Guams Centralized Procurement Regime

John Thos. Brown 2011

The Mythconceptions of
Procurement Autonomy
The Centralized Procurement
Regime
As will become apparent in subsequent slides, the
centralized procurement regime refers to the
creation of uniform procurement law and regulation,
and
the consolidation and transfer of most procurement
authority from agencies to the following three
bodies:
The Policy Office, CPO and Director DPW (DDPW)

By Public Law 1 the Legislature established the
Working Capital Fund, for financing the
Division of Procurement and Supply.
But no procurement law.
Based on PL-1, and his Organic power, the Governor
ultimately issued E.O. 1957-1:

Procurement and Supply Regulation No. 1
And E.O. 57-1 Begat Law (PL 4-68) and
Law Begat E.O. 65-12A
And E.O. 57-1 Begat Law (PL 4-68) and
Law Begat E.O. 65-12A
PL 4-68 (1958)
The Legislature Empowered Executive Authority
GC 6600.1. The procurement and warehousing of all supplies
other than for the Guam Memorial Hospital and the Department of
Education
shall be a function of the Department of Administration,
And all procurement (DOA, GMH and DOE) was to
be performed in accordance with such terms,
conditions, and procedures as shall be prescribed
under Executive Order
De-Evolution of Centralized
Procurement (Recap)
PL-1 and E.O. 57-1 were
created to obtain for the
Government of Guam
maximum benefits and
advantages available through
centralized purchasing and
warehousing of materials,
supplies and equipment for
the use of all departments and
agencies of the government
and standard procurement
procedures.
PL 4-68 and E.O. 65-12A made
modifications to the
centralized and standardized
regime, but continued to allow
the Governor to promulgate
terms, conditions, and
procedures of procurement
for each of DOA, GMH and
DOE.
And, it exempted GMH and
DOE from the centralized
purchasing requirement.
Neither services nor
construction were mentioned.

Transition from Executive control to
Legislative control
PL 16-124 contained several sections dealing with
the transition to the new Centralized Procurement
Regime provided for in Section 1, such as:
Section 5: It requires the CPO to adopt a plan
effectuating the transfer of functions for
procurement, required by what is now codified
as 5 GCA 5120.
The transition to central procurement shall be in
place and ready to be implemented October 1,
1983. (In was enacted December 30, 1982.)
The Legislature S h r e d d e d
the Old Law
Public Law 16-124 created the new Procurement Act
comprised of 12 Articles, and took Legislative control
over the procurement policies and procedures of the
Government of Guam, and set out the basic
structure and scope of the procurement law.
Section 2 of PL 16-124 specifically repealed Govt.
Code 6600 and subsections that had given the
Governor Executive authority over procurement.
The Procurement Act is now codified at Title 5, Chapter 5 of the
Guam Code Annotated (GCA), 5001 et seq.
Procurement Policy and Practice Was
Transformed From Executive Order to Law

The Legislature cleaned the slate, erasing
all procurement authority, whether by
Executive Order or by existing agency legislation
Repeal/Conforming Sections
in PL 16-124
2 Repeals Governors Executive Order authority and
the procurement authorities of GMH and DOE
6 makes Procurement Act applicable to GHURA
7 makes Procurement Act applicable to GMHA
8, 9 conforms and applies Act to GPA
10, 11, 12, 13 conforms and applies Act to GEDA
16, 17 conforms and applies Act to GIAA
18, 19 conforms and applies Act to PAG
20 applies Act to UOG
21, 22, 23 conforms procurement law to GMHA
24 makes Act applicable to GCC
25 makes Act applicable to GMTA



And, It Started All Over Again
PL 16-124, Section 1, GC 6946.6 (now 5 GCA 5120)
Centralization of Procurement Authority
Except as otherwise provided in this Article, all
rights, powers, duties, and authority relating to
the procurement of supplies, services, and
construction, and the management, control,
warehousing of supplies, services, and construction
now vested in, or exercised by, any governmental
body under the several statutes relating hereto are
hereby transferred to the Policy Office and the
Chief Procurement Officer and the Director of
Public Works, as provided in this Chapter.
Any
Governmental
Body
The Centralized Regime
consisting of the
Policy Office,
CPO and DDPW
Transfers to
General Procurement Authority
under the
Centralized Procurement Regime
Is Centralized
By a Uniform (Regularized) Body of Law
and Regulation,
and
In the Policy Office, CPO and DDPW
[T]he centralized procurement regime of
Article 2 of this Chapter (5 GCA 5125)
ARTICLE 2
PROCUREMENT ORGANIZATION
(5 GCA Chapter 5, 5101 through 5150)
Part A. Procurement Policy Office.
Part B. General Services Agency.
Part C. Organization of Public Procurement.
Part D. Guam Procurement Regulations.
Part E. Coordination, Training and Education.
Part F. Duties of the Attorney General.
Nothing in Article 2 confers general procurement
authority on any agency other than the central regime.
Uniformity and Centralization in a Nutshell:
5 GCA 5120 (PL 16-124, GC 6946.6)
Except as otherwise provided in this Article, all rights, powers,
duties, and authority relating to the procurement of supplies,
services, and construction, and the management, control,
warehousing of supplies, services, and construction now vested in,
or exercised by, any governmental body under the several statutes
relating thereto are hereby transferred to the Policy Office and the
Chief Procurement Officer and the Director of Public Works, as
provided in this Chapter.
Official Comment: This Section brings all agencies of the government
within the purview of this Chapter. Whether or not such powers may be
delegated depends upon the specific provisions of this Chapter,
but all agencies are covered by this one Chapter.

