Procurement Law Primer v1-7

8/14/2019 Procurement Law Primer v1-7

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Procurement Lore or Procurement Law?

AGUAM PROCUREMENT PROCESS PRIMER(Ver 1.7)

(Both more and less than you will ever want to know)

John Thos. Brown

Attorney at Law


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The author, John Thos. Brown is an attorney, licensed on Guam, serving as General Counsel for Jones &1

Guerrero Co., Inc., its affiliates and subsidiaries. The opinions expressed are his own and do not constitute legal advice.This paper began as a short outline, prepared for delivery of an introductory procurement seminar to the Guam Chamberof Commerce Small Business Committee in March 2009. It then took on a half-life of its own. This is Ver 1.7, August 11,2009. The author expects it to be revised periodically as new cases and issues arise. You may contact him to obtain thelatest version [email protected] .

Guam Procurement Process Primer Ver 1.7 John Thos. Brown 2009 Page i


AGUAM PROCUREMENT PROCESS PRIMER(Ver 1.7) 1

(Both more and less than you will ever want to know)

CONTENTS

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I. SOURCES of Guam Procurement Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. The Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

B. The Regulations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

C. Decisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

D. Other jurisdictions, experts, authors, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 4

E. Lore.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

II. PURPOSES AND POLICIES of Guam Procurement Law.. . . . . . . . . . . . . . . . . . . . . . . . . . 6

D. to provide for increased public confidence. . . . . . . . . . . . . . . . . . . . . . . . 6

E. to ensure the fair and equitable treatment. . . . . . . . . . . . . . . . . . . . . . . . 6

4. Making and keeping determinations.. . . . . . . . . . . . . . . . . . . . . . 6

F. to provide increased economy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

G. to foster effective broad-based competition. . . . . . . . . . . . . . . . . . . . . . . 8

H. to provide safeguards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

I. to require public access. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

J. Policy in favor of planned procurement. . . . . . . . . . . . . . . . . . . . . . . . . . 11
mailto:[email protected]:[email protected]


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K. Policy in favor of local procurement. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

M. The Procurement Act applies to almost all GovGuam purchases. . . . . . . 14

N. A word from your author. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

3. The Guam legislature chose to forego procurement training andeducation when it adopted the Guam version of the Model

Procurement Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

III. PROCUREMENT ADMINISTRATIVE STRUCTURE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

A. Centralized Procurement Policy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

B. Policy Office. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

C. GSA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

D. DPW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

E. Public Auditor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21F. Attorney General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

IV. METHODS OF SOURCE SELECTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

E. Contract renewals, extensions and amendments vs change orders.. . . . . 23

V. BID BONDING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

VI. COMPETITIVE SEALED BIDDING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

B. The form is always by Invitation for Bids (IFB).. . . . . . . . . . . . . . . . . . . . . 27C. Distribution, notice and bidding time. . . . . . . . . . . . . . . . . . . . . . . . . . 28

D. Withdrawal, cancellation and rejection ofall bids. . . . . . . . . . . . . . . . . . 28

E. Bid mistakes.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

award goes to the lowest responsible and responsive bidder. . . . . . . . . . . . . . . . . . . . . . 30

G. What is a Responsive Bid?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

H. Materiality only concerns Responsiveness. . . . . . . . . . . . . . . . . . . . . 32

a. Matters of bidder prejudice. . . . . . . . . . . . . . . . . . . . . . . 32

I. What is a Responsible bidder?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

d. Standards of Responsibility. . . . . . . . . . . . . . . . . . . . . . . 35h. Inquiry into determination of responsibility. . . . . . . . . . . 38

i. The interesting requirement for a writing .. . . . . . . . . . . . 39

(4) Qualified Bidder lists.. . . . . . . . . . . . . . . . . . . . 41

J. A Note on All or None bids: Why not take part of me?. . . . . . . . . . . . . 42


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K. Wage Determination issues.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

VII. MULTI-STEP SEALED BIDDING.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

D. The first phase. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

5. Phase two. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

VIII. REQUESTS FOR PROPOSALS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

only allowed for professional services. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

IX. UNSOLICITED OFFERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

shall be subjected to the Competitive Sealed Bidding . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

X. SOLE SOURCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

XI. SMALL PURCHASE PROCEDURES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

H. REQUEST FOR QUOTATION (RFQ). . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

I. BLANKET PURCHASE AGREEMENTS (BPAs). . . . . . . . . . . . . . . . . . . . . . 54

XII. EMERGENCY PROCUREMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

A. Requires an existingthreat to public health, welfare, or safety under

emergency conditions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

C. Emergency procurements shall be made with such competition as is

practicable under the circumstances... . . . . . . . . . . . . . . . . . . . . . . . . . . 55F. LIMITED TO 30 DAY SUPPLY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

XIII. FEDERAL SUPPLY SCHEDULE PURCHASES MUST ADHERE TO SPECIFIED METHODS OF

SOURCE SELECTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

XIV. SPECIFICATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

A. SPECIFICATIONS ARE THE BEDROCK OF PROCUREMENT. . . . . . . . . . 58

C. MINIMUM NEEDS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

D. UNDULY RESTRICTIVE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59F. NON-PROPRIETARY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

I. BRAND NAMES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

J. BRAND NAME OR EQUAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

K. The Who and How of specification preparation and use.. . . . . . . . . . . . 60


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6. Procedures for Development of Specifications. . . . . . . . . . . . . . . 62

XV. VARIOUS CONTRACT TYPES, AND THEIR REQUIREMENTS FOR USE.. . . . . . . . . . . . 63

G. Policy Regarding Selection of Contract Types. . . . . . . . . . . . . . . . . . . . . . 64

H. Multi-term contracts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64I. Fixed-Price .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

J. Indefinite Quantity.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

K. Requirements contracts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

L. Leases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

M. Options to purchase, renew, extend. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

N. Multiple Source Contracts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

1. An Incremental Awardis a variety ofDefinite Quantity. . . . . . . . 67

2. A Multiple Awardis a variety ofIndefinite Quantity. . . . . . . . . . 68

XVI. PROCUREMENT PROTESTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

B. ONLY AGGRIEVED BIDDERS CAN PROTEST. . . . . . . . . . . . . . . . . . . 68

D. TIMING FOR PROTEST FILING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

1. General Rule: 14 days from knowledge of aggrievement... . . . . . 69

4. POSSIBLE EXCEPTION FOR PRE-BID-OPENING ISSUES:.. . . . . . 70

F. Request for Reasons for Rejection of Bid. . . . . . . . . . . . . . . . . . . . . . . . . 71

G. FORMAT OF PROTEST.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

H. RESOLUTION OF THE BID PROTEST. . . . . . . . . . . . . . . . . . . . . . . . . . . 75

I. Requests for Reconsideration of Protest Decision. . . . . . . . . . . . . . . . . . 76

XVII. THE AUTOMATIC STAY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

XVIII. APPEALSOF BID PROTESTS TO THE PUBLIC AUDITOR.. . . . . . . . . . . . . . . . . . . . . . . 78

A. Prerequisites of Appeal are Protest andDecision. . . . . . . . . . . . . . . . . . . 78

B. 15 Day Filing Deadline. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

1. Equitable Tolling.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

C. Jurisdiction of the Public Auditor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

5. OPA jurisdiction does NOT include direct review of Ethicalviolations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

D. OUTLINE OF AN APPEAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

c. CAVEAT: This outline is bare bones.. . . . . . . . . . . . . . . . 85

2. First step, the Notice of Appeal.. . . . . . . . . . . . . . . . . . . . . . . . . . 85


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3. Second Step, the Procurement Record. . . . . . . . . . . . . . . . . . . . . 87

a. Within five (5) days from filing the Notice of Appeal. . . . 87

4. Objections to OPA jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . 88

5. Third Step, the Agency Report. . . . . . . . . . . . . . . . . . . . . . . . . . . 89

b. The Agency Report is meant to be filed ten (10) days afterreceiving the Notice of Appeal. . . . . . . . . . . . . . . . . . . . . 89

6. Fourth Step, the Appellants Comments on Agency Report. . . . . 89

c. Comments on the Agency Report must be filed within ten

(10) days of the filing of the Agency Report. . . . . . . . . . . 90

7. Fifth Step, the agencys Rebuttal to Appellants Comments on

Agency Report... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

b. Rebuttals are meant to be filed within five (5) days of filing

the Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

9. Discovery. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9010. Role of the Hearing Officer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

