THE Commonwealth Utilities Corporation, through Assistant Attorney General Hunter Hunt, has informed the federal court that a notice to proceed letter was issued to the selected contractor for the clarifier replacement project at the Sadog Tasi Wastewater Treatment Plant.
The letter instructed the contractor to commence work on Oct. 21, 2022, with an anticipated substantial completion date of Oct. 20, 2023, Hunter said.
The selected contractor is New Zealand-based Pacific Engineering Projects Limited, which submitted a bid of $1,427,406.
Following the local court’s ruling denying USA Fanter’s petition for an injunction and lifting a previous temporary preliminary injunction, CUC resumed its procurement process.
In a status report to the federal court, CUC Executive Director Gary Camacho stated that on Sept 8, 2022, CUC’s Bid Review Committee or BRC “carefully evaluated the low bidder’s cost proposal as compared to the requirements in the solicitation, completed a financial review, and conducted interviews with prior clients to confirm technical and project performance between Sept. 8 and Sept. 19, 2022.
On Sept 19, CUC’s BRC unanimously moved to recommend the award to the lowest responsive and responsible bidder, Pacific Engineering. The motion was approved on Sept. 20 and a notice of intent to award was issued to the contractor on Sept. 22.
In August, Superior Court Associate Judge Wesley Bogdan affirmed CUC’s decision denying USA Fanter’s protest under the Administrative Procedure Act and the NMI Rules for Administrative Appeals.
Judge Bogdan noted that the vast majority of records in this case indicated that CUC’s main consideration in its decision-making process was its budget “which is not improper (nor should it be considered as a secret or surprise).”
CUC explicitly reserved the right “to reject any or all bids and waive any imperfection in the bid proposal in the best interest of the government,” the judge said.
CUC’s budget for the water clarifier was limited by its federal grant, he added.
On July 7, 2022, USA Fanter filed a complaint in Superior Court requesting a temporary restraining order and a preliminary injunction restraining CUC from awarding the clarifier replacement contract while USA Fanter’s bid protest was unresolved.
The Superior Court issued a TRO on July 8, 2022, and a 30-day preliminary injunction on July 15, 2022.
USA Fanter, represented by attorney Joseph Horey, had petitioned the court for a judicial review of CUC’s decision.
For its part, the U.S. Department of Justice, on behalf of the Environmental Protection Agency, asked the District Court for the NMI to override the temporary restraining order and preliminary injunction issued by the CNMI Superior Court to USA Fanter so that CUC could procure a crucial wastewater treatment plant clarifier.
The federal court has the power under the Supremacy Clause of the U.S. Constitution to override the local court’s order, the USDOJ stated.
CUC and the CNMI government, through the Office of the Attorney General, joined the USDOJ in its request to the federal court.
After the local court affirmed CUC’s denial of USA Fanter’s protest, Designated Federal Judge David O. Carter dismissed as moot the proposed stipulated order requested by the USDOJ and CUC regarding the Sadog Tasi Wastewater Treatment Plant clarifier.
Gary Camacho
