The risks of emergency powers

June 10, 2020

 

 Gov. Lou Leon Guerrero invoked her public health emergency directive when she faced public scrutiny over her administration’s business deals with hotels that have been used as quarantine facilities. The declaration of state of public health emergency, she said, has authorized her to acquire emergency procurements—which means, services and supplies were commissioned without competitive biddings.

 

No one -- as Sen. Sabina Perez pointed out —  has questioned the merits of leasing the hotel rooms to implement Covid-19 preventive measures. The hotels housed the USS Theodore Roosevelt sailors and arriving passengers, who were required to be quarantined for 14 days.

 

It was the manner by which the transactions were done that raised a red flag. The process was riddled with alleged anomalies such as the unauthorized use of a cabinet official’s digital signature, the curious involvement of an important relative during the negotiation, the lack of written contracts, and the unclear criteria for selection.

 

 “With little time to react, the pandemic has posed an unprecedented challenge for our people, and our institutional norms on all fronts — procurement included,” Senator Perez said after holding an oversight hearing on procurement of hotels on May 21. "While I believe procurement efforts were undertaken in good faith, there is nevertheless a clear gap between procurement law and the emergency powers act. The challenges brought to light during the oversight hearing elucidate these shortcomings.”

 

The oversight hearing, Senator Perez said, revealed “mishaps and differences in legal interpretation” that needed to be reconciled.  Procurement reform bills are forthcoming.

 

Meanwhile, Governor Leon Guerrero has extended her public health emergency declaration through June 30, which entails the extension of emergency powers she claims under her executive order.

 

Circumstances surrounding the previous procurements remain unexplained. Hence the raised eyebrows when the governor pronounced that she would resort to emergency procurement again, if necessary. “This means, if I do need to make that decision, and we start seeing more positive cases again, and we shift back into the mode of PCOR 1 or PCOR 2, then yes, it will give me the authority to make that decision and the authority to purchase services, goods and so forth, as necessary in an emergency situation to prevent further spread and to protect our people and to save lives,” the governor said during a press conference on May 29.

 

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Guam is not yet “totally out of the woods,” she said. “We can still again see surges and see more positive cases. I’m hoping we don’t. For me, to continue using personnel resources, using financial resources, using federal resources to provide for the necessary actions and decisions should these kinds of emergencies and should these kinds of circumstances occur, I would have to continue to declare a public health emergency. Moving forward, I’m hoping that maybe this will be the last declaration.”

 

Unfortunately, the current statute does not require the executive branch to report back to the legislative branch on an array of activity they pursue once the public health emergency is declared, according to Sen. James Moylan. 

 

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A declaration of state of public health emergency brings in large sums of federal assistance. The simplification of procurement rules under a state of emergency, however, opens a perilous territory, where risks of corruption are magnified.

 

While the need to make quick decisions during a crisis may warrant emergency procurement, the procedures still need to be transparent, accountable and frictionless. Public transactions must be anchored in sound participatory decision making.

 

 

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