eProcurement does not by itself make things E-OK

A couple of items "courtesy" of Lexicology, these by the lawfirm Burns & Levinson LLP and its lawyers Anatoly M. Darov and Timothy J. Famulare, reporting on actions taken by the Massachusetts Attorney General’s Bid Unit.

[In one] protest involving electronic bidding, the town of Granby used Projectdog, Inc. as its agent for electronic distribution of bid documents for the town’s new library project. BidDocs protested the procurement because Projectdog denied access to the website containing the project plans and specifications by employees of BidDocs and certain other competitors of Projectdog. The Attorney General held that the procurement violated the requirement in G.L. c. 149, §44B(1) that complete plans and specifications be made available to “each person requesting the same.” In a public bidding context, Projectdog was not allowed to determine which persons requesting copies of the bidding documents were eligible to receive them.

It is essential that private third parties who are given an procurement authority or other essential government service duty be subject to the same principles and laws applicable to the government, otherwise the government evades the spirit of the laws intended to regulate those functions. Oftentimes, government is too willing to rid itself of the expense and responsibility to provide the often unfunded mandates given them, and are willing to dump duties at any price -- to the integrity of the law.

Unless closely and critically supervised, which should allow the public the right to protest the actions of the private provider, the outsourced entity can become a bigger menace to the integrity of the system than the overburdened government. The private operator here should never have determined who could bid, and should, in my mind, be barred from providing public service for an abysmal lack of judgment, favoring personal interests over the public interest. If we expect that kind of judgment from our public servants, we should expect superior judgment from those we entrust outside the usual government accountability system.

[in the other protest] Quinn Brothers of Essex, Inc. challenged the validity of the Wakefield Municipal Gas and Light Department’s use of BidDocs Online, Inc. (“BidDocs”) as its electronic bidding agent for a headquarters renovation project. Quinn maintained that it had submitted the lowest Miscellaneous Metals sub-bid, which the Department argued that BidDocs did not receive. Based on BidDocs’ computer log and the fact that Quinn did not receive an email confirming a successful submission, Quinn could not prove that it had submitted the bid electronically. However, Quinn argued that electronic bidding does not conform to statutory requirements that bids be “publicly opened” and read “by the awarding authority.” The Attorney General determined that nothing in G.L. c. 149 prohibits a public entity from delegating to a vendor the authority to open bids. It further determined that BidDocs’ process satisfies the purpose of a “public opening” because the bids are kept secret until they are made viewable to the public online immediately after the close of bidding.

I may not quibble with the result here if there is any evidence that the legislature intended to allow outsourcing of this essential aspect of government contracting. I don't think it should be implied from a mere lack of a negative statement. If the government finds it useful to outsource essentially governmental operations, like determining who does business with the government, it is my personal view that the legislature should determine that, not the executive. For what that's worth.