[ad_1]
THE Supreme Courtroom has reinstated the order issued by the Regional Trial Courtroom of Olongapo Metropolis in 2012 which compelled the Subic Bay Metropolitan Authority (SBMA) to award the P5.5-billion contract to Harbour Centre Port Terminal, Inc. (HCPTI) for the event, operation and administration of a number of ports contained in the Subic Particular Financial and Freeport Zone.
In a 28-page choice, the Courtroom’s Third Division reversed and put aside the August 8, 2013 choice issued by the Courtroom of Appeals (CA).
The CA’s choice overturned the Olongapo RTC’s 2012 order granting HCPTI’s petition for the issuance of mandamus directing the SBMA to difficulty a discover of award (NOA) and spot to proceed (NTP) for its joint-venture challenge protecting the Naval Provide Deport, Boton, Alava, Rivera and Bravo Wharfs/Level.
It additionally reminded authorities entities to watch legal guidelines and guidelines it set governing its tasks being undertaken with personal entities.
“The one duty-bound to make sure observance with legal guidelines and guidelines shouldn’t be those to depart therefrom. The violation by the federal government of the principles itself would stain the credibility of the funding atmosphere,” the Courtroom harassed.
The SBMA obtained an unsolicited proposal from HCPTI on November 16, 2009, to enter into an unincorporated three way partnership (JV) for the event, operation and administration of the mentioned ports.
The proposed JV sought to consolidate break-bulk, bulk and different important port companies to attain effectivity of port sources.
The unsolicited proposal was made pursuant to the 2008 Pointers and Procedures for coming into into JVAs between authorities and personal entities issued by the Nationwide Financial and Improvement Authority (Neda).
“On this case, all of the requisites for the issuance of the NOA had already been complied with. The existence of those requisites gave rise to a transparent authorized proper in favor of petitioner and correlative ministerial obligation upon SBMA,” the Courtroom mentioned.
“It seems that there isn’t any authorized proper or contractual impediment to the issuance of the NTP. Therefore, the identical should even be issued to petitioner in preparation for the implementation of the three way partnership settlement, and in order that the events could begin complying with different situations precedent stipulated therein,” it added.
The SC mentioned there isn’t any regulation justifying the non-issuance of the NOA because of the withdrawal of the NEDA endorsement, contemplating that HCPT has complied with all of the authorized requisites for the issuance of such.
“As such, a writ of mandamus could difficulty to compel SBMA to carry out its authorized obligation,” the SC harassed.
The Neda, on July 5, 2021, withdrew its endorsement of the challenge based mostly on alleged violation of the 2008 JV tips, such because the execution of the settlement as early as stage two of the method, and a supposed materials change within the challenge value from roughly P763 million to P5.37 billion after the competitors problem.
The SBMA sought a reconsideration; nonetheless, its board issued a decision deferring motion on the award of the challenge to HCPTI pending Neda’s response.
As a consequence of SBMA’s failure and refusal to difficulty the NOA and NTP, petitioner filed a petition for mandamus earlier than the Olongapo RTC.
In the course of the pendency of the RTC proceedings, Neda denied SBMA’s request for reconsideration and reiterated its withdrawal on September 30, 2011.
After a month, the Workplace of the Authorities Company Counsel (OGCC), which initially discovered the settlement legitimate, advisable that the issuance of the NOA be suspended in mild of Neda’s withdrawal of its endorsement and pending additional research of the JVA.
In granting HCPTI’s petition, the Courtroom famous that beneath the 2008 JV tips, a JV associate could also be picked by way of choice or negotiated settlement, which a authorities entity could enter into when it receives an unsolicited proposal from the personal sector.
It added that in all instances the place the federal government entity immediately negotiates with a non-public sector participant for a proposed JV enterprise, the negotiated phrases shall be subjected to a contest problem.
A aggressive problem is another choice course of the place third events are invited to submit comparative proposals to an unsolicited proposal.
Negotiated agreements are subjected to a three-stage course of – the submission of an unsolicited proposal to the federal government entity, the negotiations on the phrases and situations of the JV exercise and the conduct of a aggressive problem.
“On this case, petitioner had already undergone all three levels and complied with all of the requisites for the instant award of the JV exercise. Petitioner submitted an unsolicited proposal, underwent negotiations, arrived at an settlement with SBMA, and accomplished the competitors problem with out contest,” the SC famous.
“Thus, the CA erred in ruling that petitioner has no proper to the issuance of the NOA as a result of the events had but to conduct a Swiss problem. The aggressive problem beneath Annex C of the 2008 JV Pointers is what was known as the Swiss Problem, having been patterned after the Swiss problem technique,” it added.
The SC additionally gave weight to the favorable opinion issued by the OGCC affirming the JVA’s legality.
“The OGCC’s subsequent suggestion to droop the issuance of the NOA doesn’t erase the actual fact of prior compliance. The favorable OGCC opinion was not ‘revoked’ or ‘amended’…” the SC harassed.
The SC added that the favorable OGCC opinion is just not even a situation for issuing the NOA.
Likewise, the SC famous that the 2008 JV tips doesn’t require a brand new endorsement and approval of the JVA.
“There is no such thing as a authorized foundation for the suspension of the issuance of the NOA as a result of Neda’s withdrawal of its endorsement. The 2008 JV Pointers doesn’t require Neda’s endorsement or approval,” the Courtroom harassed.
The SC additionally mentioned there isn’t any foundation to Neda’s declare that the challenge value was initially fastened at P763 million.
Opposite to Neda’s declare, the SC mentioned information present that the challenge value, income shares and different materials monetary elements of the JV had been included within the tender paperwork, which had been then used as foundation for the aggressive problem. The tender paperwork present that the estimated direct challenge value was pegged at roughly P5.524 billion–
[ad_2]
Source link