DK Brothers and two other companies submitted bids in March 2006 for the construction of Rota Junior High School classrooms, in response to an Invitation For Bids issued by DPW. In April, DK Brothers protested with the Division of Procurement and Supply that Pacific Cooperation was the lowest bidder, citing the Pacific Cooperation failed to comply with bid requirements. The protest was denied. DK Brothers appealed the protest decision to OPA.

Analysis of Decision

A. Timeliness

The bids were opened on March 31, 2006 at 2:00 pm. The protest was filed with the Director of Procurement and Supply (P & S) on April 3, 2006 by Pedro Q. Dela Cruz, on behalf of DK Brothers. The Director of Procurement and Supply denied DK Bothers
protest on April 7, 2006. By letter dated April 7, 2006, Pedro Q. Dela Cruz, on behalf of DK Brothers, filed an appeal of the Protest Decision with the Director of Procurement and Supply. By letter dated April 10, 2006, the Director of Procurement and Supply informed Mr. Dela Cruz that the appropriate venue for the appeal is the Office of the Public Auditor and he should direct his appeal to OPA. DK Brothers, through its attorney Brien Sers Nicholas did appeal the Director of P & S’ Decision to OPA on April 24, 2006. OPA provided Notice of the Appeal to the Director of P & S on April 24, 2006. The Director of P & S provided OPA with a Report on the Decision as well as the case file on May 2, 2006. DK Brothers, through its attorney Brien Sers Nicholas responded with comments on May 4, 2006.

The Director of Procurement and Supply urges OPA to reject DK Brothers’ appeal as untimely since the Denial of the Protest was issued on April 7, 2006 and DK Brothers’ appeal to OPA was not filed until April 24, 2006.

CNMI-PR Section 505(c) requires that an appeal be filed with OPA not later than ten (10) days after the appellant receives the decision of the Director of P & S (or should have received the decision if one has not been rendered). NMIAC 70-30.3-505(c). CNMI-PR Section 501(d)(1) provides that, “[e]xcept as otherwise specified, all ‘days’ referred to in this part are deemed to be working days of the Commonwealth Government. . . .” NMIAC 70-30.3-501(d)(1). CNMI-PR 505(c) and CNMI-PR 501(d) are both part of “Subpart A - Bid Protests and Appeals” in Article 6, “Protests and Disputes.” According to CNMI-PR 501(d)(2), “[i]n computing any period of time prescribed or allowed by these procedures, the day of the act or event from which the designated period of time begins to run shall not be included.” NMIAC 70-30.3-501(d)(2). Thus, the day the Decision was issued, April 7, is not to be counted. April 14, Good Friday, was an official CNMI Government holiday. Therefore, April 24, the day OPA received the appeal, wasthe tenth(10th) working day after the issuance of the P & S Director’s Decision. OPA, therefore, finds the appeal to have been timely filed.

B.  Whether the P & S Director Improperly Failed to Exclude Pacific Cooperation’s Bid

DK Brothers sole argument on appeal is that the P & S Director should have excluded Pacific Cooperation’s bid as non-responsive and responsible because it did not use a supplied form to list its sub-contractors and materials suppliers. Pacific Cooperation had the lowest bid. The P & S Director did not exclude it.

Pacific Cooperation did provide lists of its sub-contractors and materials suppliers on its own forms. It listed four materials suppliers on one sheet and on the other, it listed “N/A” for the sub-contractors. “N/A” means “not applicable.” The P & S Director found, and OPA agrees, that the “N/A” on the sub-contractor list means that it does not intend to use
any sub-contractors.

While DK Brothers concedes that Pacific Cooperation did provide lists of its subcontractors and materials suppliers on its own forms, it contends that those forms were insufficient because they did not list the “Nature and Scope of the Work” as directed on the supplied form.

In the “Instructions to Bidder” for DPW 06-IFB-012, Item 3(c) listed, in relevant part:

10.  List of Subcontractors (no form included)

11.  List of Materials Suppliers (no form included)

Also included in the packet was the “LIST OF SUBCONTRACTORS / SUPPLIERS.”

OPA finds that the inclusion of this list was inadvertent, since the instructions clearly indicated that no form was supplied. Since the instructions indicated that no form was supplied, it was appropriate and proper that Pacific Cooperation use its own form. Had the P & S Director excluded Pacific Cooperation as non-responsive and responsible for not using the form, he would have done so in contravention of the instructions included in the instruction packet.

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