SPECIAL THIRD DIVISION
G.R. No. 203655, September 07, 2015
SM LAND, INC., Petitioner, v. BASES CONVERSION AND DEVELOPMENT AUTHORITY AND ARNEL PACIANO D. CASANOVA, ESQ., IN HIS OFFICIAL CAPACITY AS PRESIDENT AND CEO OF BCDA, Respondents.
R E S O L U T I O N
VELASCO JR., J.:
Once again, respondent-movants Bases Conversion Development Authority (BCDA) and Arnel Paciano D. Casanova, Esq. (Casanova) urge this Court to reconsider its August 13, 2014 Decision1 in the case at bar. In their Motion for Leave to file Second Motion for Reconsideration and to Admit the Attached Second Motion for Reconsideration (With Motion for the Court en banc to Take Cognizance of this Case and/to Set the Case for Oral Argument Before the Court en banc),2 respondent-movants remain adamant in claiming that the assailed rulings of the Court would cause unwarranted and irremediable injury to the government, specifically to its major beneficiaries, the Department of National Defense (DND) and the Armed Forces of the Philippines (AFP).3
The motion fails to persuade.
The instant recourse partakes the nature of a second motion for reconsideration, a prohibited pleading under Section 2, Rule 56,4 in relation to Sec. 2, Rule 52 of the Rules of Court. The rule categorically states: "no second motion for reconsideration of a judgment or final resolution by the same party shall be entertained." The rationale behind the rule is explained in Manila Electric Company v. Barlis, thusly:
The propriety or acceptability of such a second motion for reconsideration is not contingent upon the averment of "new" grounds to assail the judgment, i.e.. grounds other than those theretofore presented and rejected. Otherwise, attainment of finality of a judgment might be staved off indefinitely, depending on the party's ingeniousness or cleverness in conceiving and formulating "additional flaws" or "newly discovered errors'" therein, or thinking up some injury or prejudice to the rights of the movant for reconsideration. "Piece-meal1" impugnation of a judgment by successive motions for reconsideration is anathema, being precluded by the salutary axiom that a party seeking the setting aside of a judgment, act or proceeding must set out in his motion all the grounds therefor, and those not so included are deemed waived and cease to be available for subsequent motions.
For all litigation must come to an end at some point, in accordance with established rules of procedure and jurisprudence. As a matter of practice and policy, courts must dispose of every case as promptly as possible; and in fulfillment of their role in the administration of justice, they should brook no delay in the termination of cases by stratagems or maneuverings of parties or their lawyers...5
SEC. 3. Second motion for reconsideration. - The Court shall not entertain a second motion for reconsideration, and any exception to this rule can only be granted in the higher interest of justice by the Court en banc upon a vote of at least two-thirds of its actual membership. There is reconsideration "in the higher interest of justice" when the assailed decision is not only legally erroneous, but is likewise patently unjust and potentially capable of causing unwarranted and irremediable injury or damage to the parties. A second motion for reconsideration can only be entertained before the ruling sought to be considered becomes final by operation of law or by the Court's declaration.
In the Division, a vote of three Members shall be required to elevate a second motion for reconsideration to the Court En Banc.7
(emphasis added)ChanRoblesVirtualawlibrary
- The motion should satisfactorily explain why granting the same would be in the higher interest of justice;cralawlawlibrary
- The motion must be made before the ruling sought to be reconsidered attains finality;cralawlawlibrary
- If the ruling sought to be reconsidered was rendered by the Court through one of its Divisions, at least three (3) members of the said Division should vote to elevate the case to the Court En Banc; and
- The favorable vote of at least two-thirds of the Court En Banc's actual membership must be mustered for the second motion for reconsideration to be granted.
GROUNDS8 I
THE AGREEMENT BETWEEN SMLI AND BCDA WAS NEVER PERFECTED TO COMPEL BCDA TO COMPLETE THE COMPETITIVE CHALLENGE AS THERE WAS NO MEETING OF THE MINDS.II
THE GOVERNMENT RESERVATION TO CANCEL THE COMPETITIVE CHALLENGE IS A POLICY DECISION AND REMAINS ELECTIVE IN THE ENTIRE PROCEEDINGS AND BINDING TO ALL PRIVATE SECTOR ENTITIES INCLUDING SMLI.III
THE DECISION TO TERMINATE THE COMPETITIVE CHALLENGE IS A POLICY AND ECONOMIC DECISION. MANDAMUS WILL THEREFORE NOT LIE.IV
ESTOPPEL CANNOT OPERATE TO PREJUDICE THE GOVERNMENT.V
THE PERCEIVED GOVERNMENT LOSSES IS NOT IMAGINED BUT REAL.
