Posted on April 16, 2015 10:39:00 PM [
BusinessWorld Online ]
THE BASES CONVERSION and Development
Authority (BCDA) has lost its appeal against the Supreme Court’s decision to
uphold the unsolicited proposal by the SM Group’s property arm to develop a
33.1-hectare property at Fort Bonifacio.
In a recently released 13-page
resolution dated March 18, the high court’s Special Third Division denied the
motion for reconsideration filed by BCDA and its President and Chief Executive
Officer Arnel Paciano D. Casanova.
This action affirms with finality the
high court’s August 2014 ruling ordering BCDA to proceed with the process of
entertaining SM Land, Inc.’s (SMLI) unsolicited proposal, the termination of
which was challenged by the property company.
It also finalizes as permanent the
Jan. 9, 2013 stay order blocking the BCDA’s plan to discard the process of subjecting
the proposal to Swiss challenge in favor of public bidding.
In affirming its August 13, 2014
decision with finality, the division through Associate Justice Presbitero J.
Velasco stated that “no further pleadings, motions, letters or other communications
shall be entertained in this case.”
The resolution nixed BCDA’s argument
that there was no existing agreement binding it to enter a joint venture with
SM Land and giving the company the right to demand the conduct of the Swiss
challenge.
Instead, it gave weight to the
Certification of Successful Negotiations signed in 2010 by former BCDA
President and CEO Gen. Narciso L. Abaya, considering it a valid contract which
SM Land can expect to be honored.
The high court also rejected BCDA’s
claim that the reservation clause provided by Article VIII of the terms of
reference allowed it to terminate the Swiss challenge and resort to public
bidding.
The provision stated the BCDA has the
right to call off the property’s disposition and instead conduct a new process
without any liability to private sector entities (PSEs).
But the high court noted that, since
the provision referred only to PSEs and not SM Land itself, the particular
clause did not provide any basis for the cancellation of the entire procurement
process.
It also said that estoppel against the
government-owned corporation could be invoked, disallowing it from terminating
the agreement it already concurred in.
“This is in view of the fact that
despite BCDA’s repeated assurances that it would respect SMLI’s rights as an
original proponent, and after putting the latter to considerable trouble and
expense, BCDA went back on its word to comply with its obligations under their
agreement and instead ultimately canceled the same,” the resolution said.
The court division added perceived
losses on the part of the government remained speculative, saying it did not
award the contract to SM but only ordered it subjected to the Swiss challenge.
“There is, thus, an opportunity to
increase the price, the government share as it were, through competitive
challenge, as respondents themselves previously observed,” the decision noted.
“Without first subjecting SMLI’s proposal to a competitive challenge, no bid
can yet be obtained from PSEs.”
Mr. Casanova previously said BCDA
could achieve its appraised price of P78,000-P100,000 per square meter through
public bidding. SM Land’s offer sets a price of P30,000 per square meter. --
Vince Alvic Alexis F. Nonato
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