TITLE 130

OFFICE OF THE PUBLIC AUDITOR

 

Chapter 130-10          Lobbying Disclosure Act Regulations

Chapter 130-20          OPA Personnel Regulations

Chapter 130-30          OPA Procurement Regulations

 

CHAPTER 130-10

LOBBYING DISCLOSURE ACT REGULATIONS

 


Part 001          General Provisions

§ 130-10-001   Purpose

§ 130-10-005   Definitions

§ 130-10-010   Persons to Whom Regulations Are Applicable

 

Part 100          Lobbying Requirements

§ 130-10-101   Registration and Licensing

§ 130-10-105   Requirements of Registration

§ 130-10-110   Renewal

§ 130-10-115   Statement of Account

§ 130-10-120   Retention of Receipts

§ 130-10-125   Direct or Indirect Benefit

 

§ 130-10-130   Preservation of Statement; Public Record

§ 130-10-135   Frequency of Reports

§ 130-10-140   Public Official as Lobbyist

§ 130-10-145   Exclusions

§ 130-10-150   Gifts

§ 130-10-155   Statement under Penalty of Perjury

§ 130-10-160   Refusal to Register

§ 130-10-165   Registration Approval

§ 130-10-170   Bribery

§ 130-10-175   Fee

 

Appendix A     Lobbying Disclosure Act Registration Statement

Appendix B     Lobbying Disclosure Act Renewal of Registration

 


 

Chapter Authority: 1 CMC § 9417.

 

Chapter History: Amdts Proposed 24 Com. Reg. 19539 (Oct. 30, 2002);* Adopted 7 Com. Reg. 3975 (Sept. 16, 1985); Proposed 7 Com. Reg. 3808 (July 22, 1985).

 

*As of December 2004, a notice of adoption for the 2002 amendments had not been published.

 

Commission Comment: 1 CMC § 2301 creates an Office of the Public Auditor as an independent agency of the Commonwealth government. The Public Auditor is charged with auditing the receipt, possession and disbursement of public funds and performing other duties prescribed by law. 1 CMC §§ 2301 and 2303.

 

The Commonwealth Auditing Act of 1983, PL 3-91 (effective Jan. 4, 1983), codified as amended at 1 CMC §§ 7811-7851, further delineates the powers, functions and duties of the Public Auditor.

 

PL 4-25 (effective Dec. 18, 1984), the “Lobbying Disclosure Act,” codified at 1 CMC §§ 9411-9419, sets forth disclosure requirements for lobbying activities applicable in the CNMI. 1 CMC § 9417 authorizes the Public Auditor to promulgate rules and regulations necessary to effectuate the provisions of the act.

 

On October 30, 2002, the Office of the Public Auditor published proposed revised Lobbying Rules and Regulations. See 24 Com. Reg. 19539 (Oct. 30, 2002). A notice of adoption has not been published.

 

Part 001 -       General Provisions

 

§ 130-10-001   Purpose

 

While the Lobbying Disclosure Act encourages all efforts of interested persons or classes to advocate the adoption of desired legislative measures it wants to insure that this advocacy is done in an open and fair manner. The regulations in this chapter provided for by Public Law 4-25 (The Lobbying Disclosure Act) [1 CMC §§ 9411-9419] are designed to provide the public with a full and accurate disclosure from the persons or interest groups who influence government and the manner in which they do so.

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 7 Com. Reg. 3975 (Sept. 16, 1985); Proposed 7 Com. Reg. 3808 (July 22, 1985).

 

§ 130-10-005   Definitions

 

When used in the regulations in this chapter --

 

(a)        The term “contribution” includes a gift, subscription, loan, advance or deposit of money or anything of value and includes a contract, promise or agreement, whether or not legally enforceable, to make a contribution.

 

(b)        The term “expenditure” includes a payment, distribution, loan, advance, deposit, or gift of money or anything of value, and includes a contract, promise, or agreement, whether or not legally enforceable, to make an expenditure.

 

(c)        The term “immediate family” means spouse, children, parents and siblings of the effected person.

 

(d)       The term “lobbyist” means any person engaging in the activities described by § 130-10-010.

 

(e)        The term “person” includes an individual, partnership, committee, association, corporation, and any other organization or group of persons.

 

Modified, 1 CMC § 3806(c), (d).

 

History: Adopted 7 Com. Reg. 3975 (Sept. 16, 1985); Proposed 7 Com. Reg. 3808 (July 22, 1985).

 

§ 130-10-010   Persons to Whom Regulations Are Applicable

 

The provisions of this chapter shall apply to any person, who by himself or through any agent or employee or other persons in any manner whatsoever, directly or indirectly, solicits, collects or receives money or any other thing of value to be used in any manner to aid in the accomplishment of any of the following:

 

(a)        The passage or defeat of any legislation by the Northern Mariana Islands Legislature;

 

(b)        The signing or vetoing of any legislation by the Governor;

 

(c)        The adoption or failure to adopt any regulation, rule, rate, standard or decision of any board or commission of the Commonwealth, which has rule making authority granted by law, regulation or the Constitution.

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 7 Com. Reg. 3975 (Sept. 16, 1985); Proposed 7 Com. Reg. 3808 (July 22, 1985).

 

Part 100 -       Lobbying Requirements

 

§ 130-10-101   Registration and Licensing

 

Any person employed or retained to perform the functions of § 130-10-010 shall register with the Commonwealth Board of Elections before performing those functions.

 

Modified, 1 CMC § 3806(c).

 

History: Adopted 7 Com. Reg. 3975 (Sept. 16, 1985); Proposed 7 Com. Reg. 3808 (July 22, 1985).

 

§ 130-10-105   Requirements of Registration

 

Each person shall register by filing with the Commonwealth Board of Elections a recent passport size black-and-white photograph of himself, a written authorization to act as a lobbyist from each person by whom he is employed or with whom he contracts, and a statement under penalty of perjury containing:

 

(a)        His full name, business address, (both local and foreign) and telephone number;

 

(b)        The country of his residence;

 

(c)        His citizenship;

 

(d)       The name and business address of each person by whom he is employed or with whom he contracts for lobbying purposes, and the terms of his contract if known;

 

(e)        How much he is paid and is to receive, by whom he is paid or is to be paid, how much he is to be paid for expenses and what expenses are to be included;

 

(f)        Any prior felony convictions;

 

(g)        A list of businesses by name and type of business that he or members of his immediate family have an interest in or are employed by;

 

(h)        A statement as to whether he is a government employee, elected or appointed government official.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 7 Com. Reg. 3975 (Sept. 16, 1985); Proposed 7 Com. Reg. 3808 (July 22, 1985).

 

Commission Comment: The notice of adoption for the 1985 regulations corrected the language of subsection (d).

 

§ 130-10-110   Renewal

 

Each registered lobbyist shall renew his registration within 30 days prior to January 15 of each year by filing:

 

(a)        A new photograph

 

(b)        A new registration statement

 

(c)        A statement of account for the preceding calendar year.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 7 Com. Reg. 3975 (Sept. 16, 1985); Proposed 7 Com. Reg. 3808 (July 22, 1985).

 

§ 130-10-115   Statement of Account

 

Every person who was in the business the preceding calendar year of receiving any contributions or expending any money for the purposes designated in subsections (a), (b), or (c) of § 130-10-010 of this chapter, shall file with the Board of Elections between the first and fifteenth day of each January, a statement containing complete as of the day next preceding the date of filing:

 

(a)        The name and address of each person who has made a contribution of $25 or more in the preceding calendar year;

 

(b)        The purpose for which each such payment was received. The specific bill or action must be referred to, a general statement such as “lobbying the legislature” is insufficient;

 

(c)        The total sum of all contributions made to or for such persons during the preceding calendar year;

 

(d)       The name and address of each person to whom an expenditure in one or more items of the aggregate amount or value, within the preceding calendar year, of $10 or more has been made by or on behalf of such persons, and the amount, date, and purpose of such expenditure;

 

(e)        The total sum of all contributions made to or for the person in the preceding calendar year;

 

(f)        The total sum of all expenditures made by or on behalf of such persons in the preceding calendar year.

 

Modified, 1 CMC § 3806(c), (d), (f).

 

History: Adopted 7 Com. Reg. 3975 (Sept. 16, 1985); Proposed 7 Com. Reg. 3808 (July 22, 1985).

 

§ 130-10-120   Retention of Receipts

 

It shall be the duty of each person registered under the regulations in this chapter to obtain and keep a receipted bill, stating the particulars, for every expenditure of such funds exceeding $10 in amount, and to preserve all receipted bills and accounts required to be kept by this section for a period of five years from the date of filing of the statement requiring such items.

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 7 Com. Reg. 3975 (Sept. 16, 1985); Proposed 7 Com. Reg. 3808 (July 22, 1985).

 

§ 130-10-125   Direct or Indirect Benefit

 

An expenditure must be accounted for in § 130-10-115, if it confers either a direct or indirect benefit on a public official, and is intended to so benefit him. A direct benefit, by way of illustration, would include campaign contributions, of any kind, free or reduced lodging, transportation, newspaper or radio advertisements, meals, the use of office space or equipment, etc. An indirect benefit would include expenditures made to benefit any business the public official or a member of his immediate family has an interest in, or any expenditure made to directly benefit a member of the official’s immediate family.

 

Modified, 1 CMC § 3806(c).

 

History: Adopted 7 Com. Reg. 3975 (Sept. 16, 1985); Proposed 7 Com. Reg. 3808 (July 22, 1985).

 

§ 130-10-130   Preservation of Statement; Public Record

 

A statement received by the Board of Elections shall be preserved by the Board for 5 years from the date of filing, shall constitute part of the public records of his office, and shall be open to immediate public inspection.

 

History: Adopted 7 Com. Reg. 3975 (Sept. 16, 1985); Proposed 7 Com. Reg. 3808 (July 22, 1985).

 

§ 130-10-135   Frequency of Reports

 

The Board of Elections can, upon approval of the Public Auditor, require registration statements to be updated more frequently so long as it is not more frequent than quarterly.

 

History: Adopted 7 Com. Reg. 3975 (Sept. 16, 1985); Proposed 7 Com. Reg. 3808 (July 22, 1985).

 

§ 130-10-140   Public Official as Lobbyist

 

Before the Board of Elections may accept the application of a person who is an elected official, appointed official or full-time government employee, the applicant must first submit a written agreement showing all particulars of his employment including compensation, the precise purpose for the employment and the amount of pay or type of consideration to be received. This agreement shall be a public record open to immediate public inspection.

 

History: Adopted 7 Com. Reg. 3975 (Sept. 16, 1985); Proposed 7 Com. Reg. 3808 (July 22, 1985).

 

§ 130-10-145   Exclusions

 

The provisions of the regulations in this chapter shall not apply to any person who merely appears without compensation before a committee of the Legislature in support of or in opposition to legislation; nor to any public official acting in his official capacity; nor to the owner, publisher or reporter of a newspaper or other periodical which in the ordinary course of business publishes news items, editorials or other comments, or paid advertisements, which directly or indirectly urge the passage or defeat of legislation, if such newspaper, periodical or individual engages in no further or other activities in connection with the passage or defeat of such legislation other than to appear before a committee of the legislature in support of or in opposition to such legislation.

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 7 Com. Reg. 3975 (Sept. 16, 1985); Proposed 7 Com. Reg. 3808 (July 22, 1985).

 

§ 130-10-150   Gifts

 

Whenever a person who is registered under the regulations in this chapter gives a gift to a legislator, the Governor, Lieutenant Governor or any member of a Board or Commission, he will be deemed to be acting in connection with his activities as a lobbyist.

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 7 Com. Reg. 3975 (Sept. 16, 1985); Proposed 7 Com. Reg. 3808 (July 22, 1985).

 

§ 130-10-155   Statement under Penalty of Perjury

 

All reports and statements required by the regulations in this chapter shall be made under penalty of perjury.

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 7 Com. Reg. 3975 (Sept. 16, 1985); Proposed 7 Com. Reg. 3808 (July 22, 1985).

 

§ 130-10-160   Refusal to Register

 

(a)        The Board of Elections can refuse to register or it can revoke the registration of an applicant whose application is incomplete, untruthful or shows that the applicant has been convicted within 7 years prior to submission of the application, of a felony involving moral turpitude.

 

(b)        Whenever the Board refuses to register an applicant for the reasons stated in this section, the Board shall give the applicant the reasons for the refusal, in writing.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 7 Com. Reg. 3975 (Sept. 16, 1985); Proposed 7 Com. Reg. 3808 (July 22, 1985).

 

Commission Comment: The original paragraphs were not designated. The Commission designated subsections (a) and (b).

 

§ 130-10-165   Registration Approval

 

When a registration application or renewal application is submitted for approval to the Board of Elections the Board has 10 working days to either register the applicant or deny his request for application. If no action is taken on a complete application within 10 working days, it will be deemed approved.

 

History: Adopted 7 Com. Reg. 3975 (Sept. 16, 1985); Proposed 7 Com. Reg. 3808 (July 22, 1985).

 

§ 130-10-170   Bribery

 

Nothing in the regulations in this chapter shall absolve or protect anyone from strict and absolute compliance with 6 CMC § 3201 dealing with bribery.

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 7 Com. Reg. 3975 (Sept. 16, 1985); Proposed 7 Com. Reg. 3808 (July 22, 1985).

 

§ 130-10-175   Fee

 

There is a fee of $50 for each registration application and renewal.

 

History: Adopted 7 Com. Reg. 3975 (Sept. 16, 1985); Proposed 7 Com. Reg. 3808 (July 22, 1985).


 

 

Appendix A

 

Lobbying Disclosure Act Registration Statement

(Public Law 4-25)

1.         Name:

 

2.         Local Address:

 

3.         Foreign Address:

 

4.         Phone Numbers:

 

5.         Country of Residence:

 

6.         Citizenship:

 

7.         Name & Address of Employers                      Contract Terms

                                                                                    (Including any provisions

                                                                                    for expenses)

_____________________________                          ___________________

_____________________________                          ___________________

_____________________________                          ___________________

_____________________________                          ___________________

 

8.         Have you ever been convicted of a felony? If yes, when were you convicted and what was the felony?

 

9.         Name and type of business you or members of your immediate family own an interest in (applicable only if business has contacts in Commonwealth).

 

10.       Attach a written authorization to act as a Lobbyist from each person who has employed you.

 

11.       Are you a full-time government employee, elected or appointed government official? If yes, then you must attach all lobbying contracts to this application. If your contract is oral, you must reduce it to writing.

 

I swear under penalty of perjury the foregoing information is true, complete and correct. Executed in Saipan, CM on __________.

                                                (date)

 

_____________________________

Signature

 

Passport photo must be attached.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 7 Com. Reg. 3975 (Sept. 16, 1985); Proposed 7 Com. Reg. 3808 (July 22, 1985).


 

 

Appendix B

 

Lobbying Disclosure Act Renewal of Registration

(Public Law 4-25)

 

1.         Must have new passport photo.

 

2.         Must attach new registration statement (unless there has been no changes)

 

3.         Statement of Account for Preceding Calendar Year

 

a.         Persons who made a contribution for your use in preceding calendar year of $25 or more.

 

NAME                        ADDRESS     AMOUNT      PURPOSE

 

 

 

 

b.         Total sum of above contributions was $____________.

 

c.         Each person to whom you made an expenditure of $10 or more in preceding calendar year; when; purpose.

 

NAME                        ADDRESS     AMOUNT      PURPOSE      DATE

 

 

 

 

d.         Total amount of expenditures made by or through you in preceding calendar year $__________________.

 

e.         List all other expenditures other than money and give their approximate fair market value (e.g. lunches, use of boat or property, advertising, food, etc.)

 

NAME                        TYPE OF EXPENDITURE   VALUE

 

 

 

 

I swear under penalty of perjury the foregoing is true and correct. Executed on __________________ at Saipan, CM.

(date)

 

______________________________

Signature

 

History: Adopted 7 Com. Reg. 3975 (Sept. 16, 1985); Proposed 7 Com. Reg. 3808 (July 22, 1985).

 


CHAPTER 130-20

OPA PERSONNEL REGULATIONS

 


Part 001          General Provisions

§ 130-20-001   Purpose

§ 130-20-005   Background

§ 130-20-010   Policy

§ 130-20-015   Coverage

 

Part 100          Appointments and Separations

§ 130-20-101   Search for Qualified Resident Workers

§ 130-20-105   Pre-employment Condition

§ 130-20-110   Effective Dates of Appointment

§ 130-20-115   Expatriation and Repatriation of Employees Hired Outside the CNMI

§ 130-20-120   Duty Station and Work Assignment

§ 130-20-125   Termination and Resignation

 

Part 200          Compensation and Work Schedule

§ 130-20-201   Regular Salary

§ 130-20-205   Work Schedule

§ 130-20-210   Overtime Compensation

 

Part 300          Employee Benefits

§ 130-20-301   Housing for Employees Hired Outside the CNMI

§ 130-20-305   Insurance

§ 130-20-310   Annual Leave

§ 130-20-315   Sick Leave

§ 130-20-320   Leave Without Pay

§ 130-20-325   Administrative Leave With Pay

§ 130-20-330   Holidays

§ 130-20-335   Advance Leave

§ 130-20-340   Court Leave

§ 130-20-345   Compassionate Leave

§ 130-20-350   Maternity/Paternity Leave

§ 130-20-355   Family and Medical Leave

§ 130-20-360   Tardiness

 

Part 400          Employee Obligations and Conduct

§ 130-20-401   Conduct

§ 130-20-405   Code of Ethics

§ 130-20-410   Outside Activities

§ 130-20-415   Tax Obligations

§ 130-20-420   Nepotism


 

Chapter Authority: 1 CMC § 2305.

 

Chapter History: Amdts Proposed 25 Com. Reg. 20072 (Mar. 31, 2003);* Amdts Adopted 20 Com. Reg. 16105 (Aug. 15, 1998); Amdts Proposed 20 Com. Reg. 15893 (June 15, 1998); Amdts Adopted 19 Com. Reg. 15422 (July 15, 1997); Amdts Proposed 19 Com. Reg. 15329 (May 15, 1997); Adopted 18 Com. Reg. 14159 (June 15, 1996); Proposed 18 Com. Reg. 13960 (Feb. 15, 1996).