NOW, THEREFORE, for and in consideration of the foregoing, BCDA and SMLI have, after successful negotiations pursuant to Stage II of Annex C x x x. reached an agreement on the purpose, terms and conditions on the JV development of the subject property, which shall become the terms for the Competitive Challenge pursuant to Annex C of the Guidelines, x x x.11
x x x x
BCDA and SMLI have agreed to subject SMLI's Original Proposal to Competitive Challenge pursuant to Annex C - Detailed Guidelines for Competitive Challenge Procedure for Public-Private Joint Ventures of the NEDA .TV guidelines, which competitive challenge process shall be immediately implemented following the Terms of Reference (TOR) Volumes 1 and 2.12 (emphasis added)
Estoppels against the public are little favored. They should not be invoked except in a rare and unusual circumstances, and may not be invoked where they would operate to defeat the effective operation of a policy adopted to protect the public. They must be applied with circumspection and should be applied only in those special cases where the interests of justice clearly require it. Nevertheless, the government must not be allowed to deal dishonorably or capriciously with its citizens, and must not play an ignoble part or do a shabby thing; and subject to limitations x x x, the doctrine of equitable estoppel may be invoked against public authorities as well as against private individuals.18
This quality of immutability precludes the modification of a final judgment, even if the modification is meant to correct erroneous conclusions of fact and law. And this postulate holds true whether the modification is made by the court that rendered it or by the highest court in the land. The orderly administration of justice requires that, at the risk of occasional errors, the judgments/resolutions of a court must reach a point of finality set by the law. The noble purpose is to write finis to dispute once and for all. This is a fundamental principle in our justice system, without which there would be no end to litigations. Utmost respect and adherence to this principle must always be maintained by those who exercise the power of adjudication. Any act, which violates such principle, must immediately be struck down. Indeed, the principle of conclusiveness of prior adjudications is not confined in its operation to the judgments of what are ordinarily known as courts, but extends to all bodies upon which judicial powers had been conferred.27
SECTION 4. x x x x
(2) All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the Supreme Court en banc, and all other cases which under the Rules of Court are required to be heard en banc, including those involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations, shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon, (emphasis added)
While the appointment of an officer is usually evidenced by a Commission, as a general rule it is not essential to the validity of an appointment that a commission issue, and an appointment may be made by an oral announcement of his determination by the appointing power.31 (emphasis added, citation omitted)
xxx As regards the legal interest as qualifying factor, this Court has ruled that such interest must be of a direct and immediate character so that the intervenor will either gain or lose by the direct legal operation of the judgment. The interest must be actual and material, a concern which is more than mere curiosity, or academic or sentimental desire; it must not be indirect and contingent, indirect and remote, conjectural, consequential or collateral. However, notwithstanding the presence of a legal interest, permission to intervene is subject to the sound discretion of the court, the exercise of which is limited by considering "whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties and whether or not the intervenor's rights may be fully protected in a separate proceeding, (emphasis added)ChanRoblesVirtualawlibrary
Endnotes:
1Rollo, pp. 980-1003; Said Decision granted petitioner SM Land, Inc.'s petition for certiorari qnd directed respondent BCDA and its president to. among other things, subject petitioner's duly accepted unsolicited proposal for the development of the Bonifacio South Property to a competitive challenge.
2 Id. at 1446-1496.
3 Id. at 1453-1459.
4 RULES OF COURT, Rule 56, Sec. 2. Rules applicable. — The procedure in original cases for certiorari, prohibition, mandamus, quo warranto, and habeas corpus shall be in accordance with the applicable provisions of the Constitution, laws, and Rules 46. 48, 49. 51, 52 and this Rule xxx.
5Manila Electric Company v. Barlis, G.R. No. I 14211, June 29, 2004, 431 SCRA 11, 28.
6 Id.
7 The Internal Rules of the Supreme Court, A.M. No. 10-4-20-SC. promulgated on May 4, 2010.
8Rollo, p. 1517-1518.
9Rollo, pp. 1414-1425.
cralawlawlibrary
10 Id. at 1414-1417.
11 Id. at 65.
12 Id. at 71.
13 Id. at 997-1000.
15 Id. at 992-997.
14Rollo, pp. 86-87.
VIII. QUALIFICATIONS AND WAIVERS
1. BCDA reserves the right to reject any or all Eligibility Documents, to waive any defect or informality thereon or minor deviations, which do not affect the substance and validity of the proposal.
2. BCDA reserves the right to review other relevant information affecting the PSE or its Eligibility Documents before its declaration as eligible to participate further in the selection process, and be allowed to submit a Final Proposal. Should such review uncover any misrepresentations made in the eligibility documents, or any change in the situation of the PSE, which affects its eligibility, BCDA may disqualify the PSE from obtaining any award/contract.
3. BCDA further reserves the right to call off this 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
16 Id. at 1417-1419.
17 Id. at 1422-1423:
18Republic v. Court of Appeals, G.R. No. 116111, January 21, 1999, 301 SCRA 366, 377.
19Rollo, p. 1422.
