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‘Fitial didn’t have power to ignore CNMI procurement laws’
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Posted on Nov 27 2013
Even if former governor Benigno R. Fitial signed the power purchase agreement and other contracts with Saipan Development LLC as then governor of the CNMI, he was still required to adhere to the CNMI procurement regulations, according to the Commonwealth Utilities Corp.
In CUC’s motion to dismiss SDLLC’s lawsuit against the utilities agency filed in federal court yesterday, CUC legal counsel Deborah Fisher asserted that even if Fitial signed not on behalf of the utility but as the executive under the executive order, he did not have the power to ignore CNMI procurement laws.
Fisher said an emergency procurement requires a written justification for the selection of the particular contractor and the Procurement and Supply director must state his approval in writing.
“Contracts must be prepared by the official with expenditure authority who shall certify he has complied with the CNMI procurement regulations,” she said.
The contract, the lawyer pointed out, must then be reviewed by the Procurement & Supply director, and this includes a referral to the public auditor if warranted.
Fisher argued, among other things, that the court should dismiss the lawsuit because it fails to assert persuasive facts in support of its claim because the contract is illegal on its face.
SDLLC is suing CUC for breach of express contract and implied-in-fact contract over the voided controversial $190.8-million power purchase agreement it signed with then governor Fitial.
The Delaware-based contractor of the PPA asked the U.S. District Court for the NMI to award the company damages for its reliance on the CUC promise, and the amount incurred while evaluating, negotiating, and preparing to perform under the PPA to build a power plant.
The alleged secretive signing of the no-bid, 25-year PPA was one of the issues that led to the filing of impeachment charges against Fitial, who subsequently resigned as governor.
