SAYING that the plaintiff failed to exhaust the agency administrative process, Superior Court Associate Judge Joseph N. Camacho dismissed without prejudice Tang’s Corporation’s claims against the Department of Public Works and DPW Secretary James Ada.
Tang’s is the former Marpi landfill contractor. “Without prejudice” means Tang’s can refile its lawsuit, which originally involved two contracts, namely, the “Soudelor Contract” and the “Marpi Contract.”
Tang’s Corp., through attorney Mike Dotts, sued DPW on Dec. 22, 2020, seeking final payment due on the Soudelor Contract in the amount of $64,292.64 and payment on the Marpi Contract in the amount of $319,554.28 for maintenance conducted from Oct. 30, 2019 to Feb. 29, 2020.
Following a hearing on March 30, 2021, DPW paid the amount due on the Soudelor Contract.
At issue, Judge Camacho stated in his order, is the remainder of the plaintiff’s complaint seeking payment on the Marpi Contract.
Background
On Sept. 7, 2017, Tang’s Corp. and DPW entered into Contract No. 639583-OC (the “Soudelor Contract”) for identification, separation, staging, recovering, performing volume reduction, and disposing of debris generated as a result of Super Typhoon Soudelor.
According to the contract, the final payment of $64,292.64 shall be paid to plaintiff when the Soudelor Contract was closed out.
The contract was completed by Tang’s Corp. on July 31, 2018 and the final invoice was sent by Aug. 1, 2018.
DPW paid Tang’s Corp. the funds due under the Soudelor Contract.
Tang’s Corp. also entered into Contract No. 579270-OC with C/O#1 and C/O#2 (the “Marpi Landfill Contract”) with DPW.
The term of the Marpi Landfill Contract with C/O#1 and C/O#2 was from Oct. 30, 2014 to Oct. 29, 2019.
On Oct. 28, 2019, Ada wrote to plaintiff requesting to extend the Marpi Landfill Contract for a minimum of three months with a new completion date of Jan. 29, 2020. All terms and conditions were to remain the same.
On Oct. 30, 2019, Tang’s Corp. accepted the offer from DPW and agreed to extend the service for three months.
On Jan. 31, 2020, because Tang’s Corp had not heard anything from DPW regarding the services after the expiration date of the extension, the contractor wrote another letter to DPW to express good-faith intent to continue the services if needed.
At the same time, Tang’s Corp. asked DPW to specify the length of the extension and terms of payments.
On Feb. 4, 2020, DPW invited Tang’s Corp to sign a change order contract which ratified the service provided by the contractor in the last three months.
The contract was the Marpi Solid Waste Facility Contract No. 579270-OC (the “extension contract”) in the amount of $235,729.38.
But when Tang’s Corp went to DPW’s office to sign the extension contract, the contractor found out that the governor had not signed it.
The last government official to have signed the extension contract was Attorney General Edward Manibusan on Jan. 15, 2020.
According to § 70-30.3-115 of the Procurement Regulations, Tang’s Corp. should be the last one to sign the contract. The contractor did not obtain a fully executed contract on Feb. 4, 2020.
On Feb. 28, 2020, DPW sent a letter to Tang’s Corp. explaining that the contractor’s performance under the old contract had expired and it needed to cease its work on Feb. 29, 2020 and remove its equipment from the Marpi Landfill.
On March 2, 2020, Tang’s Corp. sent a letter to DPW, the director of Procurement & Supply and several others, which confirmed that Tang’s had stopped its operation on Feb. 29, 2020 as directed by DPW.
In addition, Tang’s Corp. requested DPW to make the payment for the contract that the contractor already completed and the balance on the service performed without contract.
Specifically, Tang’s Corp. requested $235,729.38 for the work completed from Oct. 30, 2019 to Jan. 29, 2020 and $83,814.90 for the work completed from Jan. 30, 2020 to Feb. 29, 2022 totaling $319,554.28.
Tang’s Corp. said it never received the payment for work performed from Oct. 30, 2019 to Feb. 29, 2020, although the work was performed with DPW’s full knowledge.
Complaint
Tang’s Corp. filed its lawsuit on Dec. 21, 2020 alleging breach of contract and unjust enrichment.
In its motion to dismiss, DPW, through Assistant Attorney General Charles P. Reyes Jr., said the complaint should be dismissed because, among other things, (1) plaintiff failed to exhaust its administrative remedies by not bringing its dispute concerning contract payment before the NMI Department of Procurement & Supply within 10 calendar days of realizing the existence of the contract payment dispute; and (2) plaintiff’s unjust enrichment claim sounds in tort and thus must be dismissed because it did not comply with the requirements of the Government Liability Act.