 

*As of December 2004, a notice of adoption for the 2003 proposed amendments had not been published.

 

Commission Comment: 1 CMC § 2301 creates an Office of the Public Auditor as an independent agency of the Commonwealth government. The Public Auditor is charged with auditing the receipt, possession and disbursement of public funds and performing other duties prescribed by law. 1 CMC §§ 2301 and 2303.

 

The Commonwealth Auditing Act of 1983, PL 3-91 (effective Jan. 4, 1983), codified as amended at 1 CMC §§ 7811-7851, further delineates the powers, functions and duties of the Public Auditor.

 

1 CMC § 2305(b) authorizes the Public Auditor to establish supplemental personnel regulations for the employees of the office.

 

Part 001 -       General Provisions

 

§ 130-20-001   Purpose

 

The revised regulations established in this chapter implement the provisions of 1 CMC § 2305 authorizing the Public Auditor to establish personnel regulations for the employees of his office, who are exempt from the Commonwealth Civil Service Act. These regulations govern the employment, payment of salary, allowances, benefits, and separation of personnel under contract of employment with the Office of the Public Auditor (OPA).

 

Modified, 1 CMC § 3806(d).

 

History: Amdts Adopted 19 Com. Reg. 15422 (July 15, 1997); Amdts Proposed 19 Com. Reg. 15329 (May 15, 1997); Adopted 18 Com. Reg. 14159 (June 15, 1996); Proposed 18 Com. Reg. 13960 (Feb. 15, 1996).

 

Commission Comment: The 1997 Revised OPA Personnel Regulations readopted and replaced the 1996 OPA Personnel Regulations in their entirety. The Commission cites the 1997 regulations in the history sections throughout this chapter.

 

§ 130-20-005   Background

 

(a)        Pursuant to article III, section 12 of the Commonwealth Constitution, the Commonwealth Auditing Act of 1983 established the Office of the Public Auditor to conduct audits of all government agencies and activities. 1 CMC § 2305(a), as repealed and reenacted by Public Law No. 9-68, provides: “The Public Auditor may appoint and remove such employees as he or she deems necessary to perform the duties of the office. These employees may include assistant public auditors, accountants, auditors, financial management analysts, investigators, attorneys, paralegal, secretaries, clerks, and the like. All personnel employed by or contracted for by the Office of the Public Auditor shall be exempt from the application of the Commonwealth Civil Service Act (1 CMC §§ 8101, et seq.). The Office of the Public Auditor shall set its own compensation, wage, and salary scales. The wage and salary scales shall be commensurate with those paid by the Commonwealth requiring comparable education, training, and experience. The Office of the Public Auditor may provide staff housing as part of its compensation package to its employees. The Office of the Public Auditor may administer a program of staff housing for its employees.”

 

(b)        The Office of the Public Auditor published personnel regulations in volume 18, number 2 of the Commonwealth Register, on February 15, 1996. Appendix A of those regulations contained a salary schedule setting forth, in part, salary ranges for some positions that included minimum and maximum compensation levels. These salary ranges were commensurate with existing Commonwealth salaries.

 

(c)        Pursuant to 1 CMC § 2305(a), as repealed and reenacted by Public Law No. 9-68, OPA is allowed to adopt its own compensation schedule. Recently, the Commonwealth Legislature enacted Public Law No. 10-27 which also granted the Commonwealth Utilities Corporation authority to adopt its own compensation schedule. Other autonomous agencies and public corporations also have the authority to establish their own salary schedules. This allows the agencies and corporations to establish the classification for employment positions unique to their operations. For OPA, these are auditors and investigators. It has also become apparent that from time to time OPA must adjust its employee compensation levels to keep salaries commensurate with those elsewhere in the Commonwealth government. OPA needs the flexibility to adjust pay levels without having to republish its personnel regulations for each adjustment. For that reason, OPA has decided to revise its Personnel Regulations published on February 15, 1996 and to eliminate the existing salary schedule included as Appendix A.

 

Modified, 1 CMC § 3806(f).

 

History: Amdts Adopted 19 Com. Reg. 15422 (July 15, 1997); Amdts Proposed 19 Com. Reg. 15329 (May 15, 1997); Adopted 18 Com. Reg. 14159 (June 15, 1996); Proposed 18 Com. Reg. 13960 (Feb. 15, 1996).

 

Commission Comment: The original paragraphs were not designated. The Commission designated subsections (a) through (c).

 

The 1997 amendments added new subsections (b) and (c).

 

§ 130-20-010   Policy

 

(a)        It is the policy of OPA to use its resources efficiently and effectively, and to employ nondiscriminatory practices in matters relating to recruitment, selection, classification, compensation, and separation of employees.

 

(b)        It is also the policy of OPA to encourage the professional and technical education and training of resident citizens of the Commonwealth, and to give qualified residents preferential treatment, whether by appointment, transfer, or promotion.

 

History: Amdts Adopted 19 Com. Reg. 15422 (July 15, 1997); Amdts Proposed 19 Com. Reg. 15329 (May 15, 1997); Adopted 18 Com. Reg. 14159 (June 15, 1996); Proposed 18 Com. Reg. 13960 (Feb. 15, 1996).

 

Commission Comment: The original paragraphs were not designated. The Commission designated subsections (a) and (b).

 

§ 130-20-015   Coverage

 

The personnel regulations in this chapter apply to all personnel under contract of employment with OPA.

 

Modified, 1 CMC § 3806(d).

 

History: Amdts Adopted 19 Com. Reg. 15422 (July 15, 1997); Amdts Proposed 19 Com. Reg. 15329 (May 15, 1997); Adopted 18 Com. Reg. 14159 (June 15, 1996); Proposed 18 Com. Reg. 13960 (Feb. 15, 1996).

 

Part 100 -       Appointments and Separations

 

§ 130-20-101   Search for Qualified Resident Workers

 

Prior to new hiring, OPA will publicize the job vacancy. The publication will be done by posting notices in public places in the Commonwealth, advertising in a newspaper of general circulation in the Commonwealth, and posting in the OPA web site and other job seeker news groups on the internet for availability of information outside of the CNMI. The publication or advertisement will continue for a period of 15 days, except that all or part of the 15-day period may be waived if the Public Auditor finds that a waiver is in the public interest and the waiver is approved by regulatory agencies required to approve OPA hiring documents.

 

Modified, 1 CMC § 3806(f).

 

History: Amdts Adopted 19 Com. Reg. 15422 (July 15, 1997); Amdts Proposed 19 Com. Reg. 15329 (May 15, 1997); Adopted 18 Com. Reg. 14159 (June 15, 1996); Proposed 18 Com. Reg. 13960 (Feb. 15, 1996).

 

§ 130-20-105   Pre-employment Condition

 

(a)        Persons hired by OPA must be physically capable of performing the duties of the position. They must be free from communicable diseases, and from any present or potential medical condition that prevents the successful performance of duty, poses a health risk to other employees, or reflects discredit upon OPA.

 

(b)        Persons hired must be examined by medical personnel authorized to conduct such examinations for employment purposes, and the results must be documented on forms acceptable to OPA.

 

History: Amdts Adopted 19 Com. Reg. 15422 (July 15, 1997); Amdts Proposed 19 Com. Reg. 15329 (May 15, 1997); Adopted 18 Com. Reg. 14159 (June 15, 1996); Proposed 18 Com. Reg. 13960 (Feb. 15, 1996).

 

§ 130-20-110   Effective Dates of Appointment

 

(a)        Appointment from outside the Commonwealth will be effective on the date of departure from place of residence for direct travel to the duty station, adjusted for en route stop-overs arranged for the convenience of the employee.

 

(b)        Appointment from within the Commonwealth will be effective on the date that the employee initially reported for duty.

 

(c)        The Public Auditor is authorized to provide conditions of employment for contracts not inconsistent with the provisions of the regulations in this chapter.

 

Modified, 1 CMC § 3806(d), (f).

 

History: Amdts Adopted 19 Com. Reg. 15422 (July 15, 1997); Amdts Proposed 19 Com. Reg. 15329 (May 15, 1997); Adopted 18 Com. Reg. 14159 (June 15, 1996); Proposed 18 Com. Reg. 13960 (Feb. 15, 1996).

 

§ 130-20-115   Expatriation and Repatriation of Employees Hired Outside the CNMI

 

Employees hired outside the CNMI will receive expatriation and repatriation benefits in accordance with the following provisions.

 

(a)        Expatriation Benefits

Subject to conditions set forth in § 130-20-125(d) of this chapter, travel and transportation expenses will be paid by OPA as follows:

(1)        Cost of economy class air transportation by the shortest direct route for the employee and the employee’s dependents (if the employee is hired with dependents) from point of recruitment to duty station.

(2)        Per diem for the employee only at established CNMI government rates not to exceed necessary travel time by the shortest direct route from point of recruitment to duty station.

(3)(i)    Cost of transportation of household goods and personal effects of the employee from point of recruitment to duty station, not to exceed

(A)       200 pounds by air and an additional 3,000 pounds net weight by sea for employees hired with dependents, or

(B)       100 pounds by air and an additional 1,500 pounds net weight by sea for employees hired without dependents.

(ii)        The shipment must originate within six months of the date of entry on duty, unless extended by the Public Auditor for just cause. In the event temporary storage of household goods and personal effects intended for shipment to the duty station is necessary at the point of recruitment after pick-up by the carrier and prior to departure by sea, OPA will pay the cost of such temporary storage.

(4)        Cost of storage of household goods and personal effects at the point of recruitment, not to exceed

(i)         2,000 pounds net weight for employees hired with dependents, or

(ii)        1,000 pounds net weight for employees hired without dependents.

 

(b)        Repatriation Benefits

(1)        Subject to conditions set forth in § 130-20-125(d) of this chapter, OPA will pay all return travel and transportation expenses to the point of recruitment upon

(i)         Completion of the agreed-upon period of service as set forth in the initial contract, and

(ii)        Separation from OPA.

(2)        However, OPA will be discharged of this responsibility if repatriation expenses are not incurred within one year of the termination date. Travel and transportation expenses will be paid by OPA as follows:

(i)         Cost of economy class air transportation by the shortest direct route for the employee and the employee’s dependents (if the employee is hired with dependents) from duty station to point of recruitment.

(ii)        Per diem for the employee only at established CNMI government rates not to exceed necessary travel time by the shortest direct route from duty station to point of recruitment.

(iii)       Cost of transportation of household goods and personal effects of the employee from duty station to point of recruitment, not to exceed

(A)       200 pounds by air and an additional 3,000 pounds net weight by sea for employees hired with dependents, or

(B)       100 pounds by air and an additional 1,500 pounds net weight by sea for employees hired without dependents.

(iv)       Before repatriation benefits are provided and the employee’s final paycheck is issued, the employee must obtain signatures from the Manager of CUC Utility Branch, Hospital Administrator of CHC, Director of Revenue and Taxation, Director of Finance and Accounting, and Public Auditor.

 

(c)        Shipments

Only those items not restricted by Commonwealth or federal regulations may be shipped.

 

(d)       Employee’s Dependents

The employee’s dependents are defined as

(1)        Spouse,

(2)        Children, including step-children and legally adopted children, who are unmarried and under 21 years of age (children who reach the age of 21 while the employee is employed by OPA will be returned to the employee’s point of recruitment at OPA’s expense), children who are physically or mentally incapable of supporting themselves regardless of age, and children by a previous marriage for whom the employee or spouse has legal custody (except children by a previous marriage who are primarily domiciled by court order in other than the employee’s household), and

(3)        Wholly dependent parents of the employee and/or spouse.

 

Modified, 1 CMC § 3806(c), (d), (f).

 

History: Amdts Adopted 19 Com. Reg. 15422 (July 15, 1997); Amdts Proposed 19 Com. Reg. 15329 (May 15, 1997); Adopted 18 Com. Reg. 14159 (June 15, 1996); Proposed 18 Com. Reg. 13960 (Feb. 15, 1996).

 

Commission Comment: The original paragraphs of subsections (a)(3) and (b) were not designated. The Commission designated subsections (a)(3)(i) and (ii) and (b)(1) and (b)(2).

 

§ 130-20-120   Duty Station and Work Assignment

 

(a)        An employee is employed for a specific position and assigned to a specific duty station as identified in the employment contract. However, upon the Public Auditor’s consent, an employee may be assigned to another related employment position and to another duty station when it is in the best interest of the government to do so.

 

(b)        In the event of a transfer of employment and duty station, the employee will be entitled to transportation for self and dependents, to shipment of household effects not to exceed 1,500 pounds for single status and 3,000 pounds for employees with dependents, and to shipment of one privately-owned automobile.

 

History: Amdts Adopted 19 Com. Reg. 15422 (July 15, 1997); Amdts Proposed 19 Com. Reg. 15329 (May 15, 1997); Adopted 18 Com. Reg. 14159 (June 15, 1996); Proposed 18 Com. Reg. 13960 (Feb. 15, 1996).

 

§ 130-20-125   Termination and Resignation

 

(a)        The Public Auditor may terminate an employee without cause upon written notice 60 days in advance of termination of employment. This time may be shortened by specifying in the employment contract a lesser period of advance written notice.

 

(b)        The Public Auditor may terminate an employee with cause upon written notice seven days in advance of termination of employment.

 

(c)        When resigning, the employee must give the Public Auditor written notice 60 days in advance of termination of employment. This time may be shortened by specifying in the employment contract a lesser period of advance written notice. The Public Auditor may waive the advance written notice requirement at the time of the employee’s resignation.

 

(d)       Early Termination of Contract

Early termination of contract occurs when an employee refuses to perform duties, fails to perform at work satisfactorily, resigns, is removed for cause, or willfully vacates his or her position. The following provisions apply to employees hired outside the CNMI:

(1)        If the employee terminates the contract before completing one year of service from the initial date of hire, then there will be no repatriation benefits and the employee must repay OPA the cost of expatriation benefits and other costs associated with the employee’s recruitment.

(2)        If the employee has not completed the full term of the initial contract and terminates that contract after completing one year of service from the initial date of hire, then there will be no repatriation benefits, but the employee will not have to repay the cost of expatriation benefits and other costs associated with the employee’s recruitment.

(3)        OPA may permit the employee to resign and authorize return transportation for the employee, the employee’s dependents (if the employee is hired with dependents), and the employee’s household effects and personal property at any time for compelling reasons of humanitarian nature, as determined by the Public Auditor, subject to such proof as the Public Auditor may consider necessary.

 

(e)        Without Cause Separation of Employees Hired Outside the CNMI

Any separation without cause from duty station will be effective upon the arrival of the employee at his or her place of residence after travel by the most direct route from the duty station, adjusted for en route stop-overs not exceeding three days, for the convenience of the employee. Should the employee decide to go someplace other than his or her place of hire, the separation date will be computed using his or her return to the place of hire as a maximum. The employee will bear any additional cost associated with the employee’s travel to the place of his or her choice.

 

History: Amdts Adopted 19 Com. Reg. 15422 (July 15, 1997); Amdts Proposed 19 Com. Reg. 15329 (May 15, 1997); Adopted 18 Com. Reg. 14159 (June 15, 1996); Proposed 18 Com. Reg. 13960 (Feb. 15, 1996).

 

Part 200 -       Compensation and Work Schedule

 

§ 130-20-201   Regular Salary

 

(a)        Salary will be negotiated based on the qualifications of the individual, labor market conditions, and other pertinent factors used in the selection process. Salary will be expressed in terms of the gross amount per annum to be paid on a biweekly basis.

 

(b)        An employee will earn salary, as stated in his or her appointment, on the basis of a twelve-month period consisting of 26 biweekly pay periods. When not actually engaged in work, as assigned, the employee may be on leave status, with or without pay as appropriate.

 

(c)        Regular Rate of Pay

The regular rate of pay per hour includes the following:

(1)        Base salary rate per hour (annual salary per employment contract divided by 2,080 hours) and

(2)        Payment for housing or transportation to and from work provided to the employee, or the fair value of those benefits if they are provided directly by the government, prorated to determine the amount for that work week, divided by total hours actually worked during the work week.

 

Modified, 1 CMC § 3806(f).

 

History: Amdts Adopted 19 Com. Reg. 15422 (July 15, 1997); Amdts Proposed 19 Com. Reg. 15329 (May 15, 1997); Adopted 18 Com. Reg. 14159 (June 15, 1996); Proposed 18 Com. Reg. 13960 (Feb. 15, 1996).

 

Commission Comment: The 1997 amendments amended subsection (a).

 

§ 130-20-205   Work Schedule

 

An employee’s work day and work week may vary from time to time according to the needs of OPA. Every effort must be made to maintain a reasonable five-day, 40-hour work week. OPA employees shall be eligible for or exempt from overtime and compensatory time pursuant to the provisions of the Fair Labor Standards Acts of 1938 (FLSA). Such eligibility or exemption shall be provided in the provisions of the employment contract or other relevant documents.

 

History: Amdts Adopted 19 Com. Reg. 15422 (July 15, 1997); Amdts Proposed 19 Com. Reg. 15329 (May 15, 1997); Adopted 18 Com. Reg. 14159 (June 15, 1996); Proposed 18 Com. Reg. 13960 (Feb. 15, 1996).

 

Commission Comment: The 1997 amendments moved this section from former § 3.3, with amendments, and redesignated the remaining sections in this part accordingly. See 18 Com. Reg. at 13975 (Feb. 15, 1996).

 

§ 130-20-210   Overtime Compensation

 

(a)        Hours Actually Worked

Overtime compensation to eligible employees will only be paid for hours actually worked in a work week in excess of 40 hours. Time during which an employee is necessarily required to be on the employer’s premises, on duty, or at a prescribed work place will be included in the computation of hours actually worked, even if no work is performed. Paid leave (e.g., annual leave, sick leave, administrative leave, etc.) and holidays will not be included in the computation of hours actually worked.

 

(b)        Overtime

Hours actually worked in a workweek in excess of 40 hours will be paid overtime at the rate of one-and-one-half times the regular rate of pay to employees who are not exempt from overtime provisions.

 

(c)        Compensatory Time

If funds are not available for overtime compensation, compensatory time-off may be granted at the rate of one-and-one-half hours for each hour actually worked in a workweek in excess of 40 hours. Compensatory time will be controlled by OPA as follows:

(1)        The employee must sign a statement agreeing to compensatory time in place of overtime.

