THE District Court for the NMI does not have the power to override the Commonwealth Superior Court’s preliminary injunction with respect to awarding a contract on the latest invitation for bids by the Commonwealth Utilities Corporation for the Sadog Tasi sewage treatment plant clarifier, USA Fanter Corporation attorney Richard Miller said.
“Even if it had the power, it should not exercise it, for to do so would be to unfairly favor the unjust outcome that CUC has engineered by unlawfully manipulating the procurement process, to unwittingly assist in that process of manipulation, and to disrupt ongoing proceedings intended to restore lawful order to CUC procurement practices,” Miller said.
USA Fanter Corporation is opposing the U.S. Department of Justice’s request to the federal court to override the temporary restraining order and preliminary injunction issued by the Superior Court so that CUC can procure a crucial wastewater treatment plant clarifier without going through the local procurement.
USDOJ filed the request on behalf of the Environmental Protection Agency.
According to Miller, CUC and the U.S. government are seeking an order requiring CUC to approve a contract for the construction of a new clarifier while not being required to follow CNMI procurement law in doing so.
“Such an order would interfere — indeed, is sought for the specific purpose of interfering — with litigation currently underway in Superior Court between Fanter and CUC. The court should not issue such an order or engage in such interference,” Miller said.
Federal courts are empowered to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law,” the lawyer said.
However, he added, it is certainly not “agreeable to the usages and principles of law” for the federal court to tell CUC not to follow the law — “unless, of course, the law at issue is itself unconstitutional or preempted by some higher law.”
Miller said, “CUC has made no showing that CNMI procurement law is unconstitutional, preempted, or in any other way not valid and binding law.”
He said the “order sought is not necessary to any purpose in this case. If repair of the clarifier is needed to achieve compliance with the Clean Water Act, then by all means repair it. But do so within the bounds prescribed by law, rather than using this action as an excuse to ignore those bounds. If CUC wants the Sadog Tasi clarifier built right away, Fanter is ready to go to work. Indeed, even if this court has power to override the CNMI Superior Court and CNMI procurement statutes and regulations, why should it favor granting an award in this latest bidding of the project rather than either of the two previous biddings when Fanter was the low bidder?”
Miller accused CUC of “attempting to manipulate this court to put its muscle behind CUC’s preferred outcome. The court would do better to order CUC (working together with the EPA, if necessary) to reorganize its budgeting priorities in such a way as to allow it to follow the procurement law, award the contract to the low bidder, USA Fanter, and thereby comply with the Clean Water Act.”
On July 7, 2022, USA Fanter filed a complaint in Superior Court, requesting a temporary restraining order and preliminary injunction restraining CUC from awarding the clarifier replacement contract while its bid protest was unresolved.
The Superior Court issued the TRO on July 8, 2022, and on July 15, 2022, it issued a 30-day preliminary injunction.
The Superior Court ordered additional briefing and set a hearing for Aug. 19 on whether the preliminary injunction should be extended.
In federal court, after a hearing on Aug. 5, Designated Judge David O. Carter ordered the parties to file opposition briefs.
Among those who attended the hearing were CUC Executive Director Gary Camacho, USA Fanter Corp. President Guo Cao Qian, USDOJ-EPA attorney Elizabeth Loeb, EPA attorney Janet Magnuson, CUC legal counsel Hunter Hunt, Deputy Attorney General Lilian Tenorio, and other CUC officials.
