G.R. No.

167919             February 14, 2007

PLARIDEL M. ABAYA, COMMODORE PLARIDEL C. GARCIA (retired) and PMA ’59

FOUNDATION, INC., rep. by its President, COMMODORE CARLOS L. AGUSTIN
(retired), Petitioners, 
vs.
HON. SECRETARY HERMOGENES E. EBDANE, JR., in his capacity as Secretary of the
DEPARTMENT OF PUBLIC WORKS and HIGHWAYS, HON. SECRETARY EMILIA T.
BONCODIN, in her capacity as Secretary of the DEPARTMENT OF BUDGET and
MANAGEMENT, HON. SECRETARY CESAR V. PURISIMA, in his capacity as Secretary of the
DEPARTMENT OF FINANCE, HON. TREASURER NORMA L. LASALA, in her capacity as
Treasurer of the Bureau of Treasury, and CHINA ROAD and BRIDGE
CORPORATION, Respondents.

DECISION

CALLEJO, SR., J.:

Before the Court is the petition for certiorari and prohibition under Rule 65 of the Rules of Court
seeking to set aside and nullify Resolution No. PJHL-A-04-012 dated May 7, 2004 issued by the
Bids and Awards Committee (BAC) of the Department of Public Works and Highways (DPWH)
and approved by then DPWH Acting Secretary Florante Soriquez. The assailed resolution
recommended the award to private respondent China Road & Bridge Corporation of the contract for
the implementation of civil works for Contract Package No. I (CP I), which consists of the
improvement/rehabilitation of the San Andres (Codon)-Virac-Jct. Bago-Viga road, with the
length of 79.818 kilometers, in the island province of Catanduanes.

The CP I project is one of the four packages comprising the project for the
improvement/rehabilitation of the Catanduanes Circumferential Road, covering a total length of
about 204.515 kilometers, which is the main highway in Catanduanes Province. The road
section (Catanduanes Circumferential Road) is part of the Arterial Road Links Development
Project (Phase IV) funded under Loan Agreement No. PH-P204 dated December 28, 1999
between the Japan Bank for International Cooperation (JBIC) and the Government of the
Republic of the Philippines.

Background

Based on the Exchange of Notes dated December 27, 1999,1 the Government of Japan and the
Government of the Philippines, through their respective representatives, namely, Mr. Yoshihisa Ara,
Ambassador Extraordinary and Plenipotentiary of Japan to the Republic of the Philippines, and then
Secretary of Foreign Affairs Domingo L. Siazon, have reached an understanding concerning
Japanese loans to be extended to the Philippines. These loans were aimed at promoting our
country’s economic stabilization and development efforts.

The Exchange of Notes consisted of two documents: (1) a Letter from the Government of
Japan, signed by Ambassador Ara, addressed to then Secretary of Foreign Affairs Siazon,
confirming the understanding reached between the two governments concerning the loans to be
extended by the Government of Japan to the Philippines; and (2) a document denominated as
Records of Discussion where the salient terms of the loans as set forth by the Government of
Japan, through the Japanese delegation, were reiterated and the said terms were accepted by the
Philippine delegation. Both Ambassador Ara and then Secretary Siazon signed the Records of
Discussion as representatives of the Government of Japan and Philippine Government, respectively.
The Exchange of Notes provided that the loans to be extended by the Government of Japan
to the Philippines consisted of two loans: Loan I and Loan II. The Exchange of Notes stated in
part:

1. A loan in Japanese yen up to the amount of seventy-nine billion eight hundred and sixty-
one million yen (Y79,861,000,000) (hereinafter referred to as "the Loan I") will be extended,
in accordance with the relevant laws and regulations of Japan, to the Government of the
Republic of the Philippines (hereinafter referred to as "the Borrower I") by the Japan Bank for
International Cooperation (hereinafter referred to as "the Bank") to implement the projects
enumerated in the List A attached hereto (hereinafter referred to as "the List A") according to
the allocation for each project as specified in the List A.

2. (1) The Loan I will be made available by loan agreements to be concluded between the
Borrower I and the Bank. The terms and conditions of the Loan I as well as the procedure
for its utilization will be governed by said loan agreements which will contain, inter alia, the
following principles:

...

(2) Each of the loan agreements mentioned in sub-paragraph (1) above will be
concluded after the Bank is satisfied of the feasibility, including environmental
consideration, of the project to which such loan agreement relates.

3. (1) The Loan I will be made available to cover payments to be made by the Philippine
executing agencies to suppliers, contractors and/or consultants of eligible source countries
under such contracts as may be entered into between them for purchases of products and/or
services required for the implementation of the projects enumerated in the List A, provided
that such purchases are made in such eligible source countries for products produced in
and/or services supplied from those countries.

(2) The scope of eligible source countries mentioned in sub-paragraph (1) above will
be agreed upon between the authorities concerned of the two Governments.

(3) A part of the Loan I may be used to cover eligible local currency requirements for
the implementation of the projects enumerated in the List A.

4. With regard to the shipping and marine insurance of the products purchased under the
Loan I, the Government of the Republic of the Philippines will refrain from imposing any
restrictions that may hinder fair and free competition among the shipping and marine
insurance companies.

x x x x 2 
1awphi1.net

Pertinently, List A, which specified the projects to be financed under the Loan I, includes the Arterial
Road Links Development Project (Phase IV), to wit:

LIST A

Maximum amount in million yen)

 1. Secondary Education Development and Improvement Project 7,210

2. Rural Water Supply Project (Phase V) 951

3. Bohol Irrigation Project (Phase II) 6,078

4. Agrarian Reform Infrastructure Support Project (Phase II) 16,990

5. Arterial Road Links Development Project (Phase IV) 15,384

6. Cordillera Road Improvement Project 5,852

7. Philippines-Japan Friendship Highway Mindanao Section Rehabilitation Project (Phase II)

7,434

8. Rehabilitation and Maintenance of Bridges Along Arterial Roads Project (Phase IV) 5,068

9. Maritime Safety Improvement Project (Phase C) 4,714

10. Pinatubo Hazard Urgent Mitigation Project (Phase II) 9,013

11. Pasig-Marikina River Channel Improvement Project (Phase I) 1,167

Total 79,8613

The Exchange of Notes further provided that:

III

xxxx

3. The Government of the Republic of the Philippines will ensure that the products and/or services
mentioned in sub-paragraph (1) of paragraph 3 of Part I and sub-paragraph (1) of paragraph 4 of
Part II are procured in accordance with the guidelines for procurement of the Bank, which set
forth, inter alia, the procedures of international tendering to be followed except where such
procedures are inapplicable or inappropriate.

x x x x4

The Records of Discussion, which formed part of the Exchange of Notes, also stated in part, thus:

xxxx

1. With reference to sub-paragraph (3) of paragraph 3 of Part I of the Exchange of Notes concerning
the financing of eligible local currency requirements for the implementation of the projects mentioned
in the said sub-paragraph, the representative of the Japanese delegation stated that:

(1) such requirement of local currency as general administrative expenses, interest during
construction, taxes and duties, expenses concerning office, remuneration to employees of
the executing agencies and housing, not directly related to the implementation of the said
 projects, as well as purchase of land properties, compensation and the like, however, will
not be considered as eligible for financing under the Loan I; and

(2) the procurement of products and/or services will be made in accordance with the
procedures of international competitive tendering except where such procedures are
inapplicable and inappropriate.

x x x x5

Thus, in accordance with the agreement reached by the Government of Japan and the Philippine
Government, as expressed in the Exchange of Notes between the representatives of the two
governments, the Philippines obtained from and was granted a loan by the JBIC. Loan Agreement
No. PH-P204 dated December 28, 1999, in particular, stated as follows:

Loan Agreement No. PH-P204, dated December 28, 1999, between JAPAN BANK FOR
INTERNATIONAL COOPERATION and the GOVERNMENT OF THE REPUBLIC OF THE
PHILIPPINES.

In the light of the contents of the Exchange of Notes between the Government of Japan and the
Government of the Republic of the Philippines dated December 27, 1999, concerning Japanese
loans to be extended with a view to promoting the economic stabilization and development efforts of
the Republic of the Philippines.

