Onerous

"Justice Carpio should consult his former law office partners."

It comes as no surprise that after President Rodrigo Duterte ordered the review of all major government contracts some people and groups who had earlier decried what they called “persecutorial acts in violation of the rule of law and the sanctity of contracts” are now busily pinpointing others which to their mind deserve priority over those identified by the Chief Executive. Wow!! Grabe!!

 Although such a move is very much welcome, it leaves us wondering: Why this sudden, newly discovered enthusiasm? But that will be another story. Onerous is onerous by any other name and therefore deserves to be looked into. Pronto. 

In the same token, I strongly suggest for these freshly minted, self styled “auditors” to come around and practice their ‘auditing” skills on those contracts which got the President’s ire in the first place. That is, if they would like the public to even believe their newfound crusade is worthy of consideration at all. Otherwise, these “initiatives” will be treated as just another political act like all the rest which they have done in the past and continuing up to the present. Like the EJK, ICC, Rappler-cum-Ressa, ICAD and even the pivot-to-China-cum- West Philippine Sea dramas they foisted on the public at one time or another.

Take Senator Risa Hontiveros,  for example, who has time and again bristled at what she termed the odious pivot-to-China which President Duterte has embarked into from the start of his administration. Hontiveros has called out PRRD on his softness on the reported influx of Chinese-sourced illegal drugs, the slap-on-the-wrist rebuke including the “puny reimbursements” given by the Chinese involved in the ramming of a Filipino fishing vessel in the West Philippine Sea by a Chines vessel and lately, the so-called onerous provisions of some ongoing Chinese funded infrastructure projects. All of these Hontiveros allegations have been proven to be untrue, misplaced or even downright malicious.

In the case of the contracts, for example, Hontiveros has yet to come out with a report on what exactly these onerous provisions are. At one point, she mentioned the financial package involved. Well, known economists have shown that the Chinese funding package was well within the range of development assistance (ODA) packages offered by such countries as Japan, Australia, France, Germany, other EU countries and even the ADB and World Bank. In fact, in the case of the 

newly established Asian Infrastructure Investment Bank (AIIB), a multilateral funding institution principally bankrolled by China, the financial package is even better specially if the project involved is enrolled as part of the ambitious Chinese “Belt and Road Initiative”(BRI). Unless the good senator can pinpoint what exactly in the Chinese offered funding package is onerous, we will have no other conclusion but to say that this brouhaha is all noise signifying nothing.      

 Now comes retired Senior Associate Supreme Court Justice Antonio Carpio saying that the procurement protocol for the US$9 billion Chinese funding for NEDA endorsed and selected infrastructure projects is the “mother of onerous contracts” and that President Duterte should start his reviewing with this protocol. Seething with contempt, Carpio    haughtily pointed out—“In exchange for putting aside the arbitral ruling on the West Philippine Sea, President Duterte secured a US$9 Billion loan from China to fund infrastructure projects in the Philippines..” Not content with that non-sequitur,  Carpio then took his obvious disdain for the Chief Executive a step further by insisting that the protocol which advised that the “…tied financing portions is for the Chinese government to propose three qualified bidders ..from whom the bidding will be conducted..”  Unless this is the first time that the good justice has seen or gone over financing packages of this nature, he should be told that this so-called “tied-in” provision is a regular feature of bilateral funding packages. If he insists otherwise, he should consult with his former law office partners who are well acquainted with these kind of contracts or go over the previous agreements he may have even written or approved for similar bilaterally funded projects during his watch as a senior Palace official during the Ramos and even Arroyo administration. But then again that will be another story.  

 Taking off from what I would characterize as a willful misapplication of the procurement protocol, Carpio then proceeds to insist that the bidding for the Kaliwa Dam, one of the selected projects for Chinese funding, was a ‘sham” since the Chinese contractors proposed by the Chinese government were in the end decided by the Chinese Communist Party (CPC). That makes the bidding a “sham”. Aw, come on! Of course, under the present set up, Chinese companies, whether state or privately owned are somehow tied in with the party which provides leadership, funding and any and all kinds of assistance including guarantees to all of these organizations. Why should that be a problem?  Then, Carpio questions the bidding process involved after two of the bidders got disqualified by the project owner, MWSS, quoting in the process a COA audit memorandum saying “..it can be deduced that the two bidders were merely included to comply with the three bidders rule ..when in reality it is a negotiated contract from the inception of the bidding process..”

Well, I will leave it to the MWSS and the winning bidder to dispute Carpio’s assertion and COA’s observation. I will just suggest that if he is interested in seeking the truth in the bidding processes involved in bilaterally or even multilaterally funded projects, he should take a look at those financed by Japan, Australia, Spain, Germany and Australia including the water concessions reportedly prepared by World Bank appointed lawyers and endorsed by that institution. That will definitely temper his anger. 

In any event, his statement and even that of the COA cannot by any measure lead us to conclude as he did that the Kaliwa Dam is overpriced. I will be more than happy to be educated by the good justice on the manner by which he came to this pass. I have seen numbers crunched on this long-delayed project including those being bandied around as alternative designs, funding and calculations, but up to now I cannot divine how Carpio came to this conclusion. For transparency sake and for the good of all of us consumers in the expanded MWSS concession areas, he should share his findings. Who knows, we may even join him in lambasting this much needed, long delayed project.