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    Wednesday, June 19, 2019-7:52:28P.M.

     

     

     

     

     

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Judge Camacho dismisses USA Fanter’s lawsuit against DPL

SUPERIOR Court Associate Judge Joseph N. Camacho on Tuesday dismissed USA Fanter Corp.’s lawsuit against the Department of Public Lands over a mining permit in As Matuis.

USA Fanter, through attorney Robert T. Torres, wanted the court to direct DPL and USA Fanter to negotiate a quarry permit.

USA Fanter also petitioned for a temporary restraining order and preliminary injunction against DPL to stop it from awarding the permit.

In granting DPL’s motion to dismiss, Judge Camacho said “even accepting all of USA Fanter’s factual allegations as true, none of plaintiff’s arguments made a prima facie showing that DPL acted arbitrarily and capriciously.”

According to the complaint, DPL issued a request for proposal, RFP16-RED007, titled “Quarry Operator on Public Lands-Lot Number 011 C 02-As Matuis Saipan.” The lot contains 50,000 square meters.

Fanter submitted a proposal on Sept. 16, 2016. It was informed its proposal had not been selected on Nov. 19, 2016.

DPL selected the proposal submitted by Win Win Way Construction Co. and issued a notice of intent to award Win Win Way on Nov. 9, 2016.

DPL then entered negotiations with Win Win Way for a quarry permit contract, but the parties were unable to agree on terms. Win Win Way withdrew from consideration for the permit on May 23, 2017.

DPL then turned to Blue Oasis LLC, the second highest bidder, but they were also unable to agree to a contract.

Judge Camacho in his order noted that after contract negotiations failed with Blue Oasis, DPL made the determination that “given the significant amount of time that had passed since the RFP was issued, and considering the terms of the remaining proposals, it would not be in the best interest of DPL and its beneficiaries, people of Northern Marianas Descent, to award the contract to any of the remaining bidders.”

DPL then issued a second RFP for the quarry project without negotiating with the third highest ranked bidder, USA Fanter, or any of the other remaining responsive bidders.

On Sept. 29, 2017 DPL issued RFP17-RED005 for the same land in As Matuis.

USA Fanter protested the apparent cancellation of the previous RFP, saying that DPL did not cite a reason for the cancellation.

DPL chose to disregard USA Fanter’s proposal when DPL issued another RFP for the same land, USA Fanter stated.

On Feb. 23, 2018 Judge Camacho granted USA Fanter’s petition for preliminary injunction, preventing DPL from awarding the second RFP to any bidders.

On Nov. 16, 2017, DPL filed a motion to dismiss, arguing that: 1) the plaintiff lacks constitutional standing to challenge a non-award of a government contract, and 2) DPL cannot be sued by the plaintiff.

USA Fanter, in response, said DPL acted “arbitrarily and capriciously” when it did not negotiate with it despite negotiating with the second place bidder, Blue Oasis.

DPL is not authorized by its regulations to cancel bid requests or reject individual responses, USA Fanter said.

Judge Camacho in his order stated that DPL’s decision to cancel RFP16-RED007 after about one year of its issuance, and to issue RFP17-RED005 to try to obtain better bids was not an “unreasonable action [that] disregarded the facts.”

He said the plaintiff did not demonstrate that it suffered an injury; in fact, the “plaintiff did not establish that it has constitutional standing to challenge DPL’s decision to revoke RFP16-RED007 in lieu of negotiating with [the] plaintiff.”