In its legal opinion, OPA said the CNMI government’s only remedy is to begin the laborious process again through either an Invitation for Bid, or IFB, or a Request for Proposals, or RFP.
“OPA is cognizant of the legitimate environmental concerns and looming threat of federal sanctions as well as the frustrations inherent in the government procurement process. In addition, [Innovative Technical Solutions Inc. or ITSI] could have been forthright in its lack of continued interest in the project as detailed in the IFB and its addendums. However, the law is clear that the right to waive the expiration of the IFB acceptance period belongs to the bidder,” Public Auditor Michael Pai wrote in the 15-page decision the OPA issued on ITSI’s appeal on the Puerto Rico Dump final closure.
In May 2009, the Department of Public Works issued an IFB and subsequently made five addendums to it.
On April 5, 2010, the Capital Improvements Projects Office sent ITSI a Notice of Intent to Award a Contract.
Four days later, ITSI responded with a letter to the contracting officer — the CIP office — declining to execute a contract.
The CIP office, or the contracting officer or CO, in this case, asked ITSI to provide the final documents or sufficient assurances that it will honor its bid or sanctions will be sought.
“On April 14, 2010, the CO sent ITSI a letter requesting ITSI to provide either the ‘final documents’ or sufficient assurances it intended to honor its Puerto Rico Landfill bid or the CNMI would consider it in breach of the bid, make alternate plans for completion of the project, and if there were increased contract costs due to the breach, the CNMI would make a claim against ITSI and its bid bond and possibly seek ITSI’s debarment from future CNMI government projects,” Pai said.
ITSI then filed an appeal with the director of the Division of Procurement and Supply who determined that the firm had not timely raised the issue of a design flaw and that its bid proposal had not been revoked prior to the CNMI’s acceptance of it.
Subsequently, ITSI appealed its case to OPA.
OPA said ITSI’s bid was valid for 180 days only.
“In the instant case, there was no valid award of the contract to ITSI since ITSI’s bid had expired and it had neither explicitly, nor by its actions, extended the acceptance period prior for its bid. Thus, the remedies available to OPA are as follows: a) Remedies Prior to Award. If prior to award the P&S director or the public auditor determines that a solicitation or proposed award of a contract is in violation of law or regulation, then the P&S director or the public auditor shall have the solicitation or proposed award: (1) canceled; or (2) revised to comply with law or regulation,” it said.
“The only option here is to have the solicitation canceled and to begin the laborious process again,” OPA added and noted that the project is quite risky and complex.
As for ITSI’s bid bond, OPA refused to make a determination on the issue saying it has no jurisdiction over it.
“The issue is not yet ripe; no action has yet been taken on the bond, and OPA presumes that were such action to be taken, the Superior Court for the Commonwealth of the Northern Mariana Islands would be the more appropriate venue for injunctive relief,” OPA said.
The Puerto Rico dump site near the Saipan seaport was closed due to environmental and health concerns.
