Supreme Court certification recommended amid Puerto Rico Housing program controversy
SAN JUAN — The parties involved in a dispute over the management contract of the Puerto Rico Housing Department’s “Tu Hogar Renace” project should agree to present a certification recourse with the Supreme Court so the dispute is solved on its merits as soon as possible and not put at risk the efforts to assist families affected by Hurricane Maria, lawyer and analyst Domingo Emanuelli recommended.
For Emanuelli, an expert in administrative law, what the Court of Appeals determines does not matter if the dispute goes back for reconsideration next week. The losing party will end up appealing to the Supreme Court, where the final ruling will be made.
“The ones who could be most affected here could be those who requested help to repair their homes. This is the perfect kind of case to be taken by certification to the Supreme [Court] for whichever company [is chosen] to be able to continue the work,” he said.
The “Tu Hogar Renace” program is overseen by the local Housing Department through a $1.3 billion allocation from the Federal Emergency Management Agency. Its goal is to help homeowners perform minor repairs to their properties so they may use them as shelter while permanent constructions are finished.
To coordinate the project, Housing awarded a $133 million contract to Adjusters International, arguing it was the lowest bidder of the two competing companies in the request for proposals (RFP) process.
AECOM, which lost the bid, requested a review. Last week, the Bid Review Board issued a resolution stating that the contract with Adjusters was null and void for not having been awarded according to the parameters provided by the RFP and recommending that Housing Secretary Fernando Gil Enseñat suspend it, which he ordered.
Adjusters then requested the Appeals Court to halt said suspension until the controversy was not heard on its merits and for the resolution of the review board to be declared null.
One of the company’s main arguments is that the review board acted ultra vires because it issued its resolution past the date established by law and that the board was not duly constituted. Regulations require the board be named by the Housing Secretary, who on this occasion asked the Justice secretary to appoint three of her department’s lawyers to serve as board members.
The Court of Appeals determined Thursday afternoon that the board’s resolution was futile, not because it was issued past the deadline, but for not giving the parties notice of their right to appeal in court.
“From a mere reading of the Final Resolution…we realized it does not contain the due process warnings ordered by Section 3.14 of the Uniform Administrative Procedures Act (LPAU). The Review Board did not warn the parties of their right to request an appeal for judicial review before this Court, as well as the corresponding terms to urge it,” the document reads.
That defect left the Court of Appeals without jurisdiction, which in turn revoked its own order to paralyze the cancellation of the contract.
Adjusters’ legal representative, Eric Pérez Ochoa of Adsuar Muñiz Goyco Seda & Pérez-Ochoa PSC, believes the Court of Appeal’s ruling Thursday could kill the administrative determination, since “if they were late when they issued it, now they are very late.” Pérez Ochoa’s argument is that the review board lost jurisdiction when the deadline to make a determination in the controversy expired.
However, Emanuelli believes that when the decision of an administrative forum has a defect in its notification, the Supreme Court holds that it does not remain without effect but requires that the error is corrected by making the notification according to the law so it enters into force and consequently may be appealed before the corresponding forum.
“The board’s determination is in force, but cannot be appealed until it is properly notified,” the lawyer said.
Emanuelli also indicated that the fact that the Court of Appeals granted the stoppage of the order suspending the contract implies that, in its review of the case, it saw valid elements in Adjusters’ claim.
“In the end, the Supreme [Court] will end up deciding this, so it is advisable to request a certification and that it be the top forum that evaluates this quickly to avoid further losses for the parties, but even more so for the people of Puerto Rico,” he stated.