SolGen asks CA to junk challenge vs. new telco player selection

“RA 8975 prohibits the issuance of any injunctive writ to prohibit or restrain, among others, the bidding of awarding of an infrastructure project of the government,” Calida explained. (PNA photo)

MANILA — Government lawyers formally asked the Court of Appeals (CA) to turn down a suit questioning the selection process for the country’s third telecommunications player.

In a 31-page comment filed on Monday, Solicitor General Jose Calida stood by the legality of the terms of reference (TOR) set by the National Telecommunications Commission (NTC) and urged the appellate court to dismiss the petition filed by NOW Telecom of businessman Mel Velarde last November.

Calida argued that the CA is not allowed by law to issue an injunction order against the selection process for the new major player in the telco industry and cited Section 3 of Republic Act 8975, which prohibits appellate and lower courts from issuing temporary restraining orders or WPIs (writ of preliminary injunction) on national government projects, including infrastructure projects.

“RA 8975 prohibits the issuance of any injunctive writ to prohibit or restrain, among others, the bidding of awarding of an infrastructure project of the government,” Calida explained, saying telecommunications is recognized by law as “essential infrastructure to the country’s economic development and competitiveness.”

The said provision states: “No court, except the Supreme Court, shall issue any temporary restraining order, preliminary injunction or preliminary mandatory injunction against the government, or any of its subdivisions, officials or any person or entity, whether public or private, acting under the government’s direction, to restrain, prohibit or compel the following acts: Acquisition, clearance and development of the right-of-way and/or site or location of any national government project; Bidding or awarding of contract/project of the national government as defined under Section 2 hereof; Commencement, prosecution, execution, implementation, operation of any such contract or project; Termination or rescission of any such contract/project; and the undertaking or authorization of any other lawful activity necessary for such contract/project.”

The top government counsel added that NOW Telco is not entitled to such relief simply because it did not participate in the bidding process and therefore had no legal standing to file the case.

“Here, petitioner failed to prove that it has a clear and unmistakable right which is entitled to protection and it shall suffer ‘grave injustice and irreparable injury,” the Solicitor General pointed out.

Calida stressed that NOW Telco has “waived or abandoned” its right to question the TOR when it did not submit a bid during the selection process in November last year.

“Otherwise stated, the ancillary remedy as well as the permanent injunction prated for was meant to secure or protect its intention to bid. When petitioner failed to submit its bid, it has effectively abandoned or waived what it initially claimed was entitled to be secured or protected through an injunctive writ —TRO, writ of preliminary injunction and, later on, a permanent injunction,” he added.

In its petition, NOW Telecom asked the CA to reverse and set aside an earlier decision of Manila Regional Trial Court Branch 42 Judge Dinnah Aguila-Topacio that dismissed the firm’s petition for issuance of WPI.

Another petition was filed in November 2018 by Philippine Telegraph & Telephone Corp. (PT&T) before the Supreme Court.