11. The Hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

12. The Decision.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

E. Dateline flow of simple, ideal appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . 94

1. Filing of Notice of Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94

3. Agency must file Procurement Record. . . . . . . . . . . . . . . . . . . . . 94

4. Any party must file objections to qualification (recusal) of Public

Auditor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94

5. Agency must file Agency Report. . . . . . . . . . . . . . . . . . . . . . . . . . 956. Appellants orany Interested Partys Comments. . . . . . . . . . . . . . 95

8. Notice of Hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

9. Decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

F. Appeal Remedies:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

2. Money.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

3. Other remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

a. Prior to award. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

b. Remediesafter award.. . . . . . . . . . . . . . . . . . . . . . . . . . . 97

XIX. Some issues relating to contract performance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

B. Performance Bonding.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

C. Contract disputes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100

1. Procurement Act or Claims Act?. . . . . . . . . . . . . . . . . . . . . . . . . 101


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2. Who hears contract disputes?. . . . . . . . . . . . . . . . . . . . . . . . . . . 101

XX. Getting paid. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103

A. Prompt Payment Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103

1. Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032. Discounted settlements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

B. Non Prompt Payment Act Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

C. Promissory notes.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

XXI. Public enforcement of unauthorized procurement spending. . . . . . . . . . . . . . . . . . . . 105

A. Guam taxpayers have standing to bring suit against improper spending.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

XXII. The Courts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106

XXIII. A review (with commentary and full disclaimer) of some of the OPA Decisions. . . . . 107

1. OPA-PA-06-001, In the Appeal of the Debarment of Rex. . . . . . 107

2. OPA-PA-06-002, In the Appeal of Far East Equipment. . . . . . . . 108

3. OPA-PA-06-003, In the Appeal of RadioCom. . . . . . . . . . . . . . . 108

4. OPA-PA-07-002, In the Appeal of Emission Technologies. . . . . 109

5. OPA-PA-07-006, In the Appeal of Great West Retirement Services

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110

6. OPA-PA-07-007, In the Appeal of Dick Pacific. . . . . . . . . . . . . . 1108. OPA-PA-07-009, In the Appeal of Pacific Security Alarm. . . . . . 112

9. OPA-PA-07-010, In the Appeal of Far East Equipment . . . . . . . . 113

10. OPA-PA-07-011, In the Appeal of JMI Medical . . . . . . . . . . . . . 114

11. OPA-PA-08-008, In the Appeal of Latte Treatment Center. . . . . 115

12. OPA-PA-08-009, In the Appeal of Captain, Hutapea. . . . . . . . . 119

INDEX OF PERTINENT DECISIONS, APPEALS and AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . 121


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AGUAM PROCUREMENT PROCESS PRIMER(Both more and less than you will ever want to know)

INTRODUCTION:

According to the Spanish historian Carlos Madrid, in his book Beyond Distances (Saipan, NorthernMariana Islands Council for Humanities, 2006), there was an uncommon distress in the MarianasIslands in 1876, brought about by a combination of factors, chiefly Spains forcible introductioninto the Islands of hundreds of political and other criminal deportees from Spain, but also typhoonand drought. The situation on Saipan had become particularly dire. As he tells the story (pp. 173-175),

Chamorros and Carolinians together with the deportees were facing a famine

without precedent that could bring the island to catastrophe. Martn [the SaipanSpanish authority] wrote Governor Brabo [the Guam-based Governor of the Marianas]

with an urgent request for provisions, since in a few days they would literally have nothing

to eat. In Guam this request would have been received with great concern as resources in

Agaa were also extremely limited. But the situation in Saipan was nevertheless so

pressing that Governor Brabo authorized, on his account, the purchase of all the

necessary rice, which was to be sent in the launch San Josas soon as possible.

The obligatory legal procedures, which mandated that government requisitions

had to be contracted through free and open auction, still had to be fulfilled. The

gobernadorcillo of Agaa, following the custom, ordered the prominent display of the

notice announcing the public auction in the busiest areas of the capital. At the same time

thepregonero, or town crier, spread the news in the streets for three consecutive days. In

order to save time, knowing that in the whole of the Marianas only George Johnston

could provide the necessary quantities of meat from his leasehold in Tinian, the request

for the purchases of barrels of cured pork was directly made to his representative Vicente

Calvo. The barrels were to be sent to Saipan in the amount of a pound daily per

deportee.

The conditions of the auction ofpalay or unthreshed rice were basically to be

able to provide dry rice, free of dust and preferably from the last harvest. The minium

quantity for each bid being ten cavanes, it had to be delivered to the Tribunal in Agaawithin forty-eight hours. In return, it was guaranteed that the payment would take place

on the day after delivery, which was an incentive to all who knew that the colonial

administration was a late and often bad customer.

The auction was held in the government offices on the ground floor of the


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Palace, at ten oclock in the morning of Monday, July 26, 1876. To speed up the

process, bids were submitted not in writing but vocally. All the bidders must have agreed

on a price among themselves before the auction, as everyone offered the same bid of two

pesos per cavan.

The names of the contractors and the amounts they agreed to supply were:

Don Gregorio Prez 210 Cavanes

Don Juan Blas 60 cavanes

Don Andrs de Castro 70 cavanes

Marcelino Sy Pingco 10 cavanes

Demetrio Quitugua 50 cavanes

The mention of these individuals is very significant since they undoubtedly

represented a social class of means, as they had capacity enough to produce on their lands

or accumulate sufficient rice to be able to provide in only two days quite large amounts.

To be able to provide such quantities implied possession of tracts of land much larger[than] the needs of a regular family required. Alternatively, the bidders had resources

enough to buypalay from other people. Gregorio Prez contracted for more than half of

the auction quantity, although the documents related to this episode do not reflect if he

was the largest producer or whether he received a favorable treatment on the part of the

colonial authorities.

What was the social background of these people? How theprincipala of the

villages and the capital had the right to use the title Don was earlier discussed, but in

actual fact many individuals not belong[ing] to theprincipala were also referred to as

Don or Doa probably because [of] their social or economic ascendancy. In thiscase, the fact that three of the five successful bidders were termed Don does not

establish that Marcelino Sy-Pingco, a Christian Chinese, and Demetrio Quitugua, a

Chamorro like the rest, were members of theprincipala, but that among the major

producers of rice in Guam were Chamorros of different social backgrounds, as well as

some non-Chamorros such as Sy-Pingco.

Emergency, competitive and sole source procurement, specifications, delivery terms, public notice,collusion, responsive and responsible bidders, law (obligatory legal procedures) and lore(according to custom): all have long been part of Guam daily life and procurement history.


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I. SOURCES of Guam Procurement Law

A. The Law (Guam Procurement Act: 5 GCA Div. 1, Chpt 5, 5001 et seq.http://www.justice.gov.gu/CompilerofLaws/GCA/05gca/5gc005.PDF) . Codes arecited as [Title number] G.C.A. [Section number], e.g., 5 GCA 5210.

1. Originally enacted in 1982, becoming effective in October 1983, and majoroverhaul in 1985, adding more MPC, and other tinkering since.

2. Based on Model Procurement Act, but not updated

a. This Chapter is essentially the Model Procurement Code approvedby the American Bar Association in 1979. A model code is onewhich provides a guide for the jurisdictions which wish to adopt it,but does not require that it be followed precisely. It is different froma uniform code, the latter being intended to unify the laws of thejurisdictions which adopt it. The ABA and the drafters of the

Model Procurement Code recognize the wide organizationaldifferences between the states and jurisdictions under the U.S.Therefore, there are many portions of this Model Code which areoptional, or which may be modified. This Act has modified themodel code to suit Guams organizational structure and function.Because this Act intends that the Policy Office adopt implementingregulations, Model Regulations are also available, and must beexamined and changed to coincide with the version of this Actactually adopted by the Legislature. The Official Comments to theModel Procurement Code are a part of the Legislative History of thisChapter and, also, may be obtained from the American BarAssociation. (Official Comment 5 GCA 5030.)

B. The Regulations Guam Administrative Regulations (2 GAR Div 4, 1101 etseq.). http://www.justice.gov.gu/CompilerofLaws/GAR/02gar.html (Scroll down toDivision 4, Procurement Regulations, and open each Chapter). Regulations arecited as [Title] G.A.R. [Section number], e.g., 2 GAR 3116.

