DPW: OPA decision on $3.8M landfill contract protest ‘premature, improper’

The Department of Public Works said the Office of the Public Auditor’s decision to “abdicate its duty and prematurely issue a final decision” regarding the appeal of the protest by three companies over DPW’s award of a $3.8-million, three-year contract to another company for the operation of the Marpi landfill is improper and negatively affects DPW.

DPW, through assistant attorney general Precious S. Boone, asked Public Auditor Michael Pai on Wednesday to reconsider OPA’s final decision in the matter.

DPW also requested Pai to consider hiring outside counsel to fulfill OPA’s obligations in this matter, just as it has done in the past.

Tang’s Corp., Success International Corp., and SM Enterprises earlier protested DPW’s decision to award the Marpi landfill operation contract to a new company, Micronesian Environment Services LLC, because of alleged conflict of interest, improper awarding of contract, anti-competitive practices that poisoned the bidding process, evaluators are not qualified to do the evaluation, the evaluation factors and procedures are unreasonable, and nepotism, among other things.

Boone made the requests to OPA after DPW received Pai’s letter dated Oct. 9, 2020, which she believes indicates that OPA is halting the administrative process due to fears that its internal screening process may have been insufficient. Boone said OPA believes this creates an appearance of a conflict, and therefore proposes to enter a final decision on the pending appeals.

“Theoretically, this would allow the parties to go directly to the Commonwealth Superior Court rather than have this matter decided at the administrative level,” she said.

Boone pointed out that OPA cannot issue a final decision until “after all information necessary for the resolution of the appeal has been received.”

She said the “information” referenced here includes the full agency report from the Division of Procurement and Supply, comments on the agency report by interested parties, rebuttal statements, and any additional information that may be requested.

Boone said her understanding is that none of this “information” has been received by OPA regarding the appeal of the Procurement and Supply decision related to the contract.

Second, the lawyer said, OPA’s decision unfairly forecloses DPW’s opportunity to submit comments.

She said that, pursuant to NMI Administrative Code, “comments on the agency report shall be filed with the Public Auditor within 10 working days after the Public Auditor’s receipt of the report, with a copy to the agency which furnished the report and to other interested parties.”

Boone said once interested parties submit their comments they become part of the administrative record, which will ultimately go to the Superior Court, should the parties decide to appeal the OPA’s final decision.

She said by letter dated Oct. 1, 2020, DPW indicated its intention to file comments to the appeal related to the contract. Boone said DPW has not received a copy of the agency report; therefore, the period for submitting its comments has not yet commenced.

She said prematurely issuing a final decision without allowing DPW to submit its comments will result in an incomplete administrative record. She said this will deprive DPW of the opportunity to be heard regarding the effect OPA’s decision would have on this critical contract.

Citing a 2013 OPA decision, Boone noted that in the past, OPA hired outside counsel when its own legal counsel was unable to handle an appeal. “OPA should adopt a similar approach here to ensure that the parties are not deprived of their opportunity to weigh in on the appeal at the administrative level,” she said.

In December 2013, DPW awarded Tang’s Corp. with a six-month emergency contract to operate the landfill for some $372,000. DPW then approved a three-month extension of that contract and subsequently another five-year contract.

The five-year contract between DPW and Tangs Corp. expired in October 2019, but the contractor was then allowed to continue operating because the request for proposal process was ongoing at the time.