Marylanders do not need an inspector general to tackle recent high-profile problems with its procurement process. What they need is a vigilant attorney general who makes state agencies obey the law.
The issue came into sharp focus when concerns arose about sole-source awards of a $49 million Keno contract modification and C&P; Telephone's proposal to link schools with fiber optics. Legislative leaders acted quickly to convene a joint House-Senate Task Force. A good move. But some drew the wrong conclusion about how to fix the problem, saying that an inspector general may be needed because the attorney general cannot effectively enforce the state's procurement laws.
The theory goes like this. The attorney general defends state agencies when their procurement practices are challenged, therefore he cannot enforce the laws that govern those practices. The theory ignores the fact that an essential function of the attorney general, the reason the office has hundreds of assistants, is to make sure that state-agency officials follow the statutes, regulations and court-made law that govern their actions. The error was under- standable, however: The current attorney general has been neither vigilant nor forceful in making sure that agencies obey the law.
The Keno contract is a case in point. An assistant attorney general representing the Lottery Agency justified a sole-source $49 million modification of GTECH's lottery contract to provide Keno equipment on the grounds that there was an emergency and that there were no other bidders. Neither Attorney General J. Joseph Curran Jr. nor any of his senior staff appear to have reviewed that decision before it was rendered, despite the size and sensitivity of the contract.
Only when the General Assembly and the media began scrutinizing the Keno matter did Mr. Curran belatedly turn his attention to it and concede that a desire to get the Keno program in place in three months did not satisfy the definition of "emergency" under existing law.
Moreover, there appeared to have been other suppliers known to the Lottery Agency who should have been allowed to bid. The assistant attorney general did not adequately verify the Lottery Agency's initial undocumented statement that GTECH was the only qualified bidder. Nor did she dig deeper after receiving correspondence from a potential competitor. It is painfully obvious that Mr. Curran did not, and does not, have a system in place to assure that his office's legal conclusions on significant procurement matters are correct.
Legislative leaders and the Sun are now calling for an inspector general to make sure state procurement laws are followed by state agencies. That is a wrong call. What they should be demanding is that the attorney general do his job.
The attorney general has over 300 assistant attorneys general, some 240 of whom provide daily advice to state agencies and represent those agencies in court. It is the job of those assistants to make sure their agency clients are performing their missions within law. If they are not, the attorney general should see to it that they do, or refuse to defend their actions in court.
This is not a revolutionary idea. Assistant attorneys general interpret the law for their agency clients hundreds of times a day, telling them what they can and cannot do. Examples are everywhere. When is it legal for the Insurance Division to disclose the results of its examination reports? May the Department of the Environment adopt California's tailpipe-emission standards without adopting its clean fuel standards? Under what circumstances may the State Police require employees to retire at age 60? When is it legal for Department of Motor Vehicle inspectors to carry handguns?
Answers to questions like these constitute advice that has the force of law for agency personnel. They know that if they disobey it their actions will not be defended in court.
What the attorney general should have done long before the Keno matter and other big-ticket procurements hit the headlines is clear. He should have instituted a system to assure that all assistant attorneys general who review the growing number of contracts for goods and services provided to the state are both well trained and vigilant. They should know not only the letter of the procurement laws, but also their purpose: to assure that the state gets the best value for our tax dollars and that the process is free of favoritism and corruption.
The attorney general should designate a corps of assistants who are procurement experts to provide active oversight, as well as training and day-to-day advice for other assistants. All contracts over a certain dollar amount should be reviewed, before approval, by those procurement watchdogs and, whenever necessary, by the attorney general. The attorney general should make a timely report to the General Assembly and to the public whenever gaps in the procurement laws are discovered so that they can be closed without delay.
Finally, the attorney general should work with a management team drawn from the governor's office, state agencies and the private sector to devise a system that will account for and monitor the billions of dollars spent each year in contracts for goods and services provided to the state. The attorney general should assure that invitations for bids are not "tailored" or "wired" so that only one bidder can satisfy their requirements.
We would be not be facing the present procurement mess if this kind of hands-on, preventive action were the rule in Mr. Curran's office. Its absence ill serves the governor, the Board of Public Works and the public, as well as the office of attorney general.
Eleanor M. Carey, an attorney in private practice, was a deputy attorney general from 1978 until 1987. She has indicated her intention to run for attorney general in 1994.