20 Id.
21Rollo, p 1423.
22 Id. at 1458-1459.
23 Id. at 1424-1425.
24 Id. at 1000.
25 Id. at 1439-1440.
26Dacanay v. Yraslorza, Sr., G.R. No. 150664. September 3, 2009, 598 SCRA 20, 25.
27 G.R. No. 178366, July 28, 2008, 560 SCRA 362, 372-373.
28Mocorro, Jr. v. Ramirez, id.
29 No. L-6951, October 30, 1953, 93 Phil 1076, 1079.
30Rollo, pp. 1448-1452.
31Rollo, p. 1080.
32Atty. Cheloy Velicaria-Garafil vs. Office of the President, G.R. Nos. 203372, 206290, 209138, and 212030, June 16, 2015: "The following elements should always concur in the making of a valid (which should be understood as both complete and effective) appointment: (1) authority to appoint and evidence of the exercise of the authority; (2) transmittal of the appointment paper and evidence of the transmittal: (3) a vacant position at the time of appointment: and (4) receipt of the appointment paper and acceptance of the appointment by the appointee who possesses all the qualifications and none of the disqualifications."
33Rollo, p. 1079.OFFICE OF THE PRESIDENT OF THE PHILIPPINES Manila, July 25, 1953
Sir:
Pursuant to the provisions of section 21 (b) of Republic Act No. 180, you are hereby appointed Vice-Mayor of the municipality of Valladolid, Negros Occidental, vice Antipas Junio.
By virtue hereof, you may qualify and enter upon the performance of the duties of the office, furnishing the Commissioner of Civil Service with a copy of your oath.
Very respectfully,
By order of the President:
(Sgd.) MARCIANO ROQUE
Acting Executive Secretary
Mr. ANANIAS ORICIO
Through the Honorable
The Provincial Governor
Bacolod, Negros Occidental.
34 Section 27. Functions of the Executive Secretary. - The Executive Secretary shall, subject to the control and supervision of the President, cany out the functions assigned by law to the Executive Office and shall perform such other duties as may be delegated to him. He shall:
(10) Exercise primary authority to sign papers "By authority of the President", attest executive orders and other presidential issuances unless attestation is specifically delegated to other officials by him or by the President;cralawlawlibrary
35SECTION 2. Executive Orders.—Acts of the President providing for rules of a general or permanent character in implementation or execution of constitutional or statutory powers shall be promulgated in executive orders.
SECTION 3. Administrative Orders.—Acts of the President which relate to particular aspects of governmental operations in pursuance of his duties as administrative head shall be promulgated in administrative orders.
SECTION 4. Proclamations.—Acts of the President fixing a date or declaring a status or condition of public moment or interest, upon the existence of which the operation of a specific law or regulation is made to depend, shall be promulgated in proclamations which shall have the force of an executive order.
SECTION 5. Memorandum Orders.—Acts of the President on matters of administrative detail or of subordinate or temporary interest which only concern a particular officer or office of the Government shall be embodied in memorandum orders.
SECTION 6. Memorandum Circulars.—Acts of the President on matters relating to internal administration, which the President desires to bring to the attention of all or some of the departments, agencies, bureaus or offices of the Government, for information or compliance, shall be embodied in memorandum circulars.
SECTION 7. General or Special Orders.—Acts and commands of the President in his capacity as Commander-in-Chief of the Armed Forces of the Philippines shall be issued as general or special orders.
36Rollo, pp. 764-783.
37 BASILS CONVERSION DEVELOPMENT ACT OF 1992.
38 AN ACT AMENDING REPUBLIC ACT NO. 7898. ESTABLISHING THE REVISED AFP MODERNIZATION PROGRAM AND FOR OTHER PURPOSES.
39 Ongco v. Dalisay G.R. No. 190810, July 18, 2012, 677 SCRA 232, 236.
40 RULES OF COURT, Rule 19, Sec. 1. Who may intervene. - A person who has a legal interest in the matter in litigation, or in the success of either of the parries, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in the action.
41Ongco vs. Dalisay, supra note 39, at 239.
42Heirs of Gabriel Zari vs. Santos, Nos. L-212123 and L-212124, March 28, 1969, 275 SCR A 651: see also Denguel Consolidated Mining Co. v. Pineda. No. L-7231, March 28. 1956, 98 Phil 711, 722, quoting from Pearsall vs. Great Northern R. Co., 161 U.S. 646: Rights are vested when the right to enjoyment, present or prospective, has become the property of some particular person or persons as a present interest. The right must be absolute, complete and unconditional, independent of a contingency, and a mere expectancy of future benefit, or a contingent interest in property founded on anticipated continuance of existing laws, does not constitute a vested right. So, inchoate rights which have not been acted on are not vested, (emphasis added)
43Rollo, pp. 71-780.
