OPINION NO.

Republika ng Pilipinas
KAGAWARAN NG KATARUNGAN
Department ofJustice
Manila

MAR 1 7 2022

EXECUTIVE DIRECTOR FERDINAND A. PECSON

Public-Private Partnership Center
8'*^ Floor, One Cyberpod Centrls
Edsa cor. Quezon Ave., Brgy. Pinyahan
Quezon City

Dear Executive Director Pecson:

This refers to your request for this Department's legal opinion on the
authority of the Public-Private Partnership (PPP) Center to access and obtain
confidential project documents.

Specifically, you request the opinion of the Department confirming the

following:

1. The confidentiality and non-disclosure provisions stated in the PPP

contract between implementing agencies and project proponents cannot
be invoked against the PPP Center;

2. The implementing agencies have the obligation to provide the PPP Center
the original signed contract and copies of project documents listed in
Annex "C" of PPP Governing Board Resolution No. 2015-09-01 or the
PPP Monitoring Framework and Protocols throughout the various stages
of a PPP project; and

3. The PPP Center has the authority to access and obtain copies of project
documents of PPP projects, particularly those that are enumerated in
Annex "C of the PPP Monitoring Framework and Protocols, even if
confidentiality clauses are stipulated in the PPP agreements.

Your request, it appears, was precipitated by instances where the PPP

Center was not provided a copy of the PPP contract and other relevant
documents and that some implementing agencies declined the request of the
PPP Center for copies of said documents by invoking the confidentiality clauses
contained in their PPP Agreements, making it difficult for the PPP Center to
secure the same in fulfillment of your mandate to facilitate and monitor PPP
projects in the country.

You stated that PPP Center is mandated to: (i) monitor and facilitate the
implementation of PPP programs and projects including all the variants or
 OPINION NO. ...Ji Si'TQlk
arrangements under Republic Act (R.A.) No. 6957\ as amended by R.A. No.
7718^ or the BOT law, as well as Joint Venture agreements;^ (11) manage a
central database of information on PPP programs and projects;^ (iii) submit a
report regarding the salient features or a copy of each PPP contract to Congress
and the Investment Coordination Committee (iCC) of the National Economic and
Development Authority (NEDA) Board;® and (iv) prepare reports on the
implementation of PPP programs and projects of the government for submission
to the President at the end of each year.®

You also stated that under the implementing rules and regulations (IRR) of
the BOT Law, the Implementing agencies are required to submit to the PPP
Center an original signed copy of the PPP contract within five (5) calendar days
after signing thereof^ and to periodically submit to the PPP Center all information
on the status of projects implemented by them, as well as a copy of all
unsolicited proposals that they receive and all other related documents.®
Likewise, Section 10 of Executive Order (E.O.) No. 8®, as amended by E.O. No.
136^°, directs all government agencies, including local government units, to
submit reports to the PPP Center on all projects undertaken through PPPs and
mandates the PPP Center to prescribe the frequency of submission, format and
contents, among others.

You further stated that consistent with the aforementioned mandate of the
PPP Center, the PPP Governing Board issued Resolution No. 2015-09-01^^
which directed the PPP Center to: (i) provide reports to the President, Congress,
and the ICC, the Economic Cluster, the Contingent Liability Technical Working
Group and the Development Budget Coordination Committee; (ii) review and
analyze reports and documents submitted by the implementing agency; and (iii)
document best practices and lessons learned in the PPP projects.^^ On the
other hand, the implementing agencies have the obligation to provide copies of

1 Entitled ; "An Act Authorizing The Financing, Constmction, Operation And Maintenance Of Infrastructure
Projects By The Private Sector, And For Other Purposes", dated 9 July 1990.
2 Entitled : "An Act Amending Certain Sections Of Republic Act No. 6957, Entitled An Act Authorizing The
Financing, Construction, Operation And Maintenance Of Infrastructure Pmjects By The Private Sector, And
For Other Purposes", approved on 8 May 1994.
3 Section 2(e), Executive Order No. 8, as amended by Executive Order No. 136, entitled "Reorganizing And
Renaming The Build-Operate And Transfer (BOT) Center To The Public-Private Partnership Center Of The
Philippines And Transferring Its Attachment From Tfte Department Of Trade And Industry To The National
Economic And Development Authority And For Other Purposes", also Sections 1.3(e) and 14.1 of the BOT
Law and its Implementing Rules and Regulations.
^ Section 2(f) of E.O. No. 8.
®Section 14.4 of the BOT Law IRR.
6 Section 2(h) of E.O. No. 8.
^ Section 12.1.
®Section 14.1.
® Entitled : "Reorganizing And Renaming The Build-Operate And Transfer (BOT) Center To The Public-
Private Partnership (PPP) Center Of The Philippines And Transferring Its Attachment From The Department
Of Trade And Industry To The National Economic And Development Authority And For Other Purposes",
dated 9 September 2010.
^0 Entitled : "Amending Certain Sections Of Executive Order No. 8 (S. 2010) Which Reorganized And
Renamed The Build-Operate And Transfer Center To The Public-Private Partnership Center Of The
Philippines And Transferred Its Attachment From The Department Of Trade And Industry To The National
Economic And Development Authority, And For Other Purposes^, dated 28 May 2013.
PPP Monitoring Framework and Protocols.
Section IV (4.2)(c.1) of the PPP Monitoring Framework and Protocols.
 OPINION NO.
the relevant documents to the PPP Center throughout the various stages of the
PPP project.^^

