Decisions issued by the Office of the Public Auditor on procurement appeals since 1995 are listed below with the most recent listed first. Decisions issued from April 1997 onward are available for download. Decisions issued prior to April 1997 may be requested by filling out the request form or by sending e-mail.

Subject: Request for Reconsideration from OPA's Reconsideration Decision No. BP-A014.1

Requestor: Torres Refrigeration, Inc. (TRI)

Brief Summary

TRI filed a request for reconsideration with this office on May 28, 1998 from the May 18, 1998 decision of OPA, referred as Decision No. BP-A014.1, which ratified the contract between the Public School System (PSS) and JWS Air Conditioning and Refrigeration (JWS) on the delivery and installation of 118 split type air conditioners (A/Cs) for Marianas High School (MHS). OPA denied TRI's request for reconsideration. In its decision, OPA found that, procedurally, no provision exists for OPA to entertain a request for reconsideration from a request for reconsideration. OPA added that because TRI was previously given the opportunity to argue against PSS's reconsideration request, OPA cannot now consider any of TRI's subsequent objections to these issues.

Subject: Motion to Alter or Amend Decision on Request for Reconsideration No. BP-A016.1

Appellant: Commonwealth Utilities Corporation (CUC)

Brief Summary

CUC filed a motion requesting OPA to delete and exclude reference to a memorandum by CUC's Acting Power Division Manager which was cited on page 8 of Decision No. BP-A016.1. This decision pertained to CUC's earlier request for reconsideration on a previous OPA decision on the 80 MW power plant project (referred as Appeal Decision No. BP-A016). CUC alleged that the referenced memorandum is covered by the "attorney-client privilege" and/or by the "deliberative process or executive privilege." OPA denied CUC's motion. OPA found that the subject memorandum was nothing more than a communication between one member of the selection committee and the other three, and that nothing in the subject memorandum requested legal advice. In submitting the documents to OPA for review, OPA found that CUC's legal counsel made no admonishment or reservation about any of the documents provided, and claimed no privilege . As for CUC's claim of executive privilege, OPA ruled that the memorandum was disclosed well after relevant decisions were made by CUC, and as a result, disclosure had no effect on the deliberative or decision making process.

Subject: Request for Reconsideration of Earlier Decision (OPA Appeal Decision No. BP-A016)

Appellant: Commonwealth Utilities Corporation (CUC)

Brief Summary

CUC requested that OPA reconsider its earlier decision granting in part the appeal filed by Pacific Marine and Industrial Corporation & Ogden Energy Inc. (PMIC/Ogden) on CUC's Request for Proposals (RFP) No. 97-0025 pertaining to the solicitation of proposals for an additional 80 Megawatt (MW) of power generation facility on Saipan. This request for reconsideration was denied in its entirety. In its decision, OPA concluded that CUC's arguments in its reconsideration request provide no basis for OPA to alter its decision on PMIC/Ogden's appeal because CUC's arguments have not persuaded OPA that its decision contained errors of fact or law, and those arguments have presented information which was inconsistent, irrelevant, incorrect, or lacking in merit. OPA's earlier decision granted in part PMIC/Ogden's appeal because its review showed that CUC's determination of competitive range offers was not in compliance with CUC's own Procurement Regulations. OPA then recommended that CUC make a redetermination of the competitive range offerors in which all proposals that are reasonably susceptible of award should be included in the range.

Subject: Request for Reconsideration of Earlier Decision (OPA Appeal Decision No. BP-A015)

Appellant: Pacific Marine & Industrial Corporation (PMIC)

Brief Summary

PMIC requested that OPA reconsider its earlier decision denying PMIC's appeal on CUC's Request for Proposals (RFP) No. 97-0002 pertaining to the design, construction, and operation of a power generation facility on the island of Tinian. This request for reconsideration was denied in its entirety. In its decision, OPA concluded that the arguments in the reconsideration request provide no basis for OPA to reconsider its earlier decision. OPA stated that, based on PMIC's arguments, it was neither persuaded that its appeal decision contained errors of fact or law, nor was it presented information not previously considered in its earlier decision which would warrant reversal or modification of the appeal decision.

