Republic of the Philippines COMMISSION ON ELECTIONS Manila -~ARTMENT DOCUMENT Wo. \2_* \0\68 (Les \p-23084) December 17, 2018 Undersecretary FERDINAND A. PECSON Executive Director Public-Private Partnership Center 8/F One Cyberpod Centris, EDSA cor. Quezon Ave., Pinyahan, Quezon City Sir: Please be informed that the Commission En Banc, in Minute Resolution No. 18-1127-3 dated November 14, 2018, resolved to confirm “that procurement activities of PPP Projects undertaken pursuant to Republic Act No. 6957, as amended, 2013 Revised NEDA Joint Venture Guidelines, and LGU PPP Ordinances are not covered by the prohibitions stated in Section 261 (v) and (w) of the Omnibus Election Code, subject to the following conditions: [...]” Attached is a copy of the said resolution. Thank you very much! Very truly yours, Marca bteote, Atty. MARIA NORINKS. T. TKSARO- ERA, Director 1V Encl: As stated 1LO/PPP/RESO/NOTICE/SUB MRO C;50 6;2: Lie Leth vpn EXCERPT FROM THE MINUTES OF THE REGULAR EN BANC MEETING OF THE COMMISSION ON ELECTIONS HELD ON NOVEMBER 14, 2018 yapcdea2n Chairman Sheriff M, Abas COMM RW DEPARTMENT, Commissioner Al A, Parrefio Commissioner Luie Tito F, Guia ) Commissioner Nita. Rowena Amelia V. Guanzgb)) |. DEC 95 2018 Commissioner Socorro B. Inting Nb Commissioner Marion S. Casquejo | x Commissioner Antonio T. Kho, Jr XXX XxX xx t 3__. IN THE MATTER OF THE REQUEST FOR CONFIRMATION OF ra THE COMMISSION THAT THE PROCUREMENT OF PPP PROJECTS ARE NOT COVERED BY SECTION 264(v) AND (w) OF THE OMNIBUS ELECTION CODE; AND STUDY OF THE LAW DEPARTMENT THEREON This pertains to the Letter dated October 23, 2018 of Ferdinand A. Pecson, Undersecretary and Executive Director, Public-Private Partnership Center of the Philippines (PPP Center), as referred by the Office of Chairman Sheriff M. Abas, requesting confirmation of the Commission that the Procurement of PPP Projects are not covered by Section 261 (v) and (w) of the Omnibus Election Code; and study of the Law Department thereon. The Letter of Undersecretary and Executive Director Pecson addressed to Chairman Abas reads: ‘The Public-Private Partnership Center of the Philippines (PPP Center) is tasked with functions critical o expediting and implementing effectively the PPP program and projects of the Government. Pursuant to this mandate, the PPP Center sent a letter dated September 7, 2015 to the Commission requesting confirmation that goverment agencies may (i) conduct public biddings, (ii) issue notices of award, and (iil) sign PPP agreements (collectively, ‘Procurement Activities’) done through Republic Act No. 6957, as amended or the Build-Operate-Transfer Law (BOT Law) during the 45- day period prior to the national and local elections (Election Ban Period). In a meeting held on September 21, 2015, the Commission resolved to grant PPP Center's request and confirmed that such activities are not covered by the prohibitions in Sections 261 (v) and (w) of the Omnibus Election Code, subject to certain recommendations. With the infrastructure push of the present administration, the PPP Center's assistance has extended not only to projects undertaken through the BOT Law but also those pursued through other PPP frameworks, i.e., the 2013 Revised NEDA Joint Venture Guidelines (NEDA JV Guidelines) which applies to government-owned and controlled corporations, government financial institutions, govemment corporate entities, | government instrumentalities with corporate powers, and state colleges and universities; as well as the local PPP Ordinances enacted by various provinces, cities, and municipalities (LGUs) (LGU PPP Ordinances). As itis foreseen that Procurement Activities of some government agencies/LGUs will occur during the 45-day period prior to the May 13, 2019 national and local elections, (i.¢., March 29 to May 12, 2019) prospective and current bidders have expressed concern that procurement for PPP Projects will be delayed if government is unable fo continue anclor conclude |Page 2 of 8 M.R. No. 18-1127-3 Procurement Activities during the 2019 Election Ban Period. Thus, the PPP Center again respectfully seeks the confirmation of the Commission that Procurement Activities conducted not just under the BOT Law, but also under the NEDA JV Guidelines and LGU PPP Ordinances, are not covered by the provisions of Sections 261 (v) and (w) of the Omnibus Election Code. By way of background, a PPP Project, whether under the BOT Law, NEDA JV Guidelines, or LGU PPP Ordinances, typically goes through the following stages: (i) project identification, (ii) project development, (iil) project approval, (iv) project procurement, and (v) project implementation. During the project procurement stage, the goverment conducts Procurement Aotivities (i.e., public bidding, issuance of notice of award, and signing of the PPP agreement). These activities are all pre-requisites fo actual project implementation. Meanwhile, it is during the project implementation stage that parties undertake ‘their respective obligations under the PPP agreement. The private-sector proponent performs its obligation to finance, design, construct, operate, and/or maintain the public infrastructure/facility. It is also during the project implementation stage when the private-sector proponent recoups its investments through various modes of repayment allowed under applicable law (i.e., collection of user fees, share in revenue, payment concession fee, etc.) The PPP Cenier posits that Procurement Activities covered by the BOT Law, NEDA JV Guidelines, and LGU PPP Ordinances are exempt from Sees. 261 (v) and (w) of the Omnibus Election Code. Section 261 (v) of the Omnibus Election Code prohibits the disbursement of public funds for public works during the Election Ban Period, to wit. Section 261. Prohibited Acts. - The following shall be guilty of an election offense. Xxx (v) Prohibition against release, disbursement or expenditure of public funds. - Any public official or employee including barangay officials and those of government-owned or controlled corporations and their subsidiaries, who, during forty-five days before a regular election and thirty days before a special election, releases, disburses or expends any public funds for: (1) Any and all kinds of public works Xxx In Guzman vs. COMELEC, the Supreme Court discussed the elements of the prohibition as such. [t]he prohibition of the release, disbursement or expenditure of public funds for any and all kinds of public works depends on the following elements: (a)_a_public_official_or employee releases, disburses or spends public funds: (b)_the release, disbursement and expenditure is made within 45 days before a regular election or 30 days before a special election: and (c) the public funds are intended for any and all kinds of public works except the four situations enumerated in paragraph (Vv) of Section 261. ¢