Republic ofthe Philippines DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS. MEMORANDUM TO : ALL CONCERNED SUBJECT : IN THE MATTER OF THE REQUEST FOR CONFIRMATION ON NON-APPLICABILITY OF SECTION 261(v) AND (w) OF THE OMNIBUS ELECTION CODE TO BUILD-OPERATE- TRANSFER (BOT) PUBLIC WORKS OR INFRASTRUCTURE PROJECTS: DATE 214 January 2016 The Commission on Elections (COMELEC) has confirmed the non-applicability of Section 261(v) and (w) of the Omnibus Election Code on public works projects executed under Republic Act No. 7718, otherwise known as the Build-Operate-Transfer (BOT) Law, as amended, Attached to this Memorandum are the following: 1) Excerpt from the Minutes of the Special En Banc Meeting of the Commission on Elections held on 21 September 2015; and 2) Description and Target Timelines for BOT Law Projects Under Procurement. For your guidance and information. arry Carus P. GONZALES Underse¢retar¥ for Procurement and Administration TTHECOLOMETA TOWER TEER eA) TESIIS BRGY. WACK-WACK. ORTIGAS AVENUE TRUMKLINE 727-7960 7079 1555 MANDALUYONG CITY, PHILPINES DDOTe ACTION CENTER HOTLINE 7890FROW :OFFICE OF COMM, LIM - COMELEC FAK ND. 1524-25-65 20 Ost. 2015 SCE PF | | EXCERPT FROM THE MINUTES OF THE SPEGIAL EN BANG MEETING OF THE COMMISSION ON ELECTIONS HELD ON SEPTEMBER 21, 2015 Present: Chairman J. Andres D. Bautista Commissioner Christian Robert S. Lim ‘Commissioner Al A. Parterio \ Commissioner Luie Tito F. Guia Commissioner Ma. Rowena Amelia V. Guanzon Gommissioner Sheriff M, Abas On Official Business: Commissioner Arthur D. Lim | XXX XXX XXX | 15-, 681 a IN THE MATTER OF THE REQUEST FOR CONFIRMATION ON & NON-APPLICABILITY OF SECTION 261 (v) AND (w) OF THE OMNIBUS ELECTION CODE TO BUILD-OPERATE-TRANSFER (BOT) PUBLIC WORKS OR INFRASTRUCTURE PROJECTS This pertains to the Memorandum dated September 11, 2015 of t Commissioner Christian Robert S. Lim, Commissioner-in-Charge, Campaign Finance Unit, on the request for confirmation of non-applicability of Section 261 (v) and (w) of the Omnibus Election Code to Build-Operate- Transfer (BOT) Public Works or Infrastructure Projects. The Memorandum of Commissioner Lim reads: | The undersigned respectfully endorses for the consideration of the Commission En Bans the altached Letter dated 07 September 2015 from tno Executive Director of the Public-Private Partnership Center of the Phiippines (PPPCP), Undersecretary Cosette V. Carifao, The said Leter ig.a request for confirmation that pubic works projects execwed under Republic Act No. 6967, 85 amended ty Republic Act No. 7718, commonly known as the ‘puild-operate-transfer” (BOT) Law, are not covered by the prohibitions stated in Section 261 (v) and (Ww) of the co ipus election Code (OC). The purpose of Ihis confirmation is (0 sroure the PPPCP's partners and prospective bidders of BOT projects ‘hat onticel infrastructure projects that aro scheduled for implementation ire ae coming year wil not be hampered or unduly delayed by restrictions imposed by (he OEC on public works projects, The PPPGP's Letter was addressed to the undersigned in his capacity as Commissionerin-charge of the Campaign Finance Unit, as matters pertaining (0 the review of publlc works project vis-é-vis the prohiblions provided in Sections 264 (v) and (W) have been delegated (0 tie Campaign Finance Unit, wich was declared (0 he separate andyFROM :CFFICE OF COMM, LIM - COMELEC FAK NO. 1824-25-65 22 Oot, 2O1S 3:05 Page 2 of 6 MAR. No. 15-0681 distinct from the Law Department under Resolution No. 9854, promulgated on 19 February 2014 After reviewing the PPPCP's position on the nature of BOT projects, the undersigned agrees that public works projects financed by the private sector under the BOT lav do not fall within the scope of the prohibition against the release, disbursement or expenciture of public funds under Section 261 (v) of the OEC. Section 261 (v) and (wv) of the OEC provides: ‘() Prohibition against reloase, disbursement or expenditure of public funds, — Any public official or employee including barangay officials and those of government-owned or controlled corporations and their subsidiaries, who, during forty-five (45) days before a regular election and thirty (30) days before @ special election, releases, disburses or expends any public funds for: (1) Any and all kinds of public works, except the following: a, Maintenance of existing andor completed public works project: Provided, That not more than the average number of leborers of employees alreadly employed therein during the six-month period immediately prior to the beginning of the forty-five day period before election day shall be permitted to work during