Professional Documents
Culture Documents
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 203655
SM LAND, INC.,
Petitioner,
Present:
- versus VELASCO, JR., J., Chairperson,
PERALTA,
VILLARAMA, JR., *
MENDOZA, and
LEONEN,JJ.
The Facts
As culled from the records, the facts are simple and undisputed.
Pursuant to Republic Act No. (RA) 7227 or the "Bases Conversion
and Development Act of 1992," the BCDA opened for disposition and
development its Bonifacio South Property, a 33.1-hectare expanse located at
Taguig City that was once used as the command center for the country's
military forces. Jumping on the opportunity, petitioner SM Land, Inc.
(SMLI), on December 14, 2009, submitted to the BCDA an unsolicited
proposal for the development of the lot through a public-private joint venture
Acting member per Special Order No. 1691 dated May 22, 2014.
Decision
Rollo, p. 71.
Id. at 74-88.
Decision
million, following the prescribed procedure outlined in the TOR and the
NEDA JV Guidelines.
Afterwards, the BCDA set the Pre-eligibility Conference on
September 3, 2010. Invitations to apply for eligibility and to submit
comparative proposals were then duly published on August 12, 16 and 20,
2010. Hence, the pre-eligibility conference was conducted as scheduled. The
companies that participated in the conference included SMLI, as the Original
Proponent, and three (3) PSEs, namely Ayala Land, Inc., Rockwell Land
Corp., and Filinvest Land, Inc.
On Ayala Land, Inc.s request, the deadline for submission of
Eligibility Documents was scheduled on October 20, 2010 through
Supplemental Notice No. 1. However, the deadline was again moved to
November 19, 2010 to allow the BCDA, in conjunction with other national
agencies, to resolve issues concerning the relocation and replication of
facilities located in the subject property. For this purpose, the BCDA issued
Supplemental Notice No. 2.
Following a conference, the BCDA, on November 18, 2010, issued
Supplemental Notice No. 3, again rescheduling the submission deadline this
time to an unspecified future date pending final results of the policy review
by the Office of the President on the lease versus joint venture/sale mode
and other issues.3 Henceforth, the BCDA repeatedly postponed the
deadline of eligibility requirements until two (2) years have already elapsed
from the signing of the Certification without the Competitive Challenge
being completed.
Then, instead of proceeding with the Competitive Challenge, the
BCDA addressed a letter4 to Jose T. Gabionza, Vice President of SMLI,
stating that it will welcome any voluntary and unconditional proposal to
improve the original offer, with the assurance that the BCDA will
nonetheless respect any right which may have accrued in favor of SMLI.
SMLI, through a letter dated December 22, 2011, replied by increasing the
total secured payments to PhP 22.436 billion in over fifteen (15) years with
an upfront payment of PhP 3 billion. SMLI likewise proposed to increase the
net present value of the property to PhP 38,500.00/sqm. With this
accelerated terms of payment, the total inflow to be received by the BCDA
from the project after five (5) years would amount to PhP 9.289 billion. In
the same letter, SMLI clarified that its improved offer is tendered on reliance
of the BCDAs previous commitment to respect SMLIs status as the
Original Proponent.
Without responding to SMLIs new proposal, the BCDA sent a
memorandum to the Office of the President (OP) dated February 13, 2012,
3
4
Id. at 108.
Id. at 109.
Decision
To support its position, the BCDA invoked Article VIII of the TOR
on the subject Qualifications and Waivers, to wit:
The BCDA reserves the right to call off [the] disposition prior to
acceptance of the proposal(s) and call for a new disposition process under
amended rules and without any liability whatsoever to any or all the PSEs,
except the obligation to return the Proposal Security.
Id. at 635.
Id. at 63.
Decision
The invitation was also published in the January 2 and 9, 2013 issues of the Financial Times and
Philippine Daily Inquirer.
8
Rollo, pp. 218-222.
Decision
Decision
15
Ravi Development v. Shree Krishna Prathisthan & Ors., Civil Appeal No. OF 2009, May 11,
2009. Available at www.indiankoon.org/doc/544860/. Last accessed March 14, 2013; See also, Verma,
Roopam,
Swiss
Challenge
System
for
Infra
Projects
(2007).
Available
at
http://www.projectsmonitor.com/detailnews.asp?newsid=13923. Last accessed March 13, 2013.
