BAYAN MUNA vs. MENDOZA

BAYAN MUNA PARTY-LIST REPRESENTATIVE SATUR C. OCAMPO, ET AL VS. LEANDRO MENDOZA, SECRETARY OF DEPARTMENT OF TRANSPORTATION AND COMMUNICATION, ET AL.

G.R. NO. 190431

JANUARY 31, 2017 

FACTS:

On December 15, 1997, DOTC/LTO awarded to Stradcom a contract for the construction and operation of an information technology structure called the LTO IT Project Build-Own-Operate Agreement (BOO Agreement), making Stradcom the exclusive information technology provider of DOTC/LTO.

The LTO IT Project is a long-term strategic plan to modernize the land transportation systems. It covers the development of a System Integrated Information Technology Solution Infrastructure, which will interconnect LTO's district offices nationwide, enable online transaction processing and integrate its mission critical business processes.

On September 26, 2007, Stradcom presented to the LTO the Radio Frequency Identification (RFID) Project as an enhancement to the current motor vehicle registration system.

On May 6, 2009, the DOTC issued Circular No. 2009-06 entitled Rules and Regulations on the Implementation of the Radio Frequency Identification Tag for All Motor Vehicles Required to be registered under the Land Transportation and Traffic Code, as Amended (DOTC RFID Rules).

On June 16, 2009, the RFID Memorandum of Agreement (RFID MOA) was entered into between DOTC/LTO and Stradcom. The RFID MOA provided that fees due to Stradcom shall be collected and deposited by the LTO in a government depository bank account designated by and in the name of Stradcom. Of the total amount of P350 to be collected for each RFID tag, the base amount exclusive of VAT was P312.50.

This P312.50 was broken down as follows: P20.43 shall be given to DOTC/LTO, P259.14 shall be due to Stradcom, and P32.73 for each RFID Tag payment shall go to the IT Training Fund to assist the DOTC/LTO in improving its service to the public; and this fund "shall be deposited in a bank account under the sole control" of Stradcom.

On August 7, 2009, the LTO issued Memorandum Circular No. ACL-2009-1199, entitled "Implementing Rules and Regulations for the Radio Frequency Identification Tag for all Motor Vehicles Required to be registered Under the Land Transportation and Traffic Code, as Amended" (LTO RFID IRR).

Because of various stakeholders' concerns and requests, on September 30, 2009, the LTO issued Memorandum Circular No. ACL-2009-1220 deferring the mandatory implementation of the RFID Project to January 4, 2010.

ISSUES:

1. The DOTC/LTO in implementing the RFID project committed grave abuse of discretion amounting to lack or excess of jurisdiction and violated republic act 9184 and Republic Act No. 6957.

2. The assailed executive issuances are unconstitutional as the same were issued in usurpation of the legislative power of congress due to the absence of a law providing for the installation of radio frequency identification tag on all motor vehicles as a pre-requisite for the registration or re-registration thereof.

3. The assailed executive issuances are unconstitutional as the same fail to present compelling interest or interests and are absent of sufficient safeguards and well-defined standards to prevent impermissible intrusions on the right to privacy.

THE RULING OF THE COURT:

The Court finds the Petition to be partly meritorious.

PROCEDURAL ISSUE

In its Comment, Stradcom raises the lack of personality of PISTON to file the Petition, considering that its Certificate of Registration with the SEC has already been revoked as early as 2003.  On this score, Stradcom raises a valid point. Upon the revocation of its registration, PISTON no longer existed for all legal intents and purposes. Section 4, Rule 8 of the Rules of Court states that the facts showing the capacity of a party to sue must be averred. No such fact was provided in the case at bar.

Hence, for failing to show that it is a juridical entity, endowed by law with the capacity to bring suits in its own name, PISTON is devoid of any legal capacity to institute this action.

With respect to petitioner-in-intervention AAP, Stradcom claims that it does not have the requisite legal personality to intervene, as it does not allege any injury to the organization. Rather, the injury, if any, would be to its members who would be required to pay the RFID fee. Stradcom claims that absent any allegation that it is AAP that will shoulder the costs of the RFID for the latter's members, AAP cannot institute the present suit.

The 1997 Rules of Civil Procedure requires that every action must be prosecuted or defended in the name of the real party-in-interest, i.e., the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. However, despite its lack of interest, an association has the legal personality to file a suit and represent its members if the outcome of the case will affect their vital interests. Similarly, an organization has the standing to assert the concern of its constituents.