Subject: 80 Megawatt (MW) power generation facility for the island of Saipan

Appellant: Pacific Marine & Industrial Corporation & Ogden Energy, Inc. (PMIC/Ogden)

Brief Summary

The appeal resulted from the denial of PMIC/Ogden's protest on the Commonwealth Utilities Corporation (CUC) Request for Proposals (RFP) No. 97-0025. This RFP was a solicitation of proposals from Independent Power Producers (IPPs) to provide an additional 80 Megawatt (MW) power generation facility on Saipan. We decided to grant the appeal in part. We concluded that CUC's determination of competitive range offerors was not in compliance with the CUCPR because (1) CUC merely narrowed the number of competitive range based on a cut-off score, and concluded that those proposers whose scores were above the cut-off number were the only ones reasonably susceptible of award; (2) the cut-off score was itself flawed as it was based on erroneous scores; and (3) one of the committee members stated that twelve out of the thirteen proposals were reasonably susceptible of selection for award. Additionally, we believe that CUC's methodology does not represent a rational approach to measuring whether a proposal is reasonably susceptible for award. Accordingly, we recommended that CUC make a redetermination of the competitive range offerors in compliance with the requirements of the CUCPR, and those which qualify under this standard but were originally excluded from the competitive range should be reinstated in the competition by asking the proposers to submit best and final offers.

Subject: Design, Construction, and Operation of a Power Generation Facility on the island of Tinian

Appellant: Pacific Marine & Industrial Corporation (PMIC)

Brief Summary

This appeal resulted from the failure of the Commonwealth Utilities Corporation (CUC) Executive Director to issue a decision on PMIC's earlier protest on CUC's Request for Proposal (RFP) No. 97-0002. This RFP was a solicitation of competitive sealed proposals from independent power producers for the design, construction, and operation of a power generation facility that is capable of self-sustained operations under the following two options:(1) a 10 megawatt (MW) load which will initially house two 5 MW generating units with room for installing four additional units of the same size, and (2) a 30 MW load with financing schemes and a minimum repayment term of ten years. We decided to deny the appeal. We concluded in the appeal decision that OPA does not have jurisdiction to hear the appeal filed by PMIC on this RFP because PMIC had not earlier filed a timely protest with the CUC Executive Director pursuant to the CUC Procurement Regulations. Under such Regulations, a written appeal to the Public Auditor from a decision by the Director may be taken provided that the party taking the appeal has first submitted a written protest within ten days after such aggrieved person knows or should have known of the facts giving rise to the protest.

Subject: Reconsideration of Earlier Decision on Procurement of 118 Air Conditioners for Marianas High

Requestor: JWS Air Conditioning and Refrigeration and PSS

Brief Summary

JWS Air Conditioning and the Public School System (PSS) requested for reconsideration of an earlier decision (BP-A014). In its decision, OPA determined that the violations in this particular procurement were not of such significance as to warrant the drastic remedy of directing the removal of the air conditioners installed at MHS by JWS. The decision stated that inappropriate actions or inactions of certain PSS and MHS personnel should not be tolerated because the integrity of the procurement process is at stake. OPA recommended that the PSS Commissioner consider imposing administrative disciplinary sanctions against the persons responsible for the violations of the PSSPR mentioned in the earlier decision, and for allowing JWS to continue performance of its contract after the protest was filed.

Subject: Procurement of 118 Air Conditioners for Marianas High

Appellant: Torres Refrigeration, Inc.

Brief Summary

The appeal resulted from the denial of the appellant's protest by the Commissioner of Education in the PSS Invitation for Bids (IFB) No. 97-0019. This IFB was a solicitation of bids from vendors for the delivery and installation of 118 air conditioners for MHS. We decided to grant the appeal. We concluded in the appeal decision that there was a violation of the PSS Procurement Regulations in that: (1) the evaluation conducted did not adequately consider the selected bidder's compliance with the technical specifications of the IFB, (2) said evaluation considered certain factors not set forth in the bid specifications, and (3) the selected bidder did not fully meet the requirements set forth in the bid specifications.

