Consortium takes protest on 80MW power plant to court

A consortium of firms vying for the 80-megawatt power plant project is seeking judicial review on a Commonwealth Utilities Corporation decision that granted the highly sought-after project to Enron International Mariana Power Inc..

Tomen Power, Singapore Power, Alsons and Tan Holdings Corporation filed before the Superior Court a complaint for judicial review of agency action alleging that CUC’s move to throw out the consortium’s June 9, 2000 protest was arbitrary, capricious, and an abuse of discretion.

The formal protest was lodged against the public utility following the award of the 80-megawatt power plant to Enron which the companies stressed was a violation of Public Law 12-1 enacted by the 12 CNMI Legislature, which was the basis of CUC’s decision to choose Enron over other bidders.

The consortium further claimed that CUC’s decision to select Enron was made without observance of procedures mandated by applicable law, and that it was unsupported by substantial evidence.

The appellants are then urging the court to set a briefing schedule for the processing of the filed appeal, adding that CUC’s original decision be set aside.

The plaintiffs are also seeking for other and further relief the court deems just and proper.

Court documents reveal that on May 29, 1997, CUC issued a request for proposals from independent power producers for the construction and operation of a new power generation.

Members of the consortium submitted a proposal for the power plant project.

Last June 4, 1999 the public utility issued a request for the best and final offers to nine firms in the competitive range where the consortium submitted proposals pursuant to CUC’s request.

But early the following year, the CUC Board of Directors canceled RFP 97-0025, prompting the Legislature to intervene by establishing PL 12-1.

On May 26, 2000, CUC officials awarded the power plant project to Enron. The consortium had moved to counter that decision by filing an appeal. Five months later, the CUC Executive Director released a written decision denying the protest.

The companies then carried the agency’s “adverse” decision to Office of the Public Auditor shortly after.

But OPA, in a report released last February 5, 2001, dismissed protest appeals filed by the three companies.

In a six-page decision on protest appeals, Public auditor Mike S. Sablan said the auditing agency lacks the jurisdiction to review nor to proceed with the said appeals.

Mr. Sablan explained the auditing function of the OPA provided for under the Article III Section 12 of the CNMI Constitution described its responsibility as an independent examination of books, performance, records and other evidence relating to use of funds by any agency.

The appeals made by the three companies is a quasi-judicial proceeding by an agency tribunal and is not an auditing function supposed to be handled by the OPA, Mr. Sablan pointed out.

“Although the OPA has the authority under the Constitution to audit procurement activities such as the subject matter of these appeals, that authority is independent of the appeal process,” the public auditor cited in the report.