In view thereof, the Court rules that AAP has the standing to file the instant suit.

In any case, even if petitioners and petitioners-in-intervention were not sufficiently clothed with legal standing, in view of the transcendental importance to the nation of the issues raised in this Petition and in the succeeding pleadings, the Court may relax the standing requirements and allow a suit to prosper even when there is no direct injury to the party claiming the right of judicial review.

SUBSTANTIVE ISSUES

A. The RFID MOA is a separate and distinct contract from the BOO Agreement.

Contrary to the allegations of Stradcom, the RFID MOA is a not a "mere enhancement," but a substantial amendment of the BOO Agreement. The terms of the RFID MOA are beyond the scope of the BOO Agreement.

In both ordinary and legal parlance, to "enhance" means to make greater in value or attractiveness. In an unqualified sense, the word also means to increase and comprehends any increase in value. [52] However, to enhance something, such as a contract or a project, entails an increase or improvement of already existing components. It does not contemplate the addition of new components which result in an amendment or a modification of the basic terms of the contract.

B. The RFID MOA is void for failure to undergo competitive public bidding.

As a separate project, the RFID Project should have undergone public bidding.

Section 5 of the BOT Law provides that upon the approval of a project, a notice must be made inviting all prospective project proponents to a competitive public bidding. The public bidding must be conducted under a two-envelope/two-stage system: the first envelope to contain the technical proposal and the second one to contain the financial proposal.

In this case, it is patently admitted by DOTC/LTO that no public bidding was conducted on the RFID Project, which was presented by Stradcom as a proposal that would enhance the existing LTO IT Project.

The RFID MOA must, thus, be struck down by this Court for failure to comply with the rules on public bidding. There is no guarantee that the RFID fee that will be charged to the public is a fair and reasonable price, as it has not undergone public bidding. Likewise, there is no guarantee that the public will be receiving maximum benefits and quality services, especially from the additional hardware, such as the RFID tags and readers. These are to be procured by Stradcom from its two suppliers, which have not been identified and are not even parties to the RFID MOA. On the other hand, Stradcom, which has been awarded the exclusive right to develop and operate the RFID system without having undergone competitive public bidding, stands to earn considerable amounts of revenue from the contract. In fact, in just three months, the period when the RFID Project was implemented prior to the issuance of the Status Quo Ante Order by this Court, the LTO had already generated P29,894,200 in RFID Fees. Clearly, the evils sought to be avoided by the requirement of competitive public bidding are evident in this case.

As a substantial amendment to the BOO Agreement, there is a violation of public policy and the BOT Law for failure to execute the contract as contained in the original bid.

Even if one were to follow Stradcom's argument that the RFID MOA is not separate from the BOO Agreement, still, its case would not prosper. The RFID MOA is not so much a "mere enhancement" of the BOO Agreement as it is a substantial amendment thereof.

It goes without saying that any contract awarded as a result of competitive public bidding must be executed faithfully by the parties. The Court stressed the importance of such adherence to the original contract in Agan v. PIATCO, from which we quote:

“Again, we bright line the principle that in public bidding, bids are submitted in accord with the prescribed terms, conditions and parameters laid down by government and pursuant to the requirements of the project bidden upon. In light of these parameters, bidders formulate competing proposals which are evaluated to determine the bid most favourable to the government. Once the contract based on the bid most favorable to the government is awarded, all that is left to be done by the parties is to execute the necessary agreements and implement them. There can be no substantial or material change to the parameters of the project, including the essential terms and conditions of the contract bidden upon, after the contract award. If there were changes and the contracts end up unfavorable to government, the public bidding becomes a mockery and the modified contracts must be struck down.”

Former Chief Justice Artemio Panganiban, in his Separate Opinion in the main Decision in Agan, explained that the substantial amendment of a contract previously bid out, without any public bidding and after the bidding process has been concluded, is violative of the public policy on public biddings and the spirit and intent of the BOT Law. The very rationale for public bidding is totally subverted by the amendment of the contract for which the bidding has already been concluded. Competitive bidding aims to obtain the best deal possible by fostering transparency and preventing favoritism, collusion and fraud in the awarding of contracts. That is the reason why procedural rules pertaining to public bidding demand strict observance.

As to the second and third issues raised by petitioners assailing the constitutionality of the DOTC/LTO issuances for being issued in usurpation of Congress' legislative powers, and for violating the right to privacy, it is unnecessary to rule on the same considering the foregoing discussion declaring the RFID MOA null and void for failure to undergo competitive public bidding. Digested by jsg