(2)        The employee’s request to use compensatory time-off must be granted within a reasonable time unless the employee’s immediate supervisor determines the time-off would unduly disrupt the operation of OPA.

(3)        The employee’s accumulated compensatory time must not exceed 80 hours. Accrued compensatory time must be paid entirely in cash at the employee’s current hourly rate when the accrued balance has reached 80 hours.

(4)        Upon termination of employment, an employee must be paid for unused compensatory time at the average regular rate received by such employee during the last three years of employment, or at the final regular rate received by such employee, whichever is higher.

 

(d)       Exempt Employees

Bona fide executive, administrative, and professional employees are exempt from payment of overtime and compensatory time. The criteria used in justifying such exemptions must be documented in the employees’ job descriptions.

(1)        Executive Employees: An executive employee must meet all of the following requirements to be exempt from overtime provisions:

(i)         Has primary duty of managing an agency, department, or subdivision;

(ii)        Customarily and regularly supervises at least two employees;

(iii)       Makes recommendations for hiring, firing, advancement, or promotion that are given particular weight;

(iv)       Customarily and regularly exercises discretionary power; and

(v)        Does not devote more than 20 percent of his or her hours in a work week to the performance of activities not closely related to subsections (d)(1)(i) through (iv) above.

(2)        Administrative Employees: An administrative employee must meet all of the following requirements to be exempt from overtime provisions:

(i)         Has primary duty of performing non-manual or office work directly related to management policies or general operations;

(ii)        Customarily and regularly exercises discretion and independent judgment;

(iii)       Regularly and directly assists a person employed in an executive or administrative capacity; or performs (under general supervision only) work requiring special training, experience, or knowledge; or executes special assignments and tasks (under general supervision only); and

(iv)       Does not devote more than 20 percent of work time to activities not directly or closely related to the performance of administrative work.

(3)        Professional Employees: A professional employee must meet all of the following requirements to be exempt from overtime provisions:

(i)         Has primary duty of performing work requiring advanced learning acquired by a prolonged course of specialized intellectual instruction, as distinguished from general academic education, apprenticeships, or routine training;

(ii)        Customarily and regularly exercises discretion and independent judgment;

(iii)       Produces work product that is predominantly intellectual and varied in character and cannot be standardized in relation to a given period of time; and

(iv)       Does not devote more than 20 percent of work time to activities not essential to, part of, or necessarily incident to, the work.

 

(e)        Approval of Overtime

Overtime must be approved in advance by the Public Auditor or his designee on an overtime request and authorization form.

(1)        An employee who is permitted to work overtime without authorization shall be paid, because the time represents an obligation of the government.

(2)        The responsible management official has an obligation to discourage overtime that is not approved, and must take disciplinary action, when appropriate, against an employee who works overtime without authorization.

 

Modified, 1 CMC § 3806(c), (d), (f).

 

History: Amdts Adopted 19 Com. Reg. 15422 (July 15, 1997); Amdts Proposed 19 Com. Reg. 15329 (May 15, 1997); Adopted 18 Com. Reg. 14159 (June 15, 1996); Proposed 18 Com. Reg. 13960 (Feb. 15, 1996).

 

Part 300 -       Employee Benefits

 

§ 130-20-301   Housing for Employees Hired Outside the CNMI

 

(a)        Housing Benefits. An employee hired outside the Commonwealth under excepted service contract may receive either housing or housing allowance.

(l)         At the discretion of the Public Auditor, an employee hired with dependent/s will receive either free family government housing or a housing allowance for the lease of family private housing.

(2)        At the discretion of the Public Auditor, an employee hired without dependent/s will receive free single government housing or a housing allowance for the lease of single private housing.

(3)        The Public Auditor has the discretion to increase the housing benefits of employees.

(4)        If government-owned housing is unavailable and a lease of private housing has not been arranged, the employee will receive a temporary lodging allowance equal to the government’s established per diem rate for travel at the duty station. If this rate is insufficient to pay for temporary lodging and meals, the Public Auditor may authorize a greater allowance.

 

(b)        Housing Allowance. Housing allowance will be equal to the prevailing rate established by the CNMI Personnel Office. However, employees will only be given housing allowances up to the amount of the actual monthly rent stated in the lease contract with the lessor if the monthly rent is less than the prevailing rate established by the Personnel Office. The employee will be required to present the lease contract for private houses for the purpose of establishing the amount of the employees’ monthly housing allowance.

 

(c)        Free Government Housing

(1)        A housing committee will be established for the purpose of evaluating the housing needs of OPA employees hired outside of the CNMI. Depending on the housing units (government-owned or government-leased housing) available and the number of employees to be provided with housing units, the committee will decide the fair and reasonable distribution of housing units. The housing committee will be composed of the legal counsel, administrative officer, and one representative each from the Audit and Investigation Division. The committee will make recommendations to the Public Auditor for approval.

(2)(i)    Government-owned or government-leased housing, if provided to an employee, must be in habitable condition and ready for occupancy as a single or family dwelling apartment or housing unit. Government housing unit should be provided by the lessor or OPA with the following:

(A)       Facilities or ready connection for utilities (e.g., power and water)

(B)       Bathroom and toilet facilities

(C)       Essential kitchen and dining needs like cooking range, refrigerator, dining table, and chairs

(D)       Essential living room and bedroom furniture like bed(s) and living room table/sofa sets.

(ii)        Employee may opt to use their own or add additional furniture, fixtures, appliances, etc. at their own expense.

(3)        Responsibilities. OPA and the employee provided with government-owned or government-leased housing have the following responsibilities:

(i)         OPA is responsible for repairs to government-owned housing not caused by employee (or dependent/s) negligence.

(ii)        The employee will be assessed a deposit fee payable to OPA upon his or her occupancy of government-owned or government-leased housing to cover the costs of clean-up or damage to premises, furniture, and appliances attributable to employee (or dependent/s), other than ordinary wear and tear. The amount of deposit shall be $150 (without dependent/s) or $300 (with dependent/s) per housing unit.

(iii)       The employee is responsible for utility and trash collection costs.

(iv)       The employee is responsible for taking reasonable action to protect government-owned housing entrusted to him or her from damage (e.g., covering/boarding glass windows during typhoons).

(v)        The check-in and check-out procedures are as follows.

(A)       Upon assignment of the government housing unit, the OPA Management Representative and the employee to whom the unit is assigned will conduct a joint inspection and concurrently document the status of the units, along with maintenance and repairs required. The OPA Management Representative will then notify the Director of Public Works or the lessor, in writing, of the maintenance and repairs required.

(B)       Upon occupancy of the assigned government housing unit, the OPA Management Representative and the employee will inspect the unit. The OPA Management Representative shall list all government-owned household furnishing assigned to the unit in an “Inventory of Government-owned Household Furnishing” sheet. The employee shall acknowledge possession of the government-owned household furnishings by placing his/her signature and the current date in the appropriate spaces provided in the inventory sheets. The OPA Management Representative shall also sign in the inventory sheets to document the inspection conducted.

(C)       When an employee is to vacate his/her assigned unit, the OPA Management Representative and the employee will inspect the unit, after household goods have been packed. Employees are responsible for leaving the units and appliances/furnishings in an acceptable state of order and cleanliness. Deposit fees will be forfeited in part or in total, based on the results of the OPA Management Representative’s inspection and his/her judgment. Where extensive damage has been done to units by the occupants, the employee may be charged an additional amount of money, as determined by the OPA Management Representative and a representative of Public Works or the lessor, for the purpose of restoring the units to an acceptable state of repair. If no clean-up or repairs are required, OPA will refund the employee’s deposit in his/her final payroll check.

(D)       The OPA Management Representative shall perform routine scheduled inspections of all government-owned or government- leased housing units, and shall maintain records of such inspections. He/she shall make every effort to insure:

(I)        That premises are kept in good condition, and

(II)       That Public Works or the lessor make needed repairs in a timely fashion.

(4)        Government housing is intended for the use of the employee and his/her dependent/s. No person who is not a dependent may remain in government housing for more than 30 days unless it is approved in writing by the Public Auditor.

(5)        No employee, whose contract has been terminated or has expired, may remain in government-owned or government-leased housing unless it is approved in writing by the Public Auditor.

 

Modified, 1 CMC § 3806(f).

 

History: Amdts Adopted 20 Com. Reg. 16105 (Aug. 15, 1998); Amdts Proposed 20 Com. Reg. 15893 (June 15, 1998); Amdts Adopted 19 Com. Reg. 15422 (July 15, 1997); Amdts Proposed 19 Com. Reg. 15329 (May 15, 1997); Adopted 18 Com. Reg. 14159 (June 15, 1996); Proposed 18 Com. Reg. 13960 (Feb. 15, 1996).

 

Commission Comment: The 1998 amendments revised and replaced this section in its entirety with numerous amendments.

 

The Commission corrected the spelling of the word “judgment” in subsection (c)(2)(v)(C) pursuant to 1 CMC § 3806(g).

 

§ 130-20-305   Insurance

 

(a)        Workmen’s Compensation

In the event of on-the-job work-related injury or illness, the employee will be entitled to benefits under the workmen’s compensation insurance contract in force for the Northern Mariana Islands government. The employee is responsible for reporting any on-the-job work-related injury or illness to the employee’s supervisor as soon as possible.

 

(b)        Group Insurance

Group health and group life insurance coverage are available for those who wish to apply. The government will pay part of the cost of the insurance in accordance with the current agreement between the government and the insurance carriers.

 

(c)        Limitation on Insurance

The government provides no insurance other than workmen’s compensation, group health, and group life. OPA assumes no liability for loss or damage to household goods and personal effects of the employee and his or her dependents located in housing furnished by OPA, or otherwise present in the Commonwealth.

 

Modified, 1 CMC § 3806(f).

 

History: Amdts Adopted 19 Com. Reg. 15422 (July 15, 1997); Amdts Proposed 19 Com. Reg. 15329 (May 15, 1997); Adopted 18 Com. Reg. 14159 (June 15, 1996); Proposed 18 Com. Reg. 13960 (Feb. 15, 1996).

 

§ 130-20-310   Annual Leave

 

Annual leave or vacation will be granted for the purpose of rest and relaxation.

 

(a)        Annual Leave Accrual

An employee will accrue annual leave for each biweekly pay period in which he or she is in pay status for the entire ten working days; otherwise, there will be no accrual for such pay period. The accrual rate per pay period is:

(l)         Four hours for employees who have less than three years of creditable service,

(2)        Six hours for employees who have three but less than six years of creditable service, or

(3)        Eight hours for employees who have six or more years of creditable service.

 

(b)        Use of Annual Leave

Use of annual leave by employees must be in accordance with the following:

(1)        A newly appointed or recruited employee will be entitled to use annual leave only after having been employed for a continuous period of 90 days without a break in service.

(2)        Annual leave request for more than three working days must be made in advance on a leave request form, which must be approved by the Public Auditor.

 

(c)        Unused Annual Leave

(1)        An employee permanently separated from OPA will receive on the next regular pay period a lump-sum payment for all unused annual leave. The lump-sum payment will be computed based on the employee’s current hourly rate.

(2)        Where an offer and acceptance for a new period of employment with OPA is agreed upon under a new employment contract, all unused annual leave from the prior contract may either be paid in the next regular pay period or carried over under the new employment contract, at the election of the employee.

 

Modified, 1 CMC § 3806(e), (f).

 

History: Amdts Proposed 25 Com. Reg. 20072 (Mar. 31, 2003); Amdts Adopted 19 Com. Reg. 15422 (July 15, 1997); Amdts Proposed 19 Com. Reg. 15329 (May 15, 1997); Adopted 18 Com. Reg. 14159 (June 15, 1996); Proposed 18 Com. Reg. 13960 (Feb. 15, 1996).

 

Commission Comment: The original paragraphs of subsection (c) were not designated. The Commission designated subsections (c)(1) and (c)(2).

 

The 2003 amendments proposed to add a new subsection (d). As of December 2004, a notice of adoption for the 2003 proposed amendments had not been published.

 

Public Law 15-57 (effective April 25, 2007), codified at 1 CMC §§ 82601-82605, addresses maximum annual leave accumulation (360 hours) for excepted service employees and lump sum payments for unused annual leave to all government employees.  PL 15-57 prohibits reemployment with the CNMI government “until a period equal to the period of annual leave paid in lump sum has elapsed” or the employee elects to pay the equivalent amount “consistent with CNMI regulations.” 1 CMC § 82604. PL 15-57 also prohibits the conversion of sick leave to annual leave and any compensation for unused sick leave hours upon separation from employment for all government employees. 1 CMC § 82603. The provisions of PL 15-57 supersede subsection (c) to the extent that they conflict.

 

§ 130-20-315   Sick Leave

 

Sick leave will be allowed whenever an employee is to be absent from duty due to illness, injury, or quarantine of the employee’s family or residence.

 

(a)        Sick Leave Accrual

An employee will accrue four hours of sick leave for each biweekly pay period in which he or she is in pay status for the entire ten working days; otherwise, there will be no accrual for such pay period.

 

(b)        Use of Sick Leave

Use of sick leave by employees must be in accordance with the following:

(1)        An employee is entitled to use sick leave from the time sick leave is first earned.

(2)        An employee who is on sick leave for more than three consecutive days may be required, as appropriate, to submit a certification from the attending physician certifying the employee’s incapacity to work. If a certification is not furnished when required, the absence will be charged to absence without leave (AWOL).

(3)        If the employee’s supervisor believes the employee is misusing sick leave, or requesting sick leave for purposes other than illness, the supervisor may request proof of illness for a period of less than three days. If the proof is not provided or is unpersuasive, the supervisor may deny the employee’s request for sick leave.

(4)        No employee will be allowed to undertake gainful employment while on sick leave status.

(5)        Falsification of an illness report will be considered sufficient cause for disciplinary action, including termination of employment for repeated offenses.

(6)        Sick leave with pay will be allowed during vacation, provided, that any sick leave taken by an employee while on vacation must be supported by a certificate issued by the attending physician.

 

(c)        Unused Sick Leave

(1)        Upon completion of an employment contract or termination of employment, whichever occurs first, no payment will be made for unused sick leave.

(2)        Where an offer and acceptance for a new period of employment with OPA is agreed upon under a new employment contract, all unused sick leave from the prior contract will be carried over under the new employment contract. An employee who is separated from government service for a period longer than three years will be divested of all unused sick leave.

 

Modified, 1 CMC § 3806(e), (f).

 

History: Amdts Adopted 19 Com. Reg. 15422 (July 15, 1997); Amdts Proposed 19 Com. Reg. 15329 (May 15, 1997); Adopted 18 Com. Reg. 14159 (June 15, 1996); Proposed 18 Com. Reg. 13960 (Feb. 15, 1996).

 

Commission Comment: The original paragraphs of subsection (c) were not designated. The Commission designated subsections (c)(1) and (c)(2).

 

Public Law 15-69 (effective June 5, 2007), codified at 1 CMC § 8276, authorizes government employees to apply for sick leave to attend to an immediate family member who is sick. Public Law 15-116 (effective November 29, 2007), codified at 1 CMC § 8265, repealed PL 15-69. PL 15-116 authorizes government employees to apply for leave to attend to an immediate family member who is sick. The provisions of PL 15-116 supersede subsection (b) to the extent that they conflict.

 

§ 130-20-320   Leave Without Pay

 

Leave without pay may be taken only after obtaining the written approval of the employee’s immediate supervisor.

 

History: Amdts Adopted 19 Com. Reg. 15422 (July 15, 1997); Amdts Proposed 19 Com. Reg. 15329 (May 15, 1997); Adopted 18 Com. Reg. 14159 (June 15, 1996); Proposed 18 Com. Reg. 13960 (Feb. 15, 1996).

 

§ 130-20-325   Administrative Leave With Pay

 

(a)        Administrative leave with pay is granted by the Governor in exceptional circumstances such as typhoons and state funerals. Requests for administrative leave with pay may also be authorized by the Public Auditor for employees serving on government boards or commissions, provided such employees do not receive compensation from the boards or commissions, or for employees participating in civic activities of interest to the government, or for such reasons as the Public Auditor may determine.

 

(b)        A request for administrative leave and its approval or disapproval must be in writing. The request must contain the employee’s name, beginning and ending dates of leave, and adequate justification.

 

(c)        A decision to approve or disapprove a request for administrative leave will be based on the adequacy of the justification, the convenience of the office in releasing the employee, and the past performance and attendance of the employee. A request that gives as justification a civic or social need for the employee’s services must be carefully reviewed.

 

History: Amdts Adopted 19 Com. Reg. 15422 (July 15, 1997); Amdts Proposed 19 Com. Reg. 15329 (May 15, 1997); Adopted 18 Com. Reg. 14159 (June 15, 1996); Proposed 18 Com. Reg. 13960 (Feb. 15, 1996).

 

Commission Comment: The original paragraphs were not designated. The Commission designated subsections (a) through (c).

 

§ 130-20-330   Holidays

 

Except during emergencies, employees will be released from work on all legal holidays without loss of pay or charge to leave account.

 

History: Amdts Adopted 19 Com. Reg. 15422 (July 15, 1997); Amdts Proposed 19 Com. Reg. 15329 (May 15, 1997); Adopted 18 Com. Reg. 14159 (June 15, 1996); Proposed 18 Com. Reg. 13960 (Feb. 15, 1996).

 

§ 130-20-335   Advance Leave

 

Where, for good reason, an employee requires an advance of annual or sick leave, the Public Auditor may grant leave in advance of up to a maximum of one-half of the total earnable leave credits for one year from the date the request is approved or one-half of the total earnable leave credits for the remainder of the employment contract, whichever is shorter. Subsequent leave earnings will serve to replace the amount of advance leave granted and taken. In the event the employee resigns from his or her employment, any annual or sick leave overdraft must be paid as part of the final clearance of the employee.

 

History: Amdts Adopted 19 Com. Reg. 15422 (July 15, 1997); Amdts Proposed 19 Com. Reg. 15329 (May 15, 1997); Adopted 18 Com. Reg. 14159 (June 15, 1996); Proposed 18 Com. Reg. 13960 (Feb. 15, 1996).