1. Based on ABA Model Procurement Regulations.

2. Note some individual agencies have own regulations.

C. Decisions

1. Courts http://www.guamsupremecourt.com/

a. A decision cited in the form [year] Guam [number] is a GuamSupreme Court decision, e.g., 2004 Guam 15. It overrides all otherlocal decisions.
http://www.justice.gov.gu/CompilerofLaws/GCA/05gca/5gc005.PDF)http://www.justice.gov.gu/CompilerofLaws/GAR/02gar.htmlhttp://www.guamsupremecourt.com/http://www.guamsupremecourt.com/http://www.justice.gov.gu/CompilerofLaws/GAR/02gar.htmlhttp://www.justice.gov.gu/CompilerofLaws/GCA/05gca/5gc005.PDF)


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2. Public Auditor http://www.guamopa.org/

a. A decision cited in the form OPA-PA-xx-xxx is a Decision of theGuam Public Auditor, where xx is the last 2 digits of the calendaryear the action is filed, and xxx is the chronological order ofactions filed in that year.

b. Click on Procurement Appeals at the OPA website to review allappeals ever brought to the Public Auditor, and clicking onDocuments Filed within an appeal reveals a wealth of interestingargument and examples to form your own appeal.

c. Also note Audit Reports, e.g., General Services Agency, CompetitiveSealed Bidding, Sole Source, and Emergency ProcurementFunctions, Performance Audit, OPA Report No. 04-14, December2004, http://www.guamopa.org/docs/OPA0414.pdf

D. Other jurisdictions, experts, authors, etc.

1. Other Model Code States, e.g., Maryland, Hawaiihttp://www.aia.org/SiteObjects/files/abamodelcode.pdf

a. Maryland State Board of Contract Appeals:http://www.msbca.state.md.us/

2. Note difference between detail and General Principles, with guidance frome.g., Federal Acquisition Regulations (FARs),http://www.arnet.gov/far/90-36/pdf/toc.html

3. There isnt a huge resource of expert procurement literature. The GeorgeWashington University Law School in Washington, D.C., conducts aGovernment Contracts Program, and its resident instructors and authors, inparticular Ralph C. Nash, Jr., and John Cibinic, Jr., have authored a coupleof the authoritatively cited texts, but the primary focus of their programs andworks are Federal Procurement Acquisition, not the MPC; nevertheless,many of theprinciples are the same.

E. Lore: As Carlos Madrid described the incident above, the procurement of

supplies to meet the dire needs of the Marianas in 1876 had obligatory legalformalities to follow, but proceeded according to custom. Unfortunately, muchof what passes for regular procurement practice is the custom, habit and lorehanded down from lawyer to lawyer, contractor to contractor, procurement officerto procurement officer. Even those well placed and motivated to know better oftenact on instinct, common sense or analogy to make decisions about howprocurement should be conducted, regardless of what the law actually requires.
http://www.guamopa.org/http://www.guamopa.org/docs/OPA0414.pdfhttp://www.aia.org/SiteObjects/files/abamodelcode.pdfhttp://www.msbca.state.md.us/http://www.arnet.gov/far/90-36/pdf/toc.htmlhttp://www.arnet.gov/far/90-36/pdf/toc.htmlhttp://www.msbca.state.md.us/http://www.aia.org/SiteObjects/files/abamodelcode.pdfhttp://www.guamopa.org/docs/OPA0414.pdfhttp://www.guamopa.org/


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The best and worst of explanation often offered in defense of questionedprocurement practice is, but thats how we do it. It is the best explanationbecause, at least someone is paying some attention and to some extent there issome consistency, if nothing else. It is the worst because, when everyone falls offthe same page, is blind to what the law requires, and starts making things up as theygo or have gone, procurement becomes arbitrary, inconsistent and obtuse, if notslipshod and detrimental to government and private contractors alike.

The Guam Procurement Act has, with some exception, pretty much been intact nowfor well over twenty years. Still, the law is only now really being discovered and,sadly, some very fundamental aspects are only now being acknowledged. Forinstance, for years GovGuam GSA has directly purchased directly from the FederalSupply Schedules in disregard of any local procurement laws or regulation, but withfull support of a series of legal opinions from the Attorneys General past andpresent. This has seen an expenditure of hugely significant sums of public fundswithout the usual accountability and competition required by law.

Another example: everyone knows the lowest responsive and responsible bidder ismeant to win a bid award, yet we have only recently had a Decision of the PublicAuditor, acknowledged as a case of first impression, that pointed out responsive isnot responsible and determinations of responsibility cannot be transformed intoissues of non-responsiveness merely by the mandate of an Invitation for Bids.Guam procurement lore had long taught us, and wrongly, just the opposite.

The author makes no claim to great authority of the subject. He acknowledgeswillingly that procurement law has been seen to be impenetrably obtuse,stultifyingly boring, and an aggravation to government and private business alike.He was also himself well versed in and convinced by procurement lore; until, that

is, he was forced to spend some time and have a look under the hood. He wassurprised, after more than a little work at it, to find an almost elegant internalstructure, cohesion and meaning in the Guam Procurement Law that previously wasunknown to him. It was a bit of a Eureka moment.

The purpose of this paper is to, hopefully, share with you that Eureka moment. It isonly an outline and will not cover every topic of Guam procurement law andregulation. It will not unlock all the secrets of the Guam Procurement Law but willhopefully provide a handy reference to some of them. Law is a dynamic thing, andwhat we know today will not necessarily be true tomorrow. No one should rely onthe statements in this paper as legal advice.

The hope is that this paper will help contribute to a unified knowledge, or debate,to regularize Guam procurement practice, and achieve the worthy procurementpolicy objectives, in the rational way the Guam Procurement Act contemplates.


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II. PURPOSES AND POLICIES of Guam Procurement Law

A. The law and regulations specify certain purposes or policies of procurement law.These are not mere platitudes and ideals. They are intended to fill in the blanks andprovide direction when the law or regulations have holes or are in need ofclarification or direction. In procurement law, they have particular importancebecause the Public Auditor is charged with the broad duty to promote thepurposes of the Procurement Act, not simply its black letter strictures.

B. to simplify, clarify, and modernize the law governing procurement by thisTerritory (5 GCA 5001(b)(1)).

1. While it is the intent of the MPC [Model Procurement Act] to simplifystate procurement procedures, the effect on Guam will be to somewhatcomplicate them. This is because procurement law under Executive Order65-12A on Guam is vague and leaves much to administrative direction. Atleast, this Act will regularize and centralize procurement on Guam and, in

so doing, attempts to save money for the Territory and make procurementmore certain and regular for the vendors. (Official Comment, 5 GCA 5001.)

C. to permit the continued development of procurement policies and practices (5GCA 5001(b)(2)).

D. to provide for increased public confidence in the procedures followed in publicprocurement (5 GCA 5001(b)(3)).

E. to ensure the fair and equitable treatment of all persons who deal with theprocurement system of this Territory (5 GCA 5001(b)(4)).

1. This Chapter requires all parties involved in the negotiation, performance, oradministration of territorial contracts to act in good faith. (5 GCA 5003.)

2. A Member will conduct its business fairly, honestly and with integrity.(Guam Chamber of Commerce Code of Ethics, Principle I.)

3. A Member should conduct its business within the spirit as well as the letterof the law. (Guam Chamber Ethics, Ethical Commentary IV-1.)

4. Making and keeping determinations. Throughout the procurement law

and regulations, procurement officers are meant to make determinations.The author takes the view that any determination, including a determinationof what is the best interests of the Territory, while deferring to agencyjudgment, should be kept in some record form, requires a deliberativebalancing of all the competitive policies of the procurement act, includingfair and equitable treatment of all parties, and not be impulsive, partial,deceptive, arbitrary, unreasonable or capricious.


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a. Written determinations required by this Chapter [the ProcurementAct] shall be retained in the appropriate official file of the ChiefProcurement Officer or the purchasing agency. (5 GCA 5020.)

(1) That code is adopted verbatim from MPC 1-301. There areModel Regulations intended to implement that code, whichdo not seem to have made their way into the GuamProcurement Regulations, notwithstanding the Comment tothe Guam Procurement Act, which says [b]ecause this Actintends that the Policy Office adopt implementingregulations, Model Regulations are also available, and mustbe examined and changed to coincide with the version ofthis Act actually adopted by the Legislature. (See, 5 GCA 5030.)