JAPAN BANK FOR INTERNATIONAL COOPERATION (hereinafter referred to as "the BANK") and
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES (hereinafter referred to as "the
Borrower") herewith conclude the following Loan Agreement (hereinafter referred to as "the Loan
Agreement", which includes all agreements supplemental hereto).

x x x x6

Under the terms and conditions of Loan Agreement No. PH-P204, JBIC agreed to lend the Philippine
Government an amount not exceeding FIFTEEN BILLION THREE HUNDRED EIGHTY-FOUR
MILLION Japanese Yen (Y15,384,000,000) as principal for the implementation of the Arterial
Road Links Development Project (Phase IV) on the terms and conditions set forth in the Loan
Agreement and in accordance with the relevant laws and regulations of Japan.7 The said amount
shall be used for the purchase of eligible goods and services necessary for the implementation
of the above-mentioned project from suppliers, contractors or consultants.8

Further, it was provided under the said loan agreement that other terms and conditions
generally applicable thereto shall be set forth in the General Terms and Conditions, dated
November 1987, issued by the Overseas Economic Cooperation Fund (OECF) and for the
purpose, reference to "the OECF" and "Fund" therein (General Terms and Conditions) shall
be substituted by "the JBIC" and "Bank," respectively. 9 Specifically, the guidelines for
procurement of all goods and services to be financed out of the proceeds of the said loan shall be as
stipulated in the Guidelines for Procurement under OECF Loans dated December 1997 (herein
referred to as JBIC Procurement Guidelines).10

As mentioned earlier, the proceeds of Loan Agreement No. PH-P204 was to be used to finance the
Arterial Road Links Development Project (Phase IV), of which the Catanduanes Circumferential
Road was a part. This road section, in turn, was divided into four contract packages (CP):
 CP I: San Andres (Codon)-Virac-Jct. Bato- Viga Road - 79.818 kms

CP II: Viga-Bagamanoc Road - 10.40 kms.

CP III: Bagamanoc-Pandan Road - 47.50 kms.

CP IV: Pandan-Caramoran-Codon Road - 66.40 kms.11

Subsequently, the DPWH, as the government agency tasked to implement the project, caused
the publication of the "Invitation to Prequalify and to Bid" for the implementation of the CP I
project in two leading national newspapers, namely, the Manila Times and Manila Standard on
November 22 and 29, and December 5, 2002.

A total of twenty-three (23) foreign and local contractors responded to the invitation by
submitting their accomplished prequalification documents on January 23, 2003. In accordance with
the established prequalification criteria, eight contractors were evaluated or considered eligible to bid
as concurred by the JBIC. One of them, however, withdrew; thus, only seven contractors submitted
their bid proposals.

The bid documents submitted by the prequalified contractors/bidders were examined to determine
their compliance with the requirements as 
stipulated in Article 6 of the Instruction to Bidders.12 After the lapse of the deadline for the
submission of bid proposals, the opening of the bids commenced immediately. Prior to the opening
of the respective bid proposals, it was announced that the Approved Budget for the Contract (ABC)
was in the amount of ₱738,710,563.67.

The result of the bidding revealed the following three lowest bidders and their respective bids vis-à-
vis the ABC:13

Original Bid As Read As-Corrected Bid Amount

Name of Bidder Variance
(Pesos) (Pesos)

1) China Road And Bridge

₱ 993,183,904.98 ₱952,564,821.71 28.95%
Corporation

2) Cavite Ideal Int’l Const.

₱1,099,926,598.11 ₱1,099,926,598.11 48.90%
Devt. Corp.

3) Italian Thai Dev’t. Public

₱1,125,022,075.34 ₱1,125,392,475.36 52.35%
Company, Ltd.

The bid of private respondent China Road & Bridge Corporation was corrected from the original
₱993,183,904.98 (with variance of 34.45% from the ABC) to ₱952,564,821.71 (with variance of
28.95% from the ABC) based on their letter clarification dated April 21, 2004.14

After further evaluation of the bids, particularly those of the lowest three bidders, Mr. Hedifume
Ezawa, Project Manager of the Catanduanes Circumferential Road Improvement Project
(CCRIP), in his Contractor’s Bid Evaluation Report dated April 2004, recommended the award
of the contract to private respondent China Road & Bridge Corporation:
In accordance with the Guidelines for the Procurements under ODA [Official Development
Assistance] Loans, the Consultant hereby recommends the award of the contract for the
construction of CP I, San Andres (Codon) – Virac – Jct. Bato – Viga Section under the Arterial Road
Links Development Projects, Phase IV, JBIC Loan No. PH-P204 to the Lowest Complying Bidder,
China Road and Bridge Corporation, at its total corrected bid amount of Nine Hundred Fifty-Two
Million Five Hundred Sixty-Four Thousand Eight Hundred Twenty-One & 71/100 Pesos.15

The BAC of the DPWH, with the approval of then Acting Secretary Soriquez, issued the
assailed Resolution No. PJHL-A-04-012 dated May 7, 2004 recommending the award in favor
of private respondent China Road & Bridge Corporation of the contract for the implementation of
civil works for CP I, San Andres (Codon) – Virac – Jct. Bato – Viga Road (Catanduanes
Circumferential Road Improvement Project) of the Arterial Roads Links Development Project, Phase
IV, located in Catanduanes Province, under JBIC Loan Agreement No. PH-P204.16 On September
29, 2004, a Contract of Agreement was entered into by and between the DPWH and private
respondent China Road & Bridge Corporation for the implementation of the CP I project.

The Parties

Petitioner Plaridel M. Abaya claims that he filed the instant petition as a taxpayer, former lawmaker,
and a Filipino citizen. Petitioner Plaridel C. Garcia likewise claims that he filed the suit as a
taxpayer, former military officer, and a Filipino citizen. Petitioner PMA ’59 Foundation, Inc., on the
other hand, is a non-stock, non-profit corporation organized under the existing Philippine laws. It
claims that its members are all taxpayers and alumni of the Philippine Military Academy. It is
represented by its President, Carlos L. Agustin.

Named as public respondents are the DPWH, as the government agency tasked with the
implementation of government infrastructure projects; the Department of Budget and
Management (DBM) as the government agency that authorizes the release and disbursement of
public funds for the implementation of government infrastructure projects; and the Department of
Finance (DOF) as the government agency that acts as the custodian and manager of all financial
resources of the government. Also named as individual public respondents are Hermogenes E.
Ebdane, Jr., Emilia T. Boncodin and Cesar V. Purisima in their capacities as former
Secretaries of the DPWH, DBM and DOF, respectively. On the other hand, public respondent
Norma L. Lasala was impleaded in her capacity as Treasurer of the Bureau of Treasury.

Private respondent China Road & Bridge Corporation is a duly organized corporation engaged in the
business of construction.

The Petitioners’ Case

The petitioners mainly seek to nullify DPWH Resolution No. PJHL-A-04-012 dated May 7, 2004,
which recommended the award to private respondent China Road & Bridge Corporation of the
contract for the implementation of the civil works of CP I. They also seek to annul the contract of
agreement subsequently entered into by and between the DPWH and private respondent China
Road & Bridge Corporation pursuant to the said resolution.

They pose the following issues for the Court’s resolution:

I. Whether or not Petitioners have standing to file the instant Petition.

 II. Whether or not Petitioners are entitled to the issuance of a Writ of Certiorari reversing and
setting aside DPWH Resolution No. PJHL-A-04-012, recommending the award of the
Contract Agreement for the implementation of civil works for CPI, San Andres (CODON)-
VIRAC-JCT BATO-VIGA ROAD (CATANDUANES CIRCUMFERENTIAL ROAD
IMPROVEMENT PROJECT) of the Arterial Road Links Development Project, Phase IV,
located in Catanduanes Province, under JBIC L/A No. PH-P204, to China Road & Bridge
Corporation.

III. Whether or not the Contract Agreement executed by and between the Republic of the
Philippines, through the Department of Public Works and Highways, and the China
Road & Bridge Corporation, for the implementation of civil works for CPI, San Andres
(CODON)-VIRAC-JCT BATO-VIGA ROAD (CATANDUANES CIRCUMFERENTIAL ROAD
IMPROVEMENT PROJECT) of the Arterial Road Links Development Project, Phase IV,
located in Catanduanes Province, under JBIC L/A No. PH-P204, is void ab initio.