Similarly, pursuant to the Joint Memorandum Circular No. 2018-01 of the

PPP Center and the Department of Budget and Management, the implementing
agencies are required to regularly submit various documents to the PPP Center
to enable the latter to prepare and submit the projected and actual spending for
PPP projects to various agencies and to improve and regularly update the
database of PPP project information.^^

However, as earlier mentioned, there have been instances where the PPP
Center was not provided a copy of the PPP contract and other relevant
documents and that some implementing agencies declined the request of the
PPP Center for copies of relevant documents by invoking the confidentiality
clauses contained in their PPP Agreements. Hence, this request for legal opinion.

It is your position that the confidentiality clauses cannot serve as an

impediment to the fulfillment of the PPP Center of its mandate under E.G. No. 8,
the BOT law, as well as other relevant regulations. Implementing agencies are
expressly required by the above-mentioned laws and administrative issuances to
provide the PPP Center with a copy of the documents listed therein. While
provisions in the contract have the force of law between the contracting parties,
the same must be read in conjunction with statutory and administrative
regulations. This is because of the basic principle that an existing law enters into
and forms part of the contract, without the need for the parties to make express
reference to it. Hence, the obligation of the implementing agencies under the
aforementioned laws and regulations, as well as the mandate of the PPP Center
to access PPP-related project documents should be deemed to have formed part
of the PPP contracts and should not be trumped by confidentiality clauses
provided therein.

In addition, you mentioned that as a government contract, the contents of

a PPP agreement, as well as other project documents related thereto, are
undoubtedly matters that involve public interest as the infrastructure project
subject of these documents is envisioned to improve the quality of lives of the
Filipino people and facilitate the economic development of the country. Given
that PPP projects are imbued with public interest, the confidentiality clauses
cannot be invoked against the PPP Center's duty to obtain relevant project
documents as well as the legal requirement of the implementing agencies to
provide the same since there is both a mandate and necessity for the PPP
Center to freely monitor the implementation of PPP projects without any
impediment.

By virtue of E.G. No. 8, s. 2010, as amended by E.G. No. 136, s. 2013,

PPP Center is mandated to facilitate the implementation of the country's PPP
program and projects and it serves as the central coordinating and monitoring
agency for all the PPP projects in the Philippines.

13 SectionVI (6.1) of the PPP Monitoring Framework and Protocols.

1^ Sections 3.5 and 3.7 of JMC No. 2018-01.
 OPINION NO. S, Mli
As mentioned above, some of the functions of the PPP Center are to; (a)
monitor and facilitate the implementation of the priority PPP programs and
projects of the agencies/LGUs which shall be formulated by respective
agencies/LGUs in coordination with the NEDA Secretariat: (b) establish and
manage a central database system of PPP program and projects; (c) recommend
improvements to timelines in processing PPP programs and project proposals,
and monitor compliance of all agencies/LGUs; and (d) prepare reports on the
implementation of the PPP programs and projects of the government for the
submission to the President at the end of each year.

In order for the PPP Center to efficiently accomplish its task and effectively
comply with its mandate, several laws, rules and regulations, and guidelines were
issued, such as the BOT law, its IRR, and the circulars, wherein implementing
agencies are required to submit to PPP Center pertinent documents relative to
PPP project. Among these are:

1. Section 12 of R.A. No. 6957, as amended by R.A. No. 7718

SEC. 12. Coordination and Monitoring of Projects. - The Coordinating

Council of the Philippine Assistance Program (CCPAP)^® shall be
responsible for the coordination and monitoring of projects implemented
under this Act.

Regional development councils and local government units shall

periodically submit to CCPAP Information on the status of said
projects.

At the end of every calendar year, the CCPAP shall report to the President
and to Congress on the progress of all projects implemented under this
Act. (emphasis supplied)

2. Sections 12.1 and 14.1 of the Revised IRR^® of R.A. No. 6957, as
amended by R.A. No. 7718

Section 12.1 Execution/Approval of the Contract

The authorized signatory(ies) of the winning bidder and the Head of

Agency/LGU shall execute and sign the contract for the project as
approved in accordance with Section 2.8, within five (5) calendar days
from receipt by the winning bidder of the notice from the Agency/LGU that
all conditions stated in the Notice of Award have been complied with.

