Contractor sues CPA over Tinian project

A contractor yesterday asked for a judicial review of the Commonwealth Ports Authority’s decision to deny its appeal over the awarding of a construction project on Tinian.

ASC Arch Structure Corp., which does business as ASC Construction, said that CPA’s actions were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”

In papers filed through its lawyer, Steven Woodruff, ASC said that it submitted the lowest bid of $2.567 million last year but the project, an improvement work for the West Tinian International Airport terminal, was awarded to AIC Marianas, which it said had a $2.651 million bid.

ASC also accused CPA of breach of contract in its alleged failure to observe good faith and fair dealing, thus exposing ASC to damages from loss of profits.

The company asked the Superior Court for temporary, preliminary, and permanent injunctive relief.

It asked the court to set aside CPA’s decision and to order the agency to award the contract to ASC or alternatively, to pay ASC expectative damages and reimburse its costs of bid and protest, as well as attorneys’ fees.

In its complaint, ASC said that CPA issued its invitation for bid for construction of certain airport terminal improvement on Tinian in April 2003. It said that the IFB was amended twice—in June and July 2003. The bid was opened on Aug. 1, 2003.

On Oct. 31, 2003, ASC said that CPA wrote to say that its [ASC’s] bid was non-responsive because its bond company, Equitable Insurance Co., is not U.S. treasury-listed. CPA further said that the exemption for that requirement was not available upon the advise of the Attorney General’s Office.

But ASC said that CPA’s rejection of ASC’s preferred surety was based on “nothing more than a memo” from the assistant attorney general to the director of technical division of the Department of Public Works dated Oct. 23, 2003.

The plaintiff said the memo was “an inadequate basis and likely ultra vires in several respects.”

ASC said it timely filed a protest with CPA on Nov. 11, 2003.

On Nov. 20, it said that the DPW Secretary wrote to CPA advising it that the proper course where there is a problem with the surety “is to give the construction company the opportunity to select a different bonding company.” ASC said that CPA ignored the secretary’s position.

On Jan. 26, 2004, CPA executive director Carlos Salas reportedly denied ASC’s protest, which was timely appealed by the company on Feb. 10. On April 6, the CPA appeal committee reportedly affirmed Salas’ decision.

ASC filed a timely appeal on April 21, requesting for a reconsideration of the committee’s decision. On April 26, the committee issued its final order, maintaining its previous position.

On May 13, the CPA reportedly certified that the construction services are “urgently needed” and asserted that the “award and execution of contract with the lowest responsible bidder, AIC Marianas, will be advantageous to CPA.”

ASC, in its court complaint, said that CPA’s May 13 determination falsely stated that “it is not known whether ASC will proceed further and file a complaint in Superior Court” despite the fact that the ASC’s counsel had notified CPA of the company’s intention to go to court.

ASC noted that the project’s appropriate expenditure authority is the DPW Secretary, with concurrence by the executive director of CPA.