Solgen asks Manila court to junk suit vs. bidding on 3rd telco

MANILAGovernment lawyers have asked the Manila regional trial court (RTC) to turn down a law suit, seeking to stop the government's selection for a third telecommunications operator in the country.

In its 32-page memorandum filed in behalf of the National Telecommunications Commission (NTC) last October 31, Solicitor General Jose Calida asked the Manila RTC Branch 42 to deny the petition of NOW Telecom Co. Inc.

Calida argued that the court cannot restrain or enjoin selection process for new major player due to the prohibition on lower courts from issuing temporary restraining order or injunction order under Republic Act 8975.

NOW Telecom is seeking an injunction order to stop the bidding.

"R.A. 8975 prohibits the issuance of any injunctive writ to prohibit or refrain, among other, the bidding or awarding of an infrastructure project of the government... Plaintiff NOW Telecom's writ of preliminary injunction not restrain the bidding process for the selection of the NMP (new major player) is legally proscribed," the Solgen said.

Calida cited the suit should be thrown out for forum shopping and failure to exhaust administrative remedies by the petitioner.

He also argued that the plea for injunction of NOW Telecom should be considered moot already after the firm submitted to the NTC its position that it wants the selection process to proceed as scheduled.

"Evidently, the complaint was filed by plaintiff NOW telecom upon realizing that it is not, after all, qualified to participate in the bidding process. Hence, the imperative need, from its end, to prevent - if not delay - the selection process if, for no other reason, but to buy time," he said.

The Office of the Solicitor General (OSG) also justified key provisions in the Terms of Reference (TOR) for the bidding procedures set by NTC, which were questioned by NOW Telecom.

Contrary to allegation of petitioner, the statutory counsel of NTC argued that the terms under Memorandum Circular No. 09-09-2018 do not violate applicable laws.

This position was shared by no less than Justice Secretary Menardo Guevarra, who earlier pointed out that the Terms of Reference for the bidding procedures set by the NTC were legal and not violating any laws.

The OSG argued that PHP700-million participation security, the PHP14 to PHP24-billion performance security, and the PHP10-million non-refundable appeal fee are all necessary to determine the financial eligibilities of bidders and not "money-making scheme" or extortionary as alleged by the petitioner.

It stressed that the third telco must not only be technically capable but should also have the "financial muscle" to compete with current telecom giants, Globe and Smart.

It noted that such securities and fees imposed are consistent with the bidding and procurement processes and are even lower than those set by Republic Act 9184 or the Government Procurement Reform Act.

The OSG said the participation security aims to ensure participation of serious contenders, who have the required financial capability to be a third player that can compete with the existing duopoly. The participant is given certain options on what form they wish to put up the security such as cash, bank drafts or letters of credit.

Performance security, on the other hand, seeks to assure the government that the third telco will deliver its commitments for the five-year commitment period. Requirements for cash deposits have been removed and the participant has been given options as to the forms provided in the TOR.

The NTC said the appeal or protest fee is a usual item in the procurement processes, which will discourage frivolous motions and protests.

The OSG also denied NOW's claim that the NTC did not hold consultations in approving the TOR, saying it was the "result of public consultations and hearings, review by the Oversight Committee and lengthy and comprehensive studies with international consultants" and that "public and stakeholders also had the opportunity to submit their position papers on the matter."

The government hopes to name the third telco before the end of the year. (PNA)

Source: Philippine News Agency