THE local Supreme Court has ruled that contrary to what the Commonwealth Utilities Corp. procurement regulation states, the Office of the Public Auditor has no authority to hear administrative appeals.
It was RNV Construction, through attorney Michael Dotts, that challenged the validity of CUC’s procurement regulation.
Background
On Aug. 8, 2019, CUC announced that it was seeking bids for the San Vicente water tank replacement project.
There were three bidders: RNV, AIC Marianas and GPPC Inc.
As RNV in its bid did not include the Insurer Certification Clearance Request or ICCR from the Department of Commerce, CUC considered RNV’s bid non-responsive even though it was the lowest.
The ICCR certifies that the bonding company is in compliance with local law.
CUC then awarded the project to the second lowest bidder, GPPC.
RNV filed a protest on Oct. 21, 2019.
In response, CUC annulled its original award determination to GPPC on Nov. 22, 2019.
CUC said the missing ICCR was a “minor informality” under the law and could easily be cured by RNV.
GPPC then appealed CUC’s decision to OPA on Dec. 12, 2019.
On Feb. 28, 2020, OPA granted the appeal of GPPC saying that the missing ICCR was material to the bid and the requirement could not be waived by the contracting agency.
OPA reversed CUC’s decision and awarded the project to GPPC.
On March 13, 2020, RNV asked OPA for a reconsideration but it was denied.
RNV’s lawyer, Michael Dotts, said OPA abused its discretion in reversing CUC’s decision.
RNV petitioned the Superior Court for judicial review under the Commonwealth Administrative Procedure Act, but the court upheld OPA’s decision.
High court ruling
In an 11-page opinion issued on Dec. 30, 2021, Supreme Court Chief Justice Alexandro Castro, Justice Perry B. Inos and Justice John A. Manglona stated that “nowhere in the statute is there any language giving OPA the ability to hear appeals from other agencies. Although hearing procurement appeals might allow OPA to help fulfill its duty to prevent and detect fraud, waste, and abuse of public funds, any action it takes to fulfill that duty still has to stem from authority given by the Constitution or the Legislature.”
According to the high court, “We find that OPA’s duties as statutorily defined do not allow it to hear procurement appeals.”
“Nothing in the NMI Constitution or any statute clearly allows OPA to hear administrative appeals for procurement matters,” the high court added.
“If OPA had appellate jurisdiction, the Legislature would have plainly said so. It is a significant power for one agency to overturn decisions of another, and we would be disregarding the plain language of the text if we found such power within OPA’s existing authorities. In other jurisdictions where the equivalent of OPA can hear administrative appeals, statutes expressly grant that authority.”
“We find that OPA lacks the constitutional or statutory authority to hear administrative appeals,” the justices reiterated.
They invalidated CUC’s “Appeals of Director’s Decisions to the Public Auditor,” vacated the Superior Court’s decision, and remanded the construction award protest to CUC.
On Thursday, the construction project in question — a new 750,000-gallon pre-stressed concrete water tank in San Vicente — was completed by GPPC.
