So the Filipino people may know

The opposition of many porters, dockers, truckers, vendors, informal settlers, migrant workers, and other port community groups  against the implementation of the Manila North Harbor Modernization (MNHMP) is valid and actually stands on good and firm legal grounds.

While opponents may brush the rampaging tide as merely a run-off-the mill protest, the MNHMP, that is about to be awarded by the Philippine Ports Authority (PPA) to the lone bidder, featuring the consortium of Metro Pacific Investments Corp. (MPIC) and Harbour Centre Port Terminal, Inc. (HCPTI), is actually a violation of several Philippine laws and an executive order in the event of its full implementation.

To wit, here are the laws that have already been and shall be recklessly run over by the MNHMP and its proponents once the project is started:

Executive Order No. 308

Entitled as “Accelerating the Privatization of the North Harbor” and issued on October 31, 2000 by President Joseph Estrada, EO 308 specifically cited that bidding of the Manila North Harbor should be undertaken in two separate biddings for two packages. The EO also provided that an independent watchdog should be formed to oversee the bidding process.

PPA did not undertake separate biddings for the two project packages; instead it combined both packages as MNHMP and conducted a single public bidding. The port agency also never created the supposed independent watchog in undertaking in the bidding process.

Republic Act No. 9184 (The Government Procurement Reform Act)

PPA erroneously implemented the bidding for teh MNHMP through R.A. 9184 instead of Republic Act No. 7718 (the Build-Operate-Transfer Law), which have been used as governing law in many government infrastracture projects.

The components of MNHMP do not involve the procurement of goods, infrastractures or consulting services for R.A. No. 9184 to apply. PPA also did not appropriate a budget for the MNHMP nor it included it in its annual procurement plan, as required under Section 7 of the Implementing Rules and Regulations (“IRR-A”) of R.A. No. 9184.

The port agency also did not require the bidders to submit a detailed engineering of the infrastractures project in accordance with Section 17.4 of R.A. 9184.

Members of the Bids and Awards Committee (BAC) of the PPA are prohibited from communicating with a prospective bidder. In the case of MNHMP, not only did the PPA and representatives of the consortium directly negotiate the bidding, but, more significantly, they also entered into a compromise agreement. Worse, the subject of the compromise was to recall a BAC resolution as well as a PPA Board Resolution declaring a failure of bidding, which resolutions had become final, as the consortium did not file any motion for consideration.

Republic Act No. 7718 (An Act Authorizing the Financing, Construction, Operation and Maintenance of Infrastracture Projects by the Private Sector, and for Other Purposes)

R.A No. 7718 sets down the guidelines in private sector-initiated projects but the PPA chose to ignore its provisions for the bidding despite the fact that all of the components for the MNHMP which is to be undertaken through private sector funding fall within the phrase of “private sector infrastracture or development projects as defined and covered under Section 2 [a] of the same law. The anomaly becomes clear if the criteria and the standards set for the evaluation of the winning bid is actually paralyzed.

PPA not only required from prospective bidders a mere “commitment to undertake the development of the Manila NOrth Harbor” and gave the latter the unilateral obligation to determine how much investment it will infuse for the project, which financial commitment no matter how small is not favored in the selection of the winning bid.

Worse, PPA sought to evaluate the technical aspect of each proposal for the development of the Manila North Harbof purely on the basis of whether or not the bidder actually submitted all the required technical documents, without going into the substance of each proposal. This runs contrary to the provision of Sections 8.1 of the IRR-A of R.A. 7718.

Even worst, for the evaluation the financial commitment of each prospective bidder, the PPA merely directed them to submit only two documents for its evaluation: a simple undertaking and the detailed listing of proposed cargo handling rates to be imposed. It did not seek to determine the financial capacity of each bidder, much less its equity to undertake the project, within the parameters set by Section 5.4 [c] of the IRR-A of R.A. 7188.

Republic Act No. 7279 (The Urban Development and Housing Act of 1992)

Section 29 of the Republic Act No.7279 declares that informal settlers are entitled to be “relocated or transferred to resettlement sites with basic services and facilities and access to employment and livelihood opportunities sufficient to meet the basic needs of the affected families.” The uncertainty of the terms in Section 5.1 of the Terms of Reference (TOR) of MNHMP violates the right of informal settlers residing within the Manila North Harbor. In fact that the PPA has not earmarked a budget for the relocation, nor included it in its annual procurement plan which shows its lack of commitment to comply with the law in respecting informal settlers’ rights.

Article 279 of the Labor Code

The TOR has retrechment provisions under Section 11. This retrenchment provision affects the security of tenure of regular employees working for companies engaged in businesses within the Manila NOrth Harbor. They are not employees of either the Philippine Ports Authority or that of the consortium, and under Article 279 of the Labor Code, they are entitled to security of tenure. They may be terminated for cause but this termination must be decided and made only by the company or companies they directly work for, neither by PPA nor by the winning bidder.

Section 11 of the TOR also gives the winning bidder the authority to retrench cargo handlers, porters, truck drivers and all other workers. Though they may base it on just causes, it is still illegal because the winning bidder is neither the direct employer nor the owner of the businesses to which these employees work for.

House Resolution No. 1066 has been filed in the Lower House as early as March 23, 2009 by Bayan Muna Partylist Representatives Satur Ocampo and Teodoro Casino calling for a Congressional investigation of the alleged rigging in the MNHMP.

On September 11, 2009, in a press conference, Rep. Casino publicly voiced out his opposition to the project because it tramples on the rights, livelihood and future of the urban poor, particularly those living or making a living in Manila NOrth Harbor, even branding the project a ‘sweetheart deal’. With the massive support of port workers’ groups and informal settlers of the port, Rep. Casino assured that he will strongly push for the immediate investigation of the MNHMP bidding by the House Committee on Public Transport and Infrastracture.

Engr. Nelson P. Ramirez
President
United Filipino Seafarers

Emilio B. Manaois
President
Pagkakaisa ng Manggagawa sa Pantalan

Nenita Reli
President
Nagkakaisang Manileno Tungo sa Pagbabago

Mary S. Bertolano
President
North Harbor Port Vendors Multi-Purpose Cooperative