 

§ 130-20-340   Court Leave

 

(a)        The government encourages its employees to fulfill their obligations as citizens and residents of the Commonwealth. Thus, employees who are called upon to serve as jurors may, at their option, be granted court leave for such period as the jury may be impaneled.

 

(b)        An employee who is called to jury duty must present the juror summons to his or her immediate supervisor together with a completed request for leave.

 

(c)        An employee who serves as juror using court leave to cover the period of absence must turn over to the Commonwealth Treasurer such jury fees (as distinct from expense allowances) as the employee receives from the court. An expense allowance paid to the employee for whatever purpose may be retained by the employee to defray expenses for which the allowance was granted.

 

(d)       An employee subpoenaed as a witness, other than as a government witness, must charge such absence to annual leave or leave without pay. Court leave will be granted to an employee subpoenaed in litigation in which the government has no interest, if the employee is required to serve as a witness in his or her official capacity as a government employee or will be required to present government records in testimony. Such employee must inform the Public Auditor of the required testimony as soon as possible after being subpoenaed.

 

Modified, 1 CMC § 3806(f).

 

History: Amdts Adopted 19 Com. Reg. 15422 (July 15, 1997); Amdts Proposed 19 Com. Reg. 15329 (May 15, 1997); Adopted 18 Com. Reg. 14159 (June 15, 1996); Proposed 18 Com. Reg. 13960 (Feb. 15, 1996).

 

Commission Comment: The original paragraphs were not designated. The Commission designated subsections (a) through (d).

 

§ 130-20-345   Compassionate Leave

 

(a)        A full-time employee will be granted compassionate leave of no more than five consecutive working days in case of death in the immediate family of the employee. For this purpose, the term “immediate family” includes the employee’s mother, father, brother, sister, spouse, immediate offspring (natural and culturally or legally adopted), stillborn child, grandfather, grandmother, grandchild, mother-in-law, and father-in-law.

 

(b)        Compassionate leave must be taken within 18 days after the death of the immediate family member.

 

(c)        The Public Auditor is responsible for granting compassionate leave requests.

 

History: Amdts Adopted 19 Com. Reg. 15422 (July 15, 1997); Amdts Proposed 19 Com. Reg. 15329 (May 15, 1997); Adopted 18 Com. Reg. 14159 (June 15, 1996); Proposed 18 Com. Reg. 13960 (Feb. 15, 1996).

 

Commission Comment: The original paragraphs were not designated. The Commission designated subsections (a) through (c).

 

§ 130-20-350   Maternity/Paternity Leave

 

Maternity/paternity leave may be granted by the Public Auditor a maximum of one time per year to an employee who is the mother or father of a newborn child. A maximum of 15 working days of paid maternity leave, in addition to any accumulated sick leave, will be granted to an employee because of confinement for childbirth. A maximum of 15 working days of paid paternity leave may be granted to an employee because of his wife’s confinement for childbirth. Maternity/paternity leave may only be used within one month of the birth of the employee’s child. See also § 130-20-355, Family and Medical Leave.

 

Modified, 1 CMC § 3806(c), (f).

 

History: Amdts Adopted 19 Com. Reg. 15422 (July 15, 1997); Amdts Proposed 19 Com. Reg. 15329 (May 15, 1997); Adopted 18 Com. Reg. 14159 (June 15, 1996); Proposed 18 Com. Reg. 13960 (Feb. 15, 1996).

 

Commission Comment: The 1997 amendments combined and amended former § 4.11, entitled “Maternity Leave,” and § 4.12, entitled “Paternity Leave.” See 18 Com. Reg. at 13982 (Feb. 15, 1996).

 

§ 130-20-355   Family and Medical Leave

 

(a)        Eligible Employees

The federal Family and Medical Leave Act of 1993 (FMLA) entitles employees who have been employed by the Commonwealth government for at least one year and have worked for at least 1,250 hours1 during the preceding 12-month period to take up to 12 workweeks of family and medical leave during any 12-month period.

 

(b)        Entitlement to Leave

(1)        Family and medical leave will be granted by the Public Auditor to eligible employees for any of the following reasons:

(i)         Because of the birth of the employee’s child and in order to care for the child;

(ii)        Because of the placement of a child with the employee for adoption or foster care;

(iii)       In order to care for the employee’s spouse, child, or parent who has a serious health condition2; or

(iv)       Because of a serious health condition that renders the employee unable to perform the functions of his or her job.

(2)        The entitlement to leave for the birth or placement of a child for adoption or foster care will expire twelve months from the date of the birth or placement.

(3)        In any case in which a husband and wife entitled to leave are both employed by OPA, the aggregate number of workweeks of leave to which both may be entitled is limited to 12 workweeks during any 12-month period, if such leave is taken to care for a sick parent described in subsection (b)(1)(iii), or taken for reasons set forth in subsections (b)(1)(i) and (ii) of this section.

(4)        All leave qualifying under the FMLA shall be documented as FMLA leave either before it is taken or promptly thereafter.

 

1 1,250 hours include only the hours in which actual work was rendered by the employee; paid leave time (e.g. annual, sick, administrative leave, etc.) is not included.

 

2 The term serious health condition, for purposes of family and medical leave, means an illness, injury, impairment, or physical or mental condition that involves either: a) inpatient care in a hospital, hospice, or residential medical care facility; or b) continuing treatment by a health care provider.

 

(c)        Unpaid Leave/Substitution of Paid Leave

Family and medical leave will be unpaid leave. However, accrued annual leave (for reasons under subsections (b)(1)(i) to (iv)), sick leave (for reasons under subsections (b)(1)(i) and (iv)), maternity leave (for reason (b)(1)(i)), or paternity leave (for reason (b)(1)(i)) may be substituted for leave without pay (LWOP). If there is not enough accrued paid leave balance, the remaining weeks of leave necessary to attain up to 12 workweeks of family and medical leave will be charged to LWOP.

 

(d)       Restoration to Position

(1)        All eligible employees, except for those who are identified by the FMLA as “highly compensated employees,” who take family and medical leave for the intended purpose of the leave will be returned to the same or an equivalent position (with equivalent employment benefits, pay, and other conditions of employment) upon their return from family and medical leave.

(2)        For purposes of FMLA, a highly compensated employee is a salaried eligible employee who is among the highest paid ten percent of the employees employed by OPA. The Public Auditor may deny such employee restoration to the same or equivalent position if -

(i)         Such denial is necessary to prevent substantial and grievous economic injury to the operations of OPA;

(ii)        The Public Auditor notifies the employee of the intent to deny restoration at the time the Public Auditor determines that such injury would occur; and

(iii)       In any case in which the leave has commenced, the employee elects not to return to work after receiving such notice.

 

(e)        Intermittent Leave

Unless the employee and the Public Auditor agree otherwise, leave taken for reasons under subsections (b)(1)(i) or (ii) shall not be taken by an employee intermittently or on a reduced leave schedule, which reduces the number of hours per workweek or hours per workday of the employee. Leave taken for reasons under subsections (b)(1)(iii) or (iv) may be taken intermittently or on a reduced leave schedule when medically necessary.

 

(f)        Foreseeable Leave

In any case in which the necessity for leave is foreseeable, the employee shall provide the Public Auditor with not less than 30 days’ notice of intention to take leave, except that if the date of birth or placement or medical treatment requires leave to begin in less than 30 days, the employee shall provide such notice as is practicable.

 

(g)        Certification

(1)        When requesting family and medical leave for reasons under subsection (b)(1)(iii) or (iv), the employee must provide the Public Auditor, in a timely manner, with a certification from the health care provider containing the following information:

(i)         The date when the serious health condition commenced;

(ii)        The probable duration of the condition;

(iii)       The appropriate medical facts within the knowledge of the health care provider regarding the condition;

(iv)       For reason (b)(1)(iii), a statement that the condition warrants the employee’s participation to provide care to a child, spouse, or parent, and an estimate of time needed to care for the individual involved; or for reason (b)(1)(iv), a statement that the employee is unable to perform the functions of the position due to the condition;

(2)        For intermittent leave or for leave on a reduced schedule, the certification from the health care provider should contain the following additional information:

(i)         The dates when planned medical treatment is expected to be given and the duration of such treatment; and

(ii)        A statement of the medical necessity for the intermittent leave or leave on a reduced schedule, and the expected duration of such necessity.

 

Modified, 1 CMC § 3806(c), (d), (f).

 

History: Amdts Adopted 19 Com. Reg. 15422 (July 15, 1997); Amdts Proposed 19 Com. Reg. 15329 (May 15, 1997).

 

Commission Comment: The original paragraphs of subsection (b), (d) and (g) were not designated. The Commission designated subsections (b)(1) through (b)(4), (d)(1) and (d)(2) and (g)(1) and (g)(2).

 

§ 130-20-360   Tardiness

 

Tardiness will be charged to leave without pay at the end of each pay period. The timekeeper will determine the total minutes an employee has been late during the pay period, and charge leave without pay to the nearest hour.

 

History: Amdts Adopted 19 Com. Reg. 15422 (July 15, 1997); Amdts Proposed 19 Com. Reg. 15329 (May 15, 1997); Adopted 18 Com. Reg. 14159 (June 15, 1996); Proposed 18 Com. Reg. 13960 (Feb. 15, 1996).

 

Part 400 -       Employee Obligations and Conduct

 

§ 130-20-401   Conduct

 

(a)        All employees of OPA must maintain the highest standards of honesty, integrity, objectivity, and personal conduct.

 

(b)        While living in the CNMI, employees and their dependents are subject to the laws, rules, and regulations of the CNMI concerning conduct and activities.

 

History: Amdts Adopted 19 Com. Reg. 15422 (July 15, 1997); Amdts Proposed 19 Com. Reg. 15329 (May 15, 1997); Adopted 18 Com. Reg. 14159 (June 15, 1996); Proposed 18 Com. Reg. 13960 (Feb. 15, 1996).

 

Commission Comment: The original paragraphs were not designated. The Commission designated subsections (a) and (b).

 

§ 130-20-405   Code of Ethics

 

All employees of OPA must comply with the provisions of the Government Ethics Code found in 1 CMC, division 8, part 4.

 

Modified, 1 CMC § 3806(f).

 

History: Amdts Adopted 19 Com. Reg. 15422 (July 15, 1997); Amdts Proposed 19 Com. Reg. 15329 (May 15, 1997); Adopted 18 Com. Reg. 14159 (June 15, 1996); Proposed 18 Com. Reg. 13960 (Feb. 15, 1996).

 

§ 130-20-410   Outside Activities

 

Pursuant to 1 CMC § 2305(b), no employee of OPA may hold or be a candidate for any elective public office while an employee, nor may the employee hold office in any political party or political committee, or participate in any political campaign of any candidate for public office while an employee. No employee may actively engage in any other business, profession, or governmental office.

 

History: Amdts Adopted 19 Com. Reg. 15422 (July 15, 1997); Amdts Proposed 19 Com. Reg. 15329 (May 15, 1997); Adopted 18 Com. Reg. 14159 (June 15, 1996); Proposed 18 Com. Reg. 13960 (Feb. 15, 1996).

 

§ 130-20-415   Tax Obligations

 

All employees of OPA are employees of the Commonwealth government. They are subject to the applicable CNMI income tax laws.

 

Modified, 1 CMC § 3806(f).

 

History: Amdts Adopted 19 Com. Reg. 15422 (July 15, 1997); Amdts Proposed 19 Com. Reg. 15329 (May 15, 1997); Adopted 18 Com. Reg. 14159 (June 15, 1996); Proposed 18 Com. Reg. 13960 (Feb. 15, 1996).

 

§ 130-20-420   Nepotism

 

There will be no limit to the number of members of the same household who may be employed by OPA, provided

 

(a)        No employee may supervise another member of the same family,

 

(b)        All other qualifications for employment are met, and

 

(c)        No costs, other than salary and employment benefits as provided by regulation, will accrue to the government as a result of hiring persons from a household containing another employee.

 

Modified, 1 CMC § 3806(f).

 

History: Amdts Adopted 19 Com. Reg. 15422 (July 15, 1997); Amdts Proposed 19 Com. Reg. 15329 (May 15, 1997); Adopted 18 Com. Reg. 14159 (June 15, 1996); Proposed 18 Com. Reg. 13960 (Feb. 15, 1996).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CHAPTER 130-30

OPA PROCUREMENT REGULATIONS

 


Part 001          General Provisions

Subpart A        General

§ 130-30-001   Purposes

§ 130-30-005   Authority

§ 130-30-010   Supplementary General Principles of Law Applicability

§ 130-30-015   Requirement of Good Faith

§ 130-30-020   Application of Regulations

§ 130-30-025   Severability

§ 130-30-030   Validity of Contract

§ 130-30-035   Remedy Against Employee

Subpart B         Definitions

§ 130-30-040   Definitions

Subpart C         Public Access

§ 130-30-045   Public Access to Procurement Information

 

Part 100          Procurement Organization

§ 130-30-105   Procurement Officer of the Office of the Public Officer (OPA)

§ 130-30-110   Duties and Responsibilities of the Procurement Officer

§ 130-30-115   Contract Review, Processing and Oversight

§ 130-30-120   Acceptance of Gratuities by the Procurement Officer and OPA employees

 

Part 200          Source Selection and Contract Formation

Subpart A        Source Selection

§ 130-30-201   Requirements for Competition

§ 130-30-205   Competitive Sealed Bidding

§ 130-30-210   Competitive Sealed Proposals

§ 130-30-215   Circumstances Permitting Other than Full and Open Competition

§ 130-30-220   Small Purchases

§ 130-30-225   Sole Source Procurement

§ 130-30-230   Expedited Purchasing in Special Circumstances

Subpart B         Cancellation of Invitation for Bids and Request for Proposals

§ 130-30-235   Cancellation

Subpart C         Qualifications and Duties

§ 130-30-240   Responsibility and Responsiveness of Bidders and Vendors

§ 130-30-245   Pre-qualification of Contractors

Subpart D        Types of Contracts

§ 130-30-250   Permissible Types of Contracts

§ 130-30-255   Cost-reimbursement Contracts

§ 130-30-260   Requirements Contracts

Subpart E         Inspection and Audit

§ 130-30-265   Right to Inspect Place of Business

Subpart F         Reports and Records

§ 130-30-270   Report of Anti-competitive or Deceptive Practices

§ 130-30-275   Retention of Procurement Records

 

Part 300          Procurement of Construction and Architect-Engineer Services, Professional Services, Vehicles and Special Conditions for Computer Software and Hardware

§ 130-30-301   Construction Procurement

§ 130-30-305   Architect-Engineer Services

§ 130-30-310   Competitive Selection Procedures for Professional Services

§ 130-30-315   Lease or Purchase of Vehicles

§ 130-30-320   Computer Software and Hardware

 

Part 400          Contract Terms and Administration of Contracts

§ 130-30-401   Contract Clauses

§ 130-30-405   Contract Administration

§ 130-30-410   Change Order

 

Part 500          Protests and Disputes

Subpart A        Bid Protests and Appeals

§ 130-30-501   Protests to the Procurement Officer

§ 130-30-505   Appeals of Procurement Officer’s Decisions to a Designated Hearing Officer

§ 130-30-510   Remedies

§ 130-30-515   Effective Date

Subpart B         Disputes

§ 130-30-520   Disputes

 

Part 600          [Reserved]

 

Part 700          Ethics in Public Contracting

Subpart A        Definitions

§ 130-30-701   Definitions of Terms

Subpart B         Standards of Conduct

§ 130-30-705   Policy

§ 130-30-710   General Standards

§ 130-30-715   Employee Disclosure Requirements

§ 130-30-720   Employee Conflict of Interest

§ 130-30-725   Gratuities and Kickbacks

§ 130-30-730   Prohibition Against Contingent Fees

§ 130-30-735   Contract Clauses

§ 130-30-740   Restrictions on Employment of Present and Former Employees

§ 130-30-745   Use of Confidential Information

§ 130-30-750   Collusion by Bidders

§ 130-30-755   Civil and Administrative Remedies

§ 130-30-760   Authority to Debar or Suspend


 

Chapter Authority: 1 CMC § 2303(d)

 

Chapter History: Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

Commission Comment: The Commission changed references to “this chapter” to “Chapter 130-30” throughout Chapter 130-30 pursuant to 1 CMC § 3806(d).

 

Part 001 -       General Provisions

 

Subpart A -    General

 

§ 130-30-001   Purposes

 

(a)        Interpretation. The regulations in Chapter 130-30 shall be construed and applied to promote their underlying purposes and policies.

(b)        Purposes and Policies. The underlying purposes and policies of the regulations in Chapter 130-30 are:

(1)        To simplify, clarify, and modernize the procurement policies and practices of the

Office of the Public Auditor (OPA);

(2)        To provide for increased public confidence in the procedures followed in public procurement;

(3)        To insure the fair and equitable treatment of persons who deal with the procurement system of OPA;

(4)        To provide increased economy in OPA procurement activities and to maximize to the fullest extent practicable the purchasing value of public funds;

(5)        To foster effective broad-based competition within the free enterprise system; and

(6)        To provide safeguards for the maintenance of a procurement system of quality and integrity.

 

Modified, 1 CMC § 3806(d).

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

§ 130-30-005   Authority

 

The regulations in Chapter 130-30 are promulgated under the authority of 1 CMC § 2303(d) which gives the Public Auditor the authority to promulgate procurement regulations and administer its own procurement function.

 

Modified, 1 CMC § 3806(d).

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

§ 130-30-010   Supplementary General Principles of Law Applicability

 

Unless displaced by the particular provisions of Chapter 130-30, the principles of law and equity including, but not limited to, the Uniform Commercial Code of the Commonwealth and common law of fraud, conflicts of interest, waste, false pretenses, and public purpose shall supplement the regulations in Chapter 130-30.

 

Modified, 1 CMC § 3806(d).

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

§ 130-30-015   Requirement of Good Faith

 

The regulations in Chapter 130-30 require all parties, including OPA employees, contractors, and suppliers, involved in the negotiation, bidding, performance, or administration of government contracts to act in good faith.

 

Modified, 1 CMC § 3806(d).

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

§ 130-30-020   Application of Regulations

 

The regulations in Chapter 130-30 apply to all OPA expenditures of public funds irrespective of source, including federal assistance monies. Nothing in this chapter shall be construed to prevent OPA from complying with the terms and conditions of any grant, cooperative agreement or memoranda. The regulations in Chapter 130-30 do not apply to employment contracts.