(2) Model Regulations implementing the Code require:

(a) Where the Procurement Code or these regulationsrequire a written determination; the officer requiredto prepare the determination may delegate itspreparation, but the responsibility for and theexecution of the determination shall not bedelegated. ( R1-201.01.1.)

(b) Each written determination shallset out sufficientfacts, circumstances, and reasoning as will

substantiate the specific determination which ismade. (R1-201.01.2.)

(c) While an officer is responsible for the execution ofthe written determination, other personnel,particularly technical personnel and appropriatepersonnel in the Using Agency, are responsible forfurnishing to the cognizant procurement official, inan accurate and adequate fashion, the informationpertinent to the determination. (R1-201.01.3.)

(d) Each written determination shallbe filed in thesolicitation or contract file to which it applies, shall

be retained as part of such file for so long as the fileis required to be maintained, and except as

otherwise provided by law or regulation, shallbeopen to public inspection. (R1-201.01.5.)

b. Under the original Procurement Act, certain specific determinationswere said to be final and conclusive unless clearly erroneous,


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arbitrary, capricious or contrary to law. (5 GCA 5425.) Underrevisions allowing appeals to and oversight of the Public Auditor,[n]otwithstanding 5425 of this Chapter, no prior determinationshall be final or conclusive on the Public Auditor or upon anyappeal from the Public Auditor. (5 GCA 5703.)

F. to provide increased economy in territorial activities and to maximize to thefullest extent practicable the purchasing value of public funds of the Territory (5GCA 5001(b)(5)).

1. All specifications shall seek to promote overall economy for the purposesintended.... (5 GCA 5265.)

2. Objectives of the territory's supply management program include preventingwaste; continuing utilization of supplies; and obtaining a fair return of valueupon disposal of supplies. (2 GAR 8102(a).)

G. to foster effective broad-based competition within the free enterprise system (5GCA 5001(b)(6)).

1. All procurement of supplies and services shall, where possible, be madesufficiently in advance of need for delivery or performance to promotemaximum competition and good management of resources. (5 GCA 1102.03.)

2. All specifications shall seek to ... encourage competition in satisfying theTerritorys needs, and shall not be unduly restrictive. (5 GCA 5265.)

3. It is the policy of Guam that specifications permit maximum practicable

competition consistent with obtaining supplies and services that areadequate and suitable for its needs.. (5 GCA 4102(a)(1).

4. When for any reason collusion orother anti-competitive practices aresuspected among any bidders or offerors, a notice of the relevant facts shallbe transmitted to the Attorney General. (5 GCA 5246.)

5. Unless other wise authorized by law, all territorial contracts shall beawarded by competitive sealed bidding.... (5 GCA 5210(a).)

6. Emergency procurements shall be made with such competition as is

practicable under the circumstances.... (5 GCA 5215.)

7. All unsolicited offers [any offer to the government other than one submittedin response to a solicitation] considered as being desirable shall besubjected to the Competitive Sealed Bidding process.... (5 GCA 5219(e).)

8. Fair and open competition is a basic tenet of public procurement. Such


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competition reduces the opportunity for favoritism and inspires publicconfidence that contracts are awarded equitably and economically. (MPCOfficial Commentary, # 3, 3-201, which is the same as 5 GCA 5210(a).)

9. A Member should engage in fair, free and open competition with itscompetitors (Guam Chamber Ethics, Ethical Commentary III-2.)

H. to provide safeguards for the maintenance of a procurement system of quality andintegrity (5 GCA 5001(b)(7)).

1. Each procurement officer shall maintain a complete record of eachprocurement. The record shall include the following (5 GCA 5249) :

a. the date, time, subject matter and names of participants at anymeeting including government employees that is in any way relatedto a particular procurement;

b. a log of all communications between government employees andany member of the public, potential bidder, vendor or manufacturerwhich is in any way related to the procurement;

c. sound recordings of all pre-bid conferences; negotiations arisingfrom a request for proposals and discussions with vendorsconcerning small purchase procurement;

d. brochures and submittals of potential vendors, manufacturers orcontractors, and all drafts, signed and dated by the draftsman, andother papers or materials used in the development of specifications.

2. [P]rotecting the integrity of the procurement process is one of the reasonsfor the requirement to create and maintain a procurement record. (In theAppeal of Latte Treatment Center, Inc., OPA-PA-08-008, p 17.) Noprocurement award shall be made unless the responsible procurementofficer certifies in writing under penalty of perjury that the aforementionedprocurement record was maintained and that it is complete and available forpublic inspection and this certification must be a part of the procurementrecord. (Id.)

3. Public employment is a public trust.... Public employees must dischargetheir duties impartially so as to assure fair competitive access to

governmental procurement by responsible contractors. Moreover, theyshould conduct themselves in such a manner as to foster public confidencein the integrity of the territorial procurement organization. To achieve thepurpose of this Chapter, it is essential that those doing business with theTerritoryalso observe the ethical standards prescribed herein. (5 GCA 5625.)


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4. Ethical Standards

a. For Government Employees: Any attempt to realize personal gainthrough public employment by conduct inconsistent with the properdischarge of the employees duties is a breach of a public trust. Inorder to fulfill this general prescribed standard, employees must alsomeet the specific standards set forth in 5628 through 5633 of thisChapter.

(1) In the Latte Treatment Centerappeal, supra, there wasmention that the agency representative had, at one time orother, been given air fare and/or accommodation to visiteach of the offerors. There was a specific allegation of sucha breach of ethics standards at issue in the appeal. TheDecision accepted that the payments may have been animproper gratuity, if proven, but found no specific, credibleevidence had been presented to prove the allegation. The

Public Auditor required, in any event, proof of a connectionbetween any payment by the contractor/offeror and therelevant solicitation. The Public Auditor did find, though,that the employee should have been recused from anyconsideration of or involvement with the solicitation, andthat the employees appearance of impropriety is a seriousimpairment to the public confidence and integrity of thesolicitation process.... (Id., at p 15.)

b. For Non-Government Employees: Any effort to influence any publicemployee to breach the standards of ethical conduct set forth in thisSection and 5628 through 5633 of this Chapter is also a breach

of ethical standards. [These sections deal with Conflicts of Interest,Disclosure Requirements, Gratuities and Kickbacks, ProhibitionsAgainst Contingent Fees, Restrictions on ContemporaneousEmployment of Present and Former Employees, and Use ofConfidential Information.] (5 GCA 5626.)

(1) A Member should avoid taking unfair advantage of itscustomers, suppliers, competitors and employees. (GuamChamber Ethics, Ethical Commentary I-2.)

(2) A Member will accept its rights and obligations for

conducting business within a framework of a democraticsystem of laws. (Guam Chamber Ethics, Principle IV.)

I. to require public access to all aspects of procurement consistent with the sealedbid procedure and the integrity of the procurement process.

1. The [procurement] record required by 5249 of this Chapter [see above] is


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a public record and, subject to rules promulgated by the Public Auditor,any person may inspect and copy any portion of the record. (5 GCA 5251.)

a. To date, the Public Auditor has not promulgated any such rules.

2. Consider more broadly, the Freedom of Information Act, known also as theSunshine Act 5 GCA, Div. 1, Chpt 10, 10101 et seq.

a. The author is of the view that the FOI content and process rules isnot adequately responsive to the needs of the procurement process.Rules from the Public Auditor to facilitate and enforce access to theprocurement record would be in keeping with the spirit to providefor the expeditious resolution of controversies, as mentioned in 2GAR 12101.

J. Policy in favor of planned procurement

1. All procurement of supplies and services shall, where possible, be madesufficiently in advance of needfor delivery or performance to promotemaximum competition and good management of resources. (5 GCA 5010.)

2. The Procurement Record shall include the requesting agencysdetermination of need. (5 GCA 5249(e).)

3. Consider general principles laid out in FAR Part 7 (Acquisition Planning)and Part 11 (Describing Agency Needs).

a. The purpose of this planning is to ensure that the Governmentmeets its needs in the most effective, economical, and timelymanner. (FAR Subpart 7.102.)

b. Acquisition planners address the requirement to specify needs,develop specifications, and to solicit offers in such a manner topromote and provide for full and open competition with due regardto the nature of the supplies and services to be acquired. (FARSubpart 7.103(c).)

