‘OPA lacks authority to hear administrative appeals’

Posted on Jan 06 2022

The CNMI Supreme Court has determined that the CNMI Constitution and relevant laws do not grant the Office of the Public Auditor the authority to hear administrative appeals in procurement disputes.

In an opinion issued on Dec. 30, 2021, the high court pointed out that OPA’s main power under the Constitution Article 3, Section 12 and the Commonwealth Auditing Act of 1983, is auditing the receipt, possession, and disbursement of public funds, including government procurement. It said the Legislature has given OPA additional powers, such as the ability to assist agencies in implementing policies, but did not grant the specific authority to hear administrative appeals, which requires an impartial adjudicator between two opposing parties.

The Supreme Court opinion is related to the In Re Decision of the Office of the Public Auditor on the Administrative Appeal of GPPC. The case concerned a Commonwealth Utilities Corp. procurement appeal between two companies, GPPC and RNV Construction. A CUC regulation designates the OPA to hear appeals from CUC’s final procurement decisions. After OPA overruled CUC and awarded a construction contract to GPPC, RNV Construction challenged its authority to hear CUC procurement appeals. The Supreme Court effectively sided with RNV Construction, saying the NMI Constitution and relevant laws do not grant OPA the authority to hear appeals from agencies like CUC.

The Supreme Court also found a CUC regulation—NMIAC § 50-50-405—invalid. “Agencies cannot delegate their authority to other agencies without clear legislative action, which was absent in this case. CUC is responsible for managing its procurement. Thus, the regulation improperly gave OPA the ability to overrule CUC’s final procurement decisions,” the high court opinion stated.

The Commonwealth Healthcare Corp., Northern Marianas Housing Corp., and Northern Marianas College also have similar provisions in their regulations designating OPA to hear procurement decision appeals.

The Supreme Court’s full opinion is available at www.cnmilaw.org. (PR)

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