Bidders combine, demand DOTC to refund expenses

Is looting justifiable in the wake of Typhoon Yolanda? Yes, says rights lawyer Sara Jane Suguitan, as reports filter in from the Visayas of store break-ins by famished townsfolk. “Looters may be exempt from criminal liability due to humanitarian reasons.”

“As a general rule, stealing of any kind is criminal and punishable by law. But under the Revised Penal Code, acts performed during a state of emergency may amount to a justifying circumstance,” says Suguitan.

Article 11, Paragraph 4 reads: “The following do not incur any criminal liability ... (4) Any person who, in order to avoid an evil or injury, does an act which causes damage to another, provided that the following requisites are present: First, that the evil sought to be avoided actually exists; Second, that the injury feared be greater than that done to avoid it; Third, that there be no other practical and less harmful means of preventing it.”

In short, preventing human deaths from hunger and thirst are mitigating.

Still, the police are correct in noting that armed bands are certainly not in desperate search of food and water if raiding banks, pawnshops, or gas stations. Best to shoot on sight such plain thieves, as anywhere else in the world. Sparing them could worsen the emergency.

As for lawmakers and municipal cohorts who looted multibillion-peso pork barrels that otherwise could have been used to stock food for calamities, hang ‘em high.

Some of them are endorsing their “pork” allocations for emergency relief post-Zamboanga City siege, Bohol earthquake, and Typhoon Yolanda. Fine. But let not such false generosity be the prelude to the retention of the “pork” in 2014 and beyond.

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Admit failure of bidding and return our money. Four bidders are demanding that, after discovering the transport office’s lack of authority to bid out earlier this year the contract for vehicle license plates.

The four are among nine participants in last May’s bidding for the three-year P3.85-billion project. It was for production of 5.3 million pairs of motor vehicle plates and ten million pieces of motorcycle plates.

The Dept. of Transportation and Communications (DOTC) held the bidding without the requisite Multi-Year Obligational Authority. The lack of an MYOA in effect voided the bidding.

The MYOA is a certification from the Dept. of Budget and Management (DBM) of fund availability for state projects that take more than a year to complete. Under the law, an implementing agency must secure such document from the DBM before proceeding with a multiyear procurement.

The bidders had incurred expenses in order to participate. The DOTC bidding document alone cost P75,000. Filipino companies all, they were required to get experienced, high quality foreign partners.

Among the bidders’ other big-ticket expenses were for: preparation of technical-financial feasibility studies, executive time, round-trip flights to Europe and Asia, hotel stays, representation, and legal consultancies.

The four disgruntled bidders are the consortiums of Marianing & Sons Development Corp. and Daoming Optics and Chemical Co. (China); RNA Holdings Inc. and Utal Sp. Z.O.O. (Poland); Kolonwel Trading and Shanghai Fa Yu Industrial Co. (China); and Fereira Philippines and Utsch A.G. (Germany).

Each of them incurred costs of $200,000 to $500,000 (P8.6 million to P21.5 million). The DOTC would have to refund all nine bidders a low of $1.8 million to a high of $4.5 million (P77.4 million to P193.5 million).

Writing to DOTC Sec. Joseph Emilio Aguinaldo Abaya, the four said the lack of an MYOA amounted to criminal dishonesty and fraud.

Under guidelines of the Government Procurement Policy Board, the DBM, and the Commission on Audit, a procuring agency must first get the MYOA before any bidding. In fact, the agency must include the MYOA in the invitation to bid. Absence of the paper means no funding for the procurement.

Of the nine participants, one backed out and eight submitted bids. Of the eight, two eventually qualified, one of which won.

The four complainers are among the six disqualified bidders. They said: “After proceeding with the submission and opening of bids in May 2013, the DOTC and (its) Bids and Awards Committee even went to the extent of irreverently and unlawfully issuing the Notice of Award for the project.”

This, they added, was “despite the continuing knowledge and acquiescence of the lack or absence of funding for the project, and the failure and inability to secure an MYOA from the DBM prior to the procurement activity.”

They want the DOTC “immediately to declare a failure of bidding ... on grounds that it was illegal and irregular.”

They also “legally demand the refund of payments for the bidding documents, and reimbursement of expenses.”

Earlier they reported the matter to the DBM and COA.

Only now is Abaya negotiating with the DBM for an MYOA for the metal platemaking. He has “postponed the contract indefinitely.”

The DOTC held a separate bidding for the seven-year P8.2-billion computerized registration of old and new vehicles — also without the requisite MYOA. That contract too is on hold.

Due to both fiascos, the Land Transportation Office has run out of license plates and stickers, and no info-tech provider for vehicle list-ups.

The breakdown is expected to lead to a crime surge. Experts fear that street and syndicated thugs will have easy getaways. Using vehicles with no plates, they simply will mix with innocent vehicles that similarly have none. (See Gotcha, 8 Nov. 2013.)

No one has taken Abaya to task for the chaos. Nor has he taken to task his DOTC subordinates in charge of the bidding.

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We’re fortunate to discuss big issues. In Zamboanga City, Bohol, and areas leveled by Typhoon Yolanda, they’re living hand to mouth, with nothing in mind but survive the hungry days and rainy nights.

We need to continue giving, even if we ourselves face problems. Our difficulties are small compared to theirs. They have no one to lean on but us countrymen.

You can course cash donations through The STAR’s Operation Damayan (Succor), Metrobank savings account No. 151-7-15152422-9; fax deposit slip to (02) 527-6857. For inquiries and donations in kind, call Emie Cruz, (02) 3369598.

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