(a) Acquisition plans startwith a statement of need.

(Subpart 7.105(a)(1).) If the acquisition planning isbeing done prior to preparing a budget, the agencywill have to analyze its needs in a thorough manneras part of the acquisition plan. (CompetitiveNegotiation, Second Edition, Ralph C. Nash, Jr.,John Cibinic, Jr., and Karen R. OBrien, The GeorgeWashington University, Law School Government


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Contracts Program, p. 41, cited hereafter as Nash,Cibinic and OBrien.)

c. Acquisition planning should begin as soon as the agency need isidentified, preferably well in advance of the fiscal year in whichcontract award is necessary. (FAR Subpart 7.104(a).)

d. Requirements and logistics personnel should avoid issuingrequirements on an urgent basis or with unrealistic delivery orperformance schedules, since it generally restricts competition andincreases prices. (FAR Subpart 7.104(b).)

e. Competition is the most fundamental goal of acquisition planningbecause it is believed that obtaining competition is the best methodof ensuring that the Government will receive the supplies andservices it needs at fair and reasonable prices. Competition alsofurthers the [legislative] goal of providing all qualified sources an

opportunity to participate in the procurement process. (Nash,Cibinic and OBrien, p 85.)

4. Lack of advance planning does not justify noncompetitive procurement.(Nash, Cibinic and ONeal, p. 38.)

a. 41 USC 253 and 10 USC 2304 (f) : In no case may the head ofan agency ... (5) enter into a contract for property or services usingprocedures other than competitive procedures on the basis of lack ofadvance planning.

K. Policy in favor of local procurement (5 GCA 5008).

1. All procurement of supplies and services shall be made from amongbusinesses licensed to do business on Guam....

2. Procurement of supplies and services from off Guam may be made ifnobusiness for such supplies or services may be found on Guam or ifthe totalcost F.O.B. job site, unloaded, of the same supplies or services obtainablefrom a business on Guam is not more than 115% of the off-islandcost.Thus, as between an on-island bidder and an off-island bidder, the off-islandbidder loses unless its bid is no more than 85% of the on-island bidder.Putting numbers to it, an on-island bidder with a $100 bid price wins over

an off-island bidder with a bid price of $85.01.

3. Award to an off-island vendor without a comparison to the price oravailability of local vendors is inconsistent with [the local preferenceprovision] 5 GCA 5008. Without the required cost analysis, the recorddoes not support an award to [an off-island bidder]. (In the Appeal ofEmission Technologies, Inc., OPA-PA-07-002, p 12; note, however, this


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Decision was vacated by Writ of Mandate issued by the Guam SuperiorCourt, on other issues: TRC Environmental Corporation vs. Office of thePublic Auditor, SP 160-07.)

4. Businesses licensed to do business on Guam:

a. Must maintain an office or other facility on Guam

b. Plus one of the following:

(1) Manufacturing which adds at least 25% value using USCitizens, permanent residents or authorized workers who arecitizens of the old Trust Territory.

(2) Regularly carries inventory for regular immediate sale of atleast 50% of supplies to be procured.

(3) Retail or wholesale location that regularly carries aninventory on Guam of items of similar nature to those soughtof a value of at least half the bid value or $150,000(whichever less).

(4) Service business actually in business, doing substantialportion on Guam, hiring at least 95% US Citizens,permanent residents or authorized workers who are citizensof the old Trust Territory.

5. By Executive Order 2000-25, Governor Guiterrez purported to override theeffect and intent of the Local Preference provisions of the Guam

Procurement Law, to give additional preference to local consultants orproviders of educational training and instruction to GovGuam departmentsand agencies. This preference was not based on a cost comparison butprovides a blanket preference simply on the basis of being on-island. Theauthor does not believe the Executive has the power to make or remake law,and that this Order conflicts directly with Guam law, beginning with 5 GCA 5004(b), discussed below. Nor does the Governor have any procurementrule making authority, which has been reposited in the Policy Office: seeArticle III below.

6. The Federal government (Buy American Act; see FAR Part 25.000,

http://www.acquisition.gov/far/current/html/Subpart%2025_1.html), as wellas State and municipal governments across the US and abroad have variousforms of local preference provisions. (Just search online and see, e.g.,http://www.oregon.gov/DAS/SSD/SPO/reciprocal_detail.shtml .)

7. In In the Appeal of Teal Pacific, LLC, OPA-PA-09-002, (dismissed when thePublic Auditor recused herself), the Appellant argued that the Guam local
http://www.acquisition.gov/far/current/html/Subpart%2025_1.htmlhttp://www.oregon.gov/DAS/SSD/SPO/reciprocal_detail.shtmlhttp://www.oregon.gov/DAS/SSD/SPO/reciprocal_detail.shtmlhttp://www.oregon.gov/DAS/SSD/SPO/reciprocal_detail.shtmlhttp://www.acquisition.gov/far/current/html/Subpart%2025_1.html


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preference provision is an unconstitutional and inorganic violation of itsright to equal protection. The author has sympathy for the agency's positionthat it is its duty to apply the law, not determine it, and suspects the PublicAuditor would reach the same result; that issue is for a court to determine.

a. Note that a Federal Appeals Court has ruled unconstitutional aFederal set-aside provision favoring women-owned businesses basedon the ruling that no relevant findings were made to substantiate thepresumptions underlying the alleged purpose of the act. (See, RotheDevelopment Corp. v. Department of Defense, United States Courtof Appeals for the Federal Circuit, 2008-1017,http://www.cafc.uscourts.gov/opinions/08-1017.pdf.) The ultimateramifications and ripple effect of this decision are yet to be known.

b. The author believes that the Rothe Development rationale would beinapplicable to an analysis of local preference rules. There, the issuewas alleged discrimination based on status (women only, minorities,

etc.) Status issues attract strict judicial scrutiny under an equalprotection analysis. Local preference provisions involve commercialissues of geography only and, as such, do not enjoy such preciousprotection of the courts. Indeed, the current legal consensus seemsto be that the Commerce Clause and its protection of interstatecommerce does not apply to Guam.

L. Policy in favor of Bio-friendly products

1. Public Law 21-22 purports to change the Procurement Regulations toinsure that in all purchases of goods by the government of Guam, whenpossible, emphasis shall be placed on the purchase of products that are

biodegradable, reuseable, recyclable, or recycled, or any combination.The law did not direct the Policy Office to change its regulations, but itsregulation 2 GAR 1102.02 purports to be in compliance with the law.

2. 1102.02 gives a ten percent (10%) advantage to any bidder of productsmeeting those bio-friendly characteristics. Moreover, it specifically providesthat the 10% bid advantage is to be given in addition to the 15% localpreference, with the express effect that there could be a 25% bid advantagewhen bid-friendly products are bid by local companies meeting the localpreference requirements.

M. The Procurement Act applies to almost all GovGuam purchases.

1. This Chapter shall apply to every expenditure of public funds irrespectiveof their source, including federal assistance funds ... by this Territory, actingthrough a governmental body .., under any contract... (5 GCA 5004(b);cf, In the Appeal of L.P. Ganacias Enterprises, Inc., dba RadioCom, OPA-PA-06-003.)
http://www.cafc.uscourts.gov/opinions/08-1017.pdfhttp://www.cafc.uscourts.gov/opinions/08-1017.pdf


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2. Exceptions are made (id.) for

a. Pre-emptive federal government funding regulations, if any.

b. Grants or inter-governmental contracts.

(1) The author understands that most Federal grants and fundingregulations, similar to the Federal Acquisition Regulationsapplicable to Federal Supply Schedule purchases (seebelow), include a provision that local procurement laws areto be followed, making this exception, the author believes,inapplicable to such grants. Each grant would need to bestudied to determine if it is subject to local law.

c. Gifts, bequests and other such private grants and donations, orcooperative agreements.

N. A word from your author:

1. Notice that there is no policy that says procurement is to be conducted forthe convenience or ease of the government or the public. Governmentprocurement is very clearly intended to be methodicallyplanned,competitive, transparent and accountable. This is, not coincidentally, thegoal of private sector procurement, as well; in a word, its calledmanagement. The author takes umbrage at anyone who blamesineffective government management on the government procurementprocesses. Those within and without the government who complain andeditorialize about the cumbersome procurement process fail to understand

its principle values, or are just pursuing some other agenda. If the price offreedom is vigilance, the price of a consistently fair, effective andtrustworthy procurement process is red tape. Because, when properlyunderstood and used, procurement red tape does not suffocate us, it holdsthe system and its competing participants together.

