Another case lost in court

The Bases Conversion and Development Authority (BCDA) under Arnel Casanova has lost again in the Supreme Court. In a decision promulgated last week, the tribunal stopped the BCDA from holding a public bidding for the development of 33.1 hectares of land in Bonifacio South in Taguig City acquired by SM Land Inc. (SMLI) through an unsolicited proposal. The answer to the BCDA’s problem, the tribunal said, is a Swiss challenge, or a higher offer from an interested party.

In 2009, SMLI offered to develop the 33.1-hectare Bonifacio lot for P23-24 billion. The BCDA accepted the offer and a contract called a certification of successful negotiation was accomplished between the two parties.

The BCDA later canceled that contract and decided to hold a public bidding for the property, claiming that it would get a higher price through such a bidding. SMLI went to court.

On Aug. 13, 2014, the Supreme Court decided in favor of SMLI, affirming the legality of the agreement. The BCDA, now under Casanova, filed a motion for reconsideration which the tribunal rejected last week with finality, meaning that no more motion for reconsideration would be entertained.

The BCDA’s reaction to that decision was strange. It claimed that the tribunal’s ruling “disregards national security and threatens the level playing field for business.” But on the contrary, reneging on perfected contracts and changing policies in midstream have been hounding the investment climate for years. Casanova, who happens to be a lawyer himself, seems to be championing that practice. No wonder that with less than a year left in his term, he does not have enough PPP (public-private partnership) projects to show.

One recent example is Casanova’s attempt to bid out the 254-hectare Clark Green City project. The bidding was scheduled last April 17, but no proposal was received from any private company. It was Casanova himself who announced the bid failure to the media. I wonder if the second attempt to bid it out will still attract companies, given the perception that under the present BCDA no contract is sacred anymore.

In its ruling last week, the Supreme Court said a valid contract exists between the two parties, such that its breaching has resulted in the filing of a complaint against the BCDA.

“The elements of a valid contract being present, there, thus, exists between SMLI and BCDA a perfected contract embodied in the Certification of Successful Negotiation, upon which certain rights and obligations spring forth, including the commencement of activities for the solicitation for comparative proposals,” the tribunal said.

It added: “The agreement is the law between the contracting parties with which they are required to comply in good faith. Verily, it is the BCDA’s subsequent unilateral cancellation of this perfected contract which this Court deemed to have been tainted with grave abuse of discretion.”

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So far, Pagcor (Philippine Amusement and Gaming Corp.) has been the biggest contributor to the administration’s campaign to provide more public-school classrooms nationwide. It has donated P10 billion to the campaign, with the addition of P3 billion to the school-building program of the Department of Education and the Department of Public Works and Highways. The release of the P3 billion coincided with the inauguration of two new school buildings of Tarlac High School in Tarlac City, which was witnessed by President Aquino.

Pagcor Chair and CEO Cristino Naguiat Jr. said the additional funding will ensure that more public schools in far-flung communities will have new classrooms. “We embarked on the project five years ago bearing in mind President Aquino’s directive to us to help address the basic problems in the education sector, such as the lack of classrooms,” Naguiat said. “The P10-billion allocation for the school-building project is the biggest funding ever provided by our agency for a single project in Pagcor’s history.”

Under the program, the DepEd identifies the public schools that are in need of new classrooms while the DPWH builds the classrooms.

Out of almost 4,000 classrooms being built with the initial P7-billion funding, 1,124 rooms in 230 sites have been completed; the rest are still under construction. To date, Pagcor’s classroom-building program has reached even far-flung communities across the country, including Tawi-Tawi, Sultan Kudarat, Cotabato, Lanao del Sur, Catanduanes, Palawan, Bukidnon, Masbate, Compostela Valley and Bogo City and Bantayan Island in Cebu.

Close to 1,300 typhoon-resistant classrooms are being constructed in over 300 sites devastated by Typhoon “Yolanda.” The classrooms, which can cost up to P1.6 million each, are more expensive than typical classrooms because they are designed to withstand strong typhoons and floods. Building the classrooms in far-flung communities are also more expensive because the construction materials have to be transported to these remote areas.

Pagcor-funded classrooms are also more spacious. They have higher ceilings and are elevated to withstand floods. Each room can accommodate 60 students with ample space in which to move around.