Got It?
Executive Governmental Bodies
(other than the
Policy Office, CPO, and DDPW)
Have
Limited, If Any,
Procurement Authority
In case you missed that, 5120 means
Effective October 1, 1983
Except as otherwise provided in this Article, all rights, powers, duties, and
authority relating to the procurement of
supplies, services, and construction, and the management, control,
warehousing of supplies, services, and construction now vested in, or exercised
by, any governmental body under the several statutes relating hereto
are hereby transferred to the Policy
Office and the Chief Procurement Officer and
the Director of Public Works, as provided in this Chapter.

Lets Break It Down
The Operative Words Are
(: you should know this by now)
All rights, powers, duties and authority
Relating to procurement
Now (effective October 1, 1983)
Vested in
Any governmental body
Are hereby
Transferred to
The Policy Office, CPO and DDPW
governmental body ??
Governmental Body means any
department, commission, council, board,
bureau, committee, institution, agency,
government corporation, or
OLhct cMLubLIMhmcDL
or
of the executive, legislative or judicial
branches of Guam.
PL 16-124, Govt. Code 6952(k)
(Current version codified at 5 GCA 5030(k))
The definition of
governmental body evolves
PL 17-27(2)
any department, commission,
council, board, bureau,
committee, institution, agency,
government corporation,
authority or other
establishment or official of the
executive , legislative or
judicial branches of Guam.









PL 17-43:2, Jan. 18, 1984
any department, commission, council,
board, bureau, committee, institution,
agency, government corporation,
authority or other establishment or
official of the executive or judicial
branch of the Government of Guam,
except the Guam Community
College, the University of
Guam, the Department of
Education, and the Guam
Memorial Hospital Authority.*
* Current version also excepts the GovGuam Retirement Fund (GGRF). 5 GCA 5030(k)
Does except mean exempt?
except
the Guam Community
College,
the University of Guam,
the Department of
Education,
and the Guam Memorial
Hospital Authority and
GGRF

Do they have to show you
their stinking badges?
The definition of governmental body may evolve but the
definition does not provide authority.

The change in definition does not transfer
procurement authority back.
The definition is not the operative language
needed to confer or reinstate authority.
Last in time
In the event of inconsistency between
two statutes, the last in time prevails.

In 1983, PL 16-124 stripped DOE,GMHA,
GCC, UOG, GPA,GEDA, GHURA, GIAA,
PAG and Guam Mass Transit and all
other governmental bodies of all
procurement authority they may have
then had under any Executive Order or
Legislative Act.

Unless or to the extent a subsequent
law specifically granted authority back,
they have no procurement authority
other than that specifically conferred by
the Procurement Act.

Who
GCC

UOG

DOE

GMHA

Centralized Procurement
Regime under PL 16-124
When: Date of Enabling Powers
Nov 11, 1977 (PL 14-77)

July 1, 1963 (PL 7-66)
R/R PL 19-40, Dec. 30, 1988*

1965 (GC 6600.3, EO 65-12),
R/R PL 26-26, July 2001*

1965 (GC 6600.2, EO 65-12),
R/R May 27, 1977 (PL 14-29)
R/R PL 30-190, Aug. 28, 2010*

Dec 30, 1982, effective Oct 1,
1983

* See following slides: no subsequent power
is conferred to replace transferred authority.
General Repeal and Re-enactments Do Not
Generally Repeal Prior Specific Law
Even though the law states that it repeals a prior
public law, the legislative intent of the law was not
necessarily a repeal. Repealed and reenacted
statutes may be regarded as having been
continuously in force. (Supreme Court of Guam, San
Miguel v. Dep 't of Public Works, 2008 Guam 3.)

Some agencies have had their general implementing legislation
overhauled by general statutes purporting to repeal and re-enact the prior
law. Such Acts do not constitute a new grant of procurement power
unless, and only to the extent, specifically expressed to do so.


Specific Statutes Trump General Ones
Where there is no clear intention otherwise, a
specific statute will not be controlled or
nullified by a general one, regardless of the
priority of enactment.
Morton v. Mancari, 417 US 535 US Supreme Court (1974)

5120 is a specific transfer of all rights, powers,
duties, and authority relating to the procurement of
supplies, services, and construction, and the
management, control, warehousing of supplies,
services, and construction, thus trumps any
subsequent grant of more general powers or
authority.

Guam Community College
Procurement Authority
17 GCA 31104. Rules and Regulations.
The Board shall adopt reasonable rules and regulations not
inconsistent with the laws of the United States and this
Territory (a) for its own government, (b) for the government
of the College and (c) for the purpose of carrying out all other
duties and powers herein conferred. (Formerly GC 11966, PL 14-
77, 1977)
PL 16-124 is inconsistent: it gives the Policy Office exclusive
power to adopt regulations, as will be explained below.
A search of the laws of GCCs administrative obligations and powers for
the word procure or any derivative turned up no use of the term.
GCC, continued
17 GCA 31109. Powers of the Guam Community College and Board.
The Guam Community College and Board shall have all the powers
necessary and convenient to carry out and perform the purposes
and provisions of this Division including [the power to:]
(3) enter into and execute contracts and instruments of every
kind and nature necessary or convenient to the exercise of its
powers and functions.
-- Only a general power, inconsistent with specific procurement powers
specified in PL 16-124.
(4) in accordance with Title VII-A of the Government Code
[the Procurement Act], acquire personal property. (As
conformed by PL 16-124:24.)
-- Note absence of power to procure services or construction.
GCC -- Wrap Up
17 GCA 33102. Construction with Other Law. (11983 GC, PL 14-77)
Except as expressly provided for herein and notwithstanding any other law
to the contrary, the College shall be autonomous and self-sufficient in
matters pertaining to its governance, organization and administration and
the promulgation of its rules and regulations, in accordance with the
Administrative Adjudication Law pertaining to
(4) obligation and disposition of funds, provided that appropriated funds
are used for the purpose or purposes stipulated in the Act appropriating
said funds.
-- There is no authorization to promulgate regulations pertaining to
procurement.
All procurement authority for services and construction was
stripped from GCC and transferred to the centralized
procurement regime in PL 16-124.
Whats left? Only supplies (personal property) as noted before.