 

Modified, 1 CMC § 3806(d).

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

§ 130-30-025   Severability

 

If any provision of the regulations in Chapter 130-30 or any application thereof to any person or circumstances is held invalid by a court of competent jurisdiction, such invalidity shall not affect other provisions or application of the regulations in Chapter 130-30 which can be given effect without the invalid provision or application, and to this end, the provisions of Chapter 130-30 are declared to be severable.

 

Modified, 1 CMC § 3806(d).

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

§ 130-30-030   Validity of Contract

 

No OPA contract with the exception of employment contracts shall be valid unless it complies with the regulations in Chapter 130-30.

 

Modified, 1 CMC § 3806(d).

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

§ 130-30-035   Remedy Against Employee

 

Any procurement action of an employee of OPA in violation of the regulations in Chapter 130-30 is an action outside the scope of his or her employment. OPA will seek to have any liability asserted against it by a contractor which directly results from these improper acts to be determined judicially to be the individual liability of the employee who committed the wrongful act.

 

Modified, 1 CMC § 3806(d).

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

Subpart B -    Definitions

 

§ 130-30-040   Definitions

 

As used in the regulations in Chapter 130-30, unless the context otherwise requires, the following meanings apply:

 

(a)        “Attorney General” means the Attorney General of the Commonwealth of the Northern Mariana Islands.

 

(b)        “Construction” means the process of building, altering, repairing, improving, or demolishing of a public structure or building or public improvements commonly known as “capital improvements.” It does not include the routine maintenance of existing structures, buildings, or public real property.

 

(c)        “Contract” means all types of agreements, regardless of what they may be called for the procurement of supplies, services, or construction, including purchase orders.

 

(d)       “Cost-reimbursement contract” means a contract under which a contractor is reimbursed for costs which are allowable and in accordance with the contract terms and the regulations in Chapter 130-30, and a fee, if any.

 

(e)        “Designated Hearing Officer” means a CNMI-licensed attorney contracted by OPA to preside over appeals to decisions made by the Procurement Officer.

 

(f)        “Definite-quantity contract” means a contract which provides for delivery of a definite quantity of specific supplies or services for a fixed period. This type of contract may be used when it can be determined in advance that a definite quantity of supplies or services will be required during the contract period.

 

(g)        “Dispute” means a disagreement concerning the legal rights and obligations of contracting parties, which, if not settled by mutual agreement, must be referred to a neutral third party for resolution.

 

(h)        “Employee” means an individual receiving a salary from OPA.

 

(i)         “Firm-fixed-price contract” means a contract which provides for a price that is not subject to any subsequent adjustment as a result of the contractor's cost experience in performing the contract. This type of contract places upon the contractor maximum risk and full responsibility for all costs and resulting profit or loss.

 

(j)         “Goods” means all property, including but not limited to equipment, materials, supplies, and other tangible personal property of any kind or nature, printing, insurance, and leases of real and personal property.

 

(k)        “Invitation for bids” means all documents, whether attached or incorporated by reference, utilized for soliciting bids.

 

(l)         “Official with expenditure authority” means the Public Auditor or designee who may expend, obligate, encumber, or otherwise commit public funds under the Planning and Budgeting Act or under any annual appropriation act.

 

(m)       “Person” means an individual, sole proprietorship, partnership, joint venture, corporation, other unincorporated association or a private legal entity.

 

(n)        “Procurement” means buying, purchasing, renting, leasing, or acquiring construction, goods, or services. It also includes all functions that pertain to the obtaining of construction, goods, or services, including description of requirements, selection and solicitation of sources, preparation and award of contracts, and all phases of contract administration.

 

(o)        “Public Auditor” means the Public Auditor of the Commonwealth Office of the Public Auditor.

 

(p)        “Purchase description” means the words used in a solicitation to describe the goods, services, or construction to be purchased and include specifications attached to, or made part of, the solicitation.

 

(q)        “Requirements contract” means a contract which provides for filling all actual purchase requirements of designated OPA activities for supplies or services during a specified contract period, with deliveries or performance to be scheduled with the contractor.

 

(r)        “Responsible” in reference to a vendor, means a person who has the capability in all respects to perform fully the contract requirements, and the integrity and reliability which will assure good faith performance.

 

(s)        “Responsive” in reference to a vendor, means a person who has submitted a bid or proposal which conforms in all material respects to the invitation for bids or request for proposals.

 

(t)        “Secretary” means the Secretary of Finance.

 

(u)        “Services” means the furnishing of time, labor, or effort by a person other than an employee, and not involving the delivery of a specific end product other than reports, plans, and incidental documents.

 

Modified, 1 CMC § 3806(d).

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

Subpart C -    Public Access

 

§ 130-30-045   Public Access to Procurement Information

 

Procurement information shall be a matter of public record and shall be available for public inspection. Procurement information may be kept confidential when necessary to insure proper bidding procedures. This decision shall be made only by the Public Auditor.

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

Part 100 -       Procurement Organization

 

§ 130-30-105   Procurement Officer of the Office of the Public Auditor

 

The Public Auditor shall designate an employee of OPA to serve as the Procurement Officer to administer and supervise the day-to-day procurement activities and functions of the office.

 

Modified, 1 CMC § 3806(g).

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

Commission Comment: The Commission changed “Public Officer” to “Public Auditor” in the section title pursuant to 1 CMC § 3806(g).

 

§ 130-30-110   Duties and Responsibilities of Procurement Officer

 

The duties and responsibilities of the Procurement Officer include, but are not limited to, the following:

 

(a)        Ensure that the regulations in Chapter 130-30 are observed in all OPA;

 

(b)        Procure or supervise the procurement of all supplies, goods, and services needed by OPA;

 

(c)        Conduct bidding, procurement, negotiation, or administration of OPA contracts upon request of the official with expenditure authority;

 

(d)       Sell, trade, or otherwise dispose of surplus property belonging to and no longer needed by OPA;

 

(e)        Exercise general supervision and control over all inventories of supplies belonging to OPA;

 

(f)        Exercise general oversight and control on the use of physical assets and other capital equipment to prevent waste or abuse or other unauthorized use;

 

(g)        Establish and maintain programs for the inspection, testing, and acceptance of supplies;

 

(h)        Hear all protests and disputes; and

 

(i)         Oversee the administration of OPA contracts.

 

Modified, 1 CMC § 3806(d).

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

§ 130-30-115   Contract Review, Processing and Oversight

 

(a)        All contracts must first be prepared by the Procurement Officer who shall certify that he has complied with the Procurement Regulations, codified in Chapter 130-30, and that the proposed contract is for a public purpose, and does not constitute a waste or abuse of public funds. All contract documents must be complete including attachments and exhibits, if they are incorporated into the contract by reference. The contract documents prepared by the Procurement

Officer shall be submitted to the Public Auditor for review.

 

(b)        The contract shall next be approved by the Secretary of Finance or his designee who shall certify the availability of funds. If the Secretary finds any aspect of the contract to be deficient or defective in any respect, he shall return the contract to the Procurement Officer for appropriate resolution.

 

(c)        The third review is that of the OPA Legal Counselor his designee who shall certify the contract as to form and legal capacity.

 

(d)       The contract shall then be approved by the Public Auditor.

 

(e)        After the Public Auditor's approval, the Procurement Officer shall forward the contract to the contractor for his approval and signature.

 

(f)        After the signature of the contractor, the Procurement Officer shall review the contract documents for completeness. If he is satisfied, he shall sign in the appropriate space and shall:

(1)        Provide copies of said contract to the:

(i)         Public Auditor

(ii)        Secretary of Finance

(iii)       Contractor.

 

(g)        It is the responsibility of the Public Auditor to ensure that the contractor does not sign the contract or incur any expenses under it until all necessary signatures have been obtained. The supervision, inspection, and administration of an OPA contract is the primary responsibility of the Public Auditor.

 

(h)        No contract is effective against OPA until all of the parties whose signatures are required on the contract form have signed the contract. A contract shall contain a right to audit records clause.

 

Modified, 1 CMC § 3806(d).

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

§ 130-30-120   Acceptance of Gratuities by the Procurement Officer and OPA Employees

 

In addition to the restrictions found in § 130-30-725, the Procurement Officer and the employees of OPA shall not accept from any person any gift of value given to them with the intent to influence their business judgment.

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

Part 200 -       Source Selection and Contract Formation

 

Subpart A -    Source Selection

 

§ 130-30-201   Requirements for Competition

 

OPA shall provide for full and open competition through use of the competitive procedure that is best suited to the circumstances of the contract action. The competitive procedures available for use in fulfilling the requirement for full and open competition are as follows:

 

(a) Competitive sealed bidding (§ 130-30-205)

 

(b) Competitive sealed proposals (§ 130-30-210)

 

(c) Architect-engineer services (§ 130-30-305); and

 

(d) Competitive selection procedures for professional services (§ 130-30-310).

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

§ 130-30-205   Competitive Sealed Bidding

 

(a)        All OPA procurement shall be awarded by competitive sealed bidding under this section, except as provided in:

(1)        § 130-30-210 (Competitive Sealed Proposals);

(2)        § 130-30-220 (Small Purchases);

(3)        § 130-30-225 (Sole Source Procurement);

(4)        § 130-30-230 (Expedited Purchasing in Special Circumstances);

(5)        § 130-30-305 (Architect-Engineer Services); and

(6)        § 130-30-310 (Competitive Selection Procedures for Professional Services)

 

(b)        Invitation for Bids.

(1)        An invitation for bids shall be issued and shall include at the minimum:

(i)         An invitation for bids number;

(ii)        Date of issuance;

(iii)       Name, address, and location of issuing office;

(iv)       Specific location where bids must be submitted;

(v)        Date, hour, and place of bid opening;

(vi)       A purchase description in sufficient detail to permit full and open competition and allow bidders to properly respond;

(vii)      Quantity to be furnished;

(viii)     Time, place, and method of delivery or performance requirements;

(ix)       Essential contractual terms and conditions; and

(x)        Any bonding requirements.

(2)        Purchase descriptions of construction, goods, or services shall detail to the greatest extent practicable the specific requirements the contractor is expected to perform or deliver. An adequate purchase description shall adequately set forth the essential physical and functional characteristics of the construction, goods, or services necessary to fulfill the government's minimum requirements.

 

(c)        Application for Brand Name Descriptions. An acquisition that uses a brand name description or other purchase description to specify a particular brand name, product, or feature of a product peculiar to one manufacturer is not normally allowed regardless of the number of sources solicited. It shall be allowed only when justified and approved in accordance with the procedures on justifying sole-source procurement. Specifically, the justification shall indicate that the use of such descriptions in the acquisition is essential to the government's requirements, thereby precluding consideration of a product manufactured by another company. “Brand-name or equal” descriptions and other purchase descriptions that permit prospective contractors to offer products other than those specifically referenced by brand name, provide for full and open competition and do not require justifications and approvals to support their use.

 

(d)       Bid Solicitation Accuracy. The bid solicitation shall accurately reflect the government requirement. It shall adequately state what is to be done or what is to be delivered to the government in order to allow bidders to properly respond and evaluations to be made on a uniform basis. Exact quantities shall be stated in the statement of deliverables, unless use of a requirements contract is justified under § 130-30-260.

 

(e)        Publication. The Procurement Officer shall publicize all invitation for bids in order to increase competition and broaden industry participation. The bidding time (i.e., the time between issuance of the solicitation to the public and opening of bids) shall be prescribed as follows:

(1)        Minimum Bidding Time. A bidding period of at least 30 calendar days shall be provided unless the Procurement Officer determines that a shorter time is reasonable and necessary. Such shorter bidding period must afford potential bidders a reasonable opportunity to respond considering the circumstances of the individual acquisition, such as the complexity, and urgency. The bidding period, however, shall never be less than fourteen calendar days.

(2)        Extended Bidding Period. Because of limited bidding time in certain cases, potential sources may be precluded from bidding and others may be forced to include contingencies that, with additional time, could be eliminated. To avoid unduly restricting competition or paying higher-than-necessary prices, the Procurement Officer may increase the 30-day bidding period by not more than 60 additional calendar days, considering such factors as:

(i)         Degree of urgency;

(ii)        Complexity of requirements;

(iii)       Anticipated extent of subcontracting;

(iv)       Geographic distribution of bidders; and

(v)        Normal transmittal time for invitations and bids.

 

(f)        Public Notice. The Procurement Officer shall advertise the invitation for bids in a newspaper of general circulation in the Commonwealth at least once in each week from the time the solicitation is issued, including the week when the bidding period expires.

 

(g)        Bid Receipt.

(1)        All bids shall be submitted to OPA. Bids shall be received prior to the time set for opening and shall be maintained in a secure manner. Bids submitted from vendors outside the Commonwealth must be postmarked by the date set in the invitation for bids and must be received within seven working days of that date. Bidders outside the Commonwealth must notify the Procurement Officer in writing of their intent to bid in order to receive this additional seven days for the receipt of the actual bid documents. This notice of intent to bid may be by any mode of written communication including telex, facsimile, or other electronic transmission.

(2)        If a bid is opened by mistake, it shall be resealed and the person who opened the bid shall write his signature and print his title on the envelope and deliver it to the Procurement Officer. No information contained in the bid shall be disclosed prior to the bid opening. The Procurement Officer shall cause the opened bid to be placed into the sealed receptacle.

 

(h)        Bid Opening. The bid opening shall be conducted by the Procurement Officer. Bids received prior to the bid closing date shall be opened publicly in the presence of one or more witnesses at the time and place designated in the invitation for bids. The Procurement Officer shall be present at the bid opening. The bids shall be publicly opened. The amount of each bid, together with the name of each bidder shall be recorded, the record and each bid shall be open to public inspection. The Procurement Officer shall prepare a written summary of the bid opening.

 

(i)         Bid Acceptance and Bid Evaluation. Bids shall be unconditionally accepted without alteration or correction, except as authorized in Chapter 130-30. Bids shall be evaluated based on the requirements set forth in the invitation for bids, which may include criteria as is necessary to reasonably permit a determination as to the acceptability of the bid for the particular purpose intended.

 

(j)         Responsiveness of Bids. To be considered for award, a bid must comply in all material respects with the invitation for bids. Bids must be filled out, executed, and submitted in accordance with the bid instructions. A bid may be considered only if

(1)        The bidder accepts all material terms and conditions of the invitation, and

(2)        Any future award based upon the bid would result in a binding contract with terms and conditions that do not vary from the requirements of the invitation. Electronic or facsimile bids shall not be considered unless permitted by the invitation.

 

(k)        Bid Rejection. A bid may be rejected for any of the following reasons:

(1)        Failure to conform to essential requirements of the invitation for bids such as specifications or time of delivery;

(2)        Imposition of conditions or restrictions in the bid which modify requirements of the invitation or limit the bidder's liability to the government. For example, bids shall be rejected in which the bidder:

(i)         Protects against future changes in conditions, such as increased costs;

(ii)        Fails to state a price and indicates that price shall be the price in effect at the time of delivery;

(iii)       States a price but qualifies it as subject to price in effect at time of delivery; or

(iv)       Limits the rights of government.

(3)        Unreasonableness as to price;

(4)        A bid from a non-responsible bidder as defined in § 130-30-240.

(5)        A bid from a non-responsive bidder as defined in § 130-30-240.

 

(l)         Correction or Withdrawal of Bids; Cancellation of Awards. Correction or withdrawal of inadvertently erroneous bids, before or after award, or cancellation of awards based on bid mistakes must be approved by the P&S Director in writing. After the bid opening, no changes in bid price or other provisions of bids prejudicial to the interest of the government or fair competition shall be allowed. Whenever a bid mistake is suspected, the government shall request confirmation of the bid prior to award. In such an instance, if the bidder alleges an error, the government shall only permit correction of the bid or withdrawal of the bid in accordance with subsection (l)(1) or (l)(2).

(1)        Correction of bids. Correction of bids shall only be permitted when:

(i)         An obvious clerical mistake is clearly evident from examining the bid document. Examples of such mistakes are errors in addition or the obvious misplacement of a decimal point; or

(ii)        The otherwise low bidder alleges a mistake and the intended bid is evident from the bid document or is otherwise supported by clear and convincing evidence as to the bid intended and the corrected bid remains the low bid. A low bidder shall not be permitted to correct a bid mistake resulting from an error in judgment.

(2)        Withdrawal of bids. Withdrawal of a bid shall only be permitted where the otherwise low bidder alleges a mistake and there is clear and convincing evidence as to the existence of a mistake.

(3)        Cancellation of awards. Cancellation of awards or contracts shall only be permitted when:

(i)         Evidence as to the existence of the mistake is not discovered until after the award;

(ii)        There exists no clear and convincing evidence to support the bid intended; and

(iii)       Performance of the contract at the award price would be unconscionable.

 

(m)       Award.

(1)        The contract must be awarded with reasonable promptness by written notice to the lowest responsive bid by a responsible bidder whose bid fully meets the requirements of the invitation for bids and the regulations in Chapter 130-30. Unsuccessful bidders shall also be promptly notified.

(2)        Notice of an award shall only be made by the presentation of a contract with all of the required signatures to the bidder. No other notice of an award shall be made. No acceptance of an offer shall occur nor shall any contract be formed until a government contract is written and has been approved by all the officials required by law and regulation. Government contracts shall contain a clause which states that the signature of the private contractor shall be the last in time to be affixed to a contract and that no contract can be formed prior to the approval of all required government officials.

(3)        In the event all bids exceed available funds, and time or economic considerations preclude re-solicitation of work of a reduced scope, the may negotiate an adjustment of the bid price including changes in bid requirements, with the lowest responsive and responsible bidder in order to bring the bid price within the amount of available funds.* The negotiation shall be documented in writing and attached to the bidding documents.

 

*So in original.

 

Modified, 1 CMC § 3806(d), (g).

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

Commission Comment: The Commission changed “invitation for bids or.” to “invitation for bids.” in (j) and “§ 130-3-240” to “§ 130-30-240” in (k)(4)–(5) pursuant to 1 CMC § 3806(g).

 

§ 130-30-210   Competitive Sealed Proposals

 

(a)        Conditions for use. When the Public Auditor determines that the use of a competitive sealed bidding is either not practical or not advantageous to OPA, a contract may be entered into by competitive sealed proposals.