16
See Hodges, John and Dellacha, Georgina, Unsolicited Infrastructure Proposals: How some
countries introduce competition and transparency, Gridlines, Note No. 19, March 2007. Available at
http://www.ppiaf.org/. Last accessed March 14, 2013.
17
Id.
18
Rollo, p. 373.
Decision
Stage Two
Detailed Negotiations
Stage Two19 entails negotiation on the terms and conditions of the JV
activity. Below is a summary of the parameters adhered to in detailed
negotiations, and the preparation of the proposal documents in case of
successful negotiations:
1. The parties shall negotiate on, among other things, the scope as well
as all legal, technical, and financial aspects of the JV activity.
2. The JV-SC shall determine the eligibility of the PSE to enter into the
JV activity in accordance with pre-set rules.
3. Negotiations shall comply with the process, requirements and
conditions as stipulated under Sections 6 (General Guidelines) and 7
(Process for Entering into JV Agreements) of the JV Guidelines.
a. If successful, the GE head and the representative of the PSE shall
issue a signed certification of successful negotiation to the effect
that:
a) an agreement has been reached;
b) the PSE is eligible to enter into the proposed JV activity; and
c) the GE shall commence the activities for the solicitation for
comparative proposals.
b. If an acceptable agreement is not reached, the GE may:
a) reject the proposal and thereafter accept a new one from
private sector participants; or
b) pursue the proposed activity through alternative routes other
than a joint venture.
4. After an agreement is reached, the contract documents, including the
selection documents for the competitive challenge, are prepared.
Stage Three
Competitive Challenge
In Stage Three,20 upon the successful completion of the detailed
negotiation phase, the JV activity shall be subjected to a competitive
challenge,21 which includes the observance of the following procedure:
1. Preparation and approval of all tender documents including the draft
contract before the invitation for comparative proposals is published.
2. Publication of the invitation for comparative proposals followed by the
posting by the PSE of the proposal security.
3. Determination of the eligibility of comparative proponents/PSEs,
issuance of supplemental competitive selection bulletins and pre19
Id. at 373-374.
Id. at 374-375.
21
Competitive Challenge is an alternative selection process wherein third parties shall be invited
to submit comparative proposals to an unsolicited proposal. Accordingly, the private sector entity that
submitted the unsolicited proposal is accorded the right to match any superior offers given by a
comparative private sector participant. (Item 5.8, NEDA JV Guidelines).
20
Decision
Decision
10
Decision
11
Decision
12
Moreover, the Certification further discloses that the BCDA has the
obligation to subject SMLIs unsolicited proposal to a Competitive
Challenge, to which SMLI assented. As provided:
BCDA and SMLI have agreed to subject SMLIs Original Proposal to
Competitive Challenge pursuant to Annex C Detailed Guidelines for
32
33
Regalado v. Go, G.R. No. 167988, February 6, 2007, 514 SCRA 616.
Rollo, pp. 64-65.
Decision
13
Id. at 71.
Id. at 87.
36
Bouviers Law Dictionary, 3rd ed.
35
Decision
14
Decision
15
GENERAL INFORMATION
xxxx
2. Publication of Invitation for Comparative Proposals.
BCDA shall publish x x x the Invitation to Apply for
Eligibility and to Submit a Comparative Proposal (IAESCP).
This shall serve to inform and to invite the prospective PSEs
to the Competitive Challenge procedure at hand. x x x
3. Joint Venture Agreement. x x x the ultimate objective of
BCDA in qualifying prospective PSEs to be eligible to submit
Technical and Financial Proposals is to select a partner in the
unincorporated/contractual [JV] for the privatization and
development of the subject Property. x x x
xxxx
4.
Decision
16
VI.
EVALUATION OF ELIGIBILITY
1. Opening of Eligibility Documents. x x x
2. Evaluation Process. Eligibility Documents submitted by the
PSE shall be evaluated on a pass or fail basis to determine if
the PSE x x x complies with or satisfies all of the requirements
specified in Article V hereof. x x x
Decision
17
Id. at 74-88.
Decision
18
See RE: Problem of Delays in Cases Before the Sandiganbayan, A.M. No. 00-8-05-SC,
November 28, 2001, 370 SCRA 658.
42
See Central Bank of the Philippines v. Court of Appeals, No. L-33022, April 22, 1975, 63
SCRA 431.
Decision
19
43
Domondon v. Sandiganbayan, G.R. No. 129904, March 16, 2000, 328 SCRA 292.