XXX. An original signed copy of the contract shall be submitted to the

Approving Body and the PPP Center within five (5) calendar days after
signing thereof by the Agency/LGU. (emphasis supplied)

15 Now PPP Centerpursuant to E.G. No. 144, series of2002 and E.G. No. 8 series of2010.
1® 2012 Revision of the IRR.
 OPINION NO. .S. TQlk
Section 14.1 - The PPP Center

The PPP Center shall be responsible for the coordination and monitoring
of projects implemented under Contractual Arrangements or schemes
authorized under these Revised IRR. Project monitoring will be
undertaken to ensure that the project complies with these Revised IRR,
including the proponent's required environmental clearances from the
DENR. For this purpose, concerned Agencies/LGUs shall periodically
submit to the PPP Center information on the status of projects
implemented by them. In addition, ail concerned Agencies/LGUs shall
submit to the PPP Center a copy of all Unsolicited Proposals that
they receive and all other related documents. The PPP Center is also
hereby mandated to guide the Agency/LGU in the preparation and
development of the project.

At the end of every calendar year, the PPP Center shall report to the ICC,
President, and the Congress on the progress of all projects implemented
under these Revised IRR. (emphasis supplied)

3. Section 10 of E.G. No 8, as amended by E.G. No. 136

SECTIGN 10. Reporting Requirements. All government agencies,

including LGUs, are directed to submit reports to the PPP Center on
all projects undertaken through Public-Private Partnerships.
Consistent with the requirements of the oversight agency, the PPP Center
shall prescribe the frequency of submission, format and contents, among
others, (emphasis supplied)

Basic is the rule in statutory interpretation that when the law is clear, plain
and free from ambiguity, it must be given its literal meaning and applied without
attempted interpretation.^^ Known as the plain meaning rule, or verba legis, was
derived from the maxim index animi sermo est (speech is the index of intention)
and rests on the valid presumption that the words employed by the legislature in
a statute correctly express its intent and preclude from a different construction.^®
The rationale is because the legislature is presumed to know the meaning of the
words, to have used the words advisedly, and to have expressed its intent by the
use of such words as are found in the statute. Verba legis nan est recedendum,
or from the words of a statute there should be no departure.^®

We agree that while the contracting parties are allowed to establish such
stipulations as they may deem convenient, provided they are not contrary to law
or public policy pursuant to Article 1306 of the Civil Code, the same must be read
in conjunction with statutory and administrative regulations. Contracting parties
cannot contract away from applicable provisions of law, especially those dealing
with matters of public interest. Although the PPP contracts between the
implementing agencies and project proponents contain confidentiality and non-

" . PNB vs. Garcia, 388 SCRA 485, September 9, 2002

18 .TIDCORP vs. CSC, G.R. No. 182249, March 5, 2013
i®Globe-MackayCable and Radio Corporation vs. NLRC, 206 SCRA 701, March 3, 1992; and Aparri vs. OA,
212 Phil. 215(1984).
 . OPINION NO. _.iL^—S. 7ai2r
disclosure provisions, the same cannot be invoked against the PPP Center
because of the clear requirement under the above-cited laws and regulations.

The above-mentioned requirement of providing pertinent documents to the

PPP Center is within the purview of what is embodied in Article II on Declaration
of Principles and State Policies of the 1987 Constitution, particularly Sections 27
and 28, to wit:

"Section 21. The State shall maintain honesty and integrity in

the public service and take positive and effective measures against
graft and corruption.

Section 28. Subject to reasonable conditions prescribed by law,

the State adopts and implements a policyof full public disclosure of all
its transactions involving public interest."

The incorporation of these principles in the Constitution is meant to

enhance transparency and accountability in government official acts,
transactions, or decisions. The objective of increasing transparency and
developing clearer standard procedures is to reduce corruption in government.
Guided by the principles of transparency and accountability, public-private
partnership endeavors will lead to better protection of the interests of the Filipino
people.

Furthermore, while the State recognizes the vital role of the private sector
as a valuable partner in achieving the development goals of the country,2° the
government also has the duty to protect public interest and at the same time
uphold the sanctity ofcontracts that comply with the law. With the government's
policy of monitoring, managing, and evaluating the implementation of the PPP
projects, it guarantees the timely and accurate performance of all contractual
obligations with the end view of providing more benefits to the people.
Premises considered, we confirm that the PPP Center has the authority to
access and obtain copies of project documents of PPP projects in the country
notwithstanding the confidentiality clauses that are stipulated in the PPP
agreements; and that implementing agencies have the correlative obligation to
provide the said project documents to the PPC Center throughout the various
stages of a PPP project.

Please be guided accordingly.

Very truly yours,

MENARDO I. GUEVARRA
Secretary
Department of Justice
CN:0202203376
20Section 20, Article 11 of the 1987 Constitution.