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Someone was listening to the howl in the woods

Here at the Tax Foundation, we watch our state government, and we howl a lot. Often, we don’t know if our message is being heard, or if it’s being taken seriously.

A few weeks ago, we complained that multi-million-dollar projects undertaken by state and local governments could sink into “standard-less spending” because the law controlling the state’s procurement process had been ripped out and thrown to the side according to the governor’s 13th supplementary proclamation that was signed on Sept. 23 (the wholesale suspension of the procurement code can be traced back to the sixth supplementary proclamation that came out on April 25).

Hawai‘i Revised Statutes chapter 103F, which governs procurements for health and human services, was similarly suspended.

In mid-October, I received an e-mail from an executive at a major Honolulu public-relations firm. The firm was assisting with one of the major multi-million-dollar government projects. “The state’s lifting of procurement is solely for emergencies related to COVID-19 and the (government project) is operating fully under the procurement code,” it said. The executive added that the state Department of Accounting and General Services, which issues the state’s checks, was also following the rules and was not using the COVID-19 emergency to sidestep them.

“The problem,” I replied, “is that it’s not generally known whether and to what extent agencies … are using the procurement process notwithstanding that the governor’s proclamation states that 103D is suspended in full. We hope that the agencies are not applying the suspension arbitrarily or based on vague criteria like ‘we think it’s related to COVID-19.’”

Then I find out that two days before I received the email, the governor had issued a 14th supplementary proclamation, in which the language suspending the procurement code was radically changed:

Chapter 103D, HRS, Hawai‘i public procurement code, (is suspended) only to the limited extent necessary to procure goods and services in direct response to COVID-19; to procure goods and services using funding that must be expended on or before December 31, 2020; and to procure goods and services not in direct response to COVID-19 but for which certain procurement requirements cannot reasonably be met through the regular procurement process due to the emergency.

Similar language was used to walk back the suspension of chapter 103F from a suspension in full to a suspension to the limited extent necessary to deal with the emergency.

Apparently, someone had been listening to our howl in the woods and had done something about it.

It may be that the governor’s intent all along was to suspend the procurement code only where the pandemic emergency required quick action, which seems to be shown by the wording in the initial emergency proclamation that came out on March 5. Things may have gotten lost in translation by the time we got to the sixth supplementary proclamation.

But legal effect comes from the words on the current document, not from the 15 or 16 documents that came before. I am still chalking this one up as a win for the howl in the woods.

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Tom Yamachika is president of the Tax Foundation of Hawai‘i.

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