44 Dissenting Opinion of Chief Justice Maria Lourdes P. A. Sereno, League of Cities of the Philippines (LCP) vs. Commission on Elections. G.R. Nos. 176951. 177499, and 178056, June 28, 2011, 652 SCRA 798, 822.
45Rollo, p. 1425.
LEONEN, J.:
5.1.3 Vice Chairman Abaya expressed concern that BCDA might be questioned later on why it opted to go via Annex 'C and not the Annex 'A' mode of disposition. In order to justify BCDA going via Annex 'C mode, it should be made clear to the interested proponents that there are already offers higher than the JUSMAG property[.]17 (Citation omitted)
5.2.4 The JV-SC informed both entities that the rejection of their proposals does not preclude them from submitting another proposal. To be able to let BCDA fairly and equitably name the original proponent under the JV Guidelines, the JV-SC would like to adopt a process wherein both PSEs shall submit a much improved proposal simultaneously. This would determine which between the two entities shall be subjected for evaluation as the original proponent. This would also resolve the issue of which entity submits first. The determination of the original proponent shall be based on the content of their respective proposals, compared against BCDA's pre-approved minimum parameters for the disposition of the subject property. 5.2.5 The JV-SC informed the proponents that they may submit their respective proposals, if any, on 04 May 2010, 9:00 am at the BCDA Corporate Center.27
On 4 May 2010, merely six days before the Presidential Elections, SMLI submitted its 3 May 2010 Unsolicited Proposal to BCDA. This Unsolicited Proposal was opened at 9:00 a.m. during the BCDA Business Development Board Committee Meeting in the presence of SMLI representatives. The 3 May 2010 Unsolicited Proposal was thereafter forwarded to BCDA's Reception Desk where it was stamped as having been received at 9:25 a.m. and then endorsed for inclusion in the Agenda of the BCDA Board Meeting set at 12:00 noon of the same day.
In a span of about three hours, the JV-SC received, opened, evaluated and recommended the acceptance of SMLI's Unsolicited Proposal for the privatization and development of the 33.1 hectare subject Property for Php32,501/sq. m. in Net Present Value (NPV) using a 10% discount rate; and the pursuit of detailed negotiations on the terms and conditions of the Joint Venture under Annex "C" of the NEDA JV Guidelines. This circumstance was not lost to some BCDA Directors. As reflected in the Minutes of the Board Meeting:
5.2.23. Director Sangil said that the Board was only given a few hours to evaluate the revised proposal by SLI, considering that copies of the same were given only shortly before the Board Meeting started. As such, the Board may not be able to come up with a wise decision on the matter.35 (Emphasis and underscoring in the original, citations omitted)
We refer to our meeting yesterday, June 10, and reiterate our concern over the decision of the Bases Conversion Development Authority (BCDA) to accept an offer to purchase the subject parcel of land at a price below our offer of PHP36,880.00 per square meter and even as you confirmed that our offer is superior to previous offers you have received.
We now formally request that you reconsider your decision and conduct a public bidding for the property consistent with the precedent set by BCDA for the South Bonifacio lots with its disposition of the JUSMAG site in February on account of its receipt of a number of offers from various proponents including ourselves. We believe that BCDA should pursue the best price for the property to uphold public interest and avoid the loss of public funds and revenues. The sudden change in BCDA's disposition mode as our government transitions to a new administration might also be questionable.38ChanRoblesVirtualawlibrary
4.4.31. Director Valencia recalled that in the disposition of the JUSMAG property, the Board could not decide on whether or not to declare ALI as the original proponent. However, subsequent proposals came along which compelled BCDA to dispose of the property through public bidding over a period of two years. Given this example, he suggested that the Board could perhaps defer its decision on the matter until such time that the new administration appoints new BCDA Board Members. He also expressed his concern about the ALI letter which alleges that the BCDA's mode of disposition might be questionable[.]
xxx
4.4.40 Director Valencia said that the ALI offer for the subject property was reduced to its present value, same with the SMLI offer. Regardless of the underlying assumptions for the offers, the value of the property is the same and the peso represented today is the same as that being represented by other proponents. Given this fact, it is prudent for BCDA to wait until new BCDA Directors are appointed by the new administration to avoid the suspicion that BCDA is rushing the disposition of the subject property.
4.4.52 Director Seno suggested the possibility of elevating the matter to the Office of the President (OP) as far as the Board's decision is concerned, explaining the process involved and the actions of the Board every step of the way. The professionalism of the BCDA Board will be questioned if it does not exercise prudence on the matter.44 (Underscoring in the original, citation omitted)
5.10.9. For the record, Director Sangil asked whether BCDA considered President Aquino's State of the Nation (SONA) speech vis-a-vis the discussions in BCDA and read on a portion of the SONA, to wit:
'May nagmungkahi sa atin, ito ang proposisyon, uupahan po nila ang Headquarters ng Navy sa Roxas Boulevard at Navy Station sa Fort Bonifacio. Sagot po nila ang paglipat ng Navy Headquarters sa Camp Agninaldo. Agaran bibigyan tayo ng isang milyon dolyar, at dagdag pa sa lahat na iyan, magsusumi [te] pa sila sa atin ng kita mida sa mga negosyong itatayo nila sa uupahan nilang lupa. Mar ami napong nag alok at nagmungkahi sa atin, mula local hanggang dayuhang negosyante, na nagpuno ng iba't ibang pangangailangan.'