University of Guam
Procurement Authority
17 GCA 16104.1 (PL 19-40). Duties of the Board of Regents.
The Regents shall have general supervision over the University and
the control and direction of all funds of, and appropriated to, the
University, subject to such restrictions as may be prescribed by law.

16109. Powers. (GC 11838, repealed and added by P.L. 13-194, R/R by P.L. 19-40:1. )
The University of Guam has the power and duty to do any and all
things necessary to further the purposes of this Chapter.
-- These are only grants of general power, not specific grants of procurement
authority. Procurement authority was specifically transferred to the
centralized procurement regime by the Procurement Act.

17 GCA 16101. (GC 11830, repealed and added by P.L. 13-194, R/R by P.L. 19-40:1.)
UOGs property shall be administered and disposed of according to
law.
UOG continued
The University was given the power and duty to do any and
all things necessary to further the purposes of this Chapter
under its 1976 enabling legislation in PL 13-194. (See, GC
11838 et seq.)
The University was also given certain fiscal authorities and
duties, cataloged in GC 11847(a) - (f).
PL 16-124:20 added GC 11847(g):
Title VII-A of this Code [the Procurement Act] shall be
applicable to the procurement of supplies, services
and construction of projects by the University.
The Procurement Act transferred UOG procurement
authority to the centralized procurement regime.
(5 GCA 5120.)
UOG continued
PL 13-194 was repealed and re-enacted by PL 19-40, which contained a
general statement of repeal of any prior inconsistent laws, similar to GCCs
Construction with Other Law provision. (See 17 GCA 16111, and compare
17 GCA 33102.)
-- Did PL 19-40 repeal PL 16-124?
The Guam Supreme Court has considered that specific statute and observed:
With respect to the first repealer clause, a clause which
repeals inconsistent enactments is a general repealing clause.
It has been observed that such a clause should legally be a
nullity. Such a clause cannot be an express repeal because
it does not identify any act to be repealed, or an implied
repeal because it does not declare the inconsistency but
conditions repeal upon the existence of a conflict.
(Univ. of Guam v. Foley, 2002 Guam 4; all emphasis added, citations omitted.)

Is PL 16-124 even inconsistent? What procurement powers are
conferred by PL 19-40?
Show us any such badge of authority.


UOG continued
16109. Powers. The University of Guam has the power and duty
to do any and all things necessary to further the purposes of this
Chapter.

The purposes of UOG are described in 16102: To provide
instruction; to provide support services for its functions; to
conduct research; and, provide services to the people of Guam. It
shall be Guams Land Grant Institution.
Procurement is not mandated as a UOG function.

These powers and purposes were enacted by PL 13-194 and
impacted by PL 16-124. None of those purposes are inconsistent
with the Procurement Act. The procurement act specifies how
services are to be procured; it does not prevent support services
from being acquired.

UOG Wrap UP
PL 19-40 does not grant UOG new powers, indeed it contains the same exact
language granting UOG only general powers that was first found in PL 13-194.
Compare GC 11838 (quoted above) and 17 GCA 16109.

PL 19-40 specifically carried forward those limited powers: [t]he University of
Guam, already established according to existing laws, is hereby confirmed....
All the rights, immunities, franchises and endowments heretofore granted
thereto are hereby perpetuated unto the said University. (17 GCA 16101.)

PL 16-124:20 specifically made the Procurement Act applicable to UOG
procurement, and the Procurement Act transferred all procurement
functions to the centralized procurement regime.

There is nothing in PL 19-40 which expresses any legislative intent to
restore to the University the specific procurement power over
supplies, services or construction taken away by PL 16-124.
Department of Education
Procurement Authority
17 3103. The Superintendent shall:
(1) administer the day-to-day activities of the Department of
Education;
(4) serve as the Departments approving authority for the
expenditure of funds;
(9) perform other duties as may be required by public law to
provide an adequate public educational system.

-- PL 16-124:2 specifically repealed authority for DOEs
procurement functions granted by GC 6600.3 and EO 65-12A.
-- Whats left? (Delegation, nothing more.)



Guam Memorial Hospital Authority
Procurement Authority
GMH was given authority over procurement functions in GC 6600.2 .
This was replaced by P.L. 14-029:1 (May 27, 1977). GC 49009 granted
GMHA specific procurement authority and processes for acquiring
supplies and construction (but not services generally).
PL 16-124:23, 24, and 25 specifically repealed GC 49009, and made
other conforming changes making GMHA subject to the Procurement Act.
(PL 16-124 provides an exemption to procure professional services, see 5
GCA 5121, but no grant of authority to acquire general services.)
PL 14-29 was repealed and reenacted by P.L. 30-190:1 (Aug. 28, 2010).
In Univ. of Guam v. Foley, 2002 Guam 4, the Guam Supreme Court held PL
14-29s repeal and re-enactment overhaul did not repeal specific prior
law relating to personnel matters, suggesting the same rule would be
applicable to the specific procurement provisions of PL 16-124.
GMHA continued (current law)
10 GCA 80102. Establishment. GMHA property shall be administered and
disposed of according to law.
-- What law? The Procurement Law.