IV. Whether or not Petitioners are entitled to the issuance of a Writ of Prohibition
permanently prohibiting the implementation of DPWH Resolution No. PJHL-A-04-012 and
the Contract Agreement executed by and between the Republic of the Philippines (through
the Department of Public Works and Highways) and the China Road & Bridge Corporation,
and the disbursement of public funds by the [D]epartment of [B]udget and [M]anagement
for such purpose.

V. Whether or not Petitioners are entitled to a Preliminary Injunction and/or a Temporary

Restraining Order immediately enjoining the implementation of DPWH Resolution No. PJHL-
A-04-012 and the Contract Agreement executed by and between the Republic of the
Philippines (through the Department of Public Works and Highways) and the China Road &
Bridge Corporation, and the disbursement of public funds by the Department of Budget
and Management for such purpose, during the pendency of this case. 17

Preliminarily, the petitioners assert that they have standing or locus standi to file the instant
petition. They claim that as taxpayers and concerned citizens, they have the right and duty to
question the expenditure of public funds on illegal acts. They point out that the Philippine
Government allocates a peso-counterpart for CP I, which amount is appropriated by Congress in the
General Appropriations Act; hence, funds that are being utilized in the implementation of the
questioned project also partake of taxpayers’ money. The present action, as a taxpayers’ suit, is thus
allegedly proper.

They likewise characterize the instant petition as one of transcendental importance that warrants the
Court’s adoption of a liberal stance on the issue of standing. It cited several cases where the Court
brushed aside procedural technicalities in order to resolve issues involving paramount public interest
and transcendental importance.18 Further, petitioner Abaya asserts that he possesses the requisite
standing as a former member of the House of Representatives and one of the principal authors of
Republic Act No. 9184 (RA 9184)19 known as the Government Procurement Reform Act, the law
allegedly violated by the public respondents.

On the substantive issues, the petitioners anchor the instant petition on the contention that the
award of the contract to private respondent China Road & Bridge Corporation violates RA
9184, particularly Section 31 thereof which reads:

SEC. 31. Ceiling for Bid Prices. – The ABC shall be the upper limit or ceiling for the Bid prices. Bid
prices that exceed this ceiling shall be disqualified outright from further participating in the bidding.
There shall be no lower limit to the amount of the award.
In relation thereto, the petitioners cite the definition of the ABC, thus:

SEC. 5. Definition of Terms. –

xxx

(a) Approved Budget for the Contract (ABC). – refers to the budget for the contract duly approved by
the Head of the Procuring Entity, as provided for in the General Appropriations Act and/or continuing
appropriations, in the case of National Government Agencies; the Corporate Budget for the contract
approved by the governing Boards, pursuant to E.O. No. 518, series of 1979, in the case of
Government-Owned and/or Controlled Corporations, Government Financial Institutions and State
Universities and Colleges; and the Budget for the contract approved by the respective Sanggunian,
in the case of Local Government Units.

xxx

The petitioners theorize that the foregoing provisions show the mandatory character of ceilings or
upper limits of every bid. Under the above-quoted provisions of RA 9184, all bids or awards should
not exceed the ceilings or upper limits; otherwise, the contract is deemed void and inexistent.

Resolution No. PJHL-A-04-012 was allegedly issued with grave abuse of discretion because it
recommended the award of the contract to private respondent China Road & Bridge Corporation
whose bid was more than ₱200 million overpriced based on the ABC. As such, the award is
allegedly illegal and unconscionable.

In this connection, the petitioners opine that the contract subsequently entered into by and between
the DPWH and private respondent China Road & Bridge Corporation is void ab initio for being
prohibited by RA 9184. They stress that Section 31 thereof expressly provides that "bid prices that
exceed this ceiling shall be disqualified outright from participating in the bidding." The upper limit or
ceiling is called the ABC and since the bid of private respondent China Road & Bridge Corporation
exceeded the ABC for the CP I project, it should have been allegedly disqualified from the bidding
process and should not, by law, have been awarded the said contract. They invoke Article 1409 of
the Civil Code:

ART. 1409. The following contracts are inexistent and void from the beginning:

(1) Those whose cause, object or purpose is contrary to law, morals, good customs, public
order or public policy;

(2) Those which are absolutely simulated or fictitious;

(3) Those whose cause or object did not exist at the time of the transaction;

(4) Those whose object is outside the commerce of men;

(5) Those which contemplate an impossible service;

(6) Those where the intention of the parties relative to the principal object of the contract
cannot be ascertained;

(7) Those expressly prohibited or declared void by law.

For violating the above provision, the contract between the DPWH and private respondent
China Road & Bridge Corporation is allegedly inexistent and void ab initio and can produce
no effects whatsoever.

It is the contention of the petitioners that RA 9184 is applicable to both local- and foreign-funded
procurement contracts. They cite the following excerpt of the deliberations of the Bicameral
Conference Committee on the Disagreeing Provisions of Senate Bill No. 2248 and House Bill No.
4809:20

REP. ABAYA. Mr. Chairman, can we just propose additional amendments? Can we go back to
Section 4, Mr. Chairman?

THE CHAIRMAN (SEN. ANGARA). Section? Section ano, Del, 4? Definition – definition of terms.

REP. ABAYA. Sa House bill, it is sa scope and application.

THE CHAIRMAN (SEN. ANGARA). Okay.

REP. ABAYA. It should read as follows: "This Act shall apply to the procurement of goods, supplies
and materials, infrastructure projects and consulting services regardless of funding source whether
local or foreign by the government."

THE CHAIRMAN (SEN. ANGARA). Okay, accepted. We accept. The Senate accepts it.21

xxx xxx xxx

THE CHAIRMAN (SEN ANGARA). Just take note of that ano. Medyo nga problematic ‘yan eh. Now,
just for the record Del, can you repeat again the justification for including foreign funded contracts
within the scope para malinaw because the World Bank daw might raise some objection to it.

REP. ABAYA. Well, Mr. Chairman, we should include foreign funded projects kasi these are the big
projects. To give an example, if you allow bids above government estimate, let’s say take the case of
500 million project, included in that 500 million is the 20 percent profit. If you allow them to bid above
government estimate, they will add another say 28 percent of (sic) 30 percent, 30 percent of 500
million is another 150 million. Ito, this is a rich source of graft money, aregluhan na lang, 150 million,
five contractors will gather, "O eto 20 million, 20 million, 20 million." So, it is rigged. ‘Yun ang practice
na nangyayari. If we eliminate that, if we have a ceiling then, it will not be very tempting kasi walang
extra money na pwedeng ibigay sa ibang contractor. So this promote (sic) collusion among bidders,
of course, with the cooperation of irresponsible officials of some agencies. So we should have a
ceiling to include foreign funded projects.22

The petitioners insist that Loan Agreement No. PH-P204 between the JBIC and the Philippine
Government is neither a treaty, an international nor an executive agreement that would bar the
application of RA 9184. They point out that to be considered a treaty, an international or an
executive agreement, the parties must be two sovereigns or States whereas in the case of Loan
Agreement No. PH-P204, the parties are the Philippine Government and the JBIC, a banking
agency of Japan, which has a separate juridical personality from the Japanese Government.

They further insist on the applicability of RA 9184 contending that while it took effect on January 26,
200323 and Loan Agreement No. PH-P204 was executed prior thereto or on December 28, 1999, the
actual procurement or award of the contract to private respondent China Road & Bridge Corporation
was done after the effectivity of RA 9184. The said law is allegedly specific as to its application,
which is on the actual procurement of infrastructure and other projects only, and not on the loan
agreements attached to such projects. Thus, the petition only prays for the annulment of Resolution
No. PJHL-A-04-012 as well as the contract between the DPWH and private respondent China Road
& Bridge Corporation. The petitioners clarify that they do not pray for the annulment of Loan
Agreement No. PH-P204. Since the subject procurement and award of the contract were done after
the effectivity of RA 9184, necessarily, the procurement rules established by that law allegedly apply,
and not Presidential Decree No. 1594 (PD 1594)24 and Executive Order No. 40 (EO 40), series of
2001, 25 as contended by the respondents. The latter laws, including their implementing rules, have
allegedly been repealed by RA 9184. Even RA 4860, as amended, known as the Foreign
Borrowings Act, the petitioners posit, may have also been repealed or modified by RA 9184 insofar
as its provisions are inconsistent with the latter.

