Without perhaps meaning to, the former Makati City officials who testified at the Senate blue ribbon subcommittee hearing on Makati City Parking Building 2 may have unwittingly given corrupt public officials a crash course on how to rig public bidding.
They gave a step-by-step account on how government procurement rules were allegedly circumvented in the bidding for the construction of several Makati buildings.
The scheme starts in the publication and posting of bid notices, which may either be an invitation to bid or a request for expression of interest in the proposed project.
Subject to certain price ranges, the procurement rules require that the notices be advertised at least once in a newspaper of general circulation that has been regularly published for at least two years before the date of advertisement.
In addition, the notice should be posted at a conspicuous place reserved for this purpose at the premises of the government office concerned for seven calendar days.
To go around the posting requirement, the notice is instead posted elsewhere, or at a place where potential suppliers of goods and services are not expected to look, or, worse, not posted at all.
Determination
With regard to the newspaper advertisement, the notice is published in a fly-by-night newspaper, i.e., it comes out only when there are notices to be published, or made to appear it was published in a non-existent newspaper whose “publisher” is willing [for a handsome fee] to issue an affidavit of publication.
With no other bidders around, the bidding will go through the motions of the process and the favored solo bidder is given the award.
Or, as testified to during the subcommittee hearing, to put a semblance of competitive bidding, “phantom” bidders are made to appear to have participated [and lost] in the bidding.
The matter of compliance with the publication requirement in a newspaper of general circulation of the bidding notice, and for that matter, other notices of a similar nature, is interpreted in various ways depending on the government office that requires it.
For some local government units, it is sufficient the newspaper is operated by a duly registered corporation, has a business address and is distributed, no matter how limited, within their territorial jurisdiction.
For some government offices, the newspaper should be one that is likely to be read by the persons who may be interested in the notice, or whose interests would be affected by the subject of the notice, and is published at regular intervals, preferably five times a week.
Standards
The determination of whether or not a newspaper meets the criterion of general circulation is particularly significant in notices that may result to deprivation of property or forfeiture of certain personal rights.
In the case of Fortune Motors (Phils) Inc., vs Metropolitan Bank and Trust Company, G.R. No. 115068, Nov. 28, 1996, which involves the foreclosure of real estate mortgage, the Supreme Court enumerated the qualities a newspaper should have to be considered of general circulation.
It should be published for the dissemination of local news and information, has a bona fide list of paying subscribers, is published at regular intervals, and has been regularly published for at least one year before the date of publication of the notice.
Although the decision did not expressly say it, this criteria, in effect, excludes newspapers devoted to the interests of or are published for the entertainment or benefit of a particular class, profession, trade, calling, race or religious denomination.
On the question of whether a newspaper that circulates only in certain cities of Metro Manila can competently publish the foreclosure notice subject of the case (the newspaper “New Record”), the tribunal said that “what is important is that a paper should be in general circulation in the place where the properties to be foreclosed are located in order that publication may serve the purpose for which it was intended.”
Sufficiency
The same standards were used by the tribunal in the guidelines it issued, under Administrative Matter No. 01-1-07, on the accreditation of newspapers that may be authorized to publish legal or judicial notices.
In addition, it considered a newspaper regularly published “if it comes out with 365 or two issues for those issued daily or weekly, respectively” and does not “merely reproduce or reprint news pages of other newspapers or periodicals within the region of the province or city of the Regional Trial Court involved.”
If these benchmarks (or substantially all of them) were to be applied to biddings for the delivery of goods and services earlier conducted by local government units and government offices, it is doubtful if the newspaper publication requirement had been complied with.
Leave it to the members of bids and awards committees to come up with all kinds of reasons or excuses to justify their choice of newspapers that will carry notices of public billing despite their falling short of the qualifications needed to qualify for that service.
The strict enforcement of this publication requirement is made more difficult by an issue that, based on past experience, often crops up whenever a newspaper’s capacity to publish legal notices is questioned: Press freedom.
The standard argument of newspaper publishers whose credentials come under scrutiny is, their constitutional right to free expression and communication is violated when they are discriminated against or prevented from publishing such notices.
It’s up to the Office of the Ombudsman or Department of Justice to determine if failure to strictly comply with the publication requirement gives rise to administrative or criminal liability by the government official concerned.
For comments, please send your e-mail to “rpalabrica@inquirer.com.ph.”