 

(b)        Request for proposals. Proposals shall be solicited through a request for proposals.

 

(c)        Public notice. Adequate public notice of the request for proposals shall be given in the same manner as provided for in competitive sealed bids.

 

(d)       Receipt of proposals. Proposals shall be opened so as to avoid disclosure of contents to competing vendors during the process of negotiation. A register of proposals shall be prepared and opened for public inspection after contract award.

 

(e)        Evaluation factors. The request for proposals shall state the relative importance of price and other evaluation factors. Price or cost to the government shall be included as an evaluation factor in every solicitation of proposals. The Procurement Officer must ensure that the following requirements are complied with in any evaluation of proposals.

(1)        All evaluation factors stated in the solicitation shall be considered in determining proposals in the competitive range (i.e., those allowed to participate further in the selection process), and any subsequent evaluations (including evaluation of best and final offers from the competitive range vendors).

(2)        Competitive range. The Public Auditor shall determine which proposals are in the competitive range, based on the recommendations of the evaluator or evaluation team, for the purpose of conducting written or oral discussions, and shall include all proposals that have a reasonable chance of being selected for award. When there is doubt as to whether a proposal is in the competitive range, the proposal shall be included. Proposals determined to have no reasonable chance of being selected for contract award shall no longer be considered for selection. A proposal is not reasonably susceptible of being selected for award and can be excluded from the competitive range if it is clear that:

(i)         Its contents are so unacceptable that a revision of the proposal in the negotiation stage would be equivalent to accepting a new proposal, or

(ii)        In comparison with other proposals, such proposal clearly has no chance of being selected for award.

(3)        Technical evaluation. If any technical evaluation is necessary beyond ensuring that the proposal meets the minimum requirements in the solicitation, the evaluator or evaluation team shall document the technical evaluation which shall include:

(i)         The basis for the evaluation;

(ii)        An assessment of each vendor's ability to accomplish the technical requirements;

(iii)       A summary, matrix, or quantitative ranking of each technical proposal in relation to the best rating possible; and

(iv)       A summary of findings. The supporting documentation prepared for the selection decision shall show the proposals' comparative strengths, weaknesses, and risks in terms of the evaluation factors.

(4)        When technical criteria (generally, criteria other than price) are involved, the Procurement Officer shall ensure that appropriate qualified personnel are assigned to conduct a technical evaluation of the proposals. In forming an evaluation team, the Procurement Officer shall ensure that –

(i)         The evaluators, including any other personnel responsible for the selection of competitive range vendors or final selection of a vendor, are formally designated to exercise such responsibility by the Public Auditor; and

(ii)        Before conducting any evaluation, the Public Auditor shall approve an evaluation plan which as a minimum shall include –

(A)       A statement of the evaluation factors and any significant subfactors and their relative importance;

(B)       A description of the evaluation process, methodology, and techniques to be used; and

(C)       Documentation requirements.

 

(f)        Notification to vendors excluded in the competitive range. The Procurement Officer shall promptly notify vendors when they are excluded from the competitive range or otherwise excluded from further consideration. The notice shall state the basis for the exclusion.

 

(g)        Discussion with responsible and responsive vendors and revisions to proposals. As provided in the request for proposals, discussions may be conducted with responsible and responsive vendors who submit proposals determined to be reasonably susceptible of being selected for award for the purpose of clarification and to insure full understanding of, and responsiveness to, solicitation requirements. Vendors shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of proposals and such revisions may be permitted after submission and prior to award for the purpose of obtaining the best and final offers. In conducting discussions, there shall be no disclosure of any information derived from proposals submitted by competing vendors.

 

(h)        Award. Award shall be made to the responsible and responsive vendor whose proposal is determined in writing to be most advantageous to the government taking into consideration price and the evaluation factors set forth in the request for proposals. No other factors or criteria shall be used in the evaluation and the contract file shall contain the basis on which the award is made. Within three working days after the date of contract award, the Procurement Officer shall provide written notification to each unsuccessful vendor (unless pre-award notice was given under § 130-30-210(f)). The notice shall include, as applicable –

(1)        The number of vendors solicited;

(2)        The number of proposals received;

(3)        The name and address of each vendor receiving an award;

(4)        The items, quantities, and unit prices of each award (if the number of items or other factors makes listing unit prices impracticable, only the total contract price need be furnished); and

(5)        In general terms, the reason the vendor's proposal was not accepted, unless the price information in subsection (h)(4) readily reveals the reason. In no event shall a vendor's cost breakdown, profit, overhead rates, trade secrets, manufacturing processes and techniques, or other confidential business information be disclosed to any other vendor.

 

Modified, 1 CMC § 3806(g)

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

Commission Comment: The Commission inserted a semicolon in (e)(2) and changed “item (h)(4) of this subsection” to “subsection (h)(4)” in (h)(5) pursuant to 1 CMC § 3806(g).

 

§ 130-30-215   Circumstances Permitting Other than Full and Open Competition

 

(a)        The following procurement methods permit contracting without using full and open competition.

(1)        Small purchases (§ 130-30-220);

(2)        Sole source procurement (§ 130-30-225); and

(3)        Expedited purchasing in special circumstances (§ 130-30-230).

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

§ 130-30-220   Small Purchases

 

(a)        Any procurement not exceeding the amounts established herein may be made in accordance with small purchase procedures. However, procurement requirements shall not be artificially divided so as to constitute a small purchase.

 

(b)        Bidding is not required for procurement under $2,500.

 

(c)        Bidding is not required but is encouraged for procurement over $2,500 and under $10,000. The Public Auditor will obtain price quotations from at least three vendors and base the selection on competitive price and quality for procurement valued at $2,500 to $10,000. Any price quotations obtained must be written, documented, and submitted to the Procurement Officer for approval.

 

(d)       Purchase orders may be utilized for small purchases subsections (b) and (c).

 

(e)        Any lease or purchase of vehicles shall be procured pursuant to § 130-30-315. Any lease or purchase of machinery and equipment in excess of $2,500 shall be procured pursuant to § 130-30-205 or other applicable provisions of the regulations in Chapter 130-30.

 

Modified, 1 CMC § 3806(d).

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

§ 130-30-225   Sole Source Procurement

 

(a)        A contract may be awarded for a supply, service, or construction without competition when:

(1)        The Procurement Officer determines in writing that there is only one source for the required supply, service, or construction;

(2)        Solely for the purpose of obtaining expert witnesses for litigation; or

(3)        For legal services.

 

(b)        For any sole source procurement pursuant to subsections (a)(2), or (a)(3), the Public Auditor shall state the reasons the services are required.

 

Modified, 1 CMC § 3806(g).

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

Commission Comment: The Commission inserted a semicolon in (a), struck “or” after “construction” in (a)(1), and inserted a period in (a)(3) pursuant to 1 CMC § 3806(g).

 

§ 130-30-230   Expedited Purchasing in Special Circumstances

 

(a)        When special circumstances require the expedited procurement of goods or services, the

Public Auditor may request that the Procurement Officer approve expedited procurement without the solicitation of bids for proposals.

 

(b)        The factor to be considered by the Procurement shall be:

(1)        The urgency of the OPA's need for the good or services;

(2)        The availability of the goods or service in the Commonwealth and the timeliness in acquiring it; and

(3)        Any other factors establishing the expedited procurement is in the best interest of OPA.

 

(c)        The expedited procurement shall be as competitive as possible under the circumstances.

 

(d)       The total amount of goods or service that may be approved under this section shall not exceed $25,000.

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

Subpart B -    Cancellation of Invitation for Bids and Request for Proposals

 

§ 130-30-235   Cancellation

 

An invitation for bids or request for proposals may be canceled, and any and all bids or proposals may be rejected, when such action is determined in writing by the Public Auditor to be in the best interest of OPA:

 

(a)        Inadequate or ambiguous specifications contained in the solicitation;

 

(b)        Specifications which have been revised;

 

(c)        Goods or services being procured which are no longer required;

 

(d)       Inadequate consideration given to all factors of cost to the government in the solicitation;

 

(e)        Bids or proposals received indicate that the needs of the government can be satisfied by a less expensive good or service;

 

(f)        All offers with acceptable bids or proposals received are at unreasonable prices;

 

(g)        Bids were collusive; or

 

(h)        Cancellation is determined to be in the best interest of OPA.

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

Subpart C -    Qualifications and Duties

 

§ 130-30-240   Responsibility and Responsiveness of Bidders and Vendors

 

(a)        Awards shall be made only to responsible and responsive contractors. To be determined responsible, a prospective contractor must:

(1)        Have adequate financial resources to perform the contract, or the ability to obtain them;

(2)        Be able to comply with the required delivery or performance schedule;

(3)        Have a satisfactory performance record;

(4)        Have a satisfactory record of integrity and business ethics;

(5)        Have the necessary organization, experience, and skills, (or the ability to obtain them), required to successfully perform the contract;

(6)        Have the necessary production, construction, and technical equipment facilities, or the ability to obtain them; and

(7)        Be otherwise qualified and eligible to receive an award under applicable laws and rules. Responsive, in reference to a vendor, means a person who has submitted a bid or proposal which conforms in all material respects to the invitation for bids or request for proposals.

 

(b)        Obtaining information. Prior to award, the Procurement Officer shall obtain information from the bidder or vendor necessary to make a determination of responsibility using the factors in subsection (a) above. The unreasonable failure of a bidder or vendor to promptly supply information in connection with an inquiry with respect to responsibility may be grounds for determination of non-responsibility with respect to that bidder or vendor.

 

(c)        Right of non-disclosure. Information furnished by a bidder or vendor pursuant to subsection (b) may not be disclosed outside of OPA, or any other government official involved without prior consent by the bidder or vendor.

 

(d)       Non-responsibility or non-responsive determination. When a bid or proposal on which a contract award would otherwise be made is rejected because the prospective contractor is found to be non-responsible or non-responsive, a written determination shall be signed by the Procurement Officer stating the basis for the determination and this shall be placed in the contract file.

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

§ 130-30-245   Pre-qualification of Contractors

 

Prospective suppliers of goods or services may be pre-qualified for particular types of construction, goods and services when determined necessary by the Procurement Officer. Opportunity for qualification before solicitation shall be afforded to all suppliers. Solicitation mailing lists of potential contractors shall include, but shall not be limited to, pre-qualified suppliers. In no event will vendors be allowed to qualify after the solicitation opening.

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

Subpart D -    Types of Contracts

 

§ 130-30-250   Permissible Types of Contracts

 

OPA contracts shall utilize a firm fixed price unless the use of a cost reimbursement contract is justified under § 130-30-255. OPA contracts shall also use definite-quantity contracts unless a requirements contract is justified under § 130-30-260. Use of cost-plus-a-percentage-of-cost and percentage of construction cost methods of contracting are prohibited.

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

§ 130-30-255   Cost-reimbursement Contract

 

(a)        Policy. Cost-reimbursement contracts must contain a ceiling which the contractor shall not exceed without the approval of the Procurement Officer.

 

(b)        Application. A cost-reimbursement contract may be used when the Procurement Officer attaches to the contract a written determination that –

(1)        Uncertainties in the work to be performed make the cost of performance too difficult to estimate with the degree of accuracy required for a firm fixed price contract;

(2)        Use of a cost reimbursement contract is likely to be less costly to OPA than any other type due to the nature of the work to be performed under the contract.

 

(c)        Limitations. The use of cost-reimbursement contracts is prohibited for the acquisition of commercially available items.

 

(d)       Cost-plus-fixed-fee contracts.

(1)        Description. A cost-plus-fixed-fee contract is a cost-reimbursement contract that provides for payment to the contractor of a negotiated fee that is fixed at the inception of the contract. The fixed fee does not vary with actual cost, but may be adjusted as a result of changes in the work to be performed under the contract, authorized pursuant to § 130-30-410(a).

(2)        Application.

(i)         A cost-plus-fixed-fee contract is suitable for use when the conditions of § 130-30-255(b) are present and the contract is for the performance of research or preliminary exploration or study, and the level of effort required is unknown.

(ii)        A cost-plus-fixed-fee contract normally must not be used in development of major systems once preliminary exploration, studies, and risk reduction have indicated a high degree of probability that the development is achievable and the government has established reasonably firm performance objectives and schedules.

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

§ 130-30-260   Requirements Contracts

 

(a)        For the information of vendors and contractors, the Public Auditor shall state a realistic estimated total quantity in the solicitation and resulting contract. This estimate is not a representation to a vendor or contractor that the estimated quantity will be required or ordered, or that conditions affecting requirements will be stable or normal. The official with expenditure authority may obtain the estimate from records of previous requirements and consumption, or by other means, and shall base the estimate on the most current information available.

 

(b)        The contract shall state, if feasible, the maximum limit of the contractor's obligation to deliver and the government's obligation to order. The contract may also specify maximum or minimum quantities that the government may order under each individual order and the maximum that it may order during a specified period of time. The contract shall specify that failure of the government to order such estimated minimum or maximum quantities will not entitle the contractor to any equitable adjustment in unit price.

 

(c)        Application. A requirements contract may be appropriate for acquiring supplies or services when the government anticipates recurring requirements but cannot predetermine the precise quantities of supplies or services that designated government activities will need during a definite period.

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

Subpart E -    Inspection and Audit

 

§ 130-30-265   Right to Inspect Place of Business

 

OPA, may at reasonable times, inspect the place of business of a contractor or any subcontractor which is related to the performance of any contract awarded or to be awarded by OPA.

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

Subpart F -    Reports and Records

 

§ 130-30-270   Report of Anti-competitive or Deceptive Practices

 

(a)        When for any reason any person suspects the following practices are occurring among bidders, vendors, contractors, or subcontractors, a notice of the relevant facts shall be transmitted by the Procurement Officer to the Attorney General without delay:

(1)        Unfair methods of competition;

(2)        Deceptive acts; or

(3)        Unfair business practices.

 

(b)        These acts are more fully defined at 4 CMC § 5101 through § 5206.

 

Modified, 1 CMC § 3806(g).

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

Commission Comment: The Commission changed “4 CMC § 5101 through § 5206” to “

 

§ 130-30-275   Retention of Procurement Records

 

(a)        OPA shall maintain a record listing all contracts for a minimum of five (5) years after completion of construction, or full delivery of the goods or services under the contract. The records shall contain:

(1)        Each contractor's name;

(2)        The amount and type of each contract; and

(3)        A listing of the supplies, services, or construction procured under each contract.

 

(b)        All procurement records, except those designated herein as not subject to disclosure, shall be available to public inspection.

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

Part 300 -       Procurement of Construction and Architect-Engineer Services, Professional Services, Vehicles and Special Conditions for Computer Software and Hardware

 

§ 130-30-301   Construction Procurement

 

(a)        Invitation for Bids.

(1)        Deposit. The Procurement Officer shall determine the amount of deposit required for potential bidders to obtain the invitation for bids.

(2)        Contents. The invitation for bids shall be prepared in accordance with § 130-30-205(b). In addition, the following items shall be included in the invitation for bids:

(i)         Notice to Bidders. General information regarding the project;

(ii)        Instructions to Bidders. Information on the preparation of bids, bid security requirements and forms and certifications that must be submitted with the bid;

(iii)       General Conditions. Standard contract clauses governing the performance of work;

(iv)       Special Conditions. Special contract clauses depending on the nature and dollar amount of the work to be performed; and

(v)        Technical Specifications. Specifications governing the technical aspects of the work to be performed.

 

(b)        Bid Security.

(1)        Requirement. Bid security shall be required for all competitive sealed bidding construction contracts where the price is estimated by the Procurement Officer to exceed $25,000 or when the Procurement Officer determines it is in the interest of OPA. Bid security shall be on a bid bond, in cash, by certified check, cashiers' check or other form acceptable to the government. A surety company shall hold the certificate of authority from the U.S. Secretary of the Treasury as an acceptable surety or other surety acceptable to the Attorney General.

(2)        Amount. Bid security shall be an amount equal to at least fifteen percent of the amount of the bid or other amount as specified in the invitation for bids depending upon the source of funding.

 (3)       Rejection of Bid. Failure to furnish bid security, when required by the invitation, shall result in rejection of the bid as non-responsive.

 

(c)        Contract Performance and Payment Bonds.

(1)        When a construction contract is awarded in excess of $25,000, the following bonds or security shall be delivered to OPA and shall become binding on the parties upon the execution of the contract:

(i)         A performance bond satisfactory to OPA pursuant to subsection (c)(2) below, executed by a surety company authorized to do business in the Commonwealth or otherwise secured in a manner satisfactory to the government, in an amount equal to one hundred percent of the price specified in the contract; and

(ii)        A payment bond satisfactory to OPA pursuant to subsection (c)(2) below, executed by a surety company authorized to do business in the Commonwealth or otherwise secured in a manner satisfactory to OPA, for the protection of all persons supplying labor and material to the contractor or its subcontractors for the performance of the work provided for in the contract. The bond shall be in an amount equal to one hundred percent of the price specified in the contract.

(2)        Acceptability of payment and performance bonds. The Procurement Officer shall ensure that the bonding company's pledged assets are sufficient to cover the bond obligation. Prior to the execution of the contract, the Procurement Officer shall require the selected contractor to submit –

(i)         A current license from the bonding company showing that it has authority to issue bonds, and

(ii)        A certification from the bonding company that the unencumbered value of its assets (exclusive of all outstanding commitments on other bond obligations) exceed the penal amount of each bond.

(3)        A contractor submitting an unacceptable payment or performance bond may be permitted a reasonable time, as determined by the Procurement Officer, to substitute an acceptable bond prior to executing a contract. When evaluating payment and performance bonds, the Procurement Officer shall confirm the acceptability of the bonding company from other government agencies, such as the Insurance Office under the Department of Commerce.

