My 100th: ‘Right(s) or faux right(s)?’
What greater joy is there than sharing one’s interests and passions with your core? In my case, this is Team Agra—Jean, a financial advisor with a heart…who is the heart of the team; Jessie, a former junior tennis champion…who is completing her law studies while dabbling in coaching; and Noel, a fellow obstacle-course enthusiast…who will soon become a fit-chef-restaurateur.
This 100th column is dedicated to them, without whom this columnist will not have the drive and dedication to do more for a purpose. This column is a testament that yours truly is willing to learn-unlearn-relearn, even from students of law. This columnist takes pride and feels a deep sense of happiness when his daughter writes about public-private partnership (PPP)-related topics.
The title of this column is partially lifted from the thesis submitted by Jessie to the Ateneo Law School. The future partner of Agra & Agra wrote about the Right of First Refusal—Right or Faux Right? Defining Favorable Private Sector Rights in Government Contracts.
There are rights that private-sector proponents (PSPs) are entitled to before and after PPP contracts are awarded to them. Here are some of them:
Right of first refusal. What my daughter wrote about is a right that can be exercised during the life of the PPP contract. She listed down the six factors of a valid grant of this right: A legitimate, fair and honest public bidding; advantage to the government; the exercise of the right must not contravene public policy; the PSP holding the right must have a vested and existing interest over the subject matter; there must be an existing and specific subject matter at the time the right is awarded; and proper notice must be given to all participating bidders. In a PPP, the winning PSP is given priority or the opportunity to secure an ancillary or related post-award contract in the event the public proponent will consider or award such contract.
Right to be “kept whole.” Another project-term right by a PSP is the right to recover all its investments and expenditures, and earn profit based on the tariff parameter stated in the PPP contract. This right is coupled with the obligation to make sure all expenditures are prudent and necessary in order to achieve the object of the contract.
Right to be treated fairly. For those bidders competing for the market, they must be treated fairly. All of them must be on equal footing, that is, they must compete based on same terms and conditions of the bidding process and of the contract. In a competitive challenge, the public proponent must continue and open the process for challenge after negotiated terms are arrived at.
Rights to match, top or outbid, and submit another offer. These are the preaward rights of original proponents (OPs) in a competitive challenge process. Depending on the governing law or regulation, the OP has the right to match or equal the superior offer from a challenger, right to top or outbid the best offer from a challenger, or right to submit another financial offer that will be opened at the same time the financial offers of challengers will be opened.
How real and demandable are these rights? Or are they dead letter?