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THE
controversial Bohol Irrigation Project, Stage II (BHIP
II) was deemed valid and legal by the Department of
Justice (DOJ) in the opinion it sent to the National
Economic and Development Authority (Neda) last August
15.
The BHIP
II is a foreign-assisted project financed by the Japan
Bank for International Cooperation (JBIC) under the loan
agreement entered into by the Republic of the
Philippines and
the JBIC.
It
involved the construction of the Bayongan Dam and
Appurtenant Facilities (C1) and construction of the
irrigation canals and appurtenent structures (C2).
The
agency budget for C1 was set by the National Irrigation
Administration (NIA) at P1.165 billion, while C2
amounted to P461.763 million.
The DOJ
cited that the project is not covered by the
Implementing Rules and Regulations Part A of Republic
Act 9184, or the Government Procurement Reform Act,
since the invitation for the bidding for the project was
made prior to the effectivity of IRR-A of RA 9184.
Neda
deputy director general Rolando Tungpalan, meanwhile,
told BusinessMirror that he could not yet comment on the
fate of the project since this will still be evaluated
by the Investment Coordination Committee (ICC) in its
next meeting.
The DOJ
said that based on the documents submitted to them, the
biddings for BHIP II C1 was on
December 11, 2002
and BHIP C2 on March 25, 2003.
The DOJ
said it can be “safely assumed” that the advertisement
of the bidding or the invitation to bid was made before
the January 26, 2003 effectivity of the IRR-A.
The DOJ
said the IRR-A covers all fully domestically funded
procurement activities from procurement planning up to
contract implementation and termination. The IRR-B for
foreign-funded procurement activities shall be subject
of a subsequent issuance.
Based on
Section 77 of RA 9184, if the advertisement or
invitation for bids were issued prior to the effectivity
of the Act, the provisions set in Executive Order 40 and
its IRR, Presidential Decree 1594 and RA 7160 will be
followed.
“Consequently, and considering the above-quoted
provisions of the IRR of RA 9184, it not only appears
indubitable that RA 9184 applies exclusively to
domestically funded, not foreign-funded procurement
activities, all procurement activities undertaken for
the BHIP II project shall not be governed by said law
but by EO 40 and its IRR,” the DOJ said.
EO 40
covers all procurement of goods and services in all
government agencies, including state universities,
government-owned and controlled corporation, government
financial institutions (GFIs).
The EO
said the order will negate any existing and future
government commitments with respect to the bidding and
awarding of contracts that are partially or wholly
financed by foreign institutions, bilateral, or other
similar foreign sources.
“The
procurement of goods and services for the BHIP II
project, shall be governed by the JBIC Procurement
Guidelines Section 5.06 and Section 5.09 Part II
(International Competitive Bidding),” the DOJ said.
The
Justice Department added that Opinion No. 46, Series of
1987, said that an agreement for the exclusion of
foreign-funded projects from the coverage of local
bidding regulations does not go against existing laws.
Foreign
loan agreements are covered by the Foreign Borrowings
Law or RA 4860, as amended, stated that the President is
empowered to waive the application of any law imposing
restrictions on the procurement of goods and services.
Earlier,
the Neda said the NIA’s request for a P1.246-billion
cost increase in the P2.384-billion BHIP II is too big
for the national government to bear, Neda director
general Romulo Neri said.
Neri
said the NIA proceeded to implement the project at a
higher cost without first seeking approval from the
Investment Coordination Committee, which is required of
all official development assistance-funded projects
being implemented in the country.
The NEDA
also tasked the ICC to determine who is responsible for
the cost overruns for BHIP II. The ICC has stood firm
with its demand for someone or some agency to take
responsibility for the huge cost escalation of the
project. |
