By Mar-Vic Cagurangan
The Office of Public Accountability took the Guam International Airport Authority to task for contriving a dubious “emergency” to justify its decision to extend the contract of its longtime contractor for the baggage conveyance systems.
Ruling in favor of JMI-Edison Inc., the OPA has ordered the GIAA to cut its contract with Menzies Aviation within 60 days from the date of the decision.
“The protested extension of the airport’s emergency procurement is
determined in this decision to be a violation of the procurement law,” the OPA said in its 10-page decision that focused on the nature of the GIAA’s emergency procurement. “The slippery slope created by GIAA’s use of an emergency
procurement when a protest is lodged is apparent.”
The OPA noted that an emergency procurement is only applicable when there
exists “an imminent threat to public health, welfare, or safety, or the health and
safety of the environment, which could not have been foreseen through the
use of reasonable and prudent management procedures, which cannot be
addressed by other procurement methods of source selection.”
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JMI challenged the airport’s award of the contract to Menzie, questioning the nature of the emergency. This was JMI’s second protest, following its 2021 objection in which it questioned Menzie’s legal standing to do business with the government of Guam. In a subsequent civil lawsuit filed in February 2022 before the Superior Court of Guam, JMI alleged that Menzies was not a licensed company.
In the second protest, the airport argued that the “lack of management and
support services for its conveyance system is important enough to constitute
an emergency when a protest is filed pre-award and stays procurement."
However, the OPA noted that "there is no discussion of an emergency related to its baggage conveyance system in its audited statements."
Instead of sustaining JMI’s protest, the airport blamed the protesting company for its move to renew Menzie’s contract.
“GIAA defends its denial of the protest here on the basis that it has had an ongoing state of emergency brought on by JMI’s Sept. 21, 2021 protest,” the OPA said.
“The airport’s reasoning means that a purchasing agency, which neglects to
ensure timely and proper procurement of important equipment or services
can blame the protesting party for creating the emergency: a version of ‘you
made me do it," the OPA said.
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"An aggrieved party’s concerns with an important procurement must not be the reason for conducting an emergency procurement,” the OPA said.
The OPA pointed out that the underlying purposes and policies of Guam's
procurement laws are designed to ensure "the fair and equitable treatment of all
persons who deal with the procurement system; fostering broad-based
competition within the free enterprise system; and providing safeguards for the maintenance of a procurement system of quality and integrity."
If JMI’s protest were sustained, the OPA said, it would have been entitled to reasonable costs incurred in solicitation, protest and bid preparation of a
pre-award dispute regarding the substantial interests of Guam.
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"The protesting party’s entitlement to costs helps ensure that there are
substantial interests of Guam at issue when a purchasing agency
conducts an important procurement," the OPA said.
"Reasonably prudent procurement planning could have factored in adequate time to resolve foreseeable contingent impacts on financial accounts, whether due to earthquake, typhoon, pandemic or like emergency or because of risk to procurement because of a protest by a competing bidder," the OPA said.
The parties may appeal the OPA's decision to the Superior Court of Guam within 14 days after receipt of a final administrative decision.
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