Sept. 25, 2004 – Former Attorney General Iver Stridiron spoke out Friday about his role in the procurement reform legislation which has had the territory agog this month with condemnations and controversy, and which resulted in Stridiron's unceremonious removal from his post.
The legislation, proposed and withdrawn by Gov. Charles W. Turnbull, has opened a can of worms affecting the integrity of the V. I. Government.
However, the curtain of skullduggery surrounding the legislation's language has been lifted to reveal nothing more sinister than the Model Procurement Code drafted by the American Bar Association.
Sen. Shawn-Michael Malone, Government Operations Committee chairman, late Thursday abruptly postponed a Friday meeting which was scheduled to hear a new procurement reform bill and testimony from officials involved in the recent procurement legislation debacle, including Stridiron. (See "Fallout Continues Despite Procurement Bill Withdrawal").
Stridiron, in a letter to Malone dated Thursday and released Friday, said though he would be "pleased to appear" before the committee to "finally clarify an amendment to the procurement law….I cannot do so." Stridiron said, "prior to my resignation as attorney general of the V.I., one of my duties was that as the attorney for the governor….I am bound, as a matter of ethics and law, not to breach that privilege."
Stridiron said he could not discuss "advice that I gave, or tried to give, to the governor." However, he explained at length the intricacies of the legislation which he had initially drafted, in order to bring the V.I. into compliance with accepted procurement law.
Stridiron told Malone, "Having declined to testify before your committee….it is my hope that you and your colleagues will carefully examine each document to be presented by the other persons whom you invited to testify. I am certain that after such an examination you will conclude that the controversy over the amendment to the procurement laws arose because others than those in the Department of Justice simply did not read, research, nor comprehend what the amendment sought to accomplish. As a result, I believe Sen. [Lorraine] Berry said it best in response to a media inquiry. She reportedly said: 'Iver Stridiron might not be the most popular man in this community at this time, but, in this instance, he's being made a scapegoat.'"
The language used in Stridiron's amendment is identical to that used in more than 18 states and in the territory of Guam, which is from the Model Procurement Code, he pointed out.
This is not what was contained in the legislation Turnbull ultimately sent the Legislature, Stridiron said. Though similar, the language in the "offensive" legislation, he said, "was redrafted by someone, made grammatically incoherent and forwarded to the Senate president by the governor under his transmittal letter of Sept. 1."
Stridiron, who broke his silence of almost two weeks, had said earlier that the amendment was to allow the government to be able to pay back contracts, one of which is now being taken to court.The Anne Carlsen Center for Children in North Dakota is suing the government for $722,000 in payments dating back 26 months.
Stridiron said he had tried to avoid this in legislation he submitted to the governor March 9, and which sat, untended, until June. Stridiron told Malone, "my March 9, 2004, bill was not the bill ultimately sent to the Legislature by the governor. The substance is there, but it was redrafted by a person or persons unknown to me before being delivered to the Legislature by Government House."
The rationale for the legislation was explained in a Sept. 13 memo to Alva Swan, acting attorney general, from Eric Marcotte, of Winston & Strawn, the government's Washington, D. C., legal counsel. He wrote:
"USVI law requires that contracts be awarded in strict compliance with all provisions of applicable law. Government agencies currently do not have any authority to ratify contracts that do not comply with this standard, even if performance of the contract would clearly benefit the USVI. In this regard, USVI law is much more restrictive than the procurement laws of other jurisdictions….Moreover, most justifications provide that, under certain circumstances, improperly awarded contracts may be ratified and given effect when such action is determined to be beneficial."
Marcotte continued: "It is well recognized that many aspects of the current USVI procurement code are outdated and in need of revision." He noted that the executed compliance agreement between the V.I. and the U. S. Department of Education requires the V.I. to reform its procurement rules to facilitate the purchase of school supplies and education services.
The language in the legislation sent down by Turnbull indicated the Property and Procurement commissioner had carte blanche to "ratify and affirm purchase orders or contracts entered into in violation of Virgin Islands statutory procurement requirements, if he determined it in the "best interest" of the territory.