The petitioners also argue that the "Implementing Rules and Regulations (IRR) of RA 9184,
Otherwise Known as the Government Procurement Reform Act, Part A" (IRR-A) cited by the
respondents is not applicable as these rules only govern domestically-funded procurement
contracts. They aver that the implementing rules to govern foreign-funded procurement, as in the
present case, have yet to be drafted and in fact, there are concurrent resolutions drafted by both
houses of Congress for the Reconvening of the Joint Congressional Oversight Committee for the
formulation of the IRR for foreign-funded procurements under RA 9184.

The petitioners maintain that disbursement of public funds to implement a patently void and illegal
contract is itself illegal and must be enjoined. They bring to the Court’s attention the fact that the
works on the CP I project have already commenced as early as October 2004. They thus urge the
Court to issue a writ of certiorari to set aside Resolution No. PJHL-A-04-012 as well as to declare
null and void the contract entered into between the DPWH and private respondent China Road &
Bridge Corporation. They also pray for the issuance of a temporary restraining order and, eventually,
a writ of prohibition to permanently enjoin the DPWH from implementing Resolution No. PJHL-A-04-
012 and its contract with private respondent China Road & Bridge Corporation as well as the DBM
from disbursing funds for the said purpose.

The Respondents’ Counter-Arguments

The public respondents, namely the DPWH, DBM and DOF, and their respective named officials,
through the Office of the Solicitor General, urge the Court to dismiss the petition on grounds that the
petitioners have no locus standi and, in any case, Resolution No. PJHL-A-04-012 and the contract
between the DPWH and private respondent China Road & Bridge Corporation are valid.

According to the public respondents, a taxpayer’s locus standi was recognized in the following
cases: (a) where a tax measure is assailed as unconstitutional;26 (b) where there is a question of
validity of election laws;27 (c) where legislators questioned the validity of any official action upon the
claim that it infringes on their prerogati

ves as legislators;28 (d) where there is a claim of illegal disbursement or wastage of public funds
through the enforcement of an invalid or unconstitutional law;29 (e) where it involves the right of
members of the Senate or House of Representatives to question the validity of a presidential veto or
condition imposed on an item in an appropriation bill;30 or (f) where it involves an invalid law, which
when enforced will put the petitioner in imminent danger of sustaining some direct injury as a result
thereof, or that he has been or is about to be denied some right or privilege to which he is lawfully
entitled or that he is about to be subjected to some burdens or penalties by reason of the statute
complained of.31 None of the above considerations allegedly obtains in the present case.

It is also the view of the public respondents that the fact that petitioner Abaya was a former
lawmaker would not suffice to confer locus standi on himself. Members of Congress may properly
challenge the validity of an official act of any department of the government only upon showing that
the assailed official act affects or impairs their rights and prerogatives as legislators.

The public respondents further assail the standing of the petitioners to file the instant suit claiming
that they failed to allege any specific injury suffered nor an interest that is direct and personal to
them. If at all, the interest or injuries claimed by the petitioners are allegedly merely of a general
interest common to all members of the public. Their interest is allegedly too vague, highly
speculative and uncertain to satisfy the requirements of locus standi.

The public respondents find it noteworthy that the petitioners do not raise issues of constitutionality
but only of contract law, which the petitioners not being privies to the agreement cannot raise. This is
following the principle that a stranger to a contract cannot sue either or both the contracting parties
to annul and set aside the same except when he is prejudiced on his rights and can show detriment
which would positively result to him from the implementation of the contract in which he has no
intervention. There being no particularized interest or elemental substantial injury necessary to
confer locus standi, the public respondents implore the Court to dismiss the petition.

On the merits, the public respondents maintain that the imposition of ceilings or upper limits on
bid prices in RA 9184 does not apply because the CP I project and the entire Catanduanes
Circumferential Road Improvement Project, financed by Loan Agreement No. PH-P204
executed between the Philippine Government and the JBIC, is governed by the latter’s
Procurement Guidelines which precludes the imposition of ceilings on bid prices. Section
5.06 of the JBIC Procurement Guidelines reads:

Section 5.06. Evaluation and Comparison of Bids.

xxx

(e) Any procedure under which bids above or below a predetermined bid value assessment are
automatically disqualified is not permitted.

It was explained that other foreign banks such as the Asian Development Bank (ADB) and the
World Bank (WB) similarly prohibit the bracketing or imposition of a ceiling on bid prices.

The public respondents stress that it was pursuant to Loan Agreement No. PH-P204 that the
assailed Resolution No. PJHL-A-04-012 and the subsequent contract between the DPWH and
private respondent China Road & Bridge Corporation materialized. They likewise aver that Loan
Agreement No. PH-P204 is governed by RA 4860, as amended, or the Foreign Borrowings
Act. Section 4 thereof states:

SEC. 4. In the contracting of any loan, credit or indebtedness under this Act, the President of the
Philippines may, when necessary, agree to waive or modify, the application of any law granting
preferences or imposing restrictions on international competitive bidding, including among others
[Act No. 4239, Commonwealth Act No. 138], the provisions of [CA 541], insofar as such provisions
do not pertain to constructions primarily for national defense or security purposes, [RA 5183];
Provided, however, That as far as practicable, utilization of the services of qualified domestic firms in
the prosecution of projects financed under this Act shall be encouraged: Provided, further, That in
case where international competitive bidding shall be conducted preference of at least fifteen per
centum shall be granted in favor of articles, materials or supplies of the growth, production or
manufacture of the Philippines: Provided, finally, That the method and procedure in comparison of
bids shall be the subject of agreement between the Philippine Government and the lending
institution.

DOJ Opinion No. 46, Series of 1987, is relied upon by the public respondents as it opined that an
agreement for the exclusion of foreign assisted projects from the coverage of local bidding
regulations does not contravene existing legislations because the statutory basis for foreign loan
agreements is RA 4860, as amended, and under Section 4 thereof, the President is empowered
to waive the application of any law imposing restrictions on the procurement of goods and
services pursuant to such loans.

Memorandum Circular Nos. 104 and 108, issued by the President, to clarify RA 4860, as amended,
and PD 1594, relative to the award of foreign-assisted projects, are also invoked by the public
respondents, to wit:

Memorandum Circular No. 104:

In view of the provisions of Section 4 of Republic Act No. 4860, as amended, otherwise known as
the "Foreign Borrowings Act"

xxx

It is hereby clarified that foreign-assisted infrastructure projects may be exempted from the
application for the pertinent provisions of the Implementing Rules and Regulations (IRR) of
Presidential Decree (P.D.) No. 1594 relative to the method and procedure in the comparison of bids,
which matter may be the subject of agreement between the infrastructure agency concerned and the
lending institution. It should be made clear however that public bidding is still required and can only
be waived pursuant to existing laws.

Memorandum Circular No. 108:

In view of the provisions of Section 4 of Republic Act No. 4860, as amended, otherwise known as
the "Foreign Borrowings Act", it is hereby clarified that, for projects supported in whole or in part by
foreign assistance awarded through international or local competitive bidding, the government
agency concerned may award the contract to the lowest evaluated bidder at his bid price consistent
with the provisions of the applicable loan/grant agreement.

Specifically, when the loan/grant agreement so stipulates, the government agency concerned may
award the contract to the lowest bidder even if his/its bid exceeds the approved agency estimate.

It is understood that the concerned government agency shall, as far as practicable, adhere closely to
the implementing rules and regulations of Presidential Decree No. 1594 during loan/grant
negotiation and the implementation of the projects.32

The public respondents characterize foreign loan agreements, including Loan Agreement No. PH-
P204, as executive agreements and, as such, should be observed pursuant to the fundamental
principle in international law of pacta sunt servanda.33 They cite Section 20 of Article VII of the
Constitution as giving the President the authority to contract foreign loans:
SEC. 20. The President may contract or guarantee foreign loans on behalf of the Republic of the
Philippines with the prior concurrence of the Monetary Board, and subject to such limitations as may
be provided by law. The Monetary Board shall, within thirty days from the end of every quarter of the
calendar year, submit to the Congress a complete report of its decisions on applications for loans to
be contracted or guaranteed by the Government or Government-owned and Controlled Corporations
which would have the effect of increasing the foreign debt, and containing other matters as may be
provided by law.