10 GCA 80109. Powers.
The Hospital shall have and exercise each and all of the following powers:
(e) upon written certification of the Administrator, that
specified and specialized medical equipment and related
supplies are needed immediately for the health and welfare of
the patients , the Guam Memorial Hospital Authority shall be
exempt from the provisions of [the methods of source selection
specified in the Procurement Act] in the acquisition of the
medical equipment and related supplies [only];
GMHA powers continued
80109(k). GMHA may adopt such rules and regulations pursuant
to the Administrative Adjudication Act as may be necessary for the
exercise of the Hospitals powers, performance of its duties and
administration of its operations;
Note: The AAA establishes procedure for adoption of rules and
regulations, but does not provide authority to do so. 5 GCA 9300: It is
not intended to give to any agency any additional rule-making power or
authority and no additional or new power or authority to make or adopt
rules is given to any agency by this law.

10 GCA 80109(o). GMHA may do any and all other things
necessary to the full and convenient exercise of the above powers.

10 GCA 80109(q). GMHA may acquire in accordance with the
Procurement Law any personal property or construct any
projects necessary or convenient or useful for carrying on of any of
its powers pursuant to the provisions of this Chapter. (Source: PL
16-124: 22, as mentioned above. Note absence of services.)
GMHA Wrap Up
80109(u) GMHA may retain or contract, in accordance with
applicable procurement law, services relative to the providing
of cafeteria and/or other food vendor services.
Ask yourself: If GMHA had inherent power to acquire the
supplies, services and construction mentioned in 80109(e),
(k),(q) and (u) above, why would it be necessary to provide
specific legislation to do so? The grant of these specific powers
implies the lack of any other general procurement power. Thus,
the power to acquire services generally, other than food services,
must be conducted through GSA.
Current law does nothing to restore the limited procurement
authority granted to GMHA in GC 6600.2 and PL 14-29 and
then specifically repealed and conformed by PL 16-124:2 and 23.

Guam Imaging Consultants, Inc. v. GMHA
(2004 Guam 15)
The Court relied solely on language similar to current 80109(k) granting GMHA
general authority to [a]dopt such rules and regulations as may be necessary for
the ... performance of its duties and administration of its operations.
The Court then discussed only part of the history of GMHAs enabling legislation,
Board resolutions and Governor Executive Orders, concluding GMHA
procurement of services through an RFP is governed by both the Guam
Procurement Law and GMHAs own Procurement Regulations. This was dicta,
not necessary to the case, and evidently not briefed or argued by Appellants.

The Court did not even mention 5 GCA 5102, 5120 , 5125, or 5130, which vest
specific procurement authority in the centralized procurement regime and places
sole power to adopt regulations in the Policy Office, nor did it review or discuss the
several provisions of PL 16-124 which specifically repealed the Governors
procurement power well as GMHAs general procurement power and procedure,
and imposed the obligation on GMHA to comply with the Procurement Act, and its
limited power in respect of services, all as discussed in detail in this presentation.
With respect, the conclusion reached was as hasty as it was unnecessary.


Specific Authority:
Who has authority to promulgate
procurement regulations ?
Agencies?
Agencies do not have authority to adopt their own
procurement regulations
Weve seen above that most agencies do not have
general procurement authority, because 5 GCA 5120
specifically transferred all such authority to the Policy
Office, the CPO and the Director DPW (the Centralized
Procurement Regime).
Here we examine the specific (lack of) authority
to promulgate their own procurement
regulations.

Who Has Specific Authority to Write
Procurement Regulations?
Compare
Except as otherwise provided in this
Chapter?
5102 and 5113 in Article 2 grant the general power to
promulgate procurement regulations to the Policy Office
exclusively.

There is a specific exception otherwise provided Article 4
of this Chapter, 5262, where, by virtue of the power of
substitution granted in 5125, the Directors of certain
exempt agencies may draft certain very specific
regulations regarding specifications.
(More on 5125 later.)

If an agency claims regulation-making power --- Badges!
So who has authority to write regulations?
May I see your passport, please?
So where do agencies
get authority to write
their own regulations?

Nowhere. They dont
have it.

Demand Badges.

You show me some ID, Boy
5131. [Agency] Adoption of Regulations.

Each governmental body and each named body in 5125* of this
Chapter shall adopt the procurement regulations promulgated pursuant to
5130(a)* of this Chapter to the extent such agency is subject to such
regulations according to the terms of 5125 of this Chapter.

