Some baseline Q&As
It was not too long ago when the public-private partnership reclamation project still did not exist in the Dumaguete public mind.
After its announcement and reveal by Mayor Remollo and his colleagues in the City Council on July 7, however, it has become, quite literally, all the rage.
It seems beneficial for our collective activism then, that we be able to help keep each other up to speed not just on the key facts of the case, but also on what they mean in the broader view of things.
These are by no means exhaustive of all the important matters at hand, but I think these cover enough of its biggest and most fundamental aspects that we need to be aware of:
What law applies in this case? Public-Private Partnerships are governed by Republic Act 7718, as amended, also known the Build-Operate-Transfer Law. There are specific provisions regarding unsolicited proposals, which is how this reclamation saga began with EM Cuerpo Inc., being the original proponent thereof.
What is the role of the local PPP ordinance? Local government units are allowed by law to enact local ordinances to supplement and support the implementation of national laws such as the BOT Law. In case of conflict between the BOT Law and the PPP ordinance, however, the BOT Law shall prevail.
Was the BOT Law followed? No. There are about 35 steps that the BOT Law requires in the proper processing of unsolicited PPP proposals. As far as we know from currently accessible information, the City has disregarded around 30 of those steps.
When should public consultations be made? In a resolution titled Guidelines on Public Consultation and Engagement for PPP Projects, the national PPP Governing Board, in implementing public consultation policies in the Local Government Code, requires the government entity to develop a Consultation Plan at the beginning of the project development stage, and to conduct public consultation and engagement no less than three times: prior to project approval, prior to implementation, and during implementation.
To date, the City has developed no Consultation Plan, and has held no public consultation prior to project approval.
What is the significance of the July 14 vote of the City Council? The July 14 vote granted the Mayor the authority to enter into a Memorandum of Understanding, on the pretense that it is necessary to allow the Mayor to enter into negotiations with the Original Proponent towards the final PPP contract.
However, neither the BOT Law nor the local PPP ordinance requires this.
The BOT Law, on the contrary, mandates that these negotiations should already occur before approval of the unsolicited proposal by the City Council, as in fact, the MoU drafted by the City Council stated that the period for negotiation already happened in February 2020.
Needless to say, this pretense is not making much sense. I submit that the real significance of the July 14 vote is that it granted the Mayor the authority to enter into a PPP Contract with the Original Proponent.
Is the purported MoU in reality the actual PPP Contract? Under the BOT Law, the signing of the PPP Contract follows the issuance of a Notice of Award to the Original Proponent.
Again, there is no purgatorial “MoU” in either law or local ordinance as a prelude to the final PPP Contract.
With the Notice of Award already given on June 23 to the Original Proponent, the signing of the PPP Contract is the next logical step.
Moreover, the drafted MoU itself on its face does not even bother to pretend that it is merely a tentative framework within which the parties may negotiate future terms to be expressed in the final PPP Contract.
Rather, the MoU already contains legitimate reciprocal and binding obligations between the City and the Original Proponent, as in any other contract.
Can the reclamation project still be stopped? We don’t know everything just yet, and I suspect there is much more information to be unearthed.
But even at the level of awareness we are in at the moment, I personally feel confident there are more than enough remedies in the law to be able to stop the reclamation project.
It will certainly take a lot of work going against the vast resources and machineries of government, but with the passionate and wholehearted support of what appears to be a clear majority of local Dumaguete citizens protecting their beloved home, this reclamation project is due to find itself dead in the water.
_______________________________________
Author’s email: [email protected]
(adsbygoogle = window.adsbygoogle || []).push({});