Kaliwa Dam’s left-field risks

There is renewed public interest about the Kaliwa Dam project due to the alarming findings by the Commission on Audit that the contract for the major water infrastructure project was rigged in favor of its winning bidder, China Energy Engineering Co. (CEEC) Ltd.

The country’s audit agency said CEEC bagged the project despite its failure to submit the required documents, giving the impression that the public bidding was actually a negotiated procurement in disguise.

This issue raises a clear red flag, because public bidding policy and practice automatically disqualifies bidders that fail to submit required documents, since official action tending to show liberality in the enforcement of bidding rules may be construed as bias for specific bidders.

In fact, in the case of the public bidding for the country’s third telco player, the Department of Information and Communications Technology’s bids and awards committee was very strict in implementing its rules, and disqualified bidders that failed to follow its procedures to the letter.

There was no reason for the Metropolitan Waterworks and Sewerage System (MWSS) to have green-lighted CEEC’s bid if the company had patently failed to submit the required bidding documents. Instead, the MWSS should have declared a failure of bidding and scheduled a new one, as has been the bidding policy and practice across all of government.

The Kaliwa Dam project’s woes do not end there. As a result of the audit report, the MWSS now has to answer to the Philippine Competition Commission (PCC) on whether it committed anticompetitive behavior by seemingly rigging the bidding for the P18.7-billion project.

The Kaliwa Dam contract should be a simple open-and-shut case for the PCC, because the rules of government public bidding have been long defined by law, regulation and jurisprudence: There should be no doubt that failure to submit the required documents merits the outright rejection of bids or the disqualification of bidders.

Further, even if the MWSS continues to downplay the grassroots objections in the affected local governments and communities, not a single concrete block will be built without these approvals on the local level.

The continuing objection of the local government of Infanta, Quezon, is a major regulatory roadblock for the dam project, because Sections 26 and 27 of the Local Government Code (LGC) require the approval of LGU legislative councils affected by projects that may cause the loss of cropland, rangeland or forest cover. Certainly, the Kaliwa Dam will cause all of these things to Infanta.

Contrary to the MWSS’ statements, the approvals made by Quezon province or by the Calabarzon regional development council are insufficient to comply with the specific LGC requirement of legislative council approval.

Moreover, indigenous communities are also objecting to the dam project. It is therefore critical that the permitting process for indigenous peoples be closely monitored, particularly the “free, prior and informed consent” mechanism, because the dam project does not only deal with the use of ancestral domain for an environmentally critical project, it also deals with the loss of ancestral domain, with indigenous areas at risk of being submerged and rendered unusable by indigenous groups.

Most significantly, the Kaliwa Dam project is ripe for a writ of kalikasan petition. With regulatory and environmental objections involving local governments and communities in the provinces of Quezon and Rizal, it would not be surprising if affected communities decide to resort to this extraordinary remedy.

It should serve as fair warning to the government that previous Kalikasan proceedings had effectively suspended and delayed major environmentally critical projects similar to the Kaliwa Dam. In fact, in a previous Kalikasan case involving a proposed major power plant, project implementation has been suspended and delayed for the last seven years and counting.

No question that a new water source should be developed for Metro Manila and its surroundings. The recent water crisis is a testament to this urgent need. But the government should be reminded that fundamental to national critical infrastructure is not only to build and do it fast, but also to build and do it right.
—-
Terry Ridon is the convenor of Infrawatch PH and former chief of the urban poor commission under the Duterte administration.