DPL stopped from awarding exclusive quarry permit

The Department of Public Lands has been stopped from awarding an exclusive quarry permit on public land in As Matuis until such time that the judge rules on the merits of a losing bidder’s complaint.

The losing bidder, USA Fanter Corp. Ltd., was directed to provide a security bond to pay for damages that DPL may suffer if it is found to have been wrongfully enjoined. The bond’s amount was not stated.

In granting USA Fanter’s petition for preliminary injunction on Friday, Superior Court Associate Judge Joseph N. Camacho said that DPL did not specify the amount of damage it may suffer so there will be a hearing to set an appropriate amount.

USA Fanter is asking the court stop DPL from awarding any contract on the quarry, saying it has not been given the same opportunity to negotiate as Win Win Way and Blue Oasis.

USA Fanter requested the court to issue an injunction preventing DPL from awarding the exclusive quarry permit for the land until such time that DPL and Fanter have determined they cannot come to a contract.

Torres stated in the complaint that prior to Aug. 12, 2016, DPL issued an RFP titled “Quarry Operator on Public Lands-Lot Number 011 C 02—As Matuis, Saipan.” The lot has an area of 50,000 square meters.

Torres said Fanter, which already has a quarry in Kannat Tabla, responded to the RFP on Sept. 16, 2016.

DPL informed Fanter that its proposal was not selected on Nov. 9, 2016.

Torres said, DPL initially selected the proposal submitted by Win Win Way Construction Co. and issued a notice of intent to award to Win Win Way on Nov. 9, 2016.

In granting USA Fanter’s petition for preliminary injunction, Camacho said DPL issued a second RFP without an established procedure to cancel the first RFP.

Camacho said DPL negotiated with Win Win Way and sent a non-award letter to the unsuccessful bidders, including Blue Oasis and USA Fanter, but later entered into negotiations with only Blue Oasis.

Camacho said this unequal treatment of Blue Oasis and Fanter supports Fanter’s allegation that DPL’s actions are both subjective and arbitrary.

He said Fanter has shown that “their likelihood of success is more than negligible.”

Camacho said if Fanter ultimately prevails on the merits in this case, the other awardee would have already removed limestone from the quarry site, and the litigation between Fanter and the other awardee would likely drag on, denying business opportunities to them both.

More important, the judge noted, these delays would reduce rents and royalties for people of Northern Marianas descent while Fanter and another awardee litigate who has the rights to the quarry—the court gives great weight to this loss of rent and royalties to people of NMD.

Camacho said the potential for protracted additional litigation would also reduce public confidence in DPL’s bidding procedure.

Thus, he said, there is irreparable harm if an exclusive quarry permit is issued before this case is decided.

Camacho said the public interest is served in ensuring that DPL is not acting arbitrarily or capriciously in handling RFP bids.

He said potential litigation between Fanter and another awardee over rights to the quarry would endanger rents and royalties from the quarry, thus impacting people of NMD.

Camacho said DPL’s argument that an award to Fanter would be a below-market-rate contract is an unsupported exaggeration.

He said the DPL secretary is required to negotiate fairly with bidders in the interest of people of NMD.

He said Fanter is only asking for the opportunity to negotiate with DPL, just as Blue Oasis already has.
Camacho said nothing in this order will require DPL to negotiate a below-market-rate contract.