5.10.10. Vice Chairman Abaya said that subsequent interviews of the Philippine Navy spokesperson identified Lot 1, which is on the other side of the Fort Bonifacio. Director Sangil, on the other hand, expressed concern that the President put emphasis on the term uupahan or lease instead of a joint venture.
xxx
5.10.14. Director Sangil wanted to place on record that BCDA has considered the policy statement of the President after his SONA. He opined that when BCDA comes up with certain policies, the policy of the President should be considered as part of the framework of a development plan for the agency.
xxx
5.10.20. xxx Director Sangil deems whatever concession, agreements, directions that may be done in the past of BCDA may be superseded by a policy statement of the President.45 (Emphasis in the original, citation omitted)
Judicial review should take a more deferential temperament when the interpretation of a statutory provision involves political choices. At the very least, these questions should be deferred until parties in the proper case using the appropriate remedy are able to lay down the ambient facts that can show that one interpretation adopted by government respondents clearly and categorically runs afoul of any law or constitutional provision. In my separate opinion in Umali v. Commission on Elections, I noted:chanRoblesvirtualLawlibraryOur power to strike down an act of co-equal constitutional organs is not unlimited. When we nullify a governmental act, we are required "to determine whether there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. "When judicial review is being applied to check on the powers of other constitutional departments or organs, it should require deference as a constitutional duty. This proceeds from the idea that the Constitution, as a fundamental legal document, contains norms that should also be interpreted by other public officers as they discharge their functions within the framework of their constitutional powers.65 (Emphasis supplied, citation omitted)
No less than three constitutional organs have interpreted the law and the relevant provision of the Constitution. I am of the view that our power to strike down that interpretation should not be on the basis of the interpretation we prefer. Rather, Governor Umali should bear the burden of proving that the interpretation of the law and the Constitution in the actual controversy it presents is not unreasonable and not attended by any proven clear and convincing democratic deficit. We should wield the awesome power of judicial review awash with respectful deference that the other constitutional organs are equally conscious of the mandate of our people through our Constitution.
The DND is mandated to maximize its effectiveness for guarding against external and internal threats to national peace and security and provide support for social and economic development. The DND is the primary government agency which supervises the Armed Forces of the Philippines (AFP). It functions, among others, as the lead line agency and authority in formulating the national defense-security policies, plans and programs on defense and security; the monitor and evaluator of the implementation of policies, plans and programs on defense and security; an innovator of new strategies on defense and security issues, including and pursuant to the national defense plan; and the implementor of the country's national defense and security commitments based on defense and security treaties, cooperation agreements, international covenants, protocols and other similar arrangements.
The AFP is composed of a citizen armed force that shall undergo military training and respond to the call to military service, organized and maintained in a manner that shall render it capable of rapid expansion from a peacetime organization to a wartime or emergency organization, a Standing Force composed of regular officers and enlisted personnel; reservists called to active duty; draftees; trainees and government-sponsored Filipino cadets enrolled in local or foreign military schools and a Citizen Armed Force that shall be composed of all reservists, and officers and enlisted men on inactive status that are all tasked with the duty to uphold sovereignty, support the Constitution, and defend the territory of the Republic of the Philippines against all enemies, foreign and domestic; promote and advance the national aims, goals, interests and polices; plan, organize, maintain, develop and deploy its regular and citizen reserve forces for national security; and perform such other functions as may be provided by law or assigned by higher authorities.
The succeeding years saw the decline in the state of the AFP while the threats to national security in the region increased, leaving the AFP seriously wanting in its capacity to defend the Philippines from external and internal threats.
The government saw the need to address this problem and enacted the AFP Modernization Act on 23 February 1995. The Act has given the Armed Forces of the Philippines a fresh mandate for the development of its capabilities as it prepares for the 21st Century.
The AFP Modernization Program entails the development and employment of certain capabilities that can address assessed threats. The objectives of the program include the development and transformation of the AFP into a multi-mission oriented force capable of effectively addressing internal and external security threats.
The AFP Modernization Program is dependent on funds appropriated for that purpose under the National Budget and from revenues generated from the development or disposition of military reservations. . . .
The AFP Modernization Program necessitates a procurement program that includes multi-year contracts which are supported by multi-year obligational authorities from the Department of Budget and Management (DBM). This will require planned expenses anchored on a budget guaranteed by annual revenue streams such as those provided by leases or joint-venture agreements over military camps provided under RA 7227.
