SUPERIOR Court Presiding Judge Roberto C. Naraja has dismissed with prejudice the claims of a contractor against CNMI Office of Public Auditor Kina B. Peter, in her official capacity, related to the contract services for the Marpi solid waste landfill.
In an earlier ruling Judge Naraja also dismissed Department of Public Works Secretary James Ada from Micronesian Environmental Services LLC’s petition for a judicial review of the agency’s decision related to the landfill contract services.
MES, through attorneys Robert Torres and Sean Frink, named in their official capacities, Public Auditor Kina B. Peter, DPW Secretary James Ada, Department of Finance-Procurement & Supply Acting Director Francisco C. Aguon, Finance Secretary David DLG Atalig, and Tang’s Corporation as respondents in the petition.
Background
In October 2019, DPW issued a request for proposals or RFP for the operation and maintenance of the Marpi landfill. Five companies, including MES, submitted proposals, and DPW ultimately awarded the Marpi landfill contract to the petitioner.
Two of the losing companies filed protests objecting to DPW’s decision to award the $3.833 million contract to the petitioner.
The dispute over the award of the Marpi landfill contract was decided by Francisco C. Aguon in his official capacity as the acting director of Procurement and Supply or P&S.
On Sept. 15, 2020, the P&S acting director issued a decision finding that the procurement regulations had been violated during the RFP evaluation process and terminated the contract that DPW had awarded the petitioner.
MES filed its own protest against the P&S acting director’s protest decision.
The dispute was elevated to the Office of the Public Auditor which, at that time, was the agency tasked with reviewing appeals of decisions made by the P&S director.
On Oct. 9, 2020, OPA issued a recusal, declining to hear the appeal based on an internal conflict created by OPA’s involvement in a parallel investigation into the Marpi landfill contract.
On Dec. 18, 2020, OPA issued a second letter affirming its decision to recuse itself from the dispute.
MES then filed a petition for judicial review of agency decisions in Superior Court, identifying OPA’s recusal as one of the agency decisions it was aggrieved by.
According to MES, OPA’s December 18, 2020 final recusal decision adversely affected and aggrieved MES because MES was deprived of the opportunity to have its appeal of the protest decision heard by OPA.
The petition asks the court to “find that OPA abused its discretion in deciding without adequate basis to abdicate its regulatorily imposed duty to hear the MES appeal” and “[r]everse the OPA’s decision and remand the matter…to OPA for review….”
Peter, represented by attorney Joseph J. Przyuski, moved to dismiss all claims against her on March 8, 2021, for failure to state a claim upon which relief can be granted.
Controlling law
Judge Naraja initially orally denied Peter’s motion at the April 21, 2021 hearing on the motion to dismiss, and reaffirmed the court’s decision at a status conference on Oct. 13, 2021.
Peter then filed a motion to reconsider on Jan. 6, 2022, after the CNMI Supreme Court issued its decision in RNV Construction v. GPPC Inc., 2021 MP 13, declaring that OPA lacks the constitutional or statutory authority to decide administrative appeals for other Commonwealth agencies.
Due to an intervening change in controlling law and based upon a review of the filings and relevant law, Judge Naraja granted Peter’s motion to reconsider and dismissed all claims against her with prejudice.
On Feb. 9, 2022, Judge Naraja found that Secretary Ada of DPW is not a necessary party to the petition of MES for judicial review.
“This is an administrative appeal, not a breach of contract case. That DPW was a party to the underlying Marpi landfill contract has no bearing on the instant case,” the judge said.
He added that because DPW did not issue any decision in the underlying administrative proceedings from which MES now appeals, it cannot be a “party against whom an appeal is taken.”
