OPA denies firm’s appeal on landfill security services

The Office of the Public Auditor denied a private firm’s procurement appeal related to proposed security services at the Marpi landfill. OPA, at the same time, said the Division of Procurement and Supply erred in its analysis of OPA’s jurisdiction and whether or not the cancellation of a solicitation can be protested.

OPA posted the decision online last week.

The OPA decision dated April 14, 2014, concurred by Public Auditor Michael Pai, denies Mary’s Security Services’ appeal of the cancellation of a Department of Public Works request for proposals in 2012.

In the same decision, OPA said if DPW or the director of Procurement and Supply wishes to terminate a contract with another private security agency, Island Protection Services, it must be done pursuant to the terms of the contract or the CNMI Procurement Regulations.

DPW published on Oct. 9, 2012 a request for proposals for security services at the Marpi landfill.

After evaluation and discussions with participating firms, a contract with Mary’s Security Services was routed for signature and approval on Jan. 15, 2013.

Due to objections and questions by the Office of the Attorney General about Mary’s Security Services’ selection, the routing process was halted and the not-yet-formed contract was cancelled on May 15, 2013. The Department of Finance de-obligated the funds for the contract.

A day later, a contract with Island Protection Services was circulated among required government agencies for approval. Procurement certified the IPS contract on June 7, and authorized DPW to issue a notice to proceed.

Mary’s Security Services protested the award to IPS on June 24. Two months later, Procurement denied Mary’s Security Services’ protest from which the firm timely appealed to OPA on Aug. 7, 2013.

On Sept. 25, Procurement cancelled the RFP. Procurement said because DPW notified the other “offerors” after the contract had been awarded, the contract was “invalid.”

Mary’s Security wrote to OPA on Sept. 30, 2013, asking that OPA retain jurisdiction over Mary’s Security’s appeal rather than dismiss it as moot, due to the cancellation action that Procurement took.

Nonetheless, OPA dismissed Mary’s Security’s appeal and instructed it to first file a protest with Procurement if it wanted to complain about the RFP’s cancellation.

IPS also filed a protest over the RFP’s cancellation.

Procurement denied on Oct. 16, 2013 both companies’ protests over the RFP’s cancellation, stating that a protest over the cancellation of a solicitation was not provided for in the CNMI Procurement Regulations.

Mary’s Security timely appealed to OPA the Procurement’s denial of its protest over the cancellation. IPS did not appeal.

OPA said it has jurisdiction to decide Mary’s Security’s appeal over the RFP cancellation.

Mary’s Security’s complaints in its protest and appeal of the RFP cancellation is that it will be unduly prejudiced by the cancellation after bid opening and that the Procurement director failed to show any compelling reason to cancel the RFP.

OPA said while it agrees that cancellation of a solicitation after bid opening is disfavored and can prejudice parties whose bid information becomes public, the procurement regulations grant wide discretion to procurement officials in making such determinations.

In this instance, OPA said, the DPW secretary made the determination that the RFP’s cancellation was in the CNMI government’s best interest.