Second company accused of defrauding procurement

Benjamin J. Cruz

The Office of Public Accountability has released a decision and order in a second procurement appeal in which the circumstances nearly mirror the JMI Edison case. The public auditor, Benjamin Cruz, accuses officials from G4S and former Guam Contractors Licensure Board executive director Cecil “Buddy” Orsini of conspiring to defraud the procurement appeal involving the Department of Education.

The OPA’s news release explaining the matter follows:

The Office of Public Accountability (OPA) has issued a Decision and Order in OPA-PA-21-007, G4S Security Systems (Guam), Inc. (G4S) vs. Department of Education (DOE) relative to Indoor and Outdoor Wireless Local Area Network (WLAN) Infrastructure Installation Project (GDOE-IFB 026-2021).

G4S filed its appeal against DOE’s decision to award Technologies for Tomorrow Inc. (TFT) the GDOE-IFB-026-2021. The main contention raised by G4S in their appeal is that a Guam Contractor’s License “must have been previously obtained to lawfully execute the terms of said IFB as a Specialty Contractor pursuant to 21 GCA Real Property CH. 70. Specifically a C-68 Specialty License (for telecommunications). Shortly after filing their procurement appeal, G4S filed a complaint with the Guam Contractors License Board (CLB) inquiring whether TFT had a valid license, for which CLB gave it Case Number 2021-09-03.

On November 16, 2021, one day before the motion hearing commenced, G4S submitted a document signed by the CLB Executive Director entitled “Findings & Decisions,” dated November 1, 2021, which stated that the CLB “will find TFT’s [sic] in violation” of 21 G.C.A. §70108(a) for failing to obtain a license from the CLB. The Findings and Decisions did not explain how or why the CLB determined that TFT was in violation of 21 G.C.A. §70108(a). The Findings and Decisions also stated that the complaint was open.

During the Formal Hearing on December 20, 2021, testimony was made by CLB Investigation Supervisor Nida Bailey, who said “The Board are [sic] the one that’s making the decision for the cases . . . the Board is the one that decides the case.” Ms. Bailey went on to testify that the Board had not met since August 2021 and that there had been no hearing before the Board on G4S’ complaint against TFT. When asked by the Public Auditor to describe how the Executive Director reached the decisions set forth in the Findings and Decisions, Ms. Bailey was unable to provide a clear answer.  The Findings & Decisions states, under the subheading “Decisions,” that “[y]our Complaint is open.”  During her testimony, Ms. Bailey explained that this means that the Findings & Decisions is not a final decision.

This appeal is very similar to OPA-PA-21-010, JMI-Edison (JMI) v. Guam International Airport Authority (GIAA), where the appellant argued that the successful offeror should have been found to be non-responsible, in that the offeror lacked a license from the CLB.  Prior to a hearing on pending motions in the case, an officer of the appellant emailed the Executive Director of the CLB and requested that he issue, as CLB Findings and Decisions, a draft document prepared by the appellant which would help the appellant’s case in the appeal.  The draft document stated that the offeror needed to be licensed by the CLB in order to perform the scope of work under the RFP in question.  The Executive Director put the appellant’s requested “Findings and Decisions” on CLB letterhead and appellant submitted the Findings and Decisions to the OPA.  After the successful offeror submitted evidence as to how appellant obtained the Findings and Decisions, the OPA dismissed the appeal.  The OPA found that the appellant’s submission of the Findings and Decisions as a purported independent neutral administrative action was a fraud on the tribunal.

While it is unclear how and why the Executive Director came to issue the Findings and Decisions submitted in this case, the OPA is concerned about the probity and reliability of that document, given the misconduct in the JMI case. Therefore, in line with the OPA-PA-21-010 Decision and Order issued on February 3, 2021, G4S’ appeal was DISMISSED WITH PREJUDICE.

In addition, the Public Auditor found G4S’s protest to be untimely, as they should have protested within fourteen (14) days from May 18, 2021, when bidders were all made aware that GDOE would not require proof that a bidder held a C-68 Specialty Contractor’s License with its bid submission.

The Parties were informed of their right to appeal the Hearing Officer’s Decision to the Superior Court of Guam in accordance with Part D of Article 9 of 5 G.C.A. §5481(a) within fourteen (14) days after receipt of a Final Administrative Decision.

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