Cuerdo v. COA, No. L-84592, October 27, 1988, 166 SCRA 657.
45
Rollo, p. 635, BCDAs February 13, 2012 Memorandum to the President.
44
Decision
20
Despite this testament, the BCDA, over a year later, made a complete
turnaround stating that straight bidding will be best for the Government.47
As can be gleaned from the BCDAs Memorandum to the President dated
February 13, 2012, respondents themselves recommended to the President
that the selection proceedings be terminated. To reiterate:
In view of the foregoing, may we respectfully recommend the Presidents
approval for BCDA to terminate the proceedings for the privatization and
development of the BNS/PMC/ASCOM/SSU Properties in Bonifacio
South through Competitive Challenge and proceed with the bidding of the
property.48
Id. at 580-581.
Id. at 115.
48
Id. at 635.
47
Decision
21
negotiations are advantageous to it, lest it run the risk of being bound to a
project that is not beneficial to the government in the first place.
Overall, the foregoing goes to show that the BCDA failed to establish
a justifiable reason for its refusal to proceed with the Competitive Challenge
and for canceling the entire Swiss Challenge. Because of BCDAs mistaken
reliance on the TOR provision, and by changing its stand on the conduct of
the Competitive Challenge without pointing out with specificity the socalled unfavorable terms, We are left to believe that the cancellation of the
Swiss Challenge was only due to BCDAs whims and caprices.
Acceptance of Unsolicited Proposal vis--vis Estoppel
Lastly, respondents argue that the government cannot be estopped by
the mistakes or errors of its agents, implying that when it issued the
Certification, it committed a lapse of judgment as it later discovered that the
terms of the proposal allegedly turned out to be disadvantageous to the
Government. Thus, according to them, it cannot be compelled to proceed
with the Competitive Challenge.
We are very much aware of the time-honored rule that the
government cannot be estopped by the mistakes or errors of its agents.49
Suffice it to state, however, that this precept is not absolute. As
jurisprudence teaches, this rule on estoppel cannot be used to perpetrate an
injustice.50
In the case at bar, it is evident that to allow BCDA to renege on its
statutory and contractual obligations would cause grave prejudice to
petitioner, who already invested time, effort, and resources in the study and
formulation of the proposal, in the adjustment thereof, as well as in the
negotiations. To permit BCDA to suddenly cancel the procurement process
and strip SMLI of its earlier-enumerated rights as an Original Proponent at
this pointafter the former has already benefited from SMLIs proposal
through the acquisition of information and ideas for the development of the
subject propertywould unjustly enrich the agency through the efforts of
petitioner. What is worse, to do so would be contrary to BCDAs
representations and assurances that it will respect SMLIs earlier acquired
rights, which statements SMLI reasonably and innocently believed.
All told, the BCDAs acceptance of the unsolicited proposal and the
successful in-depth negotiation cannot be written off as mere mistake or
error that respondents claim to be reversible and not susceptible to the legal
bar of estoppel. The subsequent cancellation of the Competitive Challenge
on grounds that infringe the contractual rights of SMLI and violate the
NEDA JV Guidelines cannot be shrouded with legitimacy by invoking the
above-cited rule.
49
50
Leca Realty Corporation v. Republic, G.R. No. 155605, September 27, 2006, 503 SCRA 563.
Id.
Decision
22
Conclusion
To increase government prospects, participation in joint ventures has
been incentivized by granting rights and advantages to the Original
Proponent in the Competitive Challenge phase of a Swiss Challenge.
Faithful observance of these provisions of law that grant the aforesaid rights,
may it be sourced from a bilateral contract or executive edict, aids in
improving government reliability. This, in turn, heavily correlates with
greater availability of options when entering into future joint venture
agreements with private sector entities via public-private enterprises as it
will attract investors to contribute in formulating a roadmap towards a
nationwide infrastructure development.
Needless to say, allowing government agencies to retract their
commitments to the project proponents will essentially render inutile the
incentives offered to and have accrued in favor of the private sector entity.
Without securing these rights, the business community will be wary when it
comes to forging contracts with the government. Simply put, the failure of
the government to abide by the rules it itself set would have detrimental
effects on the private sectors confidence that the government will comply
with its statutory and contractual obligations to the letter.
In the case at bench, considering the undisputed facts presented before
Us, We cannot sustain the BCDAs arguments that its withdrawal from the
negotiations is permissible and was not done with grave abuse of discretion.