*Need a 5130(a) reminder?
5130(a). Regulations shall be promulgated by the Policy Office
in accordance with the applicable provisions of the Administrative
Adjudication Law.
-- This does not allow agencies to draw up their own regulations.
*And, who are the named bodies in 5125?
The Government of Guam Retirement Fund, Guam
Community College, the University of Guam, the Department of
Education, the Guam Memorial Hospital Authority, Guam Economic
Development and Commerce Authority, and the Guam Visitors Bureau
(and dont forget the govenmental bodies in addition to the named ones)
Who has specific authority to
promulgate procurement
regulations ?
The Governor?
EXECUTIVE ORDER NO. 84-21:

GUAM PROCUREMENT REGULATIONS NO. 001
WHEREAS, Title VIl-A, Government Code of Guam (Guam Procurement Act), Public Law 16-124,
Sixteenth Guam Legislature, Second Regular Session, established a General Services Agency blah
blah blah; and

WHEREAS, the Act created a Procurement Policy Office, under the Office of the Governor, vested
with the authority and responsibility to promulgate regulations, blah blah blah; and

WHEREAS, the Procurement Policy Office has conducted a public hearing for the adoption of
the Guam Procurement Regulations in accordance with the Administrative Adjudication Law;
and
WHEREAS, the Procurement Policy Office has adopted the Guam Procurement Regulations by
Resolution No. 001-84;

NOW, THEREFORE, I RICARDO J. BORDALLO, Governor of Guam, by virtue
of the authority vested in me by the Organic Act of Guam, do hereby
promulgate the attached Guam Procurement Regulations No. 001 as
adopted by the Procurement Policy Office.


Can The Governor Really Promulgate
Procurement Regulations?
NO -- 5102: Except as otherwise provided in this Chapter, the Policy Office shall
have the authority and responsibility to promulgate regulations. The Governor
has the power to appoint the Policy Office members (5 GCA 5101(b)), but not
the power to exercise its duties.
PL 16-124 stripped all governmental bodies of procurement authority.
Governmental Body means any department, commission, council, board, bureau,
committee, institution, agency, government corporation, authority or other
establishment or official of the executive branch of the Government of Guam.
( 5030(k) )
The Governor is an official of the Executive Branch. (Organic Act, 1422: The
executive power of Guam shall be vested in an executive officer whose official title
shall be the Governor of Guam.)

By enactment of PL 16-124, the Legislature revoked the Executive Power
of the Governor under prior Govt. Code 6600.1, and along with it,
transferred the power to promulgate procurement regulations to the
Policy Office.


Further evidence of Legislative intent to take away
the Governors power to promulgate regulations
PL 16-124 was enacted on December 30, 1982, with an effective date of October 1,
1983.
On June 15, 1983, the Legislature enacted PL 17-9, which specifically brought
forward the effective date of only the Emergency Procurement provision of the
Procurement Act, to take effect immediately.

PL 17-9 provided, Until creation of the Policy Office, the Governor
shall issue any regulations required under that Section and may do so
without regard to the Administrative Adjudication Act.

This is a clear statement of the Legislatures intent to restrict the Governors power
to promulgate procurement regulations. PL 16-124 granted exclusive regulation-
making power to the Policy Office. PL 17-9 made a very specific exception to that
authority, for a very limited time, to allow the Governor to issue a very specific
regulation. The Governors days of unlimited power to regulate procurement were
over. The Governor only has Executive Organic Power when there are no
inconsistent laws. (48 USC 1422.)

