The Supreme Court (SC) has reversed the 2013 decision of the
Court of Appeals (CA) as it reinstated the 2012 trial court ruling which
ordered the Subic Bay Metropolitan Authority (SBMA) to award the P5.5 billion
contract to Harbour Centre Port Terminal, Inc. (HCPTI) for the development,
operation and management of several ports inside the Subic Special Economic and
Freeport Zone.
The 2012 ruling of the Olongapo City regional trial court
(RTC) directed SBMA to issue a notice of award (NOA) and notice to proceed
(NTP) to HCPTI for the joint venture projects covering the Naval Supply Depot,
Boton, Alava, Rivera and Bravo Wharfs/Point.
In reversing the trial court, the CA said that the SBMA has
no legal duty to issue the NOA and NTP because “the SBMA has the discretion to
either approve or reject the recommendation to award” and that HCPTI “has no
vested right to the issuance of the NOA and the NTP.”
The SC, in a decision written by Associate Justice Rodil V.
Zalameda and made public last May 18, said:
“In sum, there is no law justifying the non-issuance of the
NOA due to the withdrawal of the NEDA (National Economic Development Authority)
endorsement. Petitioner (HCPTI) has complied with all the legal requisites for
the issuance of the NOA. As such, a writ of mandamus may issue to compel SBMA
to perform its legal duty.
“The Decision dated 12 January 2012 of Branch 72, Regional
Trial Court of Olongapo City in Civil Case No. 108-0-2011 is hereby REINSTATED.
SO ORDERED.”
On Nov. 16, 2009, SBMA received an unsolicited proposal from
HCPTI to enter into an unincorporated joint venture (JV) for the development,
operation and management of the ports in the Subic freeport zone. The JV
envisioned a consolidation of the break-bulk, bulk and other essential port
services to achieve efficiency of port resources.
HCPTI’s proposal was done in line with the 2008 Guidelines
and Procedures for entering into JVA between government and private entities
issued by NEDA.
However, on July 5, 20211, NEDA withdraw its endorsement of
the project based on alleged violation of the 2008 JV guidelines, such as the
execution of the agreement as early as stage two of the process and a supposed
material change in the project cost from approximately P763 million to P5.37
billion after the competition challenge.
The Office of the Government Corporate Counsel (OGCC), which had found the agreement between SBMA and HCPTI valid, recommended the suspension of the NTP in view of NEDA’s withdrawal of its endorsement.
Due to SBMA’s failure and refusal to issue the NOA and NTP,
HCPTI filed a petition for mandamus before the Olongapo RTC. During the
pendency of the petition, NEDA denied SBMA’s motion and reiterated the
withdrawal of its endorsement.
“It appears that there is no legal or contractual obstacle
to the issuance of the NTP. Hence, the same must also be issued to petitioner
in preparation for the implementation of the JVA (joint venture agreement), and
so that the parties may start complying with other conditions precedent
stipulated therein.
“WHEREFORE, premises considered, the petition is hereby
GRANTED. The Decision dated 08 August 2013 and Resolution dated 14 January 2014
of the Court of Appeals in CA-G.R. SP No. 125330 are REVERSED and SET ASIDE.
“The Decision dated 12 January 2012 of Branch 72, Regional
Trial Court of Olongapo City in Civil Case No. 108-0-2011 is hereby REINSTATED.
SO ORDERED.”
“In this case, all the requisites for the issuance of the
NOA had already been complied with. The existence of these requisites gave rise
to a clear legal right in favor of petitioner and correlative ministerial duty
upon SBMA,” the SC said. (Manila Bulletin)
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