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Contractor asks court to review OPA’s decision in CUC construction project

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RNV Construction has asked the Superior Court to review and reverse the decision of the Office of the Public Auditor regarding a Commonwealth Utilities Corp. construction project award.

RNV  attorney Michael Dotts said the OPA decision was arbitrary and capricious, an abuse of discretion and not in accordance with the law.

The lawsuit wants the court to reverse the OPA decision and allow CUC to grant the contract to RNV.

On Aug. 8, 2019, CUC announced CUC-IFB-19-031 to solicit bids for the San Vicente Water Tank Replacement Project. RNV submitted a bid on Sept. 6, 2019.

The other two bidders were AIC Marianas and GPPC, Inc.

Because RNV, in its bid, did not include an Insurer Certification Clearance Request or ICCR from the Department of Commerce, CUC considered its bid non-responsive. An ICCR certifies that a bonding company is in compliance with local law.

As a result, CUC initially awarded the project to the second lowest bidder, GPPC.

RNV protested the project award on Oct. 21, 2019.

In response to the bid protest, on Nov. 22, 2019, CUC annulled its original award determination to GPPC. Based on the decision letter, the original decision was reversed because the missing ICCR was a “minor informality” under the law and regulations and it could easily be cured by RNV.

GPPC then appealed the CUC decision to OPA on Dec. 12, 2019.

On Feb. 28, 2020, OPA granted the appeal of GPPC saying that the missing ICCR was material to the bid and the requirement could not be waived by the contracting agency. OPA reversed CUC’s decision and awarded the contract to GPPC.

On March 13, 2020, RNV asked for reconsideration, which OPA denied.

Dotts said the project should be awarded to RNV because it was the lowest bidder. “RNV was a responsive bidder because it submitted a bid that was in [compliance with] all material respects to the invitation for bids. The ICCR was not material to the bid,” he said, adding that the ICCR did not have any influence on RNV’s legal obligation in the bid.

Dotts said CUC can use its discretion to waive the certificate requirement.

According to the RNV lawsuit, OPA abused its discretion in reversing the decision of the public utility. Moreover, the OPA decision is subject to review under the Administrative Procedure Act, the lawsuit added.

In response to the petition for review, GPPC attorney Mark Hanson said it is untimely as he asked the court to dismiss the motion for lack of jurisdiction.

Hanson said, “RNV has failed to perfect the appeal. Service on CUC, OPA and GPPC was late. RNV did not serve counsel of record and it does not appear that RNV served the Office of the Attorney General either. No party appears to have been served with a docketing statement and no docketing statement appears in the docket in any case.”

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