Академический Документы
Профессиональный Документы
Культура Документы
14, 2007
July 25, 2009 at 11:12 am (1)
FACTS :
This a petition for certiorari and prohibition to set aside and nullify Res. No. PJHLA-04-012 dated May 27, 2004 issued by the Bids and Action Committee (BAC) of
the DPWH. This resolution recommended the award to private respondent China
Road and Bridge Corporation of the contract which consist of the improvement
and rehabilitation of a 79.818-km road in the island of Catanduanes.
Based on an Exchange of Notes, Japan and the Philippines have reached an
understanding that Japanese loans are to be extended to the country with the
aim of promoting economic stabilization and development efforts.
In accordance with the established prequalification criteria, eight contractors
were evaluated or considered eligible to bid as concurred by the JBIC. Prior to the
opening of the respective bid proposals, it was announced that the Approved
Budget for the Contract (ABC) was in the amount of P738,710,563.67.
Consequently, the bid goes to private respondent in the amount of
P952,564,821.71 (with a variance of 25.98% from the ABC). Hence this petition
on the contention that it violates Sec. 31 of RA 9184 which provides that :
Sec. 31 Ceiling for Bid Prices. The ABC shall be the upper limit or ceiling for
the bid prices. Bid prices that exceed this ceiling shall be disqualified outright
from further participating in the proceeding. There shall be no lower limit to the
amount of the award.
The petitioners further contends that the Loan Agreement between Japan and
the Philippines is neither an international nor an executive agreement that would
bar the application of RA9184. They pointed out that to be considered as such,
the parties must be two (2) sovereigns or states whereas in this loan agreement,
the parties were the Philippine government and the JBIC, a banking agency of
Japan, which has a separate juridical personality from the Japanese government.
ISSUE :
Whether or not the assailed resolution violates RA 9184.
RULING :
The petition is dismissed. Under the fundamental principle of international law of
pacta sunt servanda, which is in fact, embodied is Section 4 of RA9184, any
treaty or international or executive agreement affecting the subject matter of
this Act to which the Philippine government is a signatory, shall be observed.
The DPWH, as the executing agency of the project financed by the Loan
Agreement rightfully awarded the contract to private respondent China Road and
Bridge Corporation.
The Loan Agreement was executed and declared that it was so entered by the
parties in the light of the contents of the Exchange of Notes between the
government of Japan and the government of the Philippines dated Dec. 27,
1999. Under the circumstances, the JBIC may well be considered an adjunct of
the Japanese government. The JBIC procurement guidelines absolutely prohibits
the imposition of ceilings and bids.
G. R. No. 167919
February 14, 2007
Plaridel M. Abaya vs. Hon. Secretary Hermogenes E. Ebdane, Jr.
FACTS:
On May 7, 2004 Bids and Awards Committee (BAC) of the Department of Public
Works and Highways (DPWH) issued a Resolution No. PJHL-A-04-012. It was
approved by DPWH Acting Secretary Florante Soriquez. This resolution
recommended the award to China Road & Bridge Corporation of the contract for
the implementation of civil works for Contract Package No. I (CP I), which consists
of the improvement/rehabilitation of the San Andres-Virac-Jct. Bago-Viga road,
with the lengt of 79.818 kilometers, in the island province of Catanduanes.
This Loan Agreement No. PH-204 was executed by and between the JBIC and the
Philippine Government pursuant to the exchange of Notes executed by and
between Mr. Yoshihisa Ara, Ambassador Extraordinary and Plenipotentiary of
Japan to the Philippines, and then Foreign Affairs Secretary Siazon, in behalf of
their respective governments.
ISSUE:
Whether or not the Loan Agreement No. PH-204 between the JBIC and the
Philippine Government is a kind of a treaty.
HELD:
The Loan Agreement No. PH-204 taken in conjunction with the Exchange of Notes
dated December 27, 1999 between the Japanese Government and the Philippine
Government is an executive agreement.
An exchange of notes is a record of a routine agreement that has many
similarities with the private law contract. The agreement consists of the
exchange of two documents, each of the parties being in the possession of the
one signed by the representative of the other.
treaties, agreements, conventions, charters, protocols, declarations,
memoranda of understanding, modus vivendi and exchange of notes all are refer
to international instruments binding at international law.
Although these instruments differ from each other by title, they all have common
features and international law has applied basically the same rules to all these
instruments. These rules are the result of long practice among the States, which
have accepted them as binding norms in their mutual relations. Therefore, they
are regarded as international customary law.
That case was dismissed by the SCORP last Feb. 14 2007.
What the petitioners wanted was that Foreign funded projects also undergo the
procurement process.
The dismissal of the case somehow gave justification for the delay of the
implementing rules for foreign funded projects (IRR-B) of the procurement law If
we recall the decision of the Abaya vs Ebdane was used by the DOJ when the
DOTC Secretary was asking for an opinion from the former, during the ZTE
controversy.as ruled by the Supreme Court in Abaya v. Ebdane, an exchange of
notes is considered a form of an executive agreement, which becomes binding
through executive action without need of a vote by the
Senate and that (like treaties and conventions, it is an international instrument
binding at international law,
The second issue involves an examination of the coverage of Republic Act No.
9184, otherwise known as the Government Procurement Reform Act. Section 4
of the said Act provides that it shall
apply to: the Procurement of infrastructure Projects, Goods and Consulting
Services, regardless of source of funds, whether local or foreign, by all branches
and instrumentalities of government, its departments, offices and agencies,
including government-owned and/or -controlled corporations and local
government units, subject to the provisions of Commonwealth Act No. 138. Any
treaty or international or executive agreement affecting the subject matter of
this Act to which the Philippine government is a signatory shall be observed.
Facts:
the government of the japan and the government of the philippines, through
their duly authorized representatives, reached an understanding concerning
japanese loans to be extended to the philippines, by way of exchanging of notes.
These loans were said to be aimed at promoting the country's economic
stabilization and development efforts. Particulaly, the loan was set for the
rehabilitation of San Andres (Codon)-Virac-Jct. Bago-Viga road, with the length of
79.818 kilometers, in the island province of Catanduanes. The project, named CP
I, is one of the four packages comprising the project for the improvement of the
catanduanes circumferential road.
The works was put up for bidding to interested contractors. By virtue of
Under the principle of Pacta Sunt Servanda, which provides for the performance
in good faith of any international or executive agreement, or treaty, the DPWH,
as executing agency of the project has rightfully and dutifully awarded the bid to
china road and bridge corporation.
The petition is thereby dismissed.