The Constitution, the public respondents emphasize, recognizes the enforceability of executive
agreements in the same way that it recognizes generally accepted principles of international law as
forming part of the law of the land.34 This recognition allegedly buttresses the binding effect of
executive agreements to which the Philippine Government is a signatory. It is pointed out by the
public respondents that executive agreements are essentially contracts governing the rights and
obligations of the parties. A contract, being the law between the parties, must be faithfully
adhered to by them. Guided by the fundamental rule of pacta sunt servanda, the Philippine
Government bound itself to perform in good faith its duties and obligations under Loan
Agreement No. PH-P204.

The public respondents further argue against the applicability of RA 9184 stating that it was signed
into law on January 10, 2003.35 On the other hand, Loan Agreement No. PH-P204 was executed on
December 28, 1999, where the laws then in force on government procurements were PD 1594 and
EO 40. The latter law (EO 40), in particular, excluded from its application "any existing and future
government commitments with respect to the bidding and award of contracts financed partly or
wholly with funds from international financing institutions as well as from bilateral and other similar
foreign sources."

The applicability of EO 40, not RA 9184, is allegedly bolstered by the fact that the "Invitation to
Prequalify and to Bid" for the implementation of the CP I project was published in two leading
national newspapers, namely, the Manila Times and Manila Standard on November 22, 29 and
December 5, 2002, or before the signing into law of RA 9184 on January 10, 2003. In this
connection, the public respondents point to Section 77 of IRR-A, which reads:

SEC. 77. Transitory Clause. –

In all procurement activities, if the advertisement or invitation for bids was issued prior to the
effectivity of the Act, the provisions of EO 40 and its IRR, PD 1594 and its IRR, RA 7160 and its IRR,
or other applicable laws as the case may be, shall govern.

In cases where the advertisements or invitations for bids were issued after the effectivity of the Act
but before the effectivity of this IRR-A, procuring entities may continue adopting the procurement
procedures, rules and regulations provided in EO 40 and its IRR, or other applicable laws, as the
case may be.

Section 4 of RA 9184 is also invoked by the public respondents as it provides:

SEC. 4. Scope and Applications. – This Act shall apply to the Procurement of Infrastructure Projects,
Goods and Consulting Services, regardless of source of funds, whether local or foreign, by all
branches and instrumentalities of government, its departments, offices and agencies, including
government-owned and/or –controlled corporations and local government units, subject to the
provisions of Commonwealth Act No. 138. Any treaty or international or executive agreement
affecting the subject matter of this Act to which the Philippine government is a signatory shall be
observed.
It is also the position of the public respondents that even granting arguendo that Loan Agreement
No. PH-P204 were an ordinary loan contract, still, RA 9184 is inapplicable under the non-impairment
clause36 of the Constitution. The said loan agreement expressly provided that the procurement of
goods and services for the project financed by the same shall be governed by the Guidelines for
Procurement under OECF Loans dated December 1997. Further, Section 5.06 of the JBIC
Procurement Guidelines categorically provides that "[a]ny procedure under which bids above or
below a predetermined bid value assessment are automatically disqualified is not permitted."

The public respondents explain that since the contract is the law between the parties and Loan
Agreement No. PH-P204 states that the JBIC Procurement Guidelines shall govern the parties’
relationship and further dictates that there be no ceiling price for the bidding, it naturally follows that
any subsequent law passed contrary to the letters of the said contract would have no effect with
respect to the parties’ rights and obligations arising therefrom.

To insist on the application of RA 9184 on the bidding for the CP I project would, notwithstanding the
terms and conditions of Loan Agreement No. PH-P204, allegedly violate the constitutional provision
on non-impairment of obligations and contracts, and destroy vested rights duly acquired under the
said loan agreement.

Lastly, the public respondents deny that there was illegal disbursement of public funds by the DBM.
They asseverate that all the releases made by the DBM for the implementation of the entire Arterial
Road Links Project – Phase IV, which includes the Catanduanes Circumferential Road Improvement
Project, were covered by the necessary appropriations made by law, specifically the General
Appropriations Act (GAA). Further, the requirements and procedures prescribed for the release of
the said funds were duly complied with.

For its part, private respondent China Road & Bridge Corporation similarly assails the standing of the
petitioners, either as taxpayers or, in the case of petitioner Abaya, as a former lawmaker, to file the
present suit. In addition, it is also alleged that, by filing the petition directly to this Court, the
petitioners failed to observe the hierarchy of courts.

On the merits, private respondent China Road & Bridge Corporation asserts that the applicable law
to govern the bidding of the CP I project was EO 40, not RA 9184, because the former was the law
governing the procurement of government projects at the time that it was bidded out. EO 40 was
issued by the Office of the President on October 8, 2001 and Section 1 thereof states that:

SEC. 1. Scope and Application. This Executive Order shall apply to the procurement of: (a) goods,
supplies, materials and related services; (b) civil works; and (c) consulting services, by all National
Government agencies, including State Universities and Colleges (SUCs), Government-Owned or
Controlled Corporations (GOCCs) and Government Financial Institutions (GFIs), hereby referred to
as the ‘Agencies.’ This Executive Order shall cover the procurement process from the pre-
procurement conference up to the award of contract.

xxx

The Invitation to Prequalify and to Bid was first published on November 22, 2002. On the other hand,
RA 9184 was signed into law only on January 10, 2003. Since the law in effect at the time the
procurement process was initiated was EO 40, private respondent China Road & Bridge Corporation
submits that it should be the said law which should govern the entire procurement process relative to
the CP I project.
EO 40 expressly recognizes as an exception from the application of the provisions thereof on
approved budget ceilings, those projects financed by international financing institutions (IFIs) and
foreign bilateral sources. Section 1 thereof, quoted in part earlier, further states:

SEC. 1. Scope and Application. x x x

Nothing in this Order shall negate any existing and future government commitments with respect to
the bidding and award of contracts financed partly or wholly with funds from international financing
institutions as well as from bilateral and other similar foreign sources.

Section 1.2 of the Implementing Rules and Regulations of EO 40 is likewise invoked as it provides:

For procurement financed wholly or partly from Official Development Assistance (ODA) funds from
International Financing Institutions (IFIs), as well as from bilateral and other similar foreign sources,
the corresponding loan/grant agreement governing said funds as negotiated and agreed upon by
and between the Government and the concerned IFI shall be observed.

Private respondent China Road & Bridge Corporation thus postulates that following EO 40, the
procurement of goods and services for the CP I project should be governed by the terms and
conditions of Loan Agreement No. PH-P204 entered into between the JBIC and the Philippine
Government. Pertinently, Section 5.06 of the JBIC Procurement Guidelines prohibits the setting of
ceilings on bid prices.

Private respondent China Road & Bridge Corporation claims that when it submitted its bid for the CP
I project, it relied in good faith on the provisions of EO 40. It was allegedly on the basis of the said
law that the DPWH awarded the project to private respondent China Road & Bridge Coporation even
if its bid was higher than the ABC. Under the circumstances, RA 9184 could not be applied
retroactively for to do so would allegedly impair the vested rights of private respondent China Road
& Bridge Corporation arising from its contract with the DPWH.

It is also contended by private respondent China Road & Bridge Corporation that even assuming
arguendo that RA 9184 could be applied retroactively, it is still the terms of Loan Agreement No. PH-
P204 which should govern the procurement of goods and services for the CP I project. It supports its
theory by characterizing the said loan agreement, executed pursuant to the Exchange of Notes
between the Government of Japan and the Philippine Government, as an executive agreement.

Private respondent China Road & Bridge Corporation, like the public respondents, cites RA 4860 as
the basis for the Exchange of Notes and Loan Agreement No. PH-P204. As an international or
executive agreement, the Exchange of Notes and Loan Agreement No. PH-P204 allegedly created a
legally binding obligation on the parties.

The following excerpt of the deliberations of the Bicameral Conference Committee on the
Disagreeing Provision of Senate Bill No. 2248 and House Bill No. 4809 is cited by private
respondent China Road & Bridge Corporation to support its contention that it is the intent of the
lawmakers to exclude from the application of RA 9184 those foreign-funded projects:

xxx

REP. MARCOS. Yes, Mr. Chairman, to respond and to put into the record, a justification for the
inclusion of foreign contracts, may we just state that foreign contracts have, of course, been brought
into the ambit of the law because of the Filipino counterpart for this foreign projects, they are no
longer strictly foreign in nature but fall under the laws of the Philippine government.

THE CHAIRMAN (SEN. ANGARA). Okay. I think that’s pretty clear. I think the possible concern is
that some ODA are with strings attached especially the Japanese. The Japanese are quite strict
about that, that they are (sic) even provide the architect and the design, etcetera, plus, of course, the
goods that will be supplied.