Subject: Procurement of 12 Mini Vans by the Commonwealth Judiciary

Appellant: Joeten Motors Company, Inc. (JMC)

Brief Summary

The appeal resulted from the denial of the appellant's protest by the Director of Procurement and Supply on the Judiciary's Request for Proposal (RFP) No. 97-10. The RFP was a solicitation for proposals from automobile dealers for the purchase of 3 to 5 units of 1997 mini vans. We decided to grant the appeal of JMC and direct that contract nos. 303745-OC and 303743-OC awarded to Microl Corporation covering the purchase of four and eight units of mini vans, respectively, be terminated. As stated in the appeal decision, we found significant violation of applicable laws and regulations, specifically those pertaining to unauthorized procurement actions by the Judiciary, failure to give adequate public notice of the RFP, and unauthorized reprogramming of funds.

Subject: Procurement of 118 Air Conditioners for Marianas High School (MHS)

Appellant: Carrier Guam Inc., Saipan Branch

Brief Summary

The appeal resulted from the denial of the appellant's protest by the Commissioner of Education in the PSS Invitation for Bids (IFB) No. 97-0019. This IFB was a solicitation of bids from vendors for the delivery and installation of 118 air conditioners for MHS. We decided to deny the appeal. As stated in the appeal decision, we concluded that the appellant is not an interested party in PSS IFB 97-0019, and therefore lacks standing to protest any procurement action involving this IFB. We further stated that the appellant was not an interested party because it is neither an actual nor a prospective bidder.

Subject: PSS School Breakfast and Lunch Program

Appellant: Merced V. Reyes, dba M.V. Reyes Catering

Brief Summary

The appeal resulted from the denial of the appellant's reconsideration request by the Commissioner of Education on PSS Request for Proposals (RFP) No. 97-005. This RFP was a solicitation of proposals for the operation of the PSS school breakfast and lunch program for the school year 1997-1998 covering all the public elementary. junior high, and high schools, as well as some private schools, headstart centers and peer programs on Saipan, Tinian and Rota. We denied the appeal. As stated in the appeal decision, we concluded that the appellant's allegations are either (1) unpersuasive as having no valid bases, or (2) without merit as they constitute merely appellant's opinions without convincing supporting evidence that there was a significant violation of the PSS Procurement Regulations. The appeal grounds do not warrant a cancellation of the "intent to award" under this RFP.

Subject: Design-Build of 60 Classrooms at Various Public Schools under an Amended RFP

Appellant: Mariana Pacific, Inc.

Brief Summary

The appeal resulted from the Procurement and Supply Director's denial of the appellant's protest on the Request for Proposals (RFP) No. DPW96-RFP-015 (as amended). In the amended RFP, all original proposers were invited to submit revisions of their earlier proposals in accordance with the revised scope of work for the design-build of the 60 classrooms at various CNMI public schools. We decided to deny the appeal. As stated in the appeal decision, the grounds cited by the appellant were either (1) not persuasive as having no valid bases, (2) without merit as they are merely the appellant's opinions which were not supported by convincing evidence, (3) considered irrelevant since they have already been addressed by OPA's previous decision dated April 4, 1997, or (4) not an adequate basis for relief since we can find no proof of prejudicial harm or damage to the appellant. The decision further stated that the appeal grounds do not warrant a cancellation of the contract award already made on this RFP.

Subject: Procurement of 118 Air Conditioners for Marianas High School

Appellant: JWS Air Conditioning & Refrigeration, Ltd.

Brief Summary

The appeal resulted from the Commissioner of Education's denial of the appellant's protest on the Public School System (PSS) Invitation for Bids (IFB) No. 97-005 pertaining to the procurement of 118 air conditioners for Marianas High School (MHS). PSS IFB 97-005 was a solicitation of bids from vendors for the delivery of: (1) 118 air conditioners for MHS, (2) 30 air conditioners for Rota schools, and (3) one riding mower for Rota PSS. We decided to grant the appeal in part. In the appeal descision, PSS was directed to cancel the portion of IFB 97-005 that pertains to the procurement of 118 air conditioners for MHS, and re-advertise a new solicitation of bids. Deficiencies noted on IFB 97-005, as discussed in the appeal decision, warranted a cancellation of the solicitation.

Subject: Electrical System for the Saipan Judicial Complex

Appellant: Pacific Security Alarm, Inc.

