The Big Role of Administrative Law in Extraordinary Times
Powers & Limits
DO Philippine laws and regulations allow unsolicited proposals (UPs) in public-private partnerships (PPPs)? What are the advantages of UPs? Are there competition, accountability and transparency in UPs? What are the basic differences between solicited and UP procedures?
To distinguish, solicited or open-bidding procedures originate from the government, while in UPs, the project studies are prepared by the private-sector proponent (PSP). Once a UP is accepted, the PSP becomes an original proponent (OP) and no other proposal for the same project will be entertained by the government.
In open bidding, all bids are measured against the parameter set by the implementing agency (IA). In a UP, the proposal of the challengers must be better than the negotiated terms between the OP and IA. Depending on the modality, the OP has the right to match or the opportunity to outbid superior offers. If there is no challenger, the project is awarded to the OP. A premium is given the OP for taking initiative and spending for the preparation of the study with no assurance of getting the PPP contract.
Are the resources of government sufficient to be able to undertake all infrastructure projects and public services? What are the contributions of government and the private sector in a public-private partnership (PPP)? What is in it for the people, government and the private sector when it participates in a PPP? Should there be a triple win arrangement?
At the project level, a PPP is a contractual arrangement between the government and the private sector to deliver public infrastructure and/or public services, where each party assumes specified functions, bears certain risks, provides contributions, performs particular obligations, and earns benefits and revenues. Without the contributions, support, participation and resources of each party and every stakeholder, there can be no feasible PPP.
Why is promoting women and girls’ rights important in achieving the purpose of public-private partnerships (PPPs)? How can PPPs improve the quality of life of women and girls? How do we dovetail PPP justice with gender justice?
According to the Development Alternatives with Women for a New Era, in an article PPP and Gender Justice in the context of the 3rd UN Conference of Financing for Development, there is evidence which shows that “existing PPPs in the field of health do not contribute to alleviating fiscal pressure, and frequently fail to deliver health care and services needed by women, especially women living in poverty.”
We hope that if and when the national government enters into and implements a PPP project on health, said “failure” would not happen. In the Philippines the first PPP project on health—the modernization of the Philippine Orthopedic Center—was awarded, but will not push through. The private sector walked away due to unmet obligations of the government.
Is there a difference in terms of public-private partnership (PPP) under a unitary or federal form of government? If the country federates, as being advocated by the incoming president, will this support or block PPPs at the provincial, city, municipal or barangay level? Will another layer of bureaucracy be facilitative of development through PPPs?
For those who believe in local governance and in the capacities of local leaders and communities, like this columnist, federalism is the logical next step of the maturation process. Federalism is at the end of the spectrum where states will be established.
Under the current unitary setup, local government units (LGUs) are mere subdivisions of one unit, which is the republic. LGUs do not have a claim against the state, and are under the supervision of the Executive branch and control of Congress. They do not enjoy sovereignty, are dependent, although in varying degrees, on national revenues, beholden to national government approvals and clearances, and susceptible to intervention
from “Imperial Manila.”
When our regions become states, there will be parity of some rights and sharing of sovereign powers between the central government and the states. State powers and jurisdiction must be defined and eventually approved by the people in a plebiscite.
How can risks attending a public-private partnership (PPP) arrangement be mitigated? How can the general public be shielded from the harmful effects of a failed PPP project? How can the Trade and Investment Development Corp. of the Philippines (Tidcorp) help de-socialize losses and risks?
In an article, titled “PPP and Gender Justice in the Context of the Third UN Conference of Financing for Development,” published by the Development Alternatives with Women for a New Era, failures in PPPs can be attributed to the “privatization of benefits and socialization of losses.” In this “double whammy,” we, as end-users and taxpayers, are not gainers and, worse, are at the losing end.
PPPs may tend to lose sight of the “true north” of PPPs, which is the public good and better quality of life of the people. When ordinary people and the society bear the losses, and do not share in the benefits, and where the private-sector proponent does not absorb any loss and passes all risks to government, and ultimately to us, PPP becomes purely pro-profit and antipeople. Benefits are privatized, and only a handful gains.
Regardless of who wins in today’s presidential elections, whether he or she belongs to a political party or is running as an independent, this voter expects the next president to be pro-public-private partnership (PPP). Even if I were a voter in another country, I will also demand that a pro-PPP stance must be advanced by candidates and would-be head of state.
PPP should be a universal policy, a nonpartisan program and an inclusive, not an exclusive, development approach. PPP is now a Sustainable Development Goal adopted by the United Nations, and must be recognized as such by the next president.
I believe that none of the presidentiables will dare say they are against PPPs. Conversely, none of them could or should claim that he or she has monopoly over this development strategy. A true proponent of transformation, innovation, participation and development can propagate PPP, build on the gains of previous administrations, not just the current one, and address the deficits and gaps.
How can “climate justice” be likened to “public-private partnership [PPP] justice?” Why is justice even relevant when we talk about climate and PPPs? How can social justice be integrated into PPP and climate justice? What makes PPP just and unjust?
According to the Mary Robinson Foundation, “climate justice links human rights and development to achieve a human-centered approach, safeguarding the rights of the most vulnerable people and sharing the burdens and benefits of climate change and its impacts equitably and fairly.”
Per the Alternatives for Community and Environment, “climate justice focuses on the root causes of climate change. As a movement, climate-justice advocates are working from the grassroots up to create solutions to our climate and energy problems that ensure the right of all people to live, learn, work, play and pray in safe, healthy and clean environments.”