Under the Revised AFP Modernization Act, the AFP must set priorities and schedules and map out the average cost of each modernization project. The law directs the AFP, together with the senior leaders of the defense and military establishments, to deliberately plan and determine the major defense equipment needed by the services of the AFP to enable them to perform their mandate.
The painstaking process of planning the much needed upgrade and improvement of the AFP's defense equipment is mainly dependent on budget availability. For the next five (5) years alone, the AFP will need at least Phpl5 billion per annum to upgrade its capabilities and provide the country with a minimum credible defense posture.
The Bases Conversion and Development Authority (BCDA) remits Php2 billion every year, on the average, to the Bureau of Treasury (BTr) for the AFP modernization fund. The remittance is raised from the proceeds and from the recurring revenues from the disposition, leases and joint ventures executed by BCDA pursuant to RA 7227. The remittances provide a sustained income of approximately thirteen percent (13%) of the estimated Phpl5 billion annual budgetary requirement of the AFP Modernization Program.
The AFP Modernization Program relies on the disposition of the y
Metro Manila Camps for its Modernization Fund. . . .
. . .
. . . The AFP stands to receive at least fifty percent (50%) from the proceeds from bidding for the Joint Partnership in the development of a 33.1-hectare prime property in Fort Bonifacio. . . .
According to information supplied by BCDA, DND and AFP shall receive fifty percent (50%) of the cash payment that the private sector partner is expected to pay. . . [T]he cash payment will amount to, at the minimum, Php7 billion of which intervenors expect to receive or at least Php3.5 billion for this year alone, if the bidding pushes through. This is on top of the Php2 billion that is expected to be remitted by respondent BCDA for the AFP Modernization Fund.
. . .
The intervention of DND and AFP becomes especially significant in the instant case since this Honorable Court has recently issued and granted petitioner SM Land, Inc.'s (SMLI) prayer for Temporary Restraining Order (TRO) enjoining BCDA from proceeding with the bidding of the Bonifacio South Pointe property. The issuance of a TRO directly and materially affects the interest of the DND and AFP, they being the elected statutory beneficiary of the proceeds to be derived from the disposition.73 (Citations omitted)
Section 1. Policy Requiring Public Bidding. It is the policy of this Administration that all Government contracts of Government Agencies shall be awarded through open and competitive public bidding, save in exceptional cases provided by law and applicable rules and regulations. . .
SECTION 4. PRIVATIZATION. The BCDA hereby adopts the following policy guidelines in pursuing privatization, commercialization or divestment projects:chanRoblesvirtualLawlibrary4.1. Privatization shall be the basic thrust of the conversion and development of the baselands. Privatization modes shall include, among others, leasing, joint ventures, management contract, build-operate-transfer (BOT) and its variants;cralawlawlibrary
4.3. As a general rule, the privatization process should be conducted through public bidding. However, in the exigency of public service and national interest, and consonant with existing laws, rules and regulations on negotiated contracts, simplified bidding through sealed canvass of at least three (3) pre-qualified investors, or direct negotiation, may be resorted to. The process of selecting the prospective lessees and private investors shall be transparent, where procedures and selection process adapted are made public through newspaper advertisements and similar other means[.]
VIII. QUALIFICATIONS AND WAIVERS3. BCDA further reserves the right to call off this 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.84(Emphasis supplied)ChanRoblesVirtualawlibrary
For clarity, however, the term "disposition" cannot be interpreted as anything other than the entire competitive challenge process. The terms of reference define "privatization" as "the disposition of the Property through joint venture." In the context of SMLI and BCDA's dealings, the object of disposition is always the 33.1-hectare property of BCDA in Fort Bonifacio, and the disposition of that property is privatization. Privatization is an entire process that starts from selection and ends with the actual transfer of ownership of property.88 (Citations omitted)
Stage Three - Once the negotiations have been successfully completed, the JV activity shall be subjected to a competitive challenge, as follows:chanRoblesvirtualLawlibrary. . .
5. Within seven (7) calendar days from the date of completion of the Competitive Challenge, the JV-SC shall submit the recommendation of award to the Head of the Government Entity. Succeeding activities shall be in accordance with Sections VIII. (Award and Approval of Contract) and X (Final Approval) of Annex A hereof.96 (Emphasis supplied)
VIII. Award and Approval of Contract. . . .
2. Decision to Award. Within seven (7) calendar days from the submission by JV-SC of the recommendation to award, the Head of the Government Entity shall approve or reject the same. The approval shall be manifested by signing and issuing the "Notice of Award" to the winning private sector participant within seven (7) calendar days from approval thereof.
All participating private sector participants shall be informed of the award in writing. Such decision shall be made available to the public upon request.98 (Underscoring in the original)
Endnotes:
1 Rollo, pp. 1464-1496.
2 Id. at 1425, Resolution; SM Land, Inc. v. Bases Conversion and Development Authority, G.R. No. 203655, March 18, 2015 12 [Per J. Velasco, Jr., Special Third Division].
