The Office of the Public Auditor has denied the appeal of a contractor who had protested the decision of Procurement & Supply to award the contract to build a Commonwealth Office of Transit Authority to another company despite the contractor having the lowest bid.
In its decision last March 12, OPA turned down the appeal of Hong Ye Rental & Construction Ltd. against the Procurement & Supply director’s decision to deny its protest over the Department of Public Works’ awarding of the COTA project to the second lower bidder, RNV Construction.
OPA legal counsel Joseph J. Przyuski ruled that Hong Ye’s bid’s conflicting certifications of compliance and non-compliance renders it non-responsive. Public Auditor Kina B. Peter concurred with Przyuski’s decision.
The contract is for the construction of the federally-funded COTA Administrative and Maintenance Facility. According to OPA, Hong Ye’s bid was lowest at $2,861,548. The second lowest bidder was RNV Construction. The third bidder was HBR International Inc.
COTA later determined the Hong Ye proposal, though lowest on the project, failed to meet the requirements of the Federal Transit Administration under the Buy America Act regulations. That’s how the contract went to RNV Construction. Hong Ye only learned about this when the company’s president, Michael Sheu, received an email invitation for the groundbreaking of the COTA project and subsequently lodged a protest with the Procurement & Supply director.
Hong Ye, through counsel, argued that that award of the contract to RNV violated the CNMI procurement regulations because Hong Ye was not promptly notified of the award to RNV and because Yong Ye was the lowest responsive bidder.
On Oct. 7, 2020, the Procurement & Supply director denied Hong Ye’s protest. The director concluded that the protest must be denied because their bid, while the lowest, was not responsive because it included ambiguous contradictory certifications of compliance and non-compliance with the Buy America Certification and therefore failed to “represent an unequivocal offer to perform” and accept all “material terms and conditions.”
Hong Ye then appealed to OPA.