- R. Marsil Johnson
Flawed and Unfair Solicitation Cancelled Following Intervention by BSJ&M
In late 2017, the Port Authority of Guam issued a solicitation, specifically seeking yellow fork trucks. The firm, on behalf of a long-time client, filed a procurement protest, claiming that there was no basis for the color restriction and that it unfairly restricted competition. Attorney R. Marsil Johnson handled the matter.
In response, the Port Authority claimed that it has specified yellow fork trucks in order to maintain uniformity in its fleet of vehicles for safety reasons. This argument was raised despite the fact that the Port Authority clearly had recently purchased vehicles in both yellow and orange. During the course of the matter, this protest was raised on appeal to the Office of Public Accountability and counsel was retained under special circumstances by the Port Authority of Guam.
With the parties unable to settle the protest and with the government of Guam unwilling to concede that it could save face by simply cancelling the solicitation, the Port Authority, represented by outside counsel, the General Manager of the Port, and numerous port officials, appeared before the Office of Public Accountability for a hearing on the morning of January 24, 2018. Mr. Johnson alone sat in opposition. After only a few minutes of discussion, the Office of Public Accountability, agreeing with Mr. Johnson, permitted the Port Authority of Guam to cancel the solicitation, so long as it explained, as required by law, how it intended to reprogram the funds.
Despite the odd subject of the protest, the result was ultimately important in reminding the various agencies that make up the government of Guam that they cannot use procurement specifications to steer business to or away specific companies.
The Guam Pacific Daily News (the “PDN”), reported on this matter several times during the course of the protest and appeal. The PDN’s story on the cancellation of the solicitation can be found here: https://www.guampdn.com/story/news/2018/01/22/port-authority-guam-cancels-protested-bid-trucks-purchase/1052527001/
An earlier story by the PDN, with a slideshow of brand new yellow and orange equipment, delivered to the Port Authority of Guam in January 2017 can be found here: https://www.guampdn.com/story/news/2017/01/06/port-celebrates-new-equipment/96230340/