Danielle Conway

Mention government procurement and Danielle Conway’s eyes light up. The University of Hawaii law professor is an internationally recognized expert in the field, dedicated to improving a complex system that, at its best, can deliver strong value for the taxpayers’ money, fill the government’s needs and open up economic opportunities for a diverse array of business owners, including women and minorities.

"Procurement policy gets right to the core of government integrity," said Conway, a lieutenant colonel in the Army Reserves who holds a bachelor’s degree from New York University, a law degree from Howard University and a master’s in law from George Washington University. "It reflects who we are as a society."

Conway also focuses on intellectual property rights, particularly among indigenous groups, and has distinguished herself during 15 years in Hawaii in this burgeoning realm, which she credits the UH law school for helping to pioneer. "The rights of indigenous cultures must be respected. This is even more apparent in an age of globalization."

Honored by the UH Board of Regents for teaching excellence, Conway also publishes widely and has traveled the world giving lectures and working on special projects, including a stint as a Fulbright Senior Scholar in Australia. The pace can be grueling, but she is committed to bringing fairness and clarity to the arcane, complex procurement systems that affect how governments run and therefore how regular citizens live. The 46-year-old mother of a toddler son depends on her husband, a stay-at-home dad, "to keep all the home stuff organized. It’s a constant balancing act. I appreciate every bit of this busy life."

QUESTION: Let’s start with a definition of terms: What is procurement exactly and why is it so important?

ANSWER: Public procurement is the government act of buying its minimum needs, whether that need is construction, goods or services. It seems fairly simple, but when the government purchases, it uses taxpayer dollars. That is what is important. 

Q: You’ve called for reform in Hawaii’s procurement system. What do you think is most needed? 

A: I think one thing we do wrong in Hawaii is we wait for a crisis. What I think needs to occur in the procurement arena in Hawaii is … in-depth education at all levels. That means starting with our front-line procurement operations corps, and it also means including … the members of the Legislature, so they can draft the most effective legislation … as well the people in our executive branch who are responsible for implementing procurement legislation. They have to know how to propose regulations that further best practices so that our state is current and effective in delivering procurement service …. You can’t just hope that what you did five years ago will be effective presently. …

Q: One example that’s getting a lot of publicity as a bad example is the Hawaii Health Connector. … What’s your best advice for salvaging it? Or can it be salvaged? 

A: Any procurement can be salvaged. It starts with understanding where the problems occurred, and understanding where problems occur generally in your procurement process. So Hawaii in general, outside of the Hawaii Health Connector, … does not look at the administration phase of a procurement as part of the procurement process. (Administration) means monitoring the performance of the contractor after the award of the contract, meeting goals and objectives that were established in the formation phase.

Q: In other words, whoever granted the contract should be … making sure the contractor is doing what they said they would do?

A: Exactly. Things such as problem-solving, inspection, acceptance, warranties, changes that may need to occur. All of these things take place in the administrative phase of the contract.

Q: You say that Hawaii is weak on that generally. Why?

A: We’ve had a culture in the past (in the state procurement office) of thinking about the administration phase of a procurement as outside the procurement process. So if you think that actually administering a contract is outside of the procurement process, then you are going to communicate that culture to others within the acquisition core and they’re going to pick up on that and they’re going to decide that’s not part of their responsibility.

Q: So they were just focusing on the soliciting of the bids and the granting of the contract but not the aftermath?

A: Exactly.

Q: But there’s a new state procurement officer, right?

A: Yes.

Q: So you’re hopeful?

A: I’m more than hopeful. Sarah Allen is a seasoned procurement professional. … She knows what she’s doing. Now her job is to change the culture.

Q: Going back to the Health Connector for a moment. … The Legislature is deciding whether to put forth $15 million a year in state taxpayer funds to sustain it. If you were a lawmaker would you vote for that? …

A: I am not a lawmaker, nor would I speak for one, but if I were asked my advice, I would say that at the beginning of this Hawaii Health Connector there should have been acquisition planning. In the planning phase, you determine whether you actually have a minimum need for this service. That should have been the place where these discussions were to be had. Now, the problem is that it becomes a political question. And so the political question is mixed with the procurement question, which is impossible for me to respond to. So what I would have advised is that at the acquisition planning stage, these questions would have been posed and answered. 