Now, I think we’ve already provided that this is open to all and we will recognize our international
agreements so that this bill will not also restrict the flow of foreign funding, because some countries
now make it a condition that they supply both services and goods especially the Japanese.

So I think we can put a sentence that we continue to honor our international obligations, di ba
Laura?

MR. ENCARNACION. Actually, subject to any treaty.

THE CHAIRMAN (SEN. ANGARA). ‘Yun pala eh. That should allay their anxiety and concern. Okay,
buti na lang for the record para malaman nila na we are conscious sa ODA.37

Private respondent China Road & Bridge Corporation submits that based on the provisions of the
Exchange of Notes and Loan Agreement No. PH-P204, it was rightfully and legally awarded the CP I
project. It urges the Court to dismiss the petition for lack of merit.

The Court’s Rulings

Petitioners, as taxpayers, possess locus standi to file the present suit

Briefly stated, locus standi is "a right of appearance in a court of justice on a given question."38 More
particularly, it is a party’s personal and substantial interest in a case such that he has sustained or
will sustain direct injury as a result of the governmental act being challenged. It calls for more than
just a generalized grievance. The term "interest" means a material interest, an interest in issue
affected by the decree, as distinguished from mere interest in the question involved, or a mere
incidental interest.39 Standing or locus standi is a peculiar concept in constitutional law40 and the
rationale for requiring a party who challenges the constitutionality of a statute to allege such a
personal stake in the outcome of the controversy is "to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends for illumination of
difficult constitutional questions."41

Locus standi, however, is merely a matter of procedure42 and it has been recognized that in some
cases, suits are not brought by parties who have been personally injured by the operation of a law or
any other government act but by concerned citizens, taxpayers or voters who actually sue in the
public interest.43 Consequently, the Court, in a catena of cases,44 has invariably adopted a liberal
stance on locus standi, including those cases involving taxpayers.

The prevailing doctrine in taxpayer’s suits is to allow taxpayers to question contracts entered into by
the national government or government- owned or controlled corporations allegedly in contravention
of law.45 A taxpayer is allowed to sue where there is a claim that public funds are illegally disbursed,
or that public money is being deflected to any improper purpose, or that there is a wastage of public
funds through the enforcement of an invalid or unconstitutional law.46 Significantly, a taxpayer need
not be a party to the contract to challenge its validity.47
In the present case, the petitioners are suing as taxpayers. They have sufficiently demonstrated that,
notwithstanding the fact that the CP I project is primarily financed from loans obtained by the
government from the JBIC, nonetheless, taxpayers’ money would be or is being spent on the project
considering that the Philippine Government is required to allocate a peso-counterpart therefor. The
public respondents themselves admit that appropriations for these foreign-assisted projects in the
GAA are composed of the loan proceeds and the peso-counterpart. The counterpart funds, the
Solicitor General explains, refer to the component of the project cost to be financed from
government-appropriated funds, as part of the government’s commitment in the implementation of
the project.48 Hence, the petitioners correctly asserted their standing since a part of the funds being
utilized in the implementation of the CP I project partakes of taxpayers’ money.

Further, the serious legal questions raised by the petitioners, e.g., whether RA 9184 applies to the
CP I project, in particular, and to foreign-funded government projects, in general, and the fact that
public interest is indubitably involved considering the public expenditure of millions of pesos, warrant
the Court to adopt in the present case its liberal policy on locus standi.

In any case, for reasons which will be discussed shortly, the substantive arguments raised by the
petitioners fail to persuade the Court as it holds that Resolution No. PJHL-A-04-012 is valid. As a
corollary, the subsequent contract entered into by and between the DPWH and private respondent
China Road & Bridge Corporation is likewise valid.

History of Philippine Procurement Laws

It is necessary, at this point, to give a brief history of Philippine laws pertaining to procurement
through public bidding. The United States Philippine Commission introduced the American practice
of public bidding through Act No. 22, enacted on October 15, 1900, by requiring the Chief Engineer,
United States Army for the Division of the Philippine Islands, acting as purchasing agent under the
control of the then Military Governor, to advertise and call for a competitive bidding for the purchase
of the necessary materials and lands to be used for the construction of highways and bridges in the
Philippine Islands.49 Act No. 74, enacted on January 21, 1901 by the Philippine Commission,
required the General Superintendent of Public Instruction to purchase office supplies through
competitive public bidding.50 Act No. 82, approved on January 31, 1901, and Act No. 83, approved
on February 6, 1901, required the municipal and provincial governments, respectively, to hold
competitive public biddings in the making of contracts for public works and the purchase of office
supplies.51

On June 21, 1901, the Philippine Commission, through Act No. 146, created the Bureau of Supply
and with its creation, public bidding became a popular policy in the purchase of supplies, materials
and equipment for the use of the national government, its subdivisions and instrumentalities.52 On
February 3, 1936, then President Manuel L. Quezon issued Executive Order No. 16 declaring as a
matter of general policy that government contracts for public service or for furnishing supplies,
materials and equipment to the government should be subjected to public bidding.53 The requirement
of public bidding was likewise imposed for public works of construction or repair pursuant to the
Revised Administrative Code of 1917.

Then President Diosdado Macapagal, in Executive Order No. 40 dated June 1, 1963, reiterated the
directive that no government contract for public service or for furnishing supplies, materials
and equipment to the government or any of its branches, agencies or instrumentalities,
should be entered into without public bidding except for very extraordinary reasons to be
determined by a Committee constituted thereunder. Then President Ferdinand Marcos issued
PD 1594 prescribing guidelines for government infrastructure projects and Section 454 thereof stated
that they should generally be undertaken by contract after competitive public bidding.
Then President Corazon Aquino issued Executive Order No. 301 (1987) prescribing guidelines for
government negotiated contracts. Pertinently, Section 62 of the Administrative Code of 1987
reiterated the requirement of competitive public bidding in government projects. In 1990, Congress
passed RA 6957,55 which authorized the financing, construction, operation and maintenance of
infrastructure by the private sector. RA 7160 was likewise enacted by Congress in 1991 and it
contains provisions governing the procurement of goods and locally-funded civil works by the local
government units.

Then President Fidel Ramos issued Executive Order No. 302 (1996), providing guidelines for the
procurement of goods and supplies by the national government. Then President Joseph Ejercito
Estrada issued Executive Order No. 201 (2000), providing additional guidelines in the procurement
of goods and supplies by the national government. Thereafter, he issued Executive Order No. 262
(2000) amending EO 302 (1996) and EO 201 (2000).

On October 8, 2001, President Gloria Macapagal-Arroyo issued EO 40, the law mainly relied upon
by the respondents, entitled Consolidating Procurement Rules and Procedures for All National
Government Agencies, Government-Owned or Controlled Corporations and Government Financial
Institutions, and Requiring the Use of the Government Procurement System. It accordingly repealed,
amended or modified all executive issuances, orders, rules and regulations or parts thereof
inconsistent therewith.56

On January 10, 2003, President Arroyo signed into law RA 9184. It took effect on January 26, 2004,
or fifteen days after its publication in two newspapers of general circulation.57 It expressly repealed,
among others, EO 40, EO 262 (2000), EO 302(1996) and PD 1594, as amended:

SEC. 76. Repealing Clause. —This law repeals Executive Order No. 40, series of 2001, entitled
"Consolidating Procurement Rules and Procedures for All National Government Agencies,
Government Owned or Controlled Corporations and/or Government Financial Institutions, and
Requiring the Use of the Government Electronic Procurement System"; Executive Order No. 262,
series of 1996, entitled "Amending Executive Order No. 302, series of 1996, entitled Providing
Policies, Guidelines, Rules and Regulations for the Procurement of Goods/Supplies by the National
Government" and Section 3 of Executive Order No. 201, series of 2000, entitled "Providing
Additional Policies and Guidelines in the Procurement of Goods/Supplies by the National
Government"; Executive Order No. 302, series of 1996, entitled "Providing Policies, Guidelines,
Rules and Regulations for the Procurement of Goods/Supplies by the National Government" and
Presidential Decree No. 1594 dated June 11, 1978, entitled "Prescribing Policies, Guidelines, Rules
and Regulations for Government Infrastructure Contracts." This law amends Title Six, Book Two of
Republic Act No. 7160, otherwise known as the "Local Government Code of 1991"; the relevant
provisions of Executive Order No. 164, series of 1987, entitled "Providing Additional Guidelines in
the Processing and Approval of Contracts of the National Government"; and the relevant provisions
of Republic Act No. 7898 dated February 23, 1995, entitled "An Act Providing for the Modernization
of the Armed Forces of the Philippines and for Other Purposes." Any other law, presidential decree
or issuance, executive order, letter of instruction, administrative order, proclamation, charter, rule or
regulation and/or parts thereof contrary to or inconsistent with the provisions of this Act is hereby
repealed, modified or amended accordingly.

