Philippines: PPPs and the election ban

Author: | Published: 20 Apr 2016
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SyCip Salazar Hernandez & Gatmaitan

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Riturban
Aaron Roi B. Riturban

As a result of the election ban under the Philippine Omnibus Election Code, prospective private partners (both local and foreign) have been cautious in participating in public biddings for public-private partnership (PPP) projects scheduled to be held within the 45-day period preceding the May 9 2016 elections (the election ban period). Even the procuring governmental authorities have either accelerated or delayed the timeline of the tender of their respective PPP projects to ensure that the bid dates do not fall within the election ban period.

The election ban, however, simply prohibits: (i) undertaking the construction of public works (such as roads and bridges); and, (ii) the release, disbursing or expending of public funds for public works, during the election ban period. Moreover, the following public works are not covered by the election ban:

(i) the maintenance of existing and/or completed public works projects;

(ii) work undertaken by contract through public bidding held before the election ban period;

(iii) payment for the usual cost of preparation for actual construction incurred before the election ban period;

(iv) emergency work necessitated by the occurrence of a public calamity;

(v) ongoing public works projects commenced before the election ban period; and,

(vi) public works projects under foreign agreements.

As the election ban relates to the construction of public works and the disbursement of public funds (and not the actual tender of PPP projects), there should be no legal impediment for holding public biddings during the election ban period. Nevertheless, given that the present administration had been relatively quick to assail the government contracts or PPP projects of the previous administration, procuring governmental authorities are reluctant to conduct public biddings during the election ban period for fear of being prosecuted for any perceived irregularity in the conduct of the tender.

Aaron Roi B. Riturban