2. The author does not doubt that many efficiencies could be had in theprocurement system, but would prefer that we all first try to make it workeffectively by making it work the way it is designed to work, beforetinkering too much with the system. The author believes the most obviousfailures and burdens of the Guam procurement system of recent times are

due to dysfunctions in operating the system, not the system itself. The firststep to making it function properly is to understand and experience how it ismeant to work under the existing law, and then make that process functionprofessionally, consistently and routinely.

3. The Guam legislature chose to forego procurement training and educationwhen it adopted the Guam version of the Model Procurement Code. In this


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regard it is important to note a significant hole in the procurement law andregulation:

a. Along with the MPC, the Guam Procurement Act has a Part entitledCoordination, Training and Education (Part E, Article 2 of theGuam Procurement Act.)

b. Guam law and regulation have enacted the Coordinationprovision, calling for collection and preparation of procurementstatistics (5 GCA 5140; 2 GAR 2111; MPC 2-501). But that isall. Guam law does NOT address training and education.

c. The MPC ( 2-502) contemplates a Procurement Advisory Councilto be fundedby the Government to discuss and makerecommendations for improvement of the procurement process,and to make studies, analysis and reports as requested. Guam lawdoes not follow that lead.

d. The MPC ( 2-503) goes further and contemplates formation of whatit terms a Procurement Institute to conduct or participate inprocurement education and training for public and privateemployees and others, as well as conduct research and maintain alibrary of resources, to be funded by the Government.

e. Official Commentary to MPC 2-503 make the following points:

(1) Procurement is a complex process which experience hasshown can only be adequately learnedover a period oftime. Thus training in procurement is vital for new

[GovGuam] employees without prior experience in the field.It will accelerate the learning process and will tend to make[GovGuam] procurement personnel knowledgeable andeffectivein the minimum time.

(2) In addition, training courses should also be reasonablyavailable to vendor personnel, university professors,students, and others. Experience has shown that when avendor or other person affected by the system makes an

unnecessary mistake through lack of knowledge of theground rules of procurement, it causes friction and expense

to the [government].

f. In reaction to certain announcements by the Obama administrationto reform Federal government procurement processes, ProfessorsSteve Kelman and Steve Schooner made the following comments(see, Commentary: Achieving effective reform, Federaltimes.com,http://federaltimes.com/index.php?S=4032866.). Steve Kelman is
http://federaltimes.com/index.php?S=4032866http://federaltimes.com/index.php?S=4032866


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the Weatherhead Professor of Public Management at HarvardUniversitys John F. Kennedy School of Government. SteveSchooner is the co-director of the Government Procurement LawProgram at George Washington University Law School.

(1) The federal procurement system is the worlds most heavilyregulated, and a well-established regime of laws, statutes andpolicies addresses each of the presidents concerns. But rulescant spend money wisely, only people can. And weve gothuge people problems....

(2) Generating competition is time consuming and laborintensive. The government needs experienced professionalsto, among other things, understand agencies requirements tofulfill their diverse missions, plan contracting solutions tofulfill those requirements, conduct market research toidentify the best contractors, solicit those contractors to

assure competition and that the government get a good deal,draft and negotiate contracts, manage relationships duringcontract performance, and perform quality assurance toensure the government obtains the value it paid for and highlevels of customer satisfaction. Proper staffing will contributemore toward responsible fiscal stewardship than anotherround of studies, legislation or policymaking.

III. PROCUREMENT ADMINISTRATIVE STRUCTURE: Policy Office, GSA, DPW, PublicAuditor, and Attorney General

A. Centralized Procurement Policy: 5 GCA 5120 states the general objective tocentralize all procurement activities in the Policy Office, the Chief ProcurementOfficer at the General Services Administration (CPO/GSA) and the Department ofPublic Works (DPW).

1. All Executive Branch bodies are subject to the general requirements ofGuam procurement law and regulation, although certain bodies areauthorized to directly conducttheir own procurement. These bodiesinclude GCC, UoG, GPSS, GMHA, GEDCA and GVB. It is the intent [ofthe Legislature] to require all Executive Branch governmental bodies,

including autonomous agencies, ... to begovernedto the maximum extentpracticable by [the Procurement Act]. (5 GCA 5125.)

a. Note the authors comments above in respect of Executive Order2000-25 and the Governors lack of power to make law orregulation in respect of procurement matters.


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2. This has led to such Agencies often adopting their own procurementregulations, with their own numbering/classification systems, even thoughthe general Guam procurement regulations preempt anything substantivelyinconsistent (5 GCA 5131; Guam Imaging Consultants, Inc., v. GuamMemorial Hospital Authority, Guam Supreme Court, 2004 Guam 15 at 22, 41).

3. The author believes this is not a satisfactory development and efforts shouldbe made to identify the core procurement regulations that are intended toapply uniformly throughout GovGuam, allowing Agencies to then onlyadopt such additional regulations as are necessary to conduct their directprocurements. This will have the added benefit of focusing agencyprocurement practice on the standardized general procurement regulationsand away from any notion they may be a law unto themselves.

B. Policy Office: The Policy Office is meant to be established under the Office of theGovernor. It is meant to consist of five members, three government employees

selected by the Governor plus the Directors of Administration and DPW; the DPWDirector is the chair. (5 GCA 5101.)

1. The Policy Office is responsible (5 GCA 5102) for promulgation ofRegulations governing procurement, management, control and disposal ofall supplies, services and construction to be procured by the Territory.

a. The Policy Office shall not delegate its power to promulgateregulations. (5 GCA 5130(b).)

b. The Attorney General has issued an opinion that GSA has the powerto adopt alternative methods of source selection and procurement

procedures to implement the alternate method. (LegalMemorandum (GSA 07-1084, June 16, 2008.) It based this poweron the authority given GSA to adopt internal operational procedures,5 GCA 5113(b) and 2 GAR 2104(b). The Public Auditor hasdecided that this legal opinion is incorrect, and GSA does not havesuch broad authority. (In the Appeal of Town House Dept. Stores,Inc. dba Island Business Systems and Supplies [IBSS vs GSA], OPA-PA-08-012 (decided February 10, 2009).)

c. In the Appeal of L. P. Ganacias Enterprises, Inc. dba RadioCom,OPA-PA-06-003, involved a protest of a sole source award made by

Guam GSA on behalf of the Office of Homeland Security, a part ofthe Office of the Governor. The Decision of the Public Auditornoted at p 10, [t]here is no evidence of delegation to OHS or theOffice of the Governor [of] the authority to prepare its ownspecifications.

2. The Policy Office is an on-again-off-again institution. Presently, it is the


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authors understanding that it lacks the appointees necessary to function.

C. GSA: The CPO of GSA shall serve as the central procurement officer with respectto supplies and services. (5 GCA 5113(a).) The CPOs duties include:

1. Procure or supervise procurement of all supplies and services.

a. CPO has a limited power (2 GAR 2105) to delegate her authorityto any government body or official (5 GCA 5114) and to revokeany authority previously delegated (2 GAR 2105). Legislationoccasionally limits that authority (e.g., 5 GCA 5116 re GPA) orpreempts it (e.g., 5 GCA 5117 re Guam Preservation Trust).

b. Items of works of art, publications, A&E services and investment oractuary services are generally exempt from the requirement of directCPO or DPW procurement, but the procuring agencies must do sopursuant to general procurement law and regulation. (5 GCA

5124.)

