 to $600,000 roof at the Jones School.

But the schools say this simply isn’t the case.

“The School Committee has particular rights,” Superintendent of Schools Dr. Marguerite Rizzi told reporters during a recess at Tuesday’s Board of Selectmen meeting.

“The Town Manager wants to take over the entire process…it’s unnecessary, unfortunate, [and] in the end he’s not going to prevail.”

The School Department has had procurement powers since 1990, Dr. Rizzi said.

“The charter does say [the Town Manager] can revoke procurement,” Dr. Rizzi said. “There was no need to do that. He didn’t need to get the Procurement Officer involved, but he did.”

Crimmins, in separate documents dated December 6, 2011—the day prior to issuing the aforementioned memo—delegated procurement powers to Pope and to town accountant William Rowe. On December 6, Crimmins also revoked the procurement powers of the Superintendent of Schools and the Deputy Fire Chief. The following day, Crimmins delegated limited procurement powers to Dr. Rizzi.

Pope wrote: “This is a problem that has now elevated to knowingly breaking the law and must be solved immediately.”

“The Superintendent of Schools is under the impression the laws don’t apply to her,” Crimmins said. “Don’t blame Lindsay Pope, she’s trying to make it right.”

Dr. Rizzi took exception to these claims: “I somewhat take umbrage at the implication that anyone in the School Department does not respect the trust that has been given to us. There are no improprieties.”

Since beginning this blog and taking note of stories like the above, I have been amazed that Guam can get its procurement law so much more right than many on the Mainland. Sure, it is followed more in the breach than the execution, but that is changing.

Under Guam's centralized procurement regime (5 GCA §§ 5120, 5125), modeled after the ABA Model Procurement Code, the Department of Education and other agencies must rely on the Chief Procurement Officer to conduct procurement of supplies and services, and on the Director of the Department of Public Works to procure construction.

The CPO has authority, as apparently does the Town Manager here, to delegate and revoke or condition and limit procurement authority.

Unfortunately, the actual autonomy and authority of Guam's agencies, like the School Department in the story, has been shrouded in lore and practice, in violation of the law. That, again, is changing, particularly since the successful seminar sponsored by the Guam Chamber of Commerce, Judiciary and Bar Association last fall. See the program outline here.

It has also been painful for the agencies who have been forced to give up some of their unearned turf, and more painful for some who have ignored the procurement law to their peril. Guam has a "ENFORCEMENT OF PROPER GOVERNMENT SPENDING" Act, which allows a resident taxpayer to enjoin or seek personal damages against any official, including the Governor, "from expending money without proper appropriation, without proper authority, illegally, or contrary to law" (5 GCA § 7103).

There are cases pending.


FOLLOW UP: In any government contracting controversy, the first point of call should be, does the controversial agency have the legal authority to engage in the particular type of acquisition in question? For instance, a critical exam of Guam's procurement authorities reveals a crazy-quilt of authorities, with some agencies having no direct authority to procure anything, some able to procure supplies but not services, and others supplies and services but not construction.

The case described in the story above seemed to suggest that the school board had no authority to procure the construction work in question there; that the Town procurement officer had that authority. There are new stories emerging that suggest that may not actually be the case; that the school no longer has that authority, but at the time it was exercised it did. Either way, the purpose of this blog is to treat reported stories more as hypothetical case studies than actual factual situations, and for a student of procurement, case studies, factual or fanciful, are ideal way to issue spot and analyze.

Stoughton school board chairwoman wants apology over bidding battle

The drama between school and town officials continued this week when the school board chairwoman said she wants a public apology after town officials acknowledged the School Department was within its rights to award a bid for the Jones School roof project.

The project was filed before the town adopted a design selection policy in March 2011, so is grand-fathered.

Read more: http://www.enterprisenews.com/topstories/x50589969/Stoughton-school-board-chairwoman-wants-apology-over-bidding-battle#ixzz1lu7iD5k1

For those needing more factual details of the school roof controversy, see SNYDER’S STOUGHTON: Schools look for apology