Being an instrumentality of the government, it is incumbent upon the BCDA
to abide by the laws, rules and regulations, and perform its obligations with
utmost good faith. It cannot, under the guise of protecting the public interest,
disregard the clear mandate of the NEDA JV Guidelines and
unceremoniously disregard the very commitments it made to the prejudice of
the SMLI that innocently relied on such promises.51 It is in instances such as
thiswhere an agency, instrumentality or officer of the government evades
the performance of a positive duty enjoined by law52wherein the exercise
of judicial power is warranted. Consistent with Our solemn obligation to
afford protection by ensuring that grave abuses of discretion on the part of a
branch or instrumentality of the government do not go unchecked, the
Petition for Certiorari must be granted and the corresponding injunctive
relief be made permanent.
As a final note, it is worth mentioning that the foreseeable
repercussion of a contrary ponencia encompasses the reduction of the
number of interested private sector entities that would be willing to submit
suo moto proposals and invest in government projects. After all, what would
be the point of developing ideas and allocating resources in the formulation
of PPP projects when ones rights as an Original Proponent, under the
NEDA JV Guidelines and the agreement between the parties, can easily be
51
52
See Central Bank of the Philippines v. Court of Appeals, supra note 42.
See Ligeralde v. Patalinghug, G.R. No. 168796, April 15, 2010, 618 SCRA 315.
Decision
23
wiped out should the agency decide to level the playing field and conduct
straight bidding instead? Evidently, this would not attract but would, in
contrast, repel investors from tendering offers. In addition, even if potential
investors do submit unsolicited or comparative proposals, the terms therein
might be driven to become less competitive due to the adjustment in the
balance of risks and returns on investment. Taking into account the
increased possibility of the development project not pushing through,
investors might not be too keen in guaranteeing a high amount of secured
payments for the same. These considerations further validate the need to
secure the private sectors trust and confidence in the government.
WHEREFORE, premises considered, the petition is hereby
GRANTED. The assailed Supplemental Notice No. 5 dated August 6, 2012
issued by the BCDA is hereby ANULLED and SET ASIDE. The
Temporary Restraining Order issued by this Court on January 9, 2013 is
hereby made PERMANENT.
Respondent Bases Conversion and Development Authority and Arnel
Paciano D. Casanova, or whoever assumes the position of president of
BCDA, are hereby ORDERED to conduct and complete the Competitive
Challenge pursuant to the Certification, TOR, and NEDA JV Guidelines.
Specifically, the BCDA and/or the JV-SC are DIRECTED to carry
out the following:
1. Publish, within seven (7) calendar days from finality of this
Decision, the Invitation to Apply for Eligibility and to Submit a
Comparative Proposal (IAESCP) in three (3) newspapers of
general nationwide circulation for two (2) consecutive weeks, and
in the BCDA website (www.bcda.gov.ph), in accordance with
Section III.2. (Publication of Invitation to Apply for Eligibility
and to Submit Proposal), Section III (Project Rationale), Item 5 of
the TOR, and Section III (General Information), Item 2
(Publication of Invitation for Comparative Proposals) of the
TOR;
2. Immediately make the necessary adjustments to the timetable of
activities set forth in Supplemental Notice No. 1, considering that
the periods specified therein have already lapsed, without
awaiting the lapse of the period for publication;
3. Strictly adhere to the TOR, Supplemental Notice No. 1, as
adjusted, the Certification of Successful Negotiations, and the
NEDA JV Guidelines, in the conduct and completion of the
Swiss Challenge procedure on SM Land Inc.s unsolicited
proposal accepted by the BCDA; and
Decision
24
4. Perform any and all acts necessary to carry out and complete
Stage Three of the Swiss Challenge pursuant to the provisions of
the TOR and NEDA JV Guidelines, including, but not limited to,
subjecting petitioner's unsolicited proposal to a competitive
challenge.
In the event that SM Land, Inc. already obtained from BCDA the
amount representing its Proposal Security, SM Land, Inc. is hereby
DIRECTED to re-post the Proposal Security, in the same amount as the
previous one, on the first day of the publication of the invitation for
comparative proposals, per the NEDA JV Guidelines.
SO ORDERED.
PRESBITER
J. VELASCO, JR.
Decision
25
WE CONCUR:
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Court's Division.
As ociate Justice
Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the
Division Chairperson's Attestation, I certify that the conclusions in the
above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court's Division.