The MCP code states in part: "if the person awarded the contract has acted fraudulently or in bad faith: the contract may be declared null and void; or the contract may be ratified and affirmed if such action in the best interest of the (State) without prejudice to the (State's) rights to such damages as may be appropriate.
Marcotte wrote: "The purpose of this provision is to allow states the flexibility to retain the benefits of advantageous contracts, even if it subsequently turns out that the award process was flawed, where such action is determined to advance the State's best interest. For example, it may well be in the best interest of the State to allow a construction project that has reached a critical juncture to continue to completion, rather than halt the project and face the prospect of delay and added expense associated with reprocurement – especially if the project implicates public health or safety."
Stridiron said in his letter to Malone that his amendment also covered language which would assist paying "hard-pressed" V.I. vendors, as well as residential schools for special education students, receive payment for services provided to the government under circumstances when the services were needed, but were provided in violation of the existing code procedures. "That is, the time period for the provision of goods or services had expired prior to procurement of the required contracts."
A case in point is the Anne Carlsen Center for Children lawsuit, which Stridiron's amendment sought to avoid.
The Attorney General's office provided Malone with reams of material which includes correspondence between the Carlsen Center and the Department of Education, and a list of current unexecuted contracts for which various government agencies, represented by outside counsel, are being sued. These pending contracts total $472,000.
In his five-page letter to Malone, Stridiron recommended that the senator familiarize himself with an inventory of pertinent correspondence and legislation. "I would specifically recommend that you secure and read my letter and the bill which I sent to the governor [Stridiron's initial amendment] via his legal counsel's office on March 9." He also recommended that Malone read the Model Procurement Code and the proposed revised procurement law, "which is being drafted for the government by an expert in the field of procurement laws, and which is soon to be presented to Gov. Turnbull and the Legislature for your consideration."
Stridiron said Malone would find each state and federal regulation contains language "almost identical" to that which he and his staff recommended. Stridiron said state governments must have th
e "flexibility" to approve illegally procured "confirming orders and "contracts for services rendered," when such approval would be in the best interest of their governments.
Stridiron chided Malone (and other senators): "There was much breast-beating and expressions of outrage among members of the Legislature" when Turnbull's legislation, characterized as being authored by Stridiron, was publicized. He quoted some of the most offended, which include the sponsors of legislation containing that same language.
Stridiron said those senators who expressed "shock and awe" should look before they leap. He said those same senators "failed and continue to fail to read Bill 25-0018, which they sponsored. It contains the very language they objected to."
He said pages 58 and 59 of that legislation contain "word for word" the proposed bill he sent to the governor on March 9.
Bill 25-0018, scheduled to be before the Government Operations committee, was sponsored by Sens. Berry, Douglas Canton, Roosevelt David, Emmett Hansen II, Louis Hill, Malone, Luther Renee and Ronald Russell.
After hearing of Turnbull's demand for Stridiron's resignation, Russell said, "There's something definitely wrong with the situation involving Stridiron and the withdrawal of the bill, which should never have been sent down in the first place."
Stridiron ended his letter with a touch of characteristic irony: "Mr. Chairman," he concluded, "if the entire matter were not so sad and telling of us as a people, it could be made into a situation comedy."
No date for a new hearing has been announced. Malone first said in a release that the meeting was postponed at the request of Berry. He said Berry had informed him that the Legislature's legal counsel needed more time to prepare the legislation.
Berry later denied this. She said she only requested her procurement legislation be held, not that the meeting be canceled.
On WVWI radio Saturday morning, Malone said he had postponed the meeting because he could not locate Stridiron. However, Stridiron has been in evidence this week. He appeared at a V.I. Port Authority board meeting Wednesday to make his good-byes. As attorney general, he was a board member. (See "Report: Port Authority Financial Picture Improving").
Informed sources say that as part of being compensated for being the "fall guy," Stridiron is in line for a high-paying job with the Port Authority.
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