Court raises doubts on law’s constitutionality

A statute that ordered an autonomous government agency to render a prompt decision in connection with Saipan’s undisputed need for additional electric power sources is now under close scrutiny by the local court.

Superior Court Associate Judge Timothy Bellas has placed under review Public Law 12-1, as enacted by the 12th CNMI Legislature, the very statute that the Commonwealth Utilities Corporation used as basis to award the 80-megawatt power plant project to Enron International Mariana Power Inc.

Mr. Bellas has raised concerns with regard to the legislation’s constitutionality, which apparently intervened into a decision-making activity that an autonomous agency like CUC should have sole control over.

The court also threw out yesterday a motion submitted by CUC to dismiss a call for judicial review sought by a consortium of firms, which begged to appeal CUC’s action in connection with the award of the Saipan power plant project.

The court has asked counsels from opposing panels to submit supplemental briefs presenting their respective contentions on two matters that may be up for court judgment.

The issues to be tackled include the complaint for judicial review as well as the constitutionality of Public Law 12-1.

Last month, 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 PL 12-1.

The consortium had 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, in the filed complaint, has urged the court to nullify CUC’s original decision.

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.