3Rollo, pp. 1439-1440.
4 SM Land, Inc. v. Bases Conversion and Development Authority, G.R. No. 203655, August 13, 2014, 733 SCRA 68 [Per J. Velasco, Jr., Third Division].
5Rollo, p. 1447, BCDA's Motion for Leave to File Second Motion for Reconsideration and to Admit the Attached Second Motion for Reconsideration, and p. 1464, BCDA's Second Motion for Reconsideration.
6 RULES OF COURT, Rule 51, sec. 10 and Rule 52, sec. 1; S.Cr. INT. RULES, Rule 16, sees. 1 and 3.
7Rollo, p. 63.
8 Id.
9 Id. at 55, Petition.
10 Id. at 3-59.
11 Id. at 1023-1078, BCDA's Motion to Resolve with Motion for Reconsideration.
12 S.Ct. INT. RULES, Rule 2, sec. 3(k) and 3(m).
(k) Division cases where the subject matter has a huge financial impact on businesses or affects the welfare of a community;cralawlawlibrary
. . . .
(m) cases that the Court en banc deems of sufficient importance to merit its attention[.]
13Rollo, p. 1446, BCDA's Motion for Leave to File Second Motion for Reconsideration and to Admit the Attached Second Motion for Reconsideration.
14 Id. at 1446.
15 Id. at 1464.
16Rollo, pp. 1094-1123.
17 Id. at 1040, BCDA's Motion to Resolve with Motion for Reconsideration, and p. 1481, BCDA's Second Motion for Reconsideration.
18 Id. at 1480, BCDA's Second Motion for Reconsideration.
19 Id. at 1091-1093, Robinsons Land Corporation Technical and Financial Proposal.
20 Id. at 1048, BCDA's Motion to Resolve with Motion for Reconsideration.
21 Id. at 1124-1125, BCDA's letters to Robinsons Land Corporation and to SM Land Incorporation, respectively.
22 Id. at 1482, BCDA's Second Motion for Reconsideration.
23 Id. at 1041.
24 Id. at 1126-1141.
25 Id. at 1136.
26 Id. at 1048, BCDA's Motion to Resolve with Motion for Reconsideration.
27 Id. at 1136, BCDA Board Meeting dated May 4, 2010.
28 Id. at 1483, BCDA's Second Motion for Reconsideration.
29 Id. at 1482.
30 Id.
31 Id.
32 Id. at 1482.
33 Id. at 1483.
34 Id.
35 Id. at 1042, BCDA's Motion to Resolve with Motion for Reconsideration
30 Id. at 1484, BCDA's Second Motion for Reconsideration.
37 Id. at 1145.
38 Id.
39 Id. at 1488, BCDA's Second Motion for Reconsideration.
40 Id.
41 Id. at 1492.
42 Id. at 1146-1170.
43 Id. at 1171-1206.
44 Id. at 1043-1045, BCDA's Motion to Resolve with Motion for Reconsideration.
45 Id. at 1045—1046, BCDA's Motion to Resolve with Motion for Reconsideration, and 1484, BCDA's Second Motion for Reconsideration.
46 Id. at 1046, BCDA's Motion to Resolve with Motion for Reconsideration, and 1488, BCDA's Second Motion for Reconsideration.
47 Id. at 1488, BCDA's Second Motion for Reconsideration.
48 Const, art. VII, sec. 17.
49 Const., art. VII, sec. 5.
50 Const., art. VII, sec. 17.
51Rollo, p. 1479, BCDA's Second Motion for Reconsideration.
52 Id. at 574.
53 Id. at 1081.
54 Id. at 1479, BCDA's Second Motion for Reconsideration.
55 Id. at 1479-1480.
56 Id. at 1082.
58 Id. at 1048-1050, BCDA's Motion to Resolve with Motion for Reconsideration.
59 Id. at 635, BCDA's Memorandum for H.E. The President dated February 13, 2012.
60 Const, art. VII, sec. 1.
61 J. Leonen, Concurring Opinion in Araullo v. Aquino III, G.R. No. 209287, July 1, 2014, 728 SCRA 403 [Per J. Bersamin, En Banc].
62 Id.
63 J. Leonen, Concurring Opinion in Araullo v. Aquino III, G.R. No. 209287, February 3, 2015, 3 [Per J. Bersamin, En Banc].
64 G.R. No. 209287, February 3, 2015, [Per J. Bersamin, En Banc].
65 J. Leonen, Concurring Opinion in Araullo v. Aquino III, G.R. No. 209287, February 3, 2015, 21 [Per J. Bersamin, En Banc].
