Editor's note: Local attorney and Guam procurement expert and teacher John Thomas Brown wrote a 10-page opinion titled "Guam laws on emergency procurement: To procure or to abjure" on his view of the ongoing procurement controversy involving the government of Guam and purchases of hotel quarantine services. Here are excerpts, with a different title.
Guam law offers up special procurement law in three different acts of legislation, each, to one extent or other, contemplates, within the scope of the respective laws, some hint, form or possibility of emergency procurement – as that term is colloquially used.
The three laws are:
• The Procurement Act: Procurement Law is the only law specifically designed to be an omnibus, comprehensive, remedial law dedicated principally – bad pun intended – to GovGuam purchases of supplies and services. The Procurement Act, originally passed as P.L. 16-124, effective October 1, 1983, is now codified in Title 5 GCA Chapter 5 (§§ 5001 et seq.)
• The Guam Civil Defense Act of 1951: Long prior to adoption of the Procurement Act, the Guam Civil Defense Act of 1951 was passed, as part of P.L. 1-88, 1952. It’s substance is presently little changed, and currently codified as 10 GCA Chapter 65, §§ 65100 et seq. The purposes of the Civil Defense Act were predicated on and informed by “existing possibility of the occurrence of disasters or emergencies resulting from enemy attack, sabotage, or other hostile action, as well as from the vicissitudes of nature.” (10 GCA § 65101.) The stated purposes were principally to provide for rendering mutual federal-state-territorial cooperation “with respect to carrying our the civil defense functions” of Guam “to the end that ... manpower, resources, and facilities ... for dealing with any disaster that may occur. Civil defense functions are broadly described: “all emergency functions ... related to civilian protection, together with all other activities necessary or incidental to the preparation for the carrying out of the foregoing functions.” (10 GCA § 65102.)
• The Emergency Health Powers Act: The Department of Public Health and Social Services (“DPHSS”) was also created by enactment in 1952 (now at 10 GCA Division 1, Chapter 11 ). Unlike the Civil Defense Act, it has gone through substantial changes over the years. Like the Civil Defense Act, it was instigated and informed by notorious events happening at the time of passage, as revealed in its legislative history: “A state of a public health emergency was declared in May of 2002 by I Maga ‘lahen Guåhan relating to a measles outbreak. This outbreak has catastrophic implications to the health and well being of the people.... In 1994, a similar outbreak manifested where 280 people were suspected, probable, or confirmed to have contracted measles.... As a result of the 911 incident, Guam, an instrumentality of the United States of America, is proned (sic) to terroristic (sic) attacks on mankind. In the wake of the tragic events of Sept. 11, 2001, our nation realizes that the government's foremost responsibility is to protect the health, safety, and well being of its citizens.” Expanded emergency powers were bestowed under the H&S law by the Emergency Health Powers Act (“EHPA” or “EHP law”), in January 2003 (P.L. 26-173, 10 GCA Chapter 19, §§ 19101 et seq). One element of the emergency health powers DPHSS was given, was expressed as a power to “procure, by condemnation or otherwise ... materials and facilities”.
Obvious intention to distort the meaning of law
....The governor's executive order
In Procurement Law, § 5004(b): This Chapter shall apply to every expenditure of public funds ... under any contract....”; and, Article 3: “Source Selection and Contract Formation”; and, § 5002: “Unless displaced ... the principles of law and equity, including the Uniform Commercial Code of Guam, the law merchant, and law relative to capacity to contract ... shall supplement the provisions of this Chapter.”
The governor's Executive Order 2020-03 purports to suspend, without limitation, all “statutes” plain and simple, not the “regulatory statutes” as clearly specified in the cited § 19403(a)(1). She purported to suspend, without limitation, all “statutes” plain and simple, not just those statutes “prescribing procedures for conducting local business” as clearly specified in the cited § 19403(a)(1). She purported to suspend, without limitation, all “statutes” plain and simple that, to any degree, prevent, hinder, or delay necessary action to prepare or respond; whereas, § 19403(a)(1) applies only to such regulatory statutes prescribing procedures for conducting local business to the extent that strict compliance with those particular statutes would prevent, hinder or delay. She expanded the parenthetical phrase “including emergency purchases” to include “hiring”, which, as (the attorney general's office) pointed out on April 15 to the governor’s legal counsel in her email, responding to his request for assistance to contract for services, that contracting for services, as distinguished from “purchases [of supplies]” comes in two forms, each with its own unique procurement process: one for services generally, the other for “professional” services.
The mischaracterization of § 19403(a)(1) in EO 2020-03 is a gross misstatement of the law. It is not an accident. It is an obvious intention to distort the meaning of the law, by selectively filtering out any reference to any qualification in the statute, thereby authorizing the creation of a fast track and the foregoing of procurement law and its competitive, accountable principles and processes. This deceit remains a continuing misrepresentation because, rather than make a new declaration of emergency and correct the problem, EO 2020-03 has twice been extended by subsequent executive orders, on the same terms and under the same alleged authority in EO 2020-3.