Brief Summary

The appeal pertains to the denial by the Division of Procurement and Supply of the protest of appellant over the decision of the Department of Public Works (DPW) to award the contract under Request for Proposal No. DPW96-RFP-007 (design-build of a specialty electrical system for the Saipan Judicial Complex) to another proposer on this solicitation. OPA determined that the CNMI Government has no other option than to ratify the existing contract with the other proposer because the protest had reached the point where an award to the appellant was no longer feasible. Therefore, it was necessary to deny the appeal.

Subject: Design/Construction of Classrooms for Various Public Schools

Appellant: Mariana Pacific, Inc.

Brief Summary

The appeal resulted from the failure of the Director of Procurement and Supply (P&S) to decide on appellant's protest within the required time. The subject of the protest was Request for Proposal (RFP) No. DPW96-RFP-015 issued by the Department of Public Works (DPW) in conjunction with the Public School System, for the solicitation of sealed proposals for professional design services and construction of classrooms at various public schools. The appeal was granted in part. In the decision, P&S and DPW were directed to undertake either two remedies: (1) cancel and re-advertise the RFP, or (2) allow all the proposers on this RFP to revise their proposals based on the revised scope of work. In view of the urgency of the classrooms project, the decision recommended that all the proposers be given the opportunity to revise their proposals.

Subject: PSS School Breakfast and Lunch Program

Appellant: Leng's Enterprises

Brief Summary

The appeal was from the denial by the Commissioner of Education of appellant's protest on the solicitation of proposals for the operation of the Public School System (PSS) school breakfast and lunch program for the school year 1996-1997 in Rota. In the decision, it was determined that Leng's protest with PSS was not timely filed as it failed to meet the Public School System Procurement Regulations requirements.

Subject: PSS School Breakfast and Lunch Program

Appellant: Mr. Felipe Q. Atalig

Brief Summary

The appeal was filed after the denial by the Commissioner of Education of appellant's protest on Public School System (PSS) Request for Proposal No. 96-004 which was a solicitation of proposals for the operation of the PSS school breakfast and lunch program for the school year 1996-1997. The decision granted the appellant's request for a new evaluation team to be formed and reevaluate the proposals.

Subject: Department of Public Safety Food Service Program

Appellant: Mr. Felipe Q. Atalig

Brief Summary

The appeal resulted from the denial of appellant's protest by the Division of Procurement and Supply pertaining to Request for Proposal No. 96-0056 which was a solicitation of proposals for the food service program of the Division of Corrections. OPA concluded that the appellant was a nonresponsible proposer taking into consideration its unsatisfactory performance on a previous food service contract with the Division.

Subject: Revision of the CNMI Labor Code

Appellant: Mr. John F. Cool

Brief Summary

The appeal was from the denial of Mr. John F. Cool's (appellant) protest by the Division of Procurement and Supply (P&S) pertaining to the award of Contract No. C50332 which was a sole source procurement of professional services for the revision of the CNMI Labor Code. The decision concluded that the appellant was not an aggrieved party in connection with the sole source procurement of this professional service contract, and that the decision by the P&S Director to deny the protest because of lack of standing was justified.

Subject: Procurement of School Bus

Appellant: Triple J Motors

Brief Summary

The appeal was from the denial by the Commissioner of Education of appellant's protest on the procurement of school bus under Invitation for Bid No. 95-008. The decision concluded that it was in the best interest of the CNMI Government to deny the appeal because (1) acceptance of the other bidder's bid (the lowest bid) would result in a significant cost advantage to the Public School System, and (2) the issues raised by the appellant were very minor.

Subject: DPS Food Service Program

Appellant: Mr. Felipe Q. Atalig

Brief Summary

The appeal was filed after the Director of Procurement and Supply (P&S) denied the protest of appellant on Invitation for Bid (IFB) No. 94-0037, which was a solicitation of competitive sealed bids for the food service program of the Division of Corrections under the Department of Public Safety (DPS). The decision reaffirmed the P&S Director's denial of the appellant's protest. Additionally, the decision concluded that the bidding process on this IFB did not result in any bid that is responsive to the specifications of the contracting agency. Therefore, the decision recommended that another IFB be advertised.