66 Rep. Act No. No. 7227 (1992), sec. 2 provides:
Sec. 2. Declaration of Policies. - It is hereby declared the policy of the Government to accelerate the sound and balanced conversion into alternative productive uses of the Clark and Subic military reservations and their extensions (John Hay Station, Wallace Air Station, O'Donnell Transmitter Station, San Miguel Naval Communications Station and Capas Relay Station), to raise funds by the sale of portions of Metro Manila military camps, and to apply said funds as provided herein for the development and conversion to productive civilian use of the lands covered under the 1947 Military Bases Agreement between the Philippines and the United States of America, as amended. It is likewise the declared policy of the Government to enhance the benefits to be derived from said properties in order to promote the economic and social development of Central Luzon in particular and the country in general.
67 Exec. Order No. 62 (1993), sec. 1.4 provides:
SECTION 1. Policy Framework - The BCDA shall be guided by the following policy framework in its conversion program:
1.4 The BCDA shall plan and implement fund generating projects which will maximize the use of the military camps in Metro Manila that shall be sold pursuant to Section 8 of the Act with the funds generated therefrom to be strictly utilized as provided for in the Act; and
68 Rep. Act No. No. 7227 (1992), sec. 8 provides: Sec. 8 ...
. . . The proceeds from any sale, after deducting all expenses related to the sale, of portions of Metro Manila military camps as authorized under this Act, shall be used for the following purposes with their corresponding percent shares of proceeds:
1. Thirty-two and five-tenths percent (32.5%) - To finance the transfer of the AFP military camps and the construction of new camps, the self-reliance and modernization program of the AFP, the concessional and long-term housing loan assistance and livelihood assistance to AFP officers and enlisted men and their families, and the rehabilitation and expansion of the AFP's medical facilities[.]
69 Rep. Act No. No. 7227 (1992), sec. 8.
70 J. Leonen, Dissenting Opinion in SM Land, Inc. v. Bases Conversion and Development Authority, G.R. No. 203655, August 13, 2014, 733 SCRA 68, 123-124 [Per J. Velasco, Jr., Third Division].
71Rollo, pp. 764-770.
72 Id. at 771-782.
73 Id. at 772-777.
74 Exec. Order No. 423 was executed on April 30, 2005.
75 CONST., art. VII, sec. 5 provides:
SECTION 5. Before they enter on the execution of their office, the President, the Vice-President, or the Acting President shall take the following oath or affirmation:
"I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as President (or Vice-President or Acting President) of the Philippines, preserve and defend its Constitution, execute its laws, do justice to every man, and consecrate myself to the service of the Nation. So help me God." (In case of affirmation, last sentence will be omitted.)
76 Ponencia, p. 10.
77 Id.
78 S.CT. INT. RULES, Rule 2, sec. 3(k) and 3(m).
(k) Division cases where the subject matter has a huge financial impact on businesses or affects the welfare of a community;cralawlawlibrary
(m) cases that the Court en banc deems of sufficient importance to merit its attention[.]
79Rollo, pp. 64-72
80 Id. at 74-88.
81 Id. at 351-352.
82 Id. at 351.
83 Id. at 64-71, Certification of Successful Negotiations.
84 Id. at 86-87.
85 Id. at 1419-1422, Resolution; SM Land, Inc. v. Bases Conversion and Development Authority, G.R. No. 203655, March 18, 2015 6-9 [Per J. Velasco, Jr., Special Third Division].
86 Rollo, p. 74.
87 Id. at 87, Terms of Reference VIII.3.
88 J. Leonen, Dissenting Opinion in SM Land, Inc. v. Bases Conversion and Development Authority, G.R. No. 203655, August 13, 2014, 733 SCRA 68, 131 [Per J. Velasco, Jr., Third Division].
89Rollo, pp. 74-75, Terms of Reference, and p. 374, NEDA Joint Venture Guidelines, Annex C, III, Stage Three, 4.
90 Id. at 374, NEDA Joint Venture Guidelines, Annex C, III, Stage Three, 4; Cf. Exec. Order No. 62 (1993).
91See Exec. Order No. 423 (2005), sec. 8 provides:
Section 8. Joint Venture Agreements. The NEDA, in consultation with the GPPB, shall issue guidelines regarding joint venture agreements with private entities with the objective of promoting transparency, competitiveness, and accountability in government transactions, and, where applicable, complying with the requirements of an open and competitive public bidding.
See also Rep. Act No. 9184 (2002), sec. 3 provides:
SEC. 3. Governing Principles on Government Procurement. - All procurement of the national government, its departments, bureaus, offices and agencies, including state universities and colleges, government-owned and/or -controlled corporations, government financial institutions and local government units, shall, in all cases, be governed by these principles:
(b) Competitiveness by extending equal opportunity to enable private contracting parties who are eligible and qualified to participate in public bidding.
92 Ponencia, p. 6.
93 Id. at 11.
94 Id. at 373-375.
95 Id. at 373.
96 Id. at 374-375.
97 Id. at 360-370.
98 Id. at 368.