In re Request of Governor Carl T.C. Gutierrez
(2002 Guam 1)
Having identified the respective powers of the Governor and Legislature as
set forth in the Organic Act, we nevertheless acknowledge that the powers of
each respective branch inevitably overlap to a certain extent.
An analysis of each issue raised by the Governor must begin with the general
rule that legislative enactments are presumed to be constitutional.
The Legislatures plenary power of appropriation includes the power to
impose conditions upon the expenditure of appropriated funds.
However, the Legislature may not set limitations or conditions which
purport to reserve to the legislature powers of close supervision that are
essentially executive in character.
~~~~~~~~~~~~~~~~~~~~~~~~~~~
The Procurement Law does not closely supervise or impinge on the Executives
determination of the subject matter or economic terms of procurement, nor
the parties thereto, nor the timing thereof, nor does the Legislature reserve
approval or review authority. The Law does not so burden the Executive with
other conditions that are so essentially executive in character as to prevent the
Governor from accomplishing his unique Organic functions. It passes muster.
So Who Can Promulgate
Procurement Regulations?
Only
the Policy Office
General Procurement Authority

OF AGENCIES
(Some agencies have some power)
(But not carte blanche, either)
It is the intent of I Liheslaturan
Guhan [the Legislature]
To require all Executive Branch governmental bodies, including
autonomous agencies, and other above-named bodies, to be governed
to the maximum extent practicable by Chapter 5 of Title 5 of the
Guam Code Annotated.

This provision requires any governmental body, and each above-
named body, to conduct their procurement activities pursuant to
Chapter 5 of Title 5 of the Guam Code Annotated, except insofar as
said Chapter establishes and effects a system of centralized
procurement [in which case, the centralized authorities the CPO,
DDPW and Policy Office will conduct the procurement activities for
the body].

5 GCA 5125
Agencies are Conductors, not Creators
This provision ( 5125)
requires any governmental
body to conduct their
procurement activities

Conduct:
The act of leading; guidance.
To show the way; direct.
Implies a supervising by using
ones executive skill.
Organize and carry out.
Manage.
Drilling down into 5125:
Application of this Chapter to Executive Branch.
Every governmental body
which is in the purview of the Executive
Branch, and including the Government
of Guam Retirement Fund, Guam
Community College, the University of
Guam, the Department of Education,
the Guam Memorial Hospital Authority,
Guam Economic Development and
Commerce Authority, and the Guam
Visitors Bureau,

shall be governed by Articles
1, 3, 6, 7, 10, 11 and
12 of this Chapter

Article 1. General Provisions.
Article 3. Source Selection and
Contract Formation.
Article 6. Modification and
Termination of Contracts for Supplies
and Services.
Article 7. Cost Principles.
Article 10. Compliance With Federal
Requirements.
Article 11. Ethics in Public
Contracting.
Article 12. Procurement Appeals.
5125 continues in following slides
Executive bodies shall be governed
by Articles 1, 3, 6, 7, 10, 11 and 12 of the Procurement Act
except to the extent
that any such governmental body or other abovenamed body
may be exempted from the centralized procurement
regime of Article 2 of this Chapter
in which event
the Director of each such body
shall be substituted
wherever there is reference to the Public Policy Office,
Chief Procurement Officer or Director of Public Works
In Articles 4, 5, 8 and 9 of [the Procurement Act].
Exempted in 5125 Does Not Mean Agencies
Can Promulgate Their Own Regulations
5 GCA 5125 was enacted as part of PL 18-44, in 1986, along with 5131.
5131, read together with 5125, is specific with regard to who can
promulgate and who must adopt promulgated procurement regulations:
Each governmental body and each named body in 5125 shall
adopt the procurement regulations promulgated [by the Policy
Office] pursuant to 5130(a) of this Chapter [substituting where
appropriate the Director of such body wherever there is
reference to the Policy Office, CPO or DDPW in Articles 4, 5, 8
and 9].
The general authority to promulgate regulations is in Article 2. Article 4
( 5261) specifically directs the Policy Office to promulgate regulations
relating to specifications. 5125 grants the Director of an exempt
body the power, by substitution, to promulgate those specific regulations.

5125 does not grant exemption.
It merely describes the consequence
if exempted. If so, an agency is
directly governed by most Articles,
and indirectly by the rest of the
Articles**, as to which an agency
Director may act by substitution, in
the same manner, and subject to the
same regulations, as the respective
agents of the centralized
procurement regime might have
acted.
Exemption comes from a grant of
independent procurement authority
in other law or by delegation.
**
Article 4. Specifications.
Article 5. Procurement of
Construction, Architect-Engineer
and Land Surveying Services.
Article 8. Supply Management.
Article 9. Legal and Contractual
Remedies.
Effect of being generally exempt from
centralized procurement regime per 5125:
Main Differences between
Exempt and Not Exempt Bodies

Conduct own
procurement
Write Regulations
Exempt Not Exempt Central
Regime
Yes No Conducts
for Not
Exempt
No No Yes But --
Policy Office
only

Recapping 5125

All Executive agencies,
whether governmental
bodies or named
bodies, are subject to
Articles 1, 3, 6, 7, 10, 11
and 12 of the
Procurement Act.

And
To the extent of any
exemption from the
centralized
procurement regime,
the Director of any such
agency shall act as
substitute for the Policy
Office, CPO or Director
in fulfilling the
requirements of Articles
4, 5, 8 and 9.
Putting the Procurement Act
Pieces Back Together Again
5125 describes the centralized procurement
regime of Article 2 of the Procurement Act.

All Executive bodies, centralized or not, are either
directly governed by or indirectly governed by (to
the extent exempted from the centralized
regime) all Articles of the Procurement Act,
1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12.
Some Specific Exemptions
And an Exception
to the
Centralized Procurement Regime
Repeat: 5125 Does Not Exempt
Anyone
There is no language in 5125 that exempts any
governmental body, named or otherwise, from
the obligations and prescriptions of the
Procurement Act.
It simply says IF a body is exempt, it can directly
conduct procurement without going through GSA
or DPW.
Exemption, if it exists, must be specified in
other law, by some specific grant of power or by
delegation. Here we look at some of them.

Specific Exemptions to Centralized
Procurement Regime
5124. Exemptions.
Unless otherwise ordered by regulation of the Policy Office, with
approval of the Governor, the following supplies, and services
need not be procured through the General Services Agency or the
Department of Public Works, but shall nevertheless be procured by
the appropriate Purchasing Agency subject to the requirements of
this Chapter and the regulations promulgated by the Policy Office:
(a) works of art for museum and public display;
(b) published books, books or other regular publications
published by any government agency, maps, periodicals and technical
pamphlets;
(c) architect, engineer and land surveying services as defined
in 5301 of this Chapter;
(d) investment agent services and actuary services for the
Guam Retirement Fund.
Exceptions from the Centralized
Procurement Regime
5121. For the purpose of procuring the services of accountants,
physicians, lawyers, dentists, licensed nurses, other licensed health
professionals and other professionals, any governmental body* of Guam
may act as a purchasing agency and contract on its own behalf for such
services, subject to this Chapter and regulations promulgated by the
Policy Office, but this Subsection shall not authorize the procuring of such
services where any given governmental body is otherwise prohibited from
procuring such services.
*Note that governmental bodies excepts GCC, UOG, GMHA, DOE and
GGRF from that definition. Thus, none of them has this specific exemption
to acquire professional services, which must be found elsewhere IF AT ALL.

5123 provides and exception requiring acquisition of all vehicles as a
fleet by GSA, even if an agency is exempt. Surprise!
5122 and 5123 provide the only specific legislatively conferred exceptions to the
centralized procurement regime of Article 2 in the Procurement Act.
~~~
5124 lists the only specific legislatively conferred exemptions to the
centralized procurement regime of Article 2 in the Procurement Act.
~~~
These are narrow, functionally described carve-outs from the
central procurement regime, not broad immunities from the general obligations
of the procurement law,
nor a grant of an alternative or additional procurement authority .
~~~
Note that an exempt agency is only exempt to the extent of specific powers granted.
For instance, GMHA was not granted general authority to procure services.
Recapping Exempt, Exemptions and Exceptions
The Players in the Centralized
Procurement Regime
The centralized rights, powers, duties, and
authority relating to procurement are
exercised by:
The Policy Office (Policy and Regulations)
The CPO (Supplies and Services)
The DDPW (Construction)
- With the counsel, representation and review of
the Attorney General
According to the particular responsibilities of
each of them.