 

(d)       Suits on Payment Bonds; Right to Institute. Every person who has furnished labor or material to the contractor or its subcontractors for the work provided in the contract, in respect of which a payment bond is furnished under this section, and who has not been, paid in full therefor before the expiration of a period of ninety days after the day on which the last of the labor was done or performed by such person or material was furnished or supplied by such person for which such claim is made, shall have the right to sue on the payment bond for the amount, or the balance thereof, unpaid at the time of institution of such suit and to prosecute said action for the sum or sums justly due such person; provided, however, that any person having a direct contractual relationship with a subcontractor of the contractor, but no contractual relationship express or implied with the contractor furnishing said payment bond, shall have a right of action upon the payment bond upon giving written notice to the contractor within ninety days from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material upon which such claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed. Such notice shall be personally served or served by mailing the same by registered or certified mail, postage prepaid, in an envelope addressed to the contractor at any place the contractor maintains an office or conducts its business.

 

(e)        Suits on Payment Bonds; Where and When Brought. Every suit instituted upon a payment bond shall be brought in a court of competent jurisdiction for the Commonwealth. The obligee named in the bond need not be joined as a party in any such suit.

 

(f)        Fiscal Responsibility. Every contract modification, change order, or contract price adjustment under a construction contract shall be subject to prior written certification by the Secretary of Finance as to the effect of the contract modification, change order or adjustment in contract price on the total project budget or the total contract budget. In the event that the certification discloses a resulting increase in the total project budget and/or the total contract budget, such contract modification, change order or adjustment in contract price shall not be made unless sufficient funds are available therefore, or the scope of the project or contract is adjusted so as to permit the degree of completion that is feasible within the total project budget and/or total contract budget as it existed prior to the price under consideration; provided, however, that with respect to the validity, as to the contractor, of any executed contract modification, change order or adjustment in contract price which the contractor has reasonably relied upon, it shall be presumed that there has been compliance with the provisions of this subsection.

 

Modified, 1 CMC § 3806(g).

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

Commission Comment: The Commission changed “$25,000.00” to “$25,000” in (b)(1) and (c)(1) pursuant to 1 CMC § 3806(g).

 

§ 130-30-305   Architect-Engineer Services

 

(a)        Procurement Method. Architect-engineer services shall be procured as provided in this section except when authorized as a small purchase, expedited, or emergency procurement.

 

(b)        Policy. It is the policy to publicly announce all requirements for architect-engineer services and negotiate contracts on the basis of demonstrated competence and qualifications at a fair and reasonable price.

 

(c)        Negotiation. The Procurement Officer shall negotiate a contract with the highest qualified architect-engineer firm at a price determined to be fair and reasonable to OPA. In determining what constitutes a fair and reasonable price to OPA, the Procurement Officer shall consider factors such as the prices proposed by other firms responding to the solicitation. If a fair and reasonable price cannot be negotiated with the highest ranking qualified firm, then the Procurement Officer may select additional firms in order of competence and qualifications and continue negotiations until a fair and reasonable price is agreed upon.

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

§ 130-30-310   Competitive Selection Procedures for Professional Services

 

(a)        Procurement method. The services of accountants, physicians, or lawyers shall be procured as provided in this section except when authorized as a small purchase, emergency procurement, expedited procurement or sole-source procurement.

 

(b)        Policy. It is the policy to publicly announce all requirements for professional services and negotiate contracts on the basis of demonstrated competence and qualifications at a fair and reasonable price. Persons engaged in providing professional services may submit statements of qualifications and expressions of interests providing such types of services. Persons may amend these statements at any time by filing a new statement.

 

(c)        Public announcement and form of request for proposals. Adequate notice of the need for such services shall be given by the Public Auditor through a request for proposals. The request for proposals shall describe the services required, list the type of information and data required of each vendor, and state the relative importance of particular qualifications.

 

(d)       Discussions. The official with expenditure authority may conduct discussions with any vendor who has submitted a proposal to determine such vendor's qualifications for further consideration. Discussions shall not disclose any information derived from proposals submitted by other vendors.

 

(e)        Award. Award shall be made to the vendor determined in writing by the Procurement Officer to be the best qualified based on the evaluation factors set forth in the request for proposals, and negotiation of compensation determined to be fair and reasonable. If compensation cannot be agreed upon with the best qualified vendor then negotiations will be formally terminated with the selected vendor. If proposals were submitted by one or more other vendors determined to be qualified, negotiations may be conducted with such other vendor or vendors, in the order of their respective qualification ranking, and the contract may be awarded to the vendor then ranked as best qualified if the amount of compensation is determined to be fair and reasonable.

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

§ 130-30-315   Lease or Purchase of Vehicles

 

(a)        Policy. Any lease or purchase of OPA vehicles shall be governed by this section. It applies to both the initial acquisition of vehicles and the renewal or extension of vehicle leases. The lease or purchase of vehicles shall be procured using an invitation for bids, unless it qualifies for other procurement methods. All vehicles leased or purchased shall be procured in the name of OPA, and shall conform to CNMI and federal laws, including the CNMI Government Vehicle Act (1 CMC § 7406), and associated rules and regulations.

 

(b)        Purchase method. The purchase method is appropriate if the vehicles will be used beyond the point in time when cumulative leasing costs exceed the purchase costs.

 

(c)        Lease Method. The lease method is appropriate if it is to OPA's advantage under the circumstances. The lease method may also serve as an interim measure when the circumstances require immediate use of vehicles to meet program or system goals; but do not currently support acquisition by purchase.

 

(d)       Lease with Option to Purchase. If a lease is justified, a lease with option to purchase is preferable. Generally, a long term lease shall be avoided, but may be appropriate if an option to purchase or other favorable terms are included. If a lease with option to purchase is used, the contract shall state the purchase price or provide a formula which shows how the purchase price will be established at the time of purchase.

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

§ 130-30-320   Computer Software and Hardware

 

(a)        Notwithstanding any other provision of these regulations, commercial computer software, including documentation, and hardware may be procured pursuant to this part.

 

(b)        Commercial computer software, including commercial computer software documentation, may be acquired under a license customarily provided to the public.

 

(c)        In acquiring commercial software, OPA shall not generally require vendors and contractors to:

(1)        Furnish technical information related to commercial computer software or commercial computer software documentation that is not customarily provided to the public;

(2)        Transfer intellectual property rights or otherwise relinquish to, or otherwise provide, the government the rights to use, modify, reproduce, release, perform, display, or disclose commercial computer software or commercial computer software documentation, except as mutually agreed to by the parties.

 

(d)       Competitive bidding, or competitive procurement shall not be required for commercial software upon a showing that:

(1)        the software is advertised for sale to the public at prices which are readily determinable from public sources, including but not limited to, sources on the internet;

(2)        proof of contemporaneous pricing which is actually available to CNMI purchasers is supplied in the contract package; and

(3)        the other prices shown are within 10% of the pricing selected, or, the selected vendor will provide support for the software of a value which compensates for the difference in

price.

 

(e)        Competitive bidding, or competitive procurement shall not be required with respect to software for the following:

(1)        software purchased is an updated version of software previously purchased;

(2)        an extension of the license for previously-purchased software;

(3)        an extension of maintenance services for previously-purchased software; or

 

(f)        The purchase of computer hardware, software, and/or related services, which is/are purchased pursuant to a US General Services Administration (GSA) blanket contract which had been negotiated by the federal government, shall be presumptively concluded to be in compliance with the competitive procurement requirements of these Regulations. This presumption shall apply not only to commercially available products, but also to products which are designed, manufactured and/or assembled according to GSA specifications.

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

Part 400 -       Contract Terms and Administration of Contracts

 

§ 130-30-401   Contract Clauses

 

(a)        Price. In executing contracts, OPA shall set the maximum amount that can be charged under the contract and disallow open-ended contracts, i.e. contracts which do not specify the maximum contract price. Whatever contract type is selected, agencies shall limit contracts to a fixed price or a ceiling price, and the contractor shall not exceed the price set unless a change order is approved (See § 130-30-410, change order).

 

(b)        Payment Terms. Payments shall be made only upon submission of evidence of work performed and adherence to contract terms and specifications. Generally, a one-time payment shall be made after the official with expenditure authority has certified completion of work or delivery of goods or services. Other types of payments are as follows:

(1)        Advance Payments. Advance payments shall be authorized only in certain circumstances as provided in (b)(1)(i), in (b)(1)(ii), or in (b)(1)(iii) below.

(i)         The contractor fails to qualify as a responsible contractor due solely to the absence of financial capability, and it is justified under § 130-30-225 that the contractor is the only available source, subject to the following conditions:

(A)       General requirements - the contractor pledges adequate security, and the official with expenditure authority determines, based on written findings, that the advance payment is in the public interest.

(B)       The standards for advance payment determination are:

(I)        The advance payments will not exceed the contractor's interim cash needs based on an analysis of the cash flow required for contract performance, consideration of the reimbursement or other payment cycle, and employment of the contractor's own working capital;

(II)       The advance payments are necessary to supplement other funds or credit available for the contract;

(III)     The recipient is otherwise qualified as a responsible contractor in all areas other than financial capability; and

(IV)     Paying the contractor in advance will result in specific advantages to the government.

(C)       Advance payments shall be limited to not more than 25 percent of the contract price or an amount equivalent to a 60 day working capital requirement, whichever is lower.

(ii)        The Public Auditor demonstrates in writing that the common business practice of a particular industry requires buyers to pay on an advance payment basis. Such advance payment shall be limited to not more than 50 percent of the contract price. Pertinent documents supporting such business practice shall be attached to the written justification.

(2)        Progress Payments. Contracts may provide for progress payments to contractors for work performed or costs incurred in the performance of the contract. Not less than 10 percent of the contract amount shall be withheld pending final completion of the contract and an evaluation of the contractor's performance. However, if the contract consists of the performance of separate and distinct tasks, then any funds so withheld with regard to a particular task may be paid upon completion of that task and an evaluation of the contractor's performance. No progress payments on a contract shall be made unless it has first been established that the covered work or service has been delivered in accordance with the contract. Payments shall be allowed on stored materials only upon arrival of materials in the CNMl, not prior to shipment, and only after inspection by the Public Auditor.

 

(c)        The contract shall accurately reflect actual OPA requirements, stating adequately what is to be done or to be delivered to OP A. For instance, definite quantities shall be stated in the statement of deliverables, unless use of a requirements contract was justified under § 130-30-260. Contracts with general requirements shall be disallowed.

 

Modified, 1 CMC § 3806(g).

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

Commission Comment: The Commission changed “§ 130-3-410” to “§ 130-30-410” in (a) and struck the period after “§ 130-30-225” in (b)(1)(i) pursuant to 1 CMC § 3806(g).

 

§ 130-30-405   Contract Administration

 

(a)        The primary responsibility for ensuring compliance in contracting rests with the Public Auditor. The Public Auditor must comply with requirements for advertising the availability of contracts, soliciting bids from potential contractors, evaluating the bidding contractors, drafting the contracts to conform with applicable requirements, obtaining the appropriate approvals, approving payment for services, and evaluating the contractors upon completion of the contracts.

 

(b)        The oversight responsibility for OPA's administration and enforcement of its contracts rests primarily with the Procurement Officer. He or she shall be responsible for developing standard contract administration procedures to be used by OPA, maintaining a central depository of contractor evaluations, and making the evaluations available to other agencies upon request.

 

(c)        Contract Monitoring.

(1)        Contract monitoring shall be accomplished through “production surveillance and reporting.” Production surveillance is a function which the official with expenditure authority uses to determine contractor progress and to identify any factors that may delay performance. It shall involve government review and analysis of:

(i)         Contractor performance plans, schedules, controls, and industrial processes, and

(ii)        The contractor's actual performance under them.

(2)        When information on contract performance status is needed, the Public Auditor shall require contractors to submit production progress reports.

 

Modified, 1 CMC § 3806(g).

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

Commission Comment: The Commission inserted a semicolon in (c)(1) pursuant to 1 CMC § 3806(g).

 

§ 130-30-410   Change Order

 

(a)        Execution of a change order shall only be allowed if an increase, decrease, or change in the scope of work is required which was not reasonably foreseeable at the time of the formation of the contract. However, no change order resulting in an increase in contract cost or time shall be allowed when it is a direct result of the contractor's inexperience, inefficiency, or incompetence.

 

(b)        Before adding significant new work to existing contracts, OPA shall thoroughly assess whether or not it would be more prudent to seek competition. Change orders on construction and A&E contracts which exceed 25 percent of the cumulative contract price shall automatically be procured through competitive procedures pursuant to § 130-30-201, except when the procurement of the additional work is authorized without using full and open competition under

§ 130-30-215.

 

(c)        Contractors shall not be allowed to continue working beyond the expiration term of an original contract in the absence of an approved new contract or change order. Change orders shall be processed using the procedures for processing new contracts in § 130-30-115.

 

(d)       Extension of Services. Award of contracts for recurring and continuing service requirements are often delayed due to circumstances beyond the control of contracting offices. In order to avoid negotiation of short extensions to existing contracts, the Procurement Officer may include an option clause in solicitations and contracts which will enable OPA to require continued performance of any services within the limits and at the rates specified in the contract. The option provision may be exercised more than once, but the total extension of performance thereunder shall not exceed 6 months.

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

Part 500 -       Protests and Disputes

 

Subpart A -    Bid Protests and Appeals

 

§ 130-30-501   Protests to the Procurement Officer

 

(a)        General.

(1)        Any actual or prospective bidder, vendor, or contractor who is aggrieved in connection with the solicitation or award of a contract may protest to the Procurement Officer. The protest shall be received by the Procurement Officer in writing within ten days after such aggrieved person knows or should have known of the facts giving rise thereto. The Procurement Officer shall consider all protests or objections to the award of a contract, whether submitted before or after award. If a protest is oral and the matter cannot be resolved, written confirmation of the protest shall state fully the factual and legal grounds for the protest;

(2)        Other persons, including bidders involved in or affected by the protest shall be given notice of the protest and its basis in appropriate cases. These persons shall also be advised that they may submit their views and relevant information to the Procurement Officer within a specified period of time. Normally, the time specified will be one week. Exceptions are to be considered exceptional and will be granted sparingly;

(3)        The Procurement Officer shall decide the protest within twenty calendar days after all interested parties have submitted their views unless he certifies that the complexity of the

matter requires a longer time, in which event he shall specify the appropriate longer time;

(4)        When a protest, before or after award, has been appealed to the Procurement Officer, as provided in these procedures, and the Procurement Officer is requested to submit a report, the Procurement Officer should include with his report a copy of;

(i)         The protest;

(ii)        The bid submitted by the protesting bidder and a copy of the bid of the bidder who is being considered for award, or whose bid is being protested;

(iii)       The solicitation, including the specifications on portions relevant to the protest;

(iv)       The abstract of offers or relevant portions;

(v)        Any other documents that are relevant to the protest; and

(vi)       The Procurement Officer's signed statement setting forth findings, actions, and recommendations and any additional evidence or information deemed necessary in determining the validity of the protest. The statement shall be fully responsive to the allegation of the protest. If the award was made after receipt of the protest, the Procurement Officer's report will include the determination prescribed in subsection (b)(4) below.

(5)        Since timely action on protests is essential, they should be handled on a priority basis. Upon receipt of notice that an appeal from the Procurement Officer's decision has been taken to a Designated Hearing Officer the Procurement Officer shall immediately begin compiling the information necessary for a report as provided in subsection (a)(4) above. To further expedite processing, the official who furnishes the agency's report should, upon request of the appellant or the Designated Hearing Officer, simultaneously furnish a complete copy (except for information privileged by law or which the Procurement Officer deems must be confidential in order to benefit from competitive bidding) to the appellant. In such instances, the appellant shall be requested to furnish a copy of any comments on the administrative report directly to the § 130-30-315 as well as the Procurement Officer.

 

(b)        Protest Before Award.

(1)(i)    The Procurement Officer shall require that written confirmation of an oral protest be submitted by the time specified in subsection (a)(1) and may inform the protester that the award will be withheld until the specified time. If the written protest is not received by the time specified, the oral protest may be disregarded.

(ii)        An award may be made in the normal manner unless the Procurement Officer finds it necessary in his discretion to take remedial action.

(2)        When a proper protest against the making of an award is received, the award will be withheld pending disposition of the protest. The bidders whose bids might become eligible for award shall be informed of the protest. In addition, those bidders shall be requested, before expiration of the time for acceptance of their bids, to extend the time for acceptance to avoid the need for re-advertisement. In the event of failure to obtain such extensions of bids, consideration shall be given to proceeding with an award under subsection (b)(3) below.

(3)        When the Procurement Officer receives a protest, a contract may not be awarded pending the resolution of the protest and appeal to the Designated Hearing Officer, if any, (including the time period for filing an appeal), unless it is determined in writing that urgent and compelling circumstances which significantly affect the interest of OPA will not permit awaiting the decision of the Procurement Officer and the Designated Hearing Officer.

(4)        The Procurement Officer is authorized to make the determination in subsection (b)(3) above after receiving the recommendation of the expenditure authority. The determination of the urgent and compelling situation shall be submitted to a Designated Hearing Officer, contracted by OPA, for review, and absent objection from the Designated Hearing Officer within five working days of such submittal, the Procurement Officer's determination becomes final. A contract award shall not be authorized until the Procurement Officer has notified the Designated Hearing Officer of his determination in subsection (b)(3) above. The Procurement Officer also shall give written notice to the protester and others concerned of the decision to proceed with the award.

 

(c)        Protests After Award. Although persons involved in or affected by the filing of a protest after award may be limited, in addition to the Procurement Officer, at least the contractor shall be furnished the notice of protest and its basis in accordance with subsection (a)(2) above. When it appears likely that an award may be invalidated and a delay in receiving the supplies or services is not prejudicial to OPA's interest, the Procurement Officer should consider seeking a mutual agreement with the contractor to suspend performance on a no-cost basis.

 

(d)       Computation of Time.

(1)        Except as otherwise specified, all “days” referred to in this part are deemed to be working days of the Commonwealth government. The term “file” or “submit” except as otherwise provided refers to the date of transmission.

(2)        In 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.

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

§ 130-30-505   Appeals of Procurement Officer’s Decisions to a Designated Hearing Officer

 

(a)        Within 10 days of receipt of the appeal, the Public Auditor shall contract a Designated Hearing Officer to preside the appeal. The Designated Hearing Officer must be a CNMI-licensed attorney.

 

(b)        Jurisdiction; Exhaustion of Remedies. A written appeal to a Designated Hearing Officer, contracted by OPA, from a decision by the Procurement Officer may be taken provided that the party taking the appeal has first submitted a written protest to the Procurement Officer as provided in § 130-30-501 of these procedures, and the Procurement Officer has denied the protest or has failed to act on the protest within the time provided for in § 130-30-501(a)(3) above.

