For several months, the two Democrats who serve on the Board of Public Works — Comptroller Peter V.R. Franchot and Treasurer Nancy K. Kopp — have complained that state agencies are flouting the state’s emergency procurement law.
Routinely, they allege, the panel is asked to approve seven- and eight-figure contracts long after contractors have begun work, a circumstance that undermines the board’s ability to make sure that the state isn’t overpaying for goods and services.
Although Kopp and Franchot have pressed their concerns with cabinet secretaries and top procurement officials repeatedly, in public and private, Wednesday’s agenda contained 15 more contracts for retroactive approval. Eleven were submitted beyond the 45-day grace period for agencies to submit emergency contracts to the BPW.
Franchot said agencies that won’t follow the law must face consequences.
Speaking at the outset of the panel’s bimonthly meeting, he ordered board staff to prepare a resolution that would “automatically terminate” future contracts that fail to reach the BPW in time.
“These late emergency contracts must stop,” Franchot said. “The Board of Public Works is not a rubber stamp, and I, for one, will not stand by quietly while laws are violated.”
“Enough is enough.”
Gov. Lawrence J. Hogan Jr. (R) and Lt. Gov. Boyd K. Rutherford (R), a frequent Hogan stand-in at BPW meetings, have long defended state agencies against criticism about late submissions — particularly those relating to the state’s COVID-19 response.
But Hogan told Franchot on Wednesday, “I agree completely that by now all of the agencies should be getting up to speed and getting caught up.”
Nonetheless, he cautioned against the comptroller’s proposed remedy.
“Obviously we were in the middle of a once-in-100-year pandemic,” he said. “We did not and could not — and are not supposed to — follow the normal procurement procedures because we had to do things, in some cases, that day in order to save lives.”
“We couldn’t wait 18 months or three years to go through the process,” the governor added.
Franchot and Kopp have steadfastly rejected the suggestion that complying with the state’s procurement law would slow Maryland’s pandemic response in any way.
“Literally, we’re talking about faxing a three-page document to the Board of Public Works,” the comptroller said in May.
Hogan spokesman Michael Ricci said on Wednesday that Franchot wasn’t accurately describing the amount of work needed to prepare a contract for BPW approval.
“It’s not just a faxed page,” he said. “[That’s a] silly thing to say.”
Del. Trent M. Kittleman (R-Carroll & Howard), a former deputy secretary of transportation, said she understood the frustration of being asked to approve contracts after work has begun.
But she said Franchot’s proposal to terminate late-filed contracts could hinder agency operations.
“I think that we should bring them within the 45 days, but I think that is a draconian penalty,” Kittleman said. “And it would make it difficult for agencies to enter into contracts with entities [contractors] because they could start work and suddenly the contract would be void.”
“So I don’t think that is a good solution,” she added.
Kittleman said the Board of Public Works has “every right to object” to the misuse of emergency and sole-source procurements.
According to Franchot’s office, agencies have submitted 61 COVID-related contracts beyond the 45-day grace period since the pandemic began.