HAGÅTÑA (The Guam Daily Post) — The construction of a new Simon Sanchez High School has been a long-standing concern for both government officials and the SSHS community alike, and the project is currently in the process of procuring construction management services.
But the Office of the Governor states that the procurement “remains in a holding pattern” because the procuring agency, the Department of Public Works, cannot proceed to the next step – a review of proposals – without legal representation from the attorney general.
The Post on Wednesday requested a status update on the construction management services contract for the SSHS project from the attorney general. Deputy Attorney General Darlow Graham Botha responded for the attorney general’s office, stating that DPW needed to send the OAG more procurement documents for review and that, to his knowledge, the project wasn’t ready to be solicited.
However, a request for proposals for construction management services was published in January.
The governor’s office made note of this, stating in a release issued Thursday that the solicitation for construction management services had been published already and that DPW received six responses, before laying responsibility over the holdup on the project at the feet of the OAG.
The Post also sought clarification from the attorney general, and spoke with Botha again Thursday afternoon. It appears there was a miscommunication the day prior.
The deputy AG clarified that his statement on Wednesday regarding the solicitation was about the actual construction of a new Simon Sanchez High campus, and not the procurement for construction management services. The Post believed Wednesday’s conversation was about the construction management procurement, as that was the topic of the inquiry.
Regardless, the procurement for the actual construction of the new SSHS campus will come only after a construction manager is selected. Botha said Thursday that DPW did receive proposals from bidders for the procurement and is convening a panel to review or evaluate the bids. After that, a draft contract and other procurement documents should be sent to the OAG for review, and a notice of intent to award could be granted to the No. 1 bidder afterward, according to Botha.
“The agency itself, whether it’s DPW or anybody else, is the one that convenes the panel. The AG doesn’t have any say-so in who sits on a panel … So once they convene the panel, the panel will review all of the bidders, respective bidders, and then they’ll select, … and then after that, there’ll be a negotiation with the bidder over price and the final contract would be reviewed, and that would go back and forth until the vendor and DPW are satisfied with the final contract,” Botha said.
As stated, the governor’s office indicated that the construction management procurement remains in a holding pattern because DPW needs legal representation to continue with a review of the proposals.
When asked about Adelup’s release, Botha repeated that it is the agency that convenes the review panel.
“They pick the panel members, right? Each of the panel members would be provided a copy of all of the proposals, right? … Say there are five bidders or six bidders, whichever the case would be, they select one through sixth (place). That’s a recommendation. They write up the recommendation and give it to the director. And then the director makes the final determination because the director is the one who says yes or no to the recommendation. I’m not sure where the governor’s office is proceeding forward with that,” Botha said.
The Office of the Attorney General did withdraw legal representation from DPW, as it is one of several government entities under investigation by the office. Attorney General Douglas Moylan decided to withdraw his office’s services from these agencies in light of potential conflict issues stemming from arguments raised by defense counsel in ongoing corruption cases.
Moylan said his office will continue to review and approve procurement documents with the disclaimer that the Office of the Attorney General is not acting as legal counsel – his workaround for the situation.
In its release Thursday, the governor’s office stated that Moylan “erroneously stated” that he created “what he calls a ‘workaround'” for legal services.
“This is false. The truth is AG Moylan has concocted an illegal ‘workaround’ that violates Guam procurement laws, the Organic Act of Guam, and his ethical obligations under the Guam Rules of Professional Conduct. This is why the (governor’s) administration has sought a legal determination from the Supreme Court of Guam. The administration remains confident the courts will find that the AG’s self-proclaimed “workaround” is illegal and he has no authority, right, or legal ability to abandon his Organic Act duty to be the chief legal officer for the government of Guam,” the governor’s office said in the release.
Petition update
The governor on March 14 filed a request for declaratory judgment asking the island’s high court to determine whether the attorney general can withdraw his office’s legal representation of agencies on the basis that such representation might conflict with his public prosecutor role.
Responses and replies have been filed in the case, although the AG initially filed responses under seal. On Friday, Guam Supreme Court Chief Justice Robert Torres ordered that the AG’s filing regarding a jurisdiction issue on the governor’s petition be unsealed, stating that the court determined there is no reason it should not be part of the public record.
“We are pleased that the (Guam Supreme) Court believes that all the pleadings in the declaratory relief action should be available for public review. This is consistent with the belief of the Office of the Governor, which did not file any of our documents under seal,” Adelup stated after receiving Torres’ order.
There is an emergency motion to strike filed by the governor’s office, which is under seal. But according to Krystal Paco-San Agustin, the governor’s spokesperson, that issue includes documents filed by the attorney general that discussed items under seal in other proceedings.
Simon Sanchez High School, located in Yigo, is pictured on Monday, Dec. 19, 2022.
