Guam – The Guam Attorney General issued a legal memorandum last month affirming that the Guam Housing and Urban Renewal Authority must abide by Guam Procurement Law, “except when requirements of federal law .. are inconsistent then federal law shall control.”
The memorandum was issued in response to a request from former Executive Director Ray Topasna, who, according to the AG’s memorandum, “brought to the attention of the Office of Attorney General that members of the GHURA Board claimed that procurement by their agency is not subject to Guam Procurement Law.”
GHURA Board Chairman David Sablan is questioning that legal memorandum.
However Sablan says they have an earlier A.G.’s opinion from 1987 that says GHURA is exempt from following local procurement laws.
“Basically stated that GHURA’s exempt from following the local laws now the way that the board has addressed this previous boards to current board but even the current board is of the same opinion is that whenever there is an issue of local procurement in terms of which law we should actually follow then the board will make that decision,” said Sablan.
In fact the 1987 opinion which was written by attorney Donald Stock affirmed an earlier opinion in 1983 written by attorney Edward Terlaje. Both attorneys Stock and Terlaje agreed that GHURA need only follow federal procurement rules when spending federal money and only needed to comply with the Guam Procurement code when spending local funds. Thus Sablan has tasked the board attorney with resolving the matter. “Well go back to Ms. Taitano and explain to her that we have this other opinion from the attorney general and the citations of that are more comprehensive than how she interpreted the citations in her letter,” said Sablan.
Attorney Taitano states in her memo that she is aware of these earlier opinions and noted that none of them cited a federal law or regulation to support their conclusion that GHURA is exempt from local procurement laws. Taitano on the other hand did cite a federal law in CFR 85.3 which states “When procuring property and services under a grant, a state will follow the same policies and procedures it uses for procurements from it’s non-federal funds. A state includes any territory or possession of the United States.”
Despite all of this, Sablan says the GHURA board is simply following rules that have been in place for years. “There’s nothing really underhanded that we’re doing up at GHURA I mean we’re not up there to defy the law or break it we’re there to conduct what needs to be done in order to build affordable homes within the parameters of the law and the regulations that are outlined by HUD,” said Sablan.
It is not clear which exact procurement prompted Topasna to ask for the A.G.’s opinion. Topasna wrote the letter to the A.G. shortly before being terminated by the GHURA board. When asked if this request had anything to do with his termination Sablan responded by saying that he could not comment on the specifics of Topasna’s termination but could only say that it was performance based.