In addition to these laws, RA 4860, as amended, must be mentioned as Section 4 thereof provides
that "[i]n the contracting of any loan, credit or indebtedness under this Act, the President of the
Philippines may, when necessary, agree to waive or modify the application of any law granting
preferences or imposing restrictions on international competitive bidding x x x Provided, finally, That
the method and procedure in the comparison of bids shall be the subject of agreement between the
Philippine Government and the lending institution."
EO 40, not RA 9184, is applicable to the procurement process undertaken for the CP I project.
RA 9184 cannot be given retroactive application.

It is not disputed that with respect to the CP I project, the Invitation to Prequalify and to Bid for its
implementation was published in two leading national newspapers, namely, the Manila Times and
Manila Standard on November 22, 29 and December 5, 2002. At the time, the law in effect was EO
40. On the other hand, RA 9184 took effect two months later or on January 26, 2003. Further, its full
implementation was even delayed as IRR-A was only approved by President Arroyo on September
18, 2003 and subsequently published on September 23, 2003 in the Manila Times and Malaya
newspapers.58

The provisions of EO 40 apply to the procurement process pertaining to the CP I project as it

is explicitly provided in Section 1 thereof that:

SEC. 1. Scope and Application. – This Executive Order shall apply to see procurement of (a) goods,
supplies, materials and related service; (b) civil works; and (c) consulting services, by all National
Government agencies, including State Universities and Colleges (SUCs), Government-Owned or –
Controlled Corporations (GOCCs) and Government Financial Institutions (GFIs), hereby referred to
as "Agencies." This Executive Order shall cover the procurement process from the pre-
procurement conference up to the award of the contract.

Nothing in this Order shall negate any existing and future government commitments with respect to
the bidding and award of contracts financed partly or wholly with funds from international financing
institutions as well as from bilateral and similar foreign sources.

The procurement process basically involves the following steps: (1) pre-procurement
conference; (2) advertisement of the invitation to bid; (3) pre-bid conference; (4) eligibility check of
prospective bidders; (5) submission and receipt of bids; (6) modification and withdrawal of bids; (7)
bid opening and examination; (8) bid evaluation; (9) post qualification; (10) award of contract and
notice to proceed.59 Clearly then, when the Invitation to Prequalify and to Bid for the implementation
of the CP I project was published on November 22, 29 and December 5, 2002, the procurement
process thereof had already commenced and the application of EO 40 to the procurement process
for the CP I project had already attached.

RA 9184 cannot be applied retroactively to govern the procurement process relative to the CP I
project because it is well settled that a law or regulation has no retroactive application unless it
expressly provides for retroactivity.60Indeed, Article 4 of the Civil Code is clear on the matter: "[l]aws
shall have no retroactive effect, unless the contrary is provided." In the absence of such categorical
provision, RA 9184 will not be applied retroactively to the CP I project whose procurement process
commenced even before the said law took effect.

That the legislators did not intend RA 9184 to have retroactive effect could be gleaned from
the IRR-A formulated by the Joint Congressional Oversight Committee (composed of the Chairman
of the Senate Committee on Constitutional Amendments and Revision of Laws, and two members
thereof appointed by the Senate President and the Chairman of the House Committee on
Appropriations, and two members thereof appointed by the Speaker of the House of
Representatives) and the Government Procurement Policy Board (GPPB). Section 77 of the IRR-A
states, thus:

SEC. 77. Transitory Clause

In all procurement activities, if the advertisement or invitation for bids was issued prior to the
effectivity of the Act, the provisions of E.O. 40 and its IRR, P.D. 1594 and its IRR, R.A. 7160 and its
IRR, or other applicable laws, as the case may be, shall govern.

In cases where the advertisements or invitations for bids were issued after the effectivity of the Act
but before the effectivity of this IRR-A, procuring entities may continue adopting the procurement
procedures, rules and regulations provided in E.O. 40 and its IRR, P.D. 1594 and its IRR, R.A. 7160
and its IRR, or other applicable laws, as the case may be.

In other words, under IRR-A, if the advertisement of the invitation for bids was issued prior to the
effectivity of RA 9184, such as in the case of the CP I project, the provisions of EO 40 and its IRR,
and PD 1594 and its IRR in the case of national government agencies, and RA 7160 and its IRR in
the case of local government units, shall govern.

Admittedly, IRR-A covers only fully domestically-funded procurement activities from procurement
planning up to contract implementation and that it is expressly stated that IRR-B for foreign-funded
procurement activities shall be subject of a subsequent issuance.61 Nonetheless, there is no reason
why the policy behind Section 77 of IRR-A cannot be applied to foreign-funded procurement projects
like the CP I project. Stated differently, the policy on the prospective or non-retroactive application of
RA 9184 with respect to domestically-funded procurement projects cannot be any different with
respect to foreign-funded procurement projects like the CP I project. It would be incongruous, even
absurd, to provide for the prospective application of RA 9184 with respect to domestically-funded
procurement projects and, on the other hand, as urged by the petitioners, apply RA 9184
retroactively with respect to foreign- funded procurement projects. To be sure, the lawmakers could
not have intended such an absurdity.

Thus, in the light of Section 1 of EO 40, Section 77 of IRR-A, as well as the fundamental rule
embodied in Article 4 of the Civil Code on prospectivity of laws, the Court holds that the
procurement process for the implementation of the CP I project is governed by EO 40 and its
IRR, not RA 9184.

Under EO 40, the award of the contract to private respondent China Road & Bridge Corporation is
valid.

Section 25 of EO 40 provides that "[t]he approved budget of the contract shall be the upper limit or
ceiling of the bid price. Bid prices which exceed this ceiling shall be disqualified outright from further
participating in the bidding. There shall be no lower limit to the amount of the award. x x x" It should
be observed that this text is almost similar to the wording of Section 31 of RA 9184, relied upon by
the petitioners in contending that since the bid price of private respondent China Road & Bridge
Corporation exceeded the ABC, then it should not have been awarded the contract for the CP I
project.

Nonetheless, EO 40 expressly recognizes as an exception to its scope and application those

government commitments with respect to bidding and award of contracts financed partly or wholly
with funds from international financing institutions as well as from bilateral and other similar foreign
sources. The pertinent portion of Section 1 of EO 40 is quoted anew:

SEC. 1. Scope and Application. – x x x

Nothing in this Order shall negate any existing and future government commitments with respect to
the bidding and award of contracts financed partly or wholly with funds from international financing
institutions as well as from bilateral and similar foreign sources.
In relation thereto, Section 4 of RA 4860, as amended, was correctly cited by the respondents as
likewise authorizing the President, in the contracting of any loan, credit or indebtedness thereunder,
"when necessary, agree to waive or modify the application of any law granting preferences or
imposing restrictions on international competitive bidding x x x." The said provision of law further
provides that "the method and procedure in the comparison of bids shall be the subject of agreement
between the Philippine Government and the lending institution."

Consequently, in accordance with these applicable laws, the procurement of goods and services for
the CP I project is governed by the corresponding loan agreement entered into by the government
and the JBIC, i.e., Loan Agreement No. PH-P204. The said loan agreement stipulated that the
procurement of goods and services for the Arterial Road Links Development Project (Phase IV), of
which CP I is a component, is to be governed by the JBIC Procurement Guidelines. Section 5.06,
Part II (International Competitive Bidding) thereof quoted earlier reads:

Section 5.06. Evaluation and Comparison of Bids

xxx

(e) Any procedure under which bids above or below a predetermined bid value assessment are
automatically disqualified is not permitted.62

It is clear that the JBIC Procurement Guidelines proscribe the imposition of ceilings on bid prices. On
the other hand, it enjoins the award of the contract to the bidder whose bid has been determined to
be the lowest evaluated bid. The pertinent provision, quoted earlier, is reiterated, thus:

Section 5.09. Award of Contract

The contract is to be awarded to the bidder whose bid has been determined to be the lowest
evaluated bid and who meets the appropriate standards of capability and financial resources. A
bidder shall not be required as a condition of award to undertake responsibilities or work not
stipulated in the specifications or to modify the bid.63

Since these terms and conditions are made part of Loan Agreement No. PH-P204, the government
is obliged to observe and enforce the same in the procurement of goods and services for the CP I
project. As shown earlier, private respondent China Road & Bridge Corporation’s bid was the lowest
evaluated bid, albeit 28.95% higher than the ABC. In accordance with the JBIC Procurement
Guidelines, therefore, it was correctly awarded the contract for the CP I project.

