The Office of the Attorney General argues that negotiations in the $190-million power purchase agreement were merely confidential but not made in secret.
Assistant attorney general David Lochabay, representing Gov. Benigno R. Fitial and acting attorney general Viola Alepuyo, said the use of the phrase “in secret” in the lawsuit filed by the Senate and Rep. Janet U. Maratita and Ray Anthony N. Yumul places the CNMI government in a derogatory light.
Lochabay said it is not unusual for contract negotiations to be confidential in the course of ordinary business.
“Plaintiffs deliberately choose inflammatory language when they could have simply stated that confidential negotiations culminated in the Diesel Plant Agreement,” the government lawyer said.
He asserted that the terms and conditions of the Power Purchase Agreement are clearly not being kept a secret by the government as they are contained in the plaintiffs' own exhibits that were filed in their complaint.
Lochabay presented the argument in Fitial's and Alepuyo's motions to dismiss the lawsuit and strike and/or dismiss significant portions of the complaint.
The Senate, Maratita, and Yumul are suing Fitial, former attorney general Edward T. Buckingham, the Commonwealth Utilities Corp., and Saipan Development LLC to stop the power purchase agreement.
Alepuyo substituted herself for Buckingham because Buckingham had already resigned as attorney general.
The plaintiffs asked the court to declare that the 25-year power purchase agreement is “unconstitutional, illegal, unconscionable, and unjust, and therefore, cancelled.”
Superior Court Associate Judge David A. Wiseman recently issued a preliminary injunction that prohibits Fitial and co-defendants from pursuing all agreements associated or related to the $190-million power purchase agreement.
In Fitial's and Alepuyo's motion to strike, Lochabay said the plaintiffs included inflammatory statements that are irrelevant and make no substantial factual allegations that support their claims.
Much of the language used in the complaint, Lochabay said, is clearly prejudicial and should be stricken.
Lochabay said the plaintiffs also keep repeating the language “mysterious” regarding Saipan Development when in fact it is a registered Delaware corporation that has not yet actually begun building a power plant on Saipan.
He said when Saipan Development begins to seek permits and take the first steps toward actual construction, it will need to register itself with the CNMI Registrar of Corporations.
“The government defendants are unaware of any law that requires a business to register with the CNMI Registrar of Corporations before it enters into a contractual agreement on Saipan,” Lochabay said.
He said to require contract bidders to be licensed in order to bid on a procurement would stifle off-island bidders and is not in the best interest of the CNMI.
“It is current practice to require bidders to obtain a CNMI license only after they have been awarded a contract,” he added.
Lochabay said most of the allegations in the complaint are legal conclusions cast in the form of factual allegations and should be dismissed.