Despite the effort of EO 2020-03 to create an undefined “fast tract” and forego emergency procurement under procurement law, DPHSS regularly uses the procurement law facility of the chief procurement officer and the General Services Agency. Only last September, under EO 2019-21, the governor issued a Declaration of State of Emergency “in order to assist the Department of Public Health and Social Services in preventing an outbreak of Dengue Fever on Guam.” That public health emergency EO called on the authority of the Procurement Law: “5 G.C.A § 5215, authorizing emergency procurement of supplies and services ... [and] emergency procurement to contain and further prevent any outbreak of mosquito-borne diseases.”
Unlike EO 2020-03, precaution was taken in that EO to expressly instruct DPHSS “to keep appropriate documentation on all emergency expenses for inspection by the Executive and
Legislative branches and by the Public Auditor of Guam, [and] the Department of Public Health and Social Services via the Bureau of Budget and Management Research shall provide a written report of the emergency expenditures and its source to the Legislature and the Public Auditor within five (5) days of such transactions.”
Legal counsel seemed not to know how to go about it
Even in the context of the present pandemic, and despite the butchered citation to § 19403(a)(1) in EO 2020-03, emails to and from the governor’s legal counsel recently revealed that he was in repeated communication with the attorney general, two assistant attorneys general, and the CPO, well into April at least, to obtain their assistance with the process and documentation needed to acquire isolation and quarantine facilities, by way of either a sole source or emergency procurement under the procurement law. And, because he was already having his own troubles stitching up the facilities, in his email to the then chief of staff on March 26th, he expressed the view that “I do believe the governor's executive order allows for the fast-tracking of these. In fact, it may allow us to forego some things as well (I am not advising that).” (Parenthetical phrase in original; italics added.) I point this out because this reveals no fundamental objection to use of the procurement act methods, and, weeks later, he was still pushing to get the deals done because he seemed not to know how to go about it.
Perhaps, notwithstanding the slight of the phrases in § 19401(a)(1), no statutes were actually suspended, despite the clear implication that they would be or had been. Perhaps statutes related to other limitations imposed were suspended. If the Governor did in fact suspend any such statute in whole or to some extent, there has been no specific notice or statement given to that effect, or what other specific statutes, let alone what ad hoc process was authorized to procure the facilities.
The public should not be left in the dark on that critical matter. It is the duty of the governor to point to her specific authority to do what was done, by a legitimate, specific law. Telling us what she can do does not tell us what she did do, nor her authority to do what she actually did.
Observations and suggestions – though no one has asked
It is not my intent here to cast blame or ridicule, even though missteps should be acknowledged. It was and remains an overwhelming crisis. There appear to have been misjudgments, and feathers were ruffled. But, after the fact, it should be seen that Guam’s health has fared pretty well, considering our major industry and proximity to the early hotspots of the not well-understood novel coronavirus.
The governor, her executives, front line, and other civil servants have exhibited good intentions and selflessly served (in most cases) the community in the face of serious, even deadly, harm to themselves and their families.
Of course, certain roads are paved with good intentions. Still, out of this experience, we have lessons to learn.
Let’s start with a review of what the Emergency Heal Powers Act was meant to do in the first place, rather than focus on what some believe it allows us to avoid doing. “The purposes of this Chapter are: (a) to require the development of a comprehensive plan to provide for a coordinated, appropriate response in the event of a public health emergency.” (10 GCA § 19103(a).)
“The public health authority shall have primary jurisdiction, responsibility and authority for: (1) planning and executing public health emergency assessment, mitigation, preparedness response and recovery for Guam....” (19403(b).) Such planning may have contemplated in advance after public input, for instance, reasonable use and implementation of fines, jail time and the euphemistic “road closures”.
The EMH law as first enacted called for a Governor’s Public Health Emergency Planning Commission to actually come up with “a plan for responding to a public health emergency”, as detailed in § 19202(a), and to “distribute this plan to those who will be responsible for its implementation, health care providers, other interested persons, and the public, and seek their review and comments”, (§ 19202(b)). Critically, the commission is meant to “annually review its plan for responding to a public health emergency.” (§ 19202(c).)
Building a smokescreen
.... Given that the governor is a nurse – once a nurse, always a nurse – and, as a former Guam senator she supported and voted for the Public Health Powers Act when it was originally adopted, one might reasonably think that having a Guam Health Emergency Plan would have been a subject of some consideration during the post-election transition, if not before.
So, Lesson One: Let’s start work on a Guam Public Health Emergency Plan, and involve the community in it, while we have a nurse at the helm and recent lessons to learn from. We don’t need generals who plan for the last war....
But one thing that has been shown in the last month or so, is that the procurement law was not the problem in the pandemic response. The problem of the facility procurement was there was no one in the wheelhouse who knew how to make the acquisition work. That is obvious from the now-public emails. And, it was obvious from the ham-fisted attempts to build a smokescreen around § 19401(a)(1) that something was not quite right.