 

(c)        Form of Appeal. No particular form of pleading is required for filing an appeal to the Designated Hearing Officer. The appeal shall, however:

(1)        Include the name and address of the appellant;

(2)        Identify the contracting agency and the number of the solicitation or contract;

(3)        Contain a concise, logically arranged, and direct statement of the grounds for appeal;

and

(4)        Specifically request a ruling by the Designated Hearing Officer.

 

(d)       Time for Filing Appeal. An appeal from the Procurement Officer's decision must be received by the Designated Hearing Officer not later than ten days after the appellant receives the decision of the Procurement Officer, or, in the event that the Procurement Officer has not decided the protest within ten days from the date that he should have decided the protest pursuant to §130-30-501(a)(3) above. Any appeal received after these time limits shall not be considered by the Designated Hearing Officer unless good cause is shown or unless the Designated Hearing

Officer determines that the appeal presents issues significant to procurement practices that are not outweighed by the detriment to OPA should the appeal be considered.

 

(e)        Notice of Appeal, Submission of the Procurement Officer's Report and Time for Filing of Comments on Report

(1)        The Designated Hearing Officer shall notify the Procurement Officer by telephone and in writing within one day of the receipt of an appeal, requesting the Procurement Officer to give notice of the appeal to the contractor if award has been made or, if no award has been made, to all bidders or proposers who appear to have a substantial and reasonable prospect of receiving an award if the appeal is denied. The Procurement Officer shall be requested to furnish in accordance with § 130-30-501(a)(2) of these procedures copies of the protest and appeal documents to such parties with instructions to communicate further directly with the Designated Hearing Officer.

(2)        Material submitted by an appellant will not be withheld from any Commonwealth or federal agency which may be involved in the appeal except to the extent that the withholding of information is permitted or required by law or regulation. If the appellant considers that the protest contains material which should be withheld, a statement advising of this fact must be affixed to the front page of the appeal document and the allegedly proprietary information must be so identified wherever it appears.

(3)        The Designated Hearing Officer shall request the Procurement Officer to submit a complete report on the appeal to the Designated Hearing Officer as expeditiously as possible (generally within 10 working days) in accordance with § 130-30-501(a)(4) of these procedures and to furnish a copy of the report to the appellant and other interested parties.

(4)        Comments on the agency report shall be filed with the Designated Hearing Officer within ten days after the Designated Hearing Officer receipt of the report, with a copy to the agency which furnished the report and to other interested parties. Any rebuttal an appellant or interested party may make shall be filed with the Designated Hearing Officer within five days after receipt of the comments to which rebuttal is directed, with a copy to the agency office which furnished the report, the appellant, and interested parties, as the case may be. Unsolicited agency rebuttals shall be considered if filed within five days after receipt by the agency of the comments to which rebuttal is directed.

(5)        The failure of an appellant or any interested party to comply with the time limits stated in this section may result in resolution of the appeal without consideration of the comments untimely filed.

 

(f)        Withholding of Award. When an appeal has been filed before award, the Procurement Officer, will not make an award prior to resolution of the protest except as provided in this section. In the event the Procurement Officer determines that award is to be made during the pendency of an appeal, the Procurement Officer will notify the Designated Hearing Officer.

 

(g)        Furnishing of Information on Protests. The Designated Hearing Officer shall, upon request, make available to any interested party information bearing on the substance of the appeal which has been submitted by interested parties or agencies except to the extent that withholding of information is permitted or required by law or regulation. Any comments thereon shall be submitted within a maximum of ten days.

 

(h)        Time for Submission of Additional Information. Any additional information requested by the Designated Hearing Officer from the appellant or interested parties shall be submitted no later than five days after the receipt of such request.

 

(i)         Conference.

(1)        A conference on the merits of the appeal with the Designated Hearing Officer may be held at the request of the appellant, any other interested party, or the Procurement Officer. Request for a conference should be made prior to the expiration of the time period allowed for filing comments on the agency report. Except in unusual circumstances, requests for a conference received after such time will not be honored. The Designated Hearing Officer will determine whether a conference is necessary for resolution of the appeal.

(2)        Conferences normally will be held prior to expiration of the period allowed for filing comments on the agency report. All interested parties shall be invited to attend the conference. Ordinarily, only one conference will be held on an appeal.

(3)        Any written comments to be submitted and as deemed appropriately by the Designated Hearing Officer as a result of the conference must be received by the

Designated Hearing Officer within five days of the date on which the conference was held.

(4)        Time for Decision -Notice of Decision: The Designated Hearing Officer shall, if possible, issue a decision on the appeal within 25 days after all information necessary for the resolution of the appeal has been received. A copy of the decision shall immediately be mailed or otherwise transmitted to the appellant, other participating parties, and the Procurement Officer.

 

(j)         Request for Reconsideration.

(1)        Reconsideration of a decision of the Designated Hearing Officer may be requested by the appellant, any interested party who submitted comments during consideration of the protest, the Procurement Officer, and any agency involved in the protest. The request for reconsideration shall contain a detailed statement of the factual and legal grounds upon which reversal or modification is deemed warranted, specifying any errors of law made or information not previously considered.

(2)        Request for reconsideration of a decision of the Designated Hearing Officer shall be filed not later than ten days after the basis for reconsideration is known or should have been known, whichever is earlier. The term “filed” as used in this section means receipt by the Designated Hearing Officer.

(3)        A request for reconsideration shall be subject to these bid protest procedures consistent with the need for prompt resolution of the matter.

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

§ 130-30-510   Remedies

 

(a)        Remedies Prior to Award. If prior to award the Procurement Officer or the Designated Hearing Officer determines that a solicitation or proposed award of a contract is in violation of law or regulation, then the Procurement Officer or the Designated Hearing Officer shall have the solicitation or proposed award:

(1)        Canceled; or

(2)        Revised to comply with law or regulation.

 

(b)        Remedies After an Award. If after an award the Procurement Officer or the Designated Hearing Officer determines that a solicitation or award of a contract is in violation of law or regulation, then the Procurement Officer or the Designated Hearing Officer may:

(1)        If the person awarded the contract has not acted fraudulently or in bad faith:

(i)         Ratify or affirm the contract provided it is determined that doing so is in the best interest of OPA; or

(ii)        Terminate the contract and the person awarded the contract shall be compensated for the actual expenses reasonably incurred under the contract, plus a reasonable profit, prior to termination;

(2)        If the person awarded the contract has acted fraudulently or in bad faith:

(i)         Declare the contract null and void; or

(ii)        Ratify or affirm the contract if such action is in the best interests of OPA, without prejudice to OPA's rights to such damages as may be appropriate.

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

§ 130-30-515   Effective Date

 

All protests as to the manner of bidding, the failure to properly award a bid, the failure of government to contract with a business after bidding, or the cancellation of bids which may or may not be subject of lawsuit but have not reached final judgment as of the effective date of the regulations in Chapter 130-30 shall be heard in accordance with this subpart upon the request of the actual or prospective bidder, vendor, or contractor who is aggrieved.

 

Modified, 1 CMC § 3806(a), (d).

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

Subpart B -    Disputes

 

§ 130-30-520   Disputes

 

(a)        Any dispute between OPA and a contractor relating to the performance, interpretation of or compensation due under a contract, which is the subject of the regulations in Chapter 130-30, must be filed in writing with the Procurement Officer and the Public Auditor within ten calendar days after knowledge of the facts surrounding the dispute.

 

(b)(1)   The Procurement Officer will attempt to resolve the dispute by mutual agreement. If the dispute cannot be settled either party may request a decision on the dispute from the Public Auditor. The Public Auditor shall review the facts pertinent to the dispute, secure necessary legal assistance and prepare a decision that shall include:

(i)         Description of the dispute;

(ii)        Reference to pertinent contract terms;

(iii)       Statement of the factual areas of disagreement or agreement; and

(iv)       Statement of the decision as to the factual areas of disagreement and conclusion of the dispute with any supporting rationale.

(2)        The Public Auditor may require a hearing or that information be submitted on the record, in his discretion.

 

(c)        Duty to Continue Performance. A contractor that has a dispute pending before the official with expenditure authority or the Procurement Officer must continue to perform according to the terms of the contract and failure to so continue shall be deemed to be a material breach of the contract unless he obtains a waiver of this provision by the official with the expenditure authority.

 

Modified, 1 CMC § 3806(d).

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

Part 600 -       [Reserved]

 

Part 700 -       Ethics in Public Contracting

 

Subpart A -    Definitions

 

§ 130-30-701   Definitions of Terms

 

(a)        “Confidential information” means any information which is available to an employee only because of the employee's status as an employee of OPA and is not a matter of public knowledge or available to the public on request.

 

(b)        “Conspicuously” means written in such special or distinctive form, print, or manner that a reasonable person against whom it is to operate ought to have noticed it.

 

(c)        “Direct or indirect participation” means involvement through decision, approval, disapproval, recommendation, preparation of any part of a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing or in any other advisory capacity.

 

(d)       “Financial interest” means:

(1)        Ownership of any interest or involvement in any relationship from which or as a result of which, a person within the past year has received or is presently or in the future entitled to receive compensation; or

(2)        Holding a position in a business such as an officer, director, trustee, partner, employee or the like or holding any position of management.

 

(e)        “Gratuity” means a payment, loan, subscription, advance, deposit of money, services or anything of more than nominal value, present or promised, unless consideration of substantially equal or greater value is received.

 

(f)        “Immediate family” means spouse, children, parents, brothers, and sisters.

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

Subpart B -    Standards of Conduct

 

§ 130-30-705   Policy

 

Public employment is a public trust. In OPA contracting, public employees shall discharge their duties impartially so as to:

 

(a)        Ensure fair competitive access to OPA procurement by reasonable contractors; and

(b)        Conduct themselves in a manner as to foster public confidence in the integrity of the OPA procurement process.

 

Modified, 1 CMC § 3806(g).

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

Commission Comment: The Commission struck a stray “y” after “impartially” in the leading paragraph pursuant to 1 CMC § 3806(g).

 

§ 130-30-710   General Standards

 

(a)        Employees. Any attempt to realize personal gain through public employment by conduct inconsistent with the proper discharge of the employee's duties is a breach of a public trust. In order to fulfill this ethical standard, employees must meet the requirements of the regulations in

Chapter 130-30.

 

(b)        Contractors. Any effort to influence any public employee to breach the standards of ethical conduct set forth in Chapter 130-30 is also a breach of ethical standards.

 

Modified, 1 CMC § 3806(d).

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

§ 130-30-715   Employee Disclosure Requirements

 

(a)        Disclosure of benefit received from contract. Any employee who has, or obtains any benefit from any OPA contract with a business in which the employee has a financial interest shall report such benefit to the Public Auditor.

 

(b)        Failure to disclose benefit received. Any employee who knows or should have known of such benefit and fails to report such benefit is in breach of these ethical standards.

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

§ 130-30-720   Employee Conflict of Interest

 

(a)        Conflict of interest. It is a breach of ethical standards for any employee to participate directly or indirectly in a procurement when the employee knows that:

(1)        The employee or any member of the employee's immediate family has a financial interest pertaining to the procurement; or

(2)        Any other person, business or organization with whom the employee or any member of the employee's immediate family is negotiating or has an arrangement concerning prospective employment is involved in the procurement.

 

(b)        Discovery of actual or potential conflict of interest, disqualification and waiver. Upon discovery of an actual or potential conflict of interest, an employee shall promptly file with the Procurement Officer a written statement of disqualification and shall withdraw from further participation in the transaction involved.

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

§ 130-30-725   Gratuities and Kickbacks

 

(a)        Gratuities. It shall be a breach of ethical standards for any person to offer, give or agree to give any employee or former employee, or for any employee or former employee to solicit, demand, accept or agree to accept from another person, a gratuity or an offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to any program requirement or a contract or subcontract or to any solicitation or proposal therefor.

 

(b)        Kickbacks. It shall be a breach of ethical standards for any payment, gratuity, or offer of employment to be made by or on behalf of a subcontractor under a contract to the prime contractor or higher tier subcontractor or any person associated therewith as an inducement for the award of a subcontractor or order.

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

§ 130-30-730   Prohibition Against Contingent Fees

 

(a)        Contingent fees. It shall be a breach of ethical standards for a person to be retained, or to retain a person, to solicit or secure OPA contracts upon an agreement or understanding for a commission, percentage, brokerage or contingent fee, except for retention of bona fide employees or bona fide established commercial selling agencies for the purpose of securing business.

 

(b)        Representation of contractor. Every person, before being awarded an OPA contract, shall represent, in writing that such person has not retained anyone in violation of this section. Failure to do so constitutes a breach of ethical standards.

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

§ 130-30-735   Contract Clauses

 

The prohibitions against gratuities, kickbacks and against contingent fees shall be conspicuously set forth in every contract and solicitation therefor.

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

§ 130-30-740   Restrictions on Employment of Present and Former Employees

 

(a)        Present employees. It shall be a breach of ethical standards for any employee who is participating directly or indirectly in the procurement process to become or be, while such an employee, the employee of any person contracting with OPA by whom the employee is employed.

 

(b)        Restrictions on former employees in matters connected with their former duties. Permanent disqualification of former employee personally involved in a particular matter. It shall be a breach of ethical standards for any former employee knowingly to act as a principal, or as an agent for anyone other than the government, in connection with any:

(1)        Judicial or other proceeding, application, request for a ruling or other determination;

(2)        Contract;

(3)        Claim; or

(4)        Charge or controversy, in which the employee participated personally and substantially through decision, approval, disapproval, recommendation, rendering of advice, investigation, or otherwise while an employee, where the government is a party or has a direct or substantial interest.

 

(c)        Disqualification of business when an employee has a financial interest. It shall be a breach of ethical standards for a business in which an employee has a financial interest knowingly to act as a principal, or as an agent for anyone other than government, in connection with any:

(1)        Judicial or other proceeding, application, request for a ruling or other determination;

(2)        Contract;

(3)        Claim; or

(4)        Charge or controversy, in which the employee either participates personally and substantially through decision, approval, disapproval recommendation, the rendering of advice, investigation, or otherwise, or which is the subject of the employee's official responsibility, where OPA is a party or has a direct and substantial interest.

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

§ 130-30-745   Use of Confidential Information

 

It shall be a breach of ethical standards for any employee or former employee to knowingly use confidential information for actual or anticipated personal gain, or the actual or anticipated personal gain of any other person.

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

§ 130-30-750   Collusion by Bidders

 

Collusion or secret agreements between bidders for the purpose of securing an advantage to the bidders against the authorizing agent in the awarding of contracts are prohibited. The Public Auditor may declare the contract void if he finds sufficient evidence after a contract has been let that contract was obtained by a bidder or bidders by reason of collusive or secret agreement among the bidders to the disadvantage of OPA.

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

§ 130-30-755   Civil and Administrative Remedies

 

In addition to existing remedies provided by law, any person who violates any of the provisions of the regulations in Chapter 130-30 may be subject to one or more of the following:

 

(a)        OPA employees.

(1)        An employee who violates the provisions of the rules and regulations in Chapter 130-30 is subject to adverse action as may be appropriate in his or her particular circumstances.

(2)        This action includes but is not limited to reprimand, suspension without pay, termination of employment, civil injunction, civil suit for damages or return of government money, or criminal prosecution.

 

(b)        Contractors. A contractor who violates a provision of the rules and regulations in Chapter 130-30 shall be subject to a written warning of reprimand, the termination of the contract, or suspension from being a contractor or subcontractor under an OPA contract in addition to other penalties prescribed by law.

 

(c)        All proceedings under this section must be in accordance with due process requirements.

 

Modified, 1 CMC § 3806(d).

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

§ 130-30-760   Authority to Debar or Suspend

 

(a)        Authority. After reasonable notice to the person involved and reasonable opportunity for the person to be heard under the Administrative Procedure Act (1 CMC §§ 9101, et seq.), the Public Auditor and the Attorney General shall have authority to debar a person for cause from consideration for award of contracts. The debarment shall not be for a period of more than three years. The Public Auditor and the Attorney General shall have authority to suspend a person from consideration for award of contracts if there is probable cause for debarment. The suspension shall not be for a period exceeding three months.

 

(b)        Causes for debarment or suspension. The causes for debarment or suspension include the following:

(1)        Conviction for commission of a criminal offense is an incident to obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of such contract or subcontract;

(2)        Conviction under Commonwealth or federal statutes of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property, violation of the Consumer Protection Act (4 CMC §§ 5101, et seq.), violation of any unfair business practices as prescribed by 4 CMC § 5202, or any other offense indicating a lack of business integrity or business honesty which currently, seriously, and directly affects its responsibility as a government contractor;

(3)        Conviction under Commonwealth or federal antitrust statutes arising out of the submission of bids or proposals such as in chapter 2 of division 5 of title 4 of the Commonwealth Code;

(4)        Violation of contract provisions, as set forth below, of a character which is regarded by the Public Auditor to be so serious as to justify debarment action:

(i)         Deliberate failure without good cause to perform in accordance with the specifications within the time limits provided in the contract; or

(ii)        A recent record of failure to perform or of unsatisfactory performance in accordance with the terms of one or more contracts; provided that failure to perform or unsatisfactory performance caused by acts beyond the control of the contractor shall not be considered a basis for debarment;

(5)        Any other cause that the Public Auditor determines to be so serious and compelling as to affect responsibility as an OPA, including debarment by another governmental entity; or

(6)        For violation of any of the ethical standards set forth in part 700.

 

(c)        Decision. The Public Auditor shall issue a written decision to debar or suspend. The decision shall state the reasons for the action taken.

 

(d)       Notice of decision. A copy of the decision shall be mailed or otherwise furnished immediately to the debarred or suspended person. A copy of the decision shall also be provided to other Commonwealth procurement offices.

 

Modified, 1 CMC § 3806(g).

 

History: Amdts Adopted 38 Com. Reg. 38404 (Aug. 28, 2016); Amdts Proposed 38 Com. Reg. 37923 (May 28, 2016).

 

Commission Comment: The Commission changed brackets to parentheses and struck the commas after “Attorney General” in (a) pursuant to 1 CMC § 3806(g).