2. Exercise general supervision and control over all inventories of supplies.

a. CPO shall have general supervision of all inventories of tangiblepersonal property, whether warehoused or in use, belonging to theterritory or any of its agencies. This responsibility shall not,however, relieve any agency of accountability for tangible personalproperty and other supplies.... (2 GAR 8102(c).)

b. Sound inspection, testing, warehousing, and inventory practices arecalled for, and effective means of transferring and disposing of

property must be employed. (2 GAR 8102(a).)

c. Ascertain or verify that supplies, services, or construction itemsprocured by such officerconform to specifications. (2 GAR 8102(b).)

d. General supervision of any receiving, storage, and distributionfacilities and services maintained and operated by the Office of theChief Procurement Officer or using agencies. (2 GAR 8102(d).)

e. Using agencies shall notify the CPO of all excess supplies. No

using agency shall transfer, sell, trade-in, or otherwise dispose ofsupplies owned by the territory without written authorization of theChief Procurement Officer. (2 GAR 8102(e) and second (d); Note:The copying of the Model Code and Regulations into Guam Codeand Regulations is replete with typographical and reference errors.)

f. Disposal: Surplus supplies shall be offered through competitive


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sealed bids, public auction, established markets, or posted prices. Itis recognized, however, that some types and classes of items can besold or disposed of more readily and advantageously by othermeans, including barter. In such cases, and also where the nature ofthe supply or unusual circumstances call for its sale to be restrictedor controlled, the Chief Procurement Officer may employ such othermeans, including appraisal, provided such officer makes a writtendetermination that such procedure is advantageous to the territory.(2 GAR 8102(h).)

g. Prepare, issue, revise, maintain and monitor the use ofspecificationsin accordance with the law and regulations, and this can bedelegated to the using agencies, but not vendors. The CPO cancontract with third parties to prepare specifications provided therewill be no substantial conflict of interest involved. (2 GAR 4103.)

(1) GSA should review the specifications provided by thepurchasing agencies to ensure they will result in aprocurement that maximizes the purchasing value of publicfunds and amend such specifications to ensure that purposeis achieved. ( In the Appeal of Guam Publications, Inc.,OPA-PA-08-007, p 12.)

h. Data Collection: The CPO is responsible, together with BBMR andthe Public Auditor, to prepare statistical data concerningprocurement, usage and disposition of all supplies and services. (2GCA 5140.)

D. DPW: The Director of DPW shall serve as the central procurement officer withrespect to construction.

1. Duties of the Director of DPW include (5 GCA 5113(c)(2)):

a. Procure or supervise the procurement of all construction needed byGuam.

b. Establish and maintain programs for inspection, testing andacceptance of construction.

c. Responsibility for selection of methods of construction contractingmanagement, that is, the contracting method and configuration thatwill most likely result in timely, economical, and otherwisesuccessful completion of the construction project. (2 GAR 5102(a).) Note that this does not empower DPW to alter orestablish methods of source selection (that is, bidding methods); itonly allows contract management flexibility. This is emphasized by


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2 GAR 5108, which says that the methods of contractingmanagement apply to A&E and land surveyor contracts, but For thepurpose of acquiring the services, the methods of source selectionshall be followed.

E. Public Auditor

1. The Office of the Public Auditor has had a name makeover and, as a resultof PL 30-27, signed into law June 16, 2009, is now to be known as theOffice of Public Accountability, but can still be called OPA.

a. There is curious politics behind the name change. The preamble tothe law states, that the current title of the Office of the PublicAuditor appears to imply an office of an individual rather than thefunction of the office. Oftentimes, the findings of an audit may beattributed to the elected individual, as opposed to an actual findingof the audit or investigation, especially if the audit findings reflect

questionable accountability issues. Thus, the name change.

b. The Public Auditor is still the Public Auditor; only the name of theoffice has changed. (1 GCA 1903, 1906, etc.)

2. The Public Auditor has the power and jurisdiction to hear any appeal of aprocurement protest, as well as appeals from contract disputes anddebarment or suspension actions. She also has the power to make certaindeterminations and adopt certain regulations within the context of theprocurement laws.

3. It must be remembered the Public Auditor also has the power and duty to

conduct financial and management audits, program evaluation and review,and to inquire into any person having any official relations with any officerin any matter relating to the expenditures of government funds and property,and to report offenses for prosecution to the AG, and to conduct otherinvestigations and render other reports as required. (1 GCA Chpt 19, 1900 et seq.)

4. The role of the Public Auditor in Procurement Appeals will be discussedbelow.

F. Attorney General

1. The Attorney General has a limited role to play generally, although aprimary role as attorney for any Agency it represents. Of course, theAttorney General should strive to uphold the law and not undermine it. TheAG serves as legal counsel and provides legal services to the Policy Officeand the GSA (and even the Public Auditor in some circumstances 1 GCA 1909(d)). When the AG is meant to approve a contract, she must approve


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both form and substance for legality, and that may mean inquiring into theprocedures that precede the making of the contract, that is, the procurementprocess that led to the award of contract. (5 GCA 5150.)

IV. METHODS OF SOURCE SELECTION (Procurement Methods)

A. Generally speaking, there are only six main means ofallowed procurementmethods, which the Procurement Act speaks of as methods of source selection (5GCA 5210(a)):

1. Competitive Sealed Bidding (2 GAR 3109(b); 3109(n)(1))

2. Multi-step Sealed Bidding (2 GAR 3109(r))

3. Small Purchases (2 GAR 3111)

4. Sole Source (2 GAR 3112)

5. Emergency (2 GAR 3113)

6. Professional Services (5 GCA 5216 and 5121; 2 GAR 5108)

B. Of these, only the competitive sealed bid method can be used for all solicitations, inall circumstances, though it is not always ideal, which is why there are otherapproved methods. All other methods are restricted to particular conditions of use;any use of a method that does not comply with its particular conditions of useviolates the procurement system and is grounds for protest.

C. The exceptions to the sealed bid process are delineated by statute.... Theexceptions ... are limited, and Guam law no longer provides for an alternative to

sealed bidding except as provided above. (Fleet Services, Inc. v. Dept. ofAdministration, 2006 Guam 6, 14,15.)

D. Other special circumstances:

1. Unsolicited Offers (5 GCA 5219)

2. Purchases from a nonprofit corporation employing sheltered orhandicapped workers. (5 GCA 5217)

3. Drugs to be purchased by DOA, DPHSS, GMHA and GPSS shall bepurchased, whenever possible, directly from the manufacturer so as toensure and maximize economy. (5 GCA 5270)

4. Unless other wise [sic] authorized by law (5 GCA 5210(a)).


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a. Direct purchases from the United States (5 GCA 5122) are nototherwise authorized see section below on Federal SupplySchedule purchases.

E. Contract renewals, extensions and amendments vs change orders.

1. Guam procurement history has included many instances where, once acontract has been let, it is thereafter renewed indefinitely. The fact that theGuam Election Commission has leased the same office space for over thirtyyears without ever putting it out to bid is just one example. This isabsolutely improper practice. The Procurement Act applies to everyexpenditure of public funds (5 GCA 5004(b)) and all territorial contractsshall be awarded by one of the approved methods of source selection (5GCA 5210(a)).

a. Although there is a fine but clear legal distinction between renewingand extending a contract, the same rule would apply in either case.

A renewal is technically a new contract and clearly within thelanguage of 5210(a), and creating an extension of an existingcontract after award, when that was not within the contemplation ofthe specifications of the original bid, violates the notion that awardscan only be made consistent with the solicitation criteria (see, e.g., 5GCA 5211(g) and 5201(d) and (f), 2 GAR 3114(f)(2)).

2. A properly procured contract may contain a renewal option, but such acontract provision is subject to strict conditions, as discussed in the articlebelow dealing with contract types.

3. In L.P. Ganacias Enterprises, Inc., dba Radiocom vs. GIAA and Guam Cell

Communications, CV 1787-00, (at page 17) the Judge said, [i]t is theopinion of this Court that to allow Defendant [GIAA] to automatically renewits contract with Guam Cell at the end of the one year period would clearlyside step the purpose and the protections of the open bidding process forgovernment contracts. Thus, to allow the Defendant to renew its contractwith Guam Cell at the end of the contract term, for a price that is to benegotiated between them, circumvents the entire bidding process, and thisis not proper.... Rather, GIAA will again have to open the bid ... and willonce again have to go through the entire bidding process before awardingthe contract ....

4. Sometimes, contracts are indirectly renewed or expanded into new fields byso-called amendments. The author takes the view that any contractamendment which materially changes the scope, by addition, deletion orotherwise, of the originally solicited term, specifications, supplies, servicesor construction work should be analyzed with much the same principle asdeclared in the L.P. Ganacias Enterprises, Inc., case, id. That is, the testshould be or at least include the consideration whether the making of the


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amendment to purchase something not previously solicited (supply, service,construction) would clearly side step the purpose and the protections of theopen bidding process for government contracts.

a. See authors comments on In the Appeal of JMI Medical Systems,Inc. (OPA-PA-07-011) in the appeals review article toward the endof this outline, below, to the effect the government cannot purchasesomething it has not solicited.

