THE controversy over the planned Magsaysay Park project that has pitted the city mayor against the vice mayor appears to be turning for the worse as City Legal Officer Geraldine Baniqued chides Vice Mayor Alvin Fernandez for his seeming ignorance of the law.

In her December 13 letter to Fernandez, Baniqued said the bidding process conducted that led to the awarding of the contract to Magsaysay Tourism Complex on a build-operate-transfer scheme to Metrostate Realty Development Corporation had legal basis contrary to what he alleged.

She assured the Sangguniang Panglunsod that is now considering draft resolutions prepared by her office, that all the plans for the project were not arrived at “on sheer whimsical premises or caprices of the mayor”.

Baniqued said the project was approved by the City Development Council and pointed to the 2nd to the penultimate paragraph of the CDC resolution, which indicated that the Magsaysay Park Development project was adopted a priority project of the Dagupan City government even as she stressed that “there is no provision in the law that requires the CDC to approve the plan, the bidding or the terms of reference of the project which they have identified as priority project for inclusion in the Annual Investment Plan.”

She rejected the vice mayor’s view that the project had to be ‘prioritized’ subject to the availability of funds of the local government unit, claiming that the AIP includes projects which may be funded by other sources other than the internal budget of an LGU.

Fernandez said the SP approved resolution 5406-2006 adopting Magsaysay Park Development Project as a Priority Program of the city government, but pointed out that in passing the measure, the SP never received any actual plan but Baniqued denied this. She said records showed that SP acknowledged receipt of several plans on November 27 this year.

On Fernandez’s claim that the SP must authorize a project before it is bided out, Baniqued challenged the vice mayor to specify the particular provision of law which requires SP authority at all times prior to bidding.

“To my mind though, what comes closest to the proposition is Section 5.2 of the IRR (Implementing Rules and Regulations) of RA 6957, which provides among others that, the projects plans are transmitted to the local sanggunian for approval prior to the call for bids for their implementation,” she said.

She said though RA 6957 has been amended by RA 7718, perusal of the latest law reveals no specific provisions requiring sanggunian’s authority prior to the call for public bidding.

Baniqued said assuming for the sake of argument that approval of the project prior to the call for bids is still a requirement, (SP) Resolution 5406 entitled “Adopting the Magsaysay Park Development Project as Priority Program of the City Government” may be construed as the project approval of the SP.

“It is therefore inaccurate to say that all projects require prior specific authority from the SP before they can be bided out,” she said.

While she conceded Fernandez’s assertion that the city council must authorize any rental fee or other fees before it is to be bided out, Baniqued reminded the vice mayor that the collection of rentals or other fees is not a mandatory provision for all BOT projects.

However, in rejecting the vice mayor’s claim, Baniqued did not explain why the city mayor still went to the city council to seek approval of a draft resolution as early as January 10 that “The Mayor may be granted authority to enter into a Memorandum of Agreement with a reputable firm to develop and property the Magsaysay Park” in a bid to avoid conducting a public hearing.

Chiding the vice mayor further, she “begged for Fernandez’s indulgence” because she “cannot remember the particular provision of law which provides this matter.”

She stressed that in a BOT project, the LGU may opt to share in the proceeds of the private entity if it is so provided in the terms of reference and or agreed upon in the pre-bid conference.

According to Baniqued, aside from the development of the area, the proponent pays the city a minimum of P1 million per year as she insisted that the project is not simply a leasing arrangement.

She said under the BOT scheme, the private entity is duty bound to develop the entire area of 3,962 sq. m. but under the terms of reference, only one half of the entire area can only be utilized for commercial purposes.

Baniqued also flatly rejected Fernandez’s notion that BOT requires that the government determines how much an operator must charge its tenants, and that return on investment shall not exceed 12% in case of a negotiation. She said “BOT law, RA 6957 as amended by RA 7718, does not empower the LGU to determine how much an operator is to charge its tenants.”

She argued that the Implementing Rules and Regulations of RA 6957 support her statement.

Baniqued maintained that since the City Mayor’s office had substantially complied with the law, a re-bidding which will necessarily entail a waste of precious resources would not be necessary.

She said a re-bidding will result in bigger losses to the city since it already “spent for the conduct of bidding alone, in addition to shouldering the cost of plan preparation, publication expenses and other incidental costs.”

Baniqued inferred that the city government can begin to reap the benefits of the contract next year if pursued by this administration. – AQL

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