The Powers of the Regime
Players
Their roles and responsibilities.
The Policy Office
The Policy Office
The Policy Office was created by 5 GCA 5101, with two ex
officio officers and requires appointment of three other
public employee members by the Governor. Governors
have failed to appoint since the first Policy Office was
constituted and, as perhaps its only official act, adopted the
initial General Procurement Regulations codified at 2 GARR,
Division 4.
The ABA Model Procurement Act suggests other models for
the constitution of the Policy Office. Guam adopted the
inside model. There is also an outside model
comprised of non-government employees, and a hybrid
model comprised of private and public members.
Power and Duties of the Policy Office
5102. Authority and Duties of the Policy Office.
Except as otherwise provided in this Chapter, the Policy Office shall have the authority
and responsibility to promulgate regulations governing the procurement,
management, control and disposal of any and all supplies, services and construction to
be procured by the Territory.
The Policy Office shall consider and decide matters of policy within the provision of
this Chapter including those referred to it by the Chief Procurement Officer or the
Director of Public Works.
The Policy Office shall not exercise authority over the award or administration of
any particular contract, or over any dispute, claim, or litigation pertaining thereto,
except that the Chief Procurement Officer and the Director of Public Works shall
exercise such authority in accordance with the provisions of this Chapter.

The Policy Office shall promulgate regulations governing the preparation, maintenance,
and content of specifications for supplies, services and construction required by the
Territory. ( 5261) (The Director of exempt bodies can perform this function to the
extent of their authority over supplies, services or construction.)


Independent of the Governors Direct
Control
The Policy Office is in the Executive Branch, and the
Governors office is supposed to support its activities.

5 GCA 5101:
(a) There is created in the Office of the Governor the
Procurement Policy Office which in this Chapter is
referred to as the Policy Office.
(c) The Governors Office shall provide such services as
the Policy Office may request, including office space
and administrative assistance.
Independence of Policy Office
The Committee on General Governmental
Operations determined that the Policy Office,
operating as it does over the entire
government, should be separate from the
Department in which is located the General
Services Agency. Therefore, it is placed within
the Office of the Governor, which is responsible
for supporting it.
[Comment, PL 16-124, 5 GCA 5101.]
Chief Procurement Officer
Powers and Duties of CPO
Article 2, Part B, 5 GCA 5110 et seq.
The Chief Procurement Officer is the head of
the General Services Agency, which is a body
within the Department of Administration.

The Chief Procurement Officer shall be a full-
time classified employee and may be
removed from office in accordance with the
provisions of the Personnel Law, 4 GCA
Chapter 4.

Continued Powers and Duties of CPO
INDEPENDENCE
While the Chief Procurement Officer is a part of the Department of
Administration, this Chapter places procurement responsibilities with this
Chief Procurement Officer, rather than with the Director of Administration,
who still remains his superior.

Nonetheless, the Chief Procurement Officer must make the decisions and,
to this end, it is he, not the Director of Administration, who must have the
qualifications in the specialized area of public procurement.

Because the Chief Procurement Officer is within an Executive Agency, he is
a classified employee. Therefore, the term of office suggested by the MPC
is inappropriate as are specifications for removal, both of which are fully
covered in 4 GCA Chapter 4 - establishing the classified employment in the
government of Guam.
[Comments, 5111, 5112]
Continued Powers and Duties of CPO
Limited to Procurement of Supplies & Services
5113. Authority of the Chief Procurement Officer

(a) The Chief Procurement Officer of the General Services Agency, shall serve as
the central procurement officer of the Territory with respect to supplies and
services.

(c)(1) Except as otherwise specifically provided in this Chapter, the Chief
Procurement Officer shall, in accordance with regulations promulgated by the
Policy Office:
(i) procure or supervise the procurement of all supplies and services needed by the Territory;
(ii) exercise general supervision and control over all inventories of supplies belonging to the
Territory; and
(iii) establish and maintain programs for the inspection, testing and acceptance of supplies and
services.

The Chief Procurement Officer shall prepare, issue, revise, maintain and monitor
the use of specifications for supplies and services required by the Territory.
( 5262(a).) Note this is an Article 4 power which might be exercised by exempt agency to
extent of its authority.

Continued Power of CPO to adopt operational procedures
5113(b). Consistent with the provisions of this Chapter, the
Chief Procurement Officer may adopt operational procedures
governing the internal functions of [her/his] procurement
operations.
Agency rules which relate solely to internal policy, internal
agency organization or internal procedure are not
regulations which require promulgation in accordance with
the Administrative Adjudication Act. (See, 5 GCA 9107,
definition of rule in the Administrative Adjudication Law.)
The authority to adopt internal procedures is not broad authority to
promulgate procurement regulations. (5 GCA 9300: [The AAA] is not
intended to give to any agency any additional rule-making power or
authority and no additional or new power or authority to make or adopt
rules is given to any agency by this law.)
Continued Power of CPO to adopt operational procedures
The CPO and Attorney General have argued that
the CPO has power to adopt certain procurement
regulations, but the Public Auditor has rejected
that argument. (OPA-PA-08-012.)