Q: But they haven’t been. So?

A: They haven’t been. It means, that yes, we are stuck with it now. I’m not sure how long we should be stuck with it. There should be some consideration about whether option years are necessary to keep this going. That could be considered as a truncated acquisition planning process. 

Q: You mentioned best practice. What defines it?

A: Best practice relies upon the procurement professional’s ability to research what other people are doing in the field … actually going out and investigating, doing due diligence to see what other procurement entities are doing with that particular kind of purchase. That’s No. 1. Second, doing market research within one’s own community to assess who in the community is capable of doing the work, how much that work is generally costing, and whether there is robust competition. … Then the third area of best practice is business judgment — using all of this information that you’ve amassed to make the best judgment to achieve value for money. … 

Q: Are any state and county agencies doing that now?

A: I’m sure various agencies are doing that. The Board of Water Supply, for example, has a very good handle on how to conduct procurement. … It’s about optimally working with what you have … to assess what is the best way to spend taxpayers’ dollars …

Q: You’re also an expert in intellectual property, and in extending those rights to indigenous cultures …. Could you talk a little bit about that? …

A: Intellectual property is a burgeoning field for indigenous and nonindigenous (populations) alike because the (global) market has really embraced information assets as a commodity. … From a Western framework, intellectual property generally incentivizes creation (of a product or service) … In indigenous communities, there may be part of indigenous intangible assets that would benefit from that kind of approach. But then there are other parts of indigenous intangible assets that are not consistent with that approach. It’s in that area where you see so much tension over how to use or not use intellectual property protection.

Q: By an intangible asset, you mean language, music, culture? 

A: Exactly. It could be traditional knowledge. It could be information and know-how. It could be any number of resources that are not tangible but that have value because of their recognized existence.

Q: And you think that an indigenous culture, say the Native Hawaiian culture, should have the right to control the use of its intellectual property.

A: Absolutely.

Q: This issue came up recently with that STD app Hula. (The smartphone app has nothing to do with the traditional Hawaiian dance for which it is named. It promotes testing for sexually transmitted infections and was initially marketed as a way to help users "get lei’d." Native Hawaiian college students started an online petition urging the Los Angeles-based social media entrepreneur who created the app to change the name. He refused, although he did drop the "get lei’d" tagline.)

A: The Hula app as you described is a classic commodification of culture. … So the manner in which the student protesters are using the concept of intellectual property … to try to stop what they see as a misappropriation of culture …  is absolutely legitimate. This is a defensive use, looking at who has best and first rights to use language or trademarks or expression. It’s not necessarily who proves that they have ownership. It is who has the best first use. This individual who created the app obviously does not have the best and first use in a moral sense of the language. And much of intellectual property, even though we don’t want to admit it, centers on what is morally appropriate. We have that focus because we want to ensure that the one who benefits from the intellectual property is the legitimate beneficiary. … 

Q: What about the First Amendment, though? The guy comes back and says, "Hey, it’s a word, everybody has access to language."

A: This is where the complexities come in. You have access to language so long as you are not infringing on someone’s legitimately recognized proprietary interest. We have reams of case law that tell us the difference between a First Amendment privilege and an intellectual property infringement and this is not an easy area or an easy decision. So someone cannot just come back and say "I raise a First Amendment defense." 

Q: Do you think (the protesters) should file a lawsuit, then? 

A: There are many ways to approach this issue. The young protesters may align themselves with civic organizations in Hawaii and assess what strategies those organizations have been using to respond to commodifications of culture. They could take their complaints to the public space in a public forum and maybe even debate these issues in a public forum. So the first stop is not necessarily the courthouse, but a good starting point on both sides is to understand what is really at stake and how the law does address these questions. We should know that it is not as cut-and-dried as saying "I have a First Amendment right."