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ILOILO
Vice Gov. Rolex Suplico on Wednesday asked the Supreme
Court to scrap the government’s deal with China’s ZTE
Corp. to set up a US$330- million national broadband
network (NBN) for being unconstitutional.
Aside
from a temporary restraining order and writs of
prohibition or permanent injunction or both, Suplico
also asked the Court to issue a writ of mandamus
compelling respondents to produce all documents
pertaining to the NBN so the public would know the
actual terms and conditions of the said agreement.
“Certainly, in view of the monumental importance of the
NBN, and, in further view of the cost of the project to
the government and the Filipino people, the public has
the right to be informed of the exact terms and
conditions of the Department of Transportation and
Communication (DOTC)-ZTE broadband deal,” Suplico said.
In a
129-page petition, Suplico, who is a member
Telecommunication and Broadcast Lawyers of the
Philippines Incorporated (Telebap), also asked the Court
to set the case for oral arguments.
He
insisted that the NBN contract between the DOTC and ZTE
should be annulled as it violates Republic Act 9184 or
the Government Procurement Act, which requires that all
public procurement activities must be done through
public bidding.
Likewise, the NBN deal violated the
build-operate-transfer law which requires that in case
of unsolicited proposals, “no direct guarantee, subsidy
or equity is required.”
Named
respondents in the case were former National Economic
Development Authority (Neda) Director General Romulo
Neri, the Neda Investment Coordination Committee,
Transportation Secretary Leandro Mendoza, Commission on
Information and Communications Technology (ICT) Chairman
Ramon Sales, Bids and Awards for ICT headed by DOTC
Assistant Secretary Elmer Soneja and the Technical
Working Group for ICT, DOTC Assistant Secretary Lorenzo
Formoso, and all other operating units of the DOTC for
ICT and ZTE Corp., Amsterdam Holdings Inc., and Arescom
Inc.
Suplico
explained that under RA 9184 “all procurement of the
national government, its departments, bureaus, offices
and agencies including state universities and colleges,
government-owned and -controlled corporations,
government financial institutions and local governments.
Section
4 of the said provisions states 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.”
He said
based on the said provisions, the procurement of NBN is
governed by RA 9184 as well as Section 5 of the said
law, which defines infrastructure projects as “the
construction, improvement, rehabilitation, demolition,
repair, restoration or maintenance of … civil works
components of information technology projects.”
Section
5 of RA No. 9184, according to Suplico, also required
that all procurement shall be done through competitive
bidding.
He added
that negotiated procurement is allowed only in cases of
two failed biddings; if there is imminent danger to life
property during a state of calamity; in case of a
take-over of contracts, which have been rescinded or
terminated; where the subject contract is adjacent or
contiguous to an ongoing infrastructure project.
“None of
these ‘extraordinary circumstances’ exist to justify the
negotiated procurement of the NBN project and its
subsequent award to respondent ZTE Corp. Thus, it is
plain that the procedure adopted by respondents cannot
legally qualify as a negotiated procurement under
Section 53 of RA 9134,” he said.
Suplico
noted that based on transcripts of a meeting between
President Arroyo and Neri in November 2006 on cyber
corridor initiative, it was very clear that the position
of the President was to establish a national broadband
network infrastructure at no cost to the government.
The
petitioner said that despite the parameters set by the
President in pursuing the NBN project, it came as a
great surprise when on April 21, 2007, Arroyo attended
Boao Forum Asia (BFA) in Boao, China, and shortly after
her speech, she met with Hou Weighui, chairman of ZTE at
the Haikou Meilan International Airport.
He said
that in the same meting, the NBN contract was signed by
Mendoza and ZTE’s vice president, Yu Yong.
Earlier,
Justice Secretary Raul Gonzalez affirmed the legality of
the NBN deal.
Gonzalez
held that the proposed NBN project can be considered as
an “executive agreement” by virtue of the memorandum of
understanding signed between the Philippine government
as represented by Department of Trade and Industry
Secretary Peter Favila, and ZTE International and the
subsequent exchange of notes between then-Presidential
Chief of Staff Michael Defensor and Chinese Minister of
Commerce Bo Xi Lai and Chinese Ambassador Li Jinjun.
The DOJ
affirmed the government’s position that since NBN is
government-to-government arrangement, no public bidding
is required.
Under
the agreement, the NBN project will be financed by
Eximbank of China under preferential terms of 3 percent
annual interest and 20 year repayment period inclusive
of 5 year grace period.
Suplico
noted that prior to the signing of the contract, other
firms such as Amsterdam Holdings Inc. and Arescom Inc,
have already signified their interest to build and
operate a similar network. |
