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| Decision Summary HRPC's protest concerning Saipan Highway Anti-Skid Overlay Project denied (February 29, 2000) - This is an appeal by Hawaiian Rock Products Corporation (HRPC), represented by its Legal Counsel Robert B. Dunlap II of Carlsmith Ball, from the denial of its protest concerning the Saipan Highway Anti-Skid Overlay Project of the Department of Public Works (DPW) which was procured using the emergency procurement method. HRPC sought the disqualification of WEI, the selected contractor, on the ground that WEI was not a responsible bidder. The Division of Procurement & Supply (P&S) Director denied HRPC's protest, stressing his discretionary authority under this project's Instruction to Bidders (ITB) as well as the CNMI-PR provisions on emergency procurement. HRPC contends that the P&S Director went beyond his authority and arbitrarily ignored WEI's unpaid obligations. As remedy, HRPC is asking OPA to overturn the earlier award. Our review of this appeal showed that the P&S Director: (1) had the discretion to consider all unpaid obligations for all former and ongoing contracts under the ITB; (2) did not have a reasonable basis to ignore WEI's unpaid obligations because WEI failed to supply the requested information about its financial condition; and (3) misinterpreted the CNMI-PR when he determined that finding a bidder to be responsible was not required in an emergency procurement and proceeded with the contract award to WEI, disregarding the fact that WEI was not a responsible bidder under Section 3-301(2). Our office determined, however, that absent any evidence of bad faith, we cannot find the P&S Director at fault for this action because of the CNMI-PR's lack of clear guidelines on emergency procurement. We recognize that the award should properly have been made to the lowest responsive and responsible bidder if the P&S Director had properly interpreted and applied the regulations to this procurement. However, since the project has already been completed, we have no option other than to ratify WEI's contract. Therefore, we are compelled to deny HRPC's appeal on DPW's anti-skid project. We recommend, however, that the P&S Director exercise greater care in making future emergency procurement awards, ensuring that award is made not only on the basis of the lowest responsive bid but also to a responsible bidder. In this decision, we take note of a deficiency in this project's bid solicitation. We emphasize that the proper test of a bidder's financial responsibility should focus on a bidder's overall financial condition, and not merely on whether that bidder is current on its obligations to suppliers.
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