Even if RA 9184 were to be applied retroactively, the terms of the Exchange of Notes dated
December 27, 1999 and Loan Agreement No. PH-P204 would still govern the procurement for the
CP I project

For clarity, Section 4 of RA 9184 is quoted anew, thus:

SEC. 4. Scope and Applications. – This Act shall apply to the Procurement of Infrastructure Projects,
Goods and Consulting Services, regardless of source of funds, whether local or foreign, by all
branches and instrumentalities of government, its departments, offices and agencies, including
government-owned and/or –controlled corporations and local government units, subject to the
provisions of Commonwealth Act No. 138. Any treaty or international or executive agreement
affecting the subject matter of this Act to which the Philippine government is a signatory shall be
observed.
The petitioners, in order to place the procurement process undertaken for the CP I project within the
ambit of RA 9184, vigorously assert that Loan Agreement No. PH-P204 is neither a treaty, an
international agreement nor an executive agreement. They cite Executive Order No. 459 dated
November 25, 1997 where the three agreements are defined in this wise:

a) International agreement – shall refer to a contract or understanding, regardless of

nomenclature, entered into between the Philippines and another government in written form
and governed by international law, whether embodied in a single instrument or in two or
more related instruments.

b) Treaties – international agreements entered into by the Philippines which require

legislative concurrence after executive ratification. This term may include compacts like
conventions, declarations, covenants and acts.

c) Executive agreements – similar to treaties except that they do not require legislative
concurrence.64

The petitioners mainly argue that Loan Agreement No. PH-P204 does not fall under any of the three
categories because to be any of the three, an agreement had to be one where the parties are the
Philippines as a State and another State. The JBIC, the petitioners maintain, is a Japanese banking
agency, which presumably has a separate juridical personality from the Japanese Government.

The petitioners’ arguments fail to persuade. The Court holds that Loan Agreement No. PH-P204
taken in conjunction with the Exchange of Notes dated December 27, 1999 between the Japanese
Government and the Philippine Government is an executive agreement.

To recall, Loan Agreement No. PH-P204 was executed by and between the JBIC and the Philippine
Government pursuant to the Exchange of Notes executed by and between Mr. Yoshihisa Ara,
Ambassador Extraordinary and Plenipotentiary of Japan to the Philippines, and then Foreign Affairs
Secretary Siazon, in behalf of their respective governments. The Exchange of Notes expressed that
the two governments have reached an understanding concerning Japanese loans to be extended to
the Philippines and that these loans were aimed at promoting our country’s economic stabilization
and development efforts.

Loan Agreement No. PH-P204 was subsequently executed and it declared that it was so entered by
the parties "[i]n the light of the contents of the Exchange of Notes between the Government of Japan
and the Government of the Republic of the Philippines dated December 27, 1999, concerning
Japanese loans to be extended with a view to promoting the economic stabilization and
development efforts of the Republic of the Philippines."65 Under the circumstances, the JBIC may
well be considered an adjunct of the Japanese Government. Further, Loan Agreement No. PH-P204
is indubitably an integral part of the Exchange of Notes. It forms part of the Exchange of Notes such
that it cannot be properly taken independent thereof.

In this connection, it is well to understand the definition of an "exchange of notes" under international
law. The term is defined in the United Nations Treaty Collection in this wise:

An "exchange of notes" is a record of a routine agreement that has many similarities with the private
law contract. The agreement consists of the exchange of two documents, each of the parties being
in the possession of the one signed by the representative of the other. Under the usual procedure,
the accepting State repeats the text of the offering State to record its assent. The signatories of the
letters may be government Ministers, diplomats or departmental heads. The technique of exchange
of notes is frequently resorted to, either because of its speedy procedure, or, sometimes, to avoid
the process of legislative approval.66

It is stated that "treaties, agreements, conventions, charters, protocols, declarations, memoranda of

understanding, modus vivendi and exchange of notes" all refer to "international instruments binding
at international law."67 It is further explained that-

Although these instruments differ from each other by title, they all have common features and
international law has applied basically the same rules to all these instruments. These rules are the
result of long practice among the States, which have accepted them as binding norms in their mutual
relations. Therefore, they are regarded as international customary law. Since there was a general
desire to codify these customary rules, two international conventions were negotiated. The 1969
Vienna Convention on the Law of Treaties ("1969 Vienna Convention"), which entered into force on
27 January 1980, contains rules for treaties concluded between States. The 1986 Vienna
Convention on the Law of Treaties between States and International Organizations ("1986 Vienna
Convention"), which has still not entered into force, added rules for treaties with international
organizations as parties. Both the 1969 Vienna Convention and the 1986 Vienna Convention do not
distinguish between the different designations of these instruments. Instead, their rules apply to all of
those instruments as long as they meet the common requirements.68

Significantly, an exchange of notes is considered a form of an executive agreement, which becomes

binding through executive action without the need of a vote by the Senate or Congress. The
following disquisition by Francis B. Sayre, former United States High Commissioner to the
Philippines, entitled "The Constitutionality of Trade Agreement Acts," quoted in Commissioner of
Customs v. Eastern Sea Trading,69 is apropos:

Agreements concluded by the President which fall short of treaties are commonly referred to as
executive agreements and are no less common in our scheme of government than are the more
formal instruments – treaties and conventions. They sometimes take the form of exchange of notes
and at other times that of more formal documents denominated "agreements" or "protocols". The
point where ordinary correspondence between this and other governments ends and agreements –
whether denominated executive agreements or exchange of notes or otherwise – begin, may
sometimes be difficult of ready ascertainment. It would be useless to undertake to discuss here the
large variety of executive agreements as such, concluded from time to time. Hundreds of executive
agreements, other than those entered into under the trade-agreements act, have been negotiated
with foreign governments. x x x70

The Exchange of Notes dated December 27, 1999, stated, inter alia, that the Government of Japan
would extend loans to the Philippines with a view to promoting its economic stabilization and
development efforts; Loan I in the amount of Y79,8651,000,000 would be extended by the JBIC to
the Philippine Government to implement the projects in the List A (including the Arterial Road Links
Development Project - Phase IV); and that such loan (Loan I) would be used to cover payments to
be made by the Philippine executing agencies to suppliers, contractors and/or consultants of eligible
source countries under such contracts as may be entered into between them for purchases of
products and/or services required for the implementation of the projects enumerated in the List
A.71 With respect to the procurement of the goods and services for the projects, it bears reiterating
that as stipulated:

3. The Government of the Republic of the Philippines will ensure that the products and/or services
mentioned in sub-paragraph (1) of paragraph 3 of Part I and sub-paragraph (1) of paragraph 4 of
Part II are procured in accordance with the guidelines for procurement of the Bank, which set
 forth, inter alia, the procedures of international tendering to be followed except where such
procedures are inapplicable or inappropriate.72

The JBIC Procurements Guidelines, as quoted earlier, forbids any procedure under which bids
above or below a predetermined bid value assessment are automatically disqualified. Succinctly put,
it absolutely prohibits the imposition of ceilings on bids.

Under the fundamental principle of international law of pacta sunt servanda, 73 which is, in fact,
embodied in Section 4 of RA 9184 as it provides that "[a]ny treaty or international or executive
agreement affecting the subject matter of this Act to which the Philippine government is a signatory
shall be observed," the DPWH, as the executing agency of the projects financed by Loan Agreement
No. PH-P204, rightfully awarded the contract for the implementation of civil works for the CP I project
to private respondent China Road & Bridge Corporation.

WHEREFORE, premises considered, the petition is DISMISSED.

SO ORDERED.