5. Note that any prospective bidder would have standing to challenge whatamounts to an award of a new contract without proper solicitation when acontract is improperly extended, renewed or amended, by first protestingthe action to the agency. See discussion of bid protests, below, andconsiderIn the Appeal of Town House Department Stores, Inc., dba IslandBusiness Systems and Supplies, OPA-PA-08-003, involving the protest of aprospective bidder for supplies which had not been properly solicited.

6. Assessment of whether a change to a contract constitutes a change order,thus amending a contract within its scope, or a new contract, addingadditional matter beyond the original solicitation, is basically a matter ofgeneral contract interpretation principles. The authoritative professorsCibinic and Nash from The George Washington University, GovernmentContracts Program, discuss the issues in the following manner ((Formationof Government Contracts, Third Edition, John Cibinic, Jr., and Ralph C.Nash, Jr., CCH/ Wolters Kluwer, p302 et seq., cited hereafter as Cibinic andNash):

a. Merely because work is added to an existing contract bymodification or change order does not justify the use of other than

competitive procedures if the work is in reality a new procurementaction... Change orders issued under the various Changes clausesmay be made on a sole source basis if they are within the generalscope of the contract. [T]he Comptroller will review an allegationthat the Government action should have been the subject of a newprocurement....

b. A scope of the competition test is employed to determine whetherwork has been improperly added to a contract. See American AirFilter Co., 27 Comp. Gen. 567(B-188408), 78-1 CPD 443, statingat 573:

The impact of any modification is in our view to bedetermined by examining whether the alteration is within thescope of the competition which was initially conducted.Ordinarily, a modification was within the scope of theprocurement provided that it is of a nature which potentialofferors would have reasonably anticipated under thechanges clause.


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To determine what potential offerors would have reasonableexpected, consideration should be given, in our view, to theprocurement format used, the history of the present andrelated past procurements, and the nature of the supplies orservices sought. A variety of factors may be pertinent,including: whether the requirement was appropriate initiallyfor an advertised or negotiated procurement; whether astandard off-the-shelf or similar item is sought; or whether,e.g., the contact is one for research and development,suggesting that broad changes might be expected becausethe Governments requirements are at best only indefinite.

c. A slightly different test was used in Cray Research v. Department ofthe Navy, 556 F.Supp. 201 (D.D.C. 1982), where the court stated at203:

The cardinal change doctrine prevents governmentagencies from circumventing the competitive process by

adopting drastic modifications beyond the original scope of acontract. The basic standard is whether the modifiedcontract calls for essentially the same performance as thatrequired by the contract when originally awarded so that themodification does not materially change the field ofcompetition.

d. Contract extensions, exercise of contract options, and leaserenewals can also constitute de facto sole source procurements...The Comptroller General has stated that competition should besought whenever it appears likely that the Governments positioncan be improved whether in terms of cost or performance.... [In

one case the] Comptroller General found that the extensions becamenecessary only because the agency failed to timely solicit a follow-on contract, and the extensions were therefore not justified... [Inanother case, the] Comptroller General found no justification for theNavys contention that it would have been impracticable to obtaincompetitive proposals. The Navys primary reason for failing toprocure competitively was a desire to ensure that the incumbentcontractor performed the work.

V. BID BONDING

A. Actually, bond is the common word used, but security is more technically aptand specified in the law (see, 5 GCA 5212). Security includes a bond, but alsocan include other forms of security such as cash or other form satisfactory toGovGuam: a cashiers check or standby letter of credit might be alternatives (see, 2GAR 3109(c)(4)(D).

B. Bid security for competitive sealed bidsforsupplies or services:


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1. Bid security for competitive sealed bids for supplies or services is requiredwhen the total price estimated to be bid exceeds$25,000, and mayberequired when under that amount, by a written determination (andjustification) included in the IFB. (5 GCA 5212(a).)

2. The amount of bid security is fifteen percent (15%) of the amount bid. (5GCA 5212(b).)

a. Note: The amount of bid security specified (15%) was made byamendment to the law in PL 27-127:2. This legislative change hasnot yet been reflected in regulation, which continues to purport toallow the agency head to determine the amount (2 GAR 3109(c)(3)(A). The legislative change overrides the inconsistentregulation. (See, Guam Imaging Consultants, supra.)

3. Release of bid security. The law here is probably broader than intended. As

written, the bid security required under any applicable [IFB] shall not bereleased upon award of the bid, but instead shall continue in full force andeffect until delivery of the supplies or services.... (5 GCA 5212(c).) Thisdoes not by its terms limit the application of the continued effectiveness tothe successful bid and literally applies to the security of all bids, includingrejected or high bids. The apparent intent, however, is to have only thesuccessful bid security convert to and replace the need for a separateperformance security; all others should be released upon withdrawal orrejection of the bid. (See, 5 GCA 5212(f).)

4. Failure to provide required bid security may cause the bid to be rejected asnon-responsive; see section on materiality and responsiveness below.

C. Bid security for competitive sealed bids forconstruction contracts:

1. 5 GCA 5303(a) demands essentially the same bid security requirementsfor competitive sealed bids for construction contracts as is noted for suppliesand services, above (i.e., required for bids expected to exceed $25,000 anddiscretionary for bids below that amount), except that there is norequirement for making a determination and justification for under $25,000bid security to be made part of the IFB.

2. Other provisions for bid security for construction contracts also parallel

those for supplies or services, including the amount of the security and thepossibility of rejection for noncompliance, the main significant differencebeing there is no provision intended to extend the bid security into theperformance period, as there is with the supplies or services provision.

3. As with supplies and services, failure to provide required bid security maycause the bid to be rejected as non-responsive, but the situations in which


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such failure may be considered to be non-substantial are more limited: see2 GAR 5103(d).

D. There does not appear to be any requirement for security for any bid or offer underany of the other methods of source selection for construction projects (besidescompetitive sealed bid), nor any prohibition against any such security, if required inany such solicitation.

VI. COMPETITIVE SEALED BIDDING (5 GCA 5211; 2 GAR 3109)

A. The default method. Preferred to all others. Contracts shall be awarded bycompetitive sealed bidding except as otherwise provided in 5210(a).... (5 GCA 5211.)

B. The form is always by Invitation for Bids (IFB), which should contain the following

(2 GAR 3109(c)(2)):

1. Instructions and information to bidders concerning the formalities of when,where, how to bid; the form of offer requisites. Its meant to answer thewhat do we want from you and when do we want it question.

2. A purchase description of what it is the Government wants; that is, what itwants, when it wants it, how it will evaluate the product offers, and anyinspection or acceptance requirements.

a. Purchase description means the words used in a solicitation todescribe the supplies, services or construction to be purchased....

(5 GCA 5201(b)(d).) Unless the context requires otherwise, theterms specification andpurchase description are usedinterchangeably throughout these Regulations. (2 GAR 4101(a)(4).)

3. The terms and conditions of the contract to be awarded, including suchincidental matters as warranties and bonding. This is intended to fill in theultimate essential legal requirements of the contract, otherwise the bid isnothing more than an unacceptable agreement to agree.

4. Other formalities of the bid must also be met, such as signatures,

declarations of ownership/major stockholders, certifications of non-collusion, bid bonding and the like as specifically provided by law orregulation.

5. Remember that by signing a bid, you are making a legally enforceable offerto contract, so all essential legal requirements of offer and acceptance aremet when the government awards the contract by accepting the bid.


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C. Distribution, notice and bidding time:

1. The law requires simply adequate public notice of IFBs. Newspaperpublication is only requiredifthe procurement exceeds $25,000, and thenonly requires seven (7) days notice before final submissions. (2 GAR 3109(f)(2).) In all cases, the solicitation is meant to be initiated, not bypublication, but by distribution by mail or other means furnished to asufficient number of bidders for the purpose of securing competition. (2GAR 3109(f)(1).) Thus, GovGuam is meant to affirmatively seek outcompetition, not passively see what pops up, especially when it isrecognized that newspaper ads often appear buried in the paper and unreadby potential vendors.

2. In contrast to the minimumpublication time, and lore about when to startmeasuring the bidding time, the minimum bidding time is fifteen (15) daysfrom the date of distribution to the time and date set for receipt of

bids. (2 GAR 3109(d).)

a. Although there is a minimum 15 day bidding time, [i]n each casebidding time will be set to provide bid

Procurement Law Primer v1-7

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