BCDA loses appeal over disputed Fort Bonifacio property
MANILA, Philippines – The Supreme Court (SC) affirmed with finality its earlier decision compelling the Bases Conversion and Development Authority (BCDA) to subject a 33.1-hectare property in Fort Bonifacio to a Swiss challenge.
BCDA was earlier ordered to proceed with the process of entertaining SM Land Incorporated’s unsolicited proposal.
SM Land sued BCDA in January 2013 for supposedly changing the rules from a competitive challenge to public bidding of the formerly BNS/PMC/Ascom/SSU area, when the giant developer was already deep in negotiations with the government agency over its unsolicited proposal. (READ: Was SC justice partial in BCDA-SM Land issue?)
In a 13-page decision dated March 18, 2015 and penned by Associate Justice Presbitero J. Velasco Jr, the Supreme Court Special Third Division affirmed its August 13, 2014 decision and denied with finality the motion for reconsideration (MR) of the BCDA that asked to refer the case to the Supreme Court en banc.
The High Court also makes permanent the January 9, 2013 stay order blocking the BCDA’s plan to change to public bidding versus its original plan for a Swiss Challenge.
BCDA President and CEO Arnel Paciano D. Casanova said the Velasco Division should have realized that the sovereignty of the country and the safety of the lives of Filipino soldiers far outweigh SM Land’s commercial interest over the disputed property.
"We find the decision to be quite disturbing not to mention threatening the level playing field for business," Casanova said in a statement released Friday, April 17.
Swiss challenge discouraging
BCDA’s motion for reconsideration asked the SC to refer the case to the Supreme Court en banc, citing the disposition of the Food Terminal Incorporated bidding in 2012.
Had FTI been subjected to a Swiss challenge, the government would have earned less than P13 billion ($294.11 million) instead of the P23.9 billion ($540.72 million) it actually earned, BCDA said.
For the controversial Bonifacio property, SM Land offered to pay P38,500 ($871.03) per square meter or a total of P12.7 billion ($287.33 million).
The property though could be bought for its appraised price of P78,000 ($1765.49) to P100,000 ($2262.94) per square meter through public bidding, Casanova earlier said.
"A Swiss challenge will discourage the participation of other players because it creates a scenario where other players are playing catch up instead of being co-equals in a level playing field," Casanova said.
Casanova said that there is also a pending motion for intervention filed jointly by the Department of National Defense (DND) and the Armed Forces of the Philippines (AFP) before the Supreme Court.
"The Velasco Division has made a final ruling without resolving the pending motion. It practically ignored the AFP and DND's pending motion for intervention," Casanova said.
He also pointed out that the BCDA asked for the inhibition of Velasco because of the issuance of 3 versions of the TRO and partiality.
Velasco issued last year 3 versions of a TRO stopping the BCDA from proceeding with the public bidding. All of these were dated January 9, 2013, and received by the BCDA on 3 separate days.
Casanova added that SM Land’s unsolicited proposal is like a midnight deal.
SM Land submitted its unsolicited proposal to BCDA on May 4, 2010, only 6 days before that year’s presidential elections.
In only 3 hours, the previous BCDA Joint Venture Selection Committee received, opened, evaluated, and recommended the acceptance of SM Land's unsolicited proposal, BCDA said.
Associate Justice Marvic Mario Victor F. Leonen and Associate Justice Martin S. Villarama Jr dissented in the final ruling of Velasco that denied the motion for reconsideration.
In a separate dissenting opinion, Leonen wrote that the public interest involved in this case is the P13-billion ($294.18 million) approximation that the government stands to lose if it is forced to dispose respondent BCDA-administered property at the price proposed by petitioner SM Land.
“The figures show that competitive challenge would not be the most beneficial in this case. Proceeding with the less advantageous procedure would diminish the benefits that may be obtained for legitimate government purposes," Leonen said.
Leonen earlier penned a dissenting opinion based on an August 2014 decision, saying that the BCDA has already offered to return the value of SM Land's security plus interest and admitted its obligation to return it upon termination of the process.
Casanova said the final decision blocks the efforts to generate the much needed funds in modernizing the country's armed forces. As it gets 50% of the share, AFP also stands to lose about P6 billion ($135.81 million) for its modernization program.
"In light of the territorial dispute the country is facing in the West Philippine Sea, military hardware worth P6 billion ($135.81 million) will go a long way to protect and defend the country," Casanova said. – Rappler.com