Pago Pago, AMERICAN SAMOA — Klaod Solutions, a local company owned by Kenn and Luisa Kuaea has filed a lawsuit against the American Samoa Government Office of Procurement in relation to the ASG websystem,TALOFAPass contract awarded on August 19, to the DataHouse Consulting, Inc. for the amount of $6.35 million, which covers a period of 3 years.

The complaint for declaratory judgment was filed earlier this month by Kueau through their lawyer Thomas B. Jones and Associates.

The 19-page complaint indicates that the issue stems from the procurement process leading to the award of a large contract by the American Samoa Government. The plaintiff alleges that the procurement procedures that led to the awarding of such contract was in violation of American Samoa law, including the American Samoa Procurement Act of 1983.

“The Procurement Rules set forth the procedure for appealing a final decision of the Chief Procurement Officer as follows; appeals of a procurement officer’s final decision in a dispute may be made within 60 days of the date of the decision, provided such appeal is submitted in writing to the Governor.

“The Governor shall appoint a board of at least three persons knowledgeable of procurement to review such appeals and recommend appropriate action to the Governor.

“None of the board members shall have participated in the action under appeal. At least one of the board members shall be a qualified attorney. Hearing procedures and documentation shall be as set forth in the Administrative Procedure Act.”

However this procedure was modified by the subsequent enactment of the Administrative Law Judge Act, which says the ALJ shall have jurisdiction to conduct hearings and issue decisions, with regards to the following matters.

“To take appeals of procurement officer's final decision in a procurement bidding dispute as described in section 10.0282 [A.S.A.C.]

“The Governor’s authority to appoint a three member board to hear disputes of matters pertaining to procurement disputes is hereby repealed. A.S.C.A. § 4.0604.”

The plaintiffs, appealed against a final decision of the Chief Procurement Officer rendered in September 2021 and filed its appeal with the Governor’s Office and with the Administrative Law Judge on November 19, 2021.

In their appeal to the Administrative Law Judge alleges ASG issued a request for proposals (RFP) for American Samoa Government Safe Travel System for a complex project, namely a single portal, multi-modular information management system that would coordinate the safe passage of tens of thousands of travelers to and from American Samoa.

“However, the RFP only provided five days to submit a bid for the project with a submission deadline of August 6, 2021 and a “recommended launch date” for the site as August 20, 2021.

“Given this exceedingly short deadline for such a large project – which suggested that the RFP was not designed to attract responsive bidders – Klaod requested an extension and the Procurement Office moved the deadline to August 11, 2021.

“Klaod submitted its proposal, which met all of the specifications of the RFP, on August 11, 2021. Despite Klaod’s competitive advantage as a local bidder, and the fact that its bid was more than $1 million less, the contract was awarded to an off-island company, DataHouse Consulting, Inc., on August 19, 2021.”

According to the plaintiff’s information and belief, it suggests that DataHouse Consulting was the presumptive contract awardee prior to the public announcement of the request for proposal, a situation that violated numerous procurement laws.

This conclusion is based on several factors and the plaintiff alleges the Safe Travel System Talofa Pass website went live prior to the announcement of the award, clearly demonstrating that DataHouse constructed the website prior to the award of the contract; it thus follows that DataHouse had advanced knowledge not only of the RFP, but that they would be awarded the contract.

Klaod Solutions accordingly says it has substantial reason to believe that DataHouse was pre-selected as the awardee of the multi-million dollar STS contract and that its receipt of the contract violated American Samoa procurement laws.

“Following notification that it had not been selected for the contract award, on August 19, 2021, Klaod submitted a request for reconsideration of decision to the Chief Procurement Officer and received no response.

“On August 23, 2021, Klaod submitted an appeal to the Chief Procurement Officer against his decision. On September 30, 2021, the Chief Procurement Officer sent a letter to Klaod denying its appeal and confirming that the procurement award decision granting the contract to DataHouse was final. 

“On November 19, 2021, Klaod submitted its formal appeal in writing against the final decision of the Chief Procurement Officer to the Governor’s Office and to the Administrative Law Judge (ALJ) in accordance with the procedures set forth in A.S.A.C. § 10.0282(c) and in light of the ALJ’s jurisdiction to hear such appeals under A.S.C.A. § 4.0604(f).”

However on December 9, 2021, ASG filed a Motion to Dismiss the complaint at the ALJ.

In conclusion, the ALJ ruled that in short Klaod must await a referral by the Governor of its appeal before this tribunal may review and recommend a decision to the Governor based on the merits of its case.

“As of the date of this Complaint, no response had been received and the Governor’s Office had still done nothing to refer the matter to the ALJ, more than 6 months after the appeal was filed.”

The plaintiff asserts that a declaratory judgment is appropriate in this matter because an actual controversy exists stemming from the duty of a party to the matter, namely, the Governor of American Samoa.

“The fact that this is a justiciable issue such that declaratory relief would be appropriate is evident from the fact that, in the absence of relief from this Court, the parties would have no other option than to file a complaint against the American Samoa Government for violation of the procurement laws of American Samoa.”

In the alternative, if the Court should not be inclined to issue a declaratory judgment, plaintiff respectfully petitions the Court to issue a writ of mandamus compelling the Governor to fulfill his legal duty to refer these procurement appeals to the ALJ.

“Plaintiff submits that all of the prerequisites for such a writ to issue have been met.”

The plaintiff is seeking the court’s indulgence to issue a declaratory judgment, pursuant to A.S.C.A § 43.1101, stating that the Governor’s Office of the American Samoa Government is required, as a matter of law, to refer appeals against a final decision of the Chief Procurement Officer to the Administrative Law Judge without undue delay, and in any event within 60 days of their receipt.

“In the alternative, issue a writ of mandamus to the Governor’s Office to fulfil his legal duty under A.S.A.C. 10.0282(c) and A.S.C.A. 4. 0604(f)by immediately referring the Plaintiff’s appeal to the Administrative Law Judge;

“Award to Plaintiff — court costs as well as reasonable attorneys’ fees in light of the bad faith attempts by ASG to undermine the lawful procedure for appeals of final procurement decisions…”