ISLAND Business Systems & Supplies or IBSS has petitioned the Superior Court for a judicial review of the Public School System’s decision to award a three-year multifunctional networked printer lease contract to Xerox Corporation
IBSS, through attorney Vincent Seman, named PSS, Education Commissioner Lawrence Camacho in his official capacity, and the Board of Education as respondents.
IBSS has asked the court to issue a temporary restraining order enjoining the respondents, including their employees or agents, from “any further actions of any nature in processing, implementing, negotiating or contracting with Xerox….”
IBSS is also seeking a preliminary injunction against the respondents.
IBSS likewise requested the court for a permanent injunction enjoining the respondents “from any other actions of any nature in processing, implementing, negotiating or contracting with Xerox…because contracts in violation of the Procurement Regulations are invalid under NMIAC § 60-40-03.”
Moreover, IBSS asked the court to set aside and reverse the acting commissioner of education’s decision denying IBSS protest, dated Dec. 7, 2023, “because the decision is arbitrary capricious, an abuse of discretion, or otherwise not in accordance with law, short of recognizing statutory and regulatory rights and requirements, and without observance and compliance of procedures required by law and regulations.”
IBSS said the court should also issue an order reversing and setting aside the BOE Appeal Committee’s decision, dated April 11, 2024, “because the…decision is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, short of recognizing statutory and regulatory rights and requirements, and without observance and compliance of procedures required by law and regulations.”
“It is an oversimplification to characterize the IBSS protest and IBSS appeal as simply against the award of the contract to Xerox,” Seman said.
“The IBSS protest and IBSS appeal, including this petition for judicial review, are a plea for PSS to perform its duties and follow its Procurement Regulations, specifically the fair and equal treatment of all contractors and consistent evaluation of all bids for compliance with the Procurement Regulations and the requirements of the invitation for bid,” the lawyer added.
Background
On July 26, 2023, PSS made available at the PSS Procurement and Supply Office the specifications for competitive sealed bids pertaining to IFB 23-030, which was for the “Three-Year Lease of a Multifunctional Networked Printer for the CNMI Public School System.”
On Sept. 22, 2023, PSS opened the bids submitted in response to IFB 23-030.
Xerox Corporation submitted a bid for $1,197,000 while IBSS submitted a bid for $2,056,345.48.
No other bids were submitted for IFB 23-030.
On Oct. 6, 2023, the PSS Evaluation Committee evaluated the Xerox bid and determined that it was responsive.
IBSS said the Evaluation Committee made no other determinations, including whether Xerox was a responsible bidder who met all factors listed under NMIAC §60-40-240(a).
On Oct. 12, 2023, the Evaluation Committee submitted to the acting commissioner of education a recommendation to award Xerox the contract under IFB 23-030.
PSS issued a Notice of Intent to Award the contract under IFB 23-030 to Xerox dated Nov. 14, 2023.
According to IBSS, prior to the issuance of the notice of intent to award, neither the chief procurement officer nor the acting commissioner took any steps required by NMIAC §60-40-240(b).
On Nov. 21, 2023, IBSS timely filed a protest with the commissioner on the following bases: (1) The PSS official with expenditure authority failed to obtain information from Xerox to make a determination of responsibility using factors provided in NMIAC § 60-40 205(g) prior to the award of the contract; (2) Xerox was not a responsible bidder who met all of the factors provided in NMIAC § 60-40-205(a); (3) Xerox was not a responsive bidder because it failed to comply with the requirements of IFB 23-030; and (4) Finding Xerox as a responsible and responsive bidder contradicts the public policy purposes of the PSS Procurement Regulations, which include insuring a fair and equitable treatment of all persons who deal with the procurement system and providing safeguards for the maintenance of a procurement system of quality and integrity as provided for in NMIAC § 60-40-001(b).
On Nov. 30, 2023, Xerox submitted its response to the IBSS protest.
On Dec. 7, 2023, Acting Commissioner of Education Eric Magofna denied the IBSS protest, and said that Xerox was a responsible bidder that provided a responsive bid at the lowest price.
PSS is expected to file its response to IBSS in court.