It appears that GSA has allegedly adopted and
amended some of the Policy Office Procurement
Regulations in 1999. (See, Source note to 2 GAR
1101: Item (7) was added by the GSA to
comply with 5 GCA 5001(b)(8). (1/1/1999).)
Neither GSA nor the CPO have have any such
power.

CPOs Conditional Power of Delegation
Subject to the regulations of the Policy Office, the Chief
Procurement Officer may delegate authority to designees
or to any governmental body or official. ( 5114.)

The Regulations place limits on any discretion to delegate.
The power to delegate includes the power to revoke a
delegation.

A person can only delegate such authority as that person
possesses. No one can create authority by delegation.
Thus, for instance, the CPO cannot delegate the power to
promulgate procurement regulations because the CPO does
not have that power herself, nor can she delegate authority
for construction.

Regulations limit delegation discretion
2 GAR 2105. Decision to Delegate.

Factors to consider (must consider?) in making the decision to delegate
include:

(a) the expertise of the potential delegate in terms of procurement
knowledge and any specialized knowledge pertinent to the authority to be
delegated;
(b) the past experience of the potential delegate in exercising similar
authority;
(c) the degree of economy and efficiency to be achieved in meeting the
territory's requirements if authority is delegated;
(d) the available resources of the Office of the Chief Procurement Officer
to exercise the authority if it is not delegated; and
(e) the consistency of delegation under similar circumstances.
Delegation continued 2 GAR 2106

The Chief Procurement Officer or the Director of Public Works may
delegate in writing such authority as may be deemed appropriate to
the head of any department or independent agency of this
territory.
Such delegation shall be in writing and shall specify:
(a) the activity or function authorized;
(b) any limits or restrictions on the exercise of the delegated
authority;
(c) whether the authority may be further delegated (the power to
re-delegate is not implied in law); and
(d) the duration of the delegation.
Any designee of the Chief Procurement Officer shall exercise
delegated authority in accordance with the Guam Procurement
Act and these Regulations. (2 GAR 2105.)

Delegation continued: Exceptions and Limitations
2 GAR 2107. Exceptions to Delegation. The authority conferred on
the Chief Procurement Officer or the head of a Purchasing Agency in
the following sections of the Guam Procurement Regulations shall
not be delegated, therefore, any agency exercising procurement
power under a delegation (e.g., DOE) does NOT have any power
granted under these following regulations (2 GAR):
(a) Section 5104 (Contract Performance and Payment Bonds, Reduction of Bond
Amounts);
(b) Section 5106 (Contract Clauses and Their Administration, Modification of Clauses)
[construction];
(c) Section 6101 (Contract Clauses and Their Administration, Modification of Clauses)
[supplies and services];
(d) Section 9101 (Authority to Resolve Protested Solicitations and Awards, Stay of
Procurement During Protests); and
(e) Section 9102 (Authority to Debar or Suspend, Authority).

Also note the limitations on delegation of authority to negotiate certain construction bid prices,
and to hear suspension and debarment proceedings in 2 GAR 2108.
Note Delegation That May Be
Specified by Statutes
Some agencies may believe they possess independence from the
Procurement Act because of Legislative grants of powers in the
Procurement Act. Those statutes confer only a right of delegation of
powers by the CPO, limited by applicable regulations, and the CPO cannot
delegate any power the CPO does not possess. Grants of procurement
powers within enabling legislation are not typically by way of delegation.

5116. Procurement may be Delegated to GPA Board. Notwithstanding
any other provision of Guam Procurement Law, the authority to procure
supplies and services for the Guam Power Authority may be delegated by
the Chief Procurement Officer only to the Guam Power Authority Board of
Directors [not to the Head].
5117. Procurement Shall Be Delegated to the Guam Preservation Trust.
Notwithstanding any other provision of Guam Procurement Law, the
authority to procure supplies and services for the Guam Preservation Trust
shall be delegated by the Chief Procurement Officer to the Board of
Directors of the Guam Preservation Trust.
The Role of the
Director, DPW (DDPW)
Powers & Duties of the DDPW
5113. Authority of the Director of Dept. of Public Works.
(a) The Director of Public Works (DDPW) shall serve as the
central procurement officer of the Territory with respect to
construction.
(c) (2) Except as otherwise specifically provided in this
Chapter, the Director of Public Works shall, in accordance
with regulations promulgated by the Policy Office:
(i) procure or supervise the procurement of all construction
needed by the Territory; and
(ii) establish and maintain programs for the inspection, testing
and acceptance of construction.

Note that the Director DPW is not a classified employee, unlike the
CPO.

Delegation and other powers of DDPW
For most purposes, the powers to adopt
operational procedures and to delegate, as well
as the limitations on such powers, are the same
for the Director DPW as they are for the CPO,
limited, of course, to their respective
responsibilities.
The Attorney General
AGs role as counsel
5 GCA 5150
The role of the Attorney Generals office has undergone
several legislative changes of late, generally enlarging
the AGs role in reviewing the legality of and approving
the procurement process, especially with respect to
large procurements.

The gist of the role remains the same, however:
To serve as legal counsel and provide necessary legal
services to the central procurement regime as well as
other bodies, and
To act as legal advisor to those entities during all phases of
the solicitation or procurement process
2011 John Thos. Brown
Guam Procurement Process Primer and more at
Blogged Down In Procurement
http://bloggeddowninprocurement.blogspot.com/