such time: Provided, further, That no additional laborers shall be ‘employed for maintenance work within the said period of forty-five days; b. Work undertaken by contract through public bidding held, or by negotiated contract avrarded, before the forty-five day period before election: Provided, That work for the purpose of this section undertaken under the so-called ‘takay’ or ‘paquiac' system shall not be considered as work by contract; c. Payment for the usual cost of preparation for working drawings, specifications, bills. of materials, estimates, and other procedures preparatory to actual construction including the purchase of materials and equipment, and all incidental expenses for wages of watchmen and other laborers employed for such work in the central office and field storehouses before the beginning of such period: Provided, That the number of such laborers shall not be increasedFROM :CFFICE OF Cth, LIM - OOMELEC FAK NO, :524-25-65 20 Oot. 2015 3:07 >| Page 3 of 6 MLR. No, 15-_0681 | over the number hired when the project or | projects were commenced and ' Emergency work necessitated by the occurrence ; of a public calamity, but such work shall be limited to the restoration of the damaged facily. No payment shall be made within five days before the date of election to laborers who have i rendered services in projects or works except those falling under subparagraphs (a), (b), (c), and (d), of ! this paragraph, This prohibition shall not apply to ongoing public works projects commenced before the campaign period or simitar projects under foreign agreaments. For purposes of this provision, it shall be the duty of the goverment officials or agencies concemed to report (0 the Commission the fist of all such projects being undertaken by them, ! (2) The Ministry of Social Services and Development and any other office in other ministries of the govemment performing functions similar to said ministry, except for salaries of personnel, and for such other routine and normal expenses, and for such other expenses as the Commission may authorize after due notice and nearing. Should a calamity or disaster occur, all releases normally or usually coursed through the said ministries and offices of other ministries shall be tumed ! over to, and administered end disbursed by, the Philippine National Red Gross, subject to the supervision of the Commission on Audit or its representatives, and no candidate or his or her spouse or member of his family within the second civil degree of affinity or consanguinity shall participate, directly or indirectly, in the distribution of any relief or other goods to the victims of the calamity or disaster; and (3) Tho. Ministry of Human Setllaments and any | other office in eny other ministry of the govemment i performing functions similar to said ministry, except for i ‘salaries of personnel and for such other necessary administrative or other expenses as the Commission may authorize after due notice and hearing. (w) Prohibition against construction of public works, delivery of materials for public works and issuance of ‘ieacuny warrants and similar devices. ~— During tho of \ * ilFROM SOFFICE OF CON, LIM - OELEC FRA ND, :S2K2-€S 20 oct, ais om FE | Page of 6 MR. No, 15.0284 ! I period of forty-five (45) days preceding a regular election ane thirty (30) days before a special election, any person who: 4. undertakes the construction of any public works, except for projects or works exempted in the : preceding paragraph; or ». issues, uses or avails of treasury warrants or any device undertaking future delivery of money, goods or other things of value chargeable against public funds." The evil sought to be prevented by thase prohibitions is the misuse ‘of public funds by public officials, who may be candidates in the upcoming elections, for purposes of campaigning. Because of the high ' visibility of public works projects, unscrupulous public officials or candidates would grab the opportunity to publicize their names and/or faces on the posters or notices that contain information about the public ! works projects, giving the general public the impression that the said projects are being undertaken through the initiative or benevolence af the public official or candidate. While the undersigned agrees with the PPPCP thet infrastructure ! projects procured through the BOT law are outside the scope of the prohibitions in Section 261 (v) and (w), there is, nevertheless, a danger that the infrastructure projects may be used as a medium fo promote the candidacy of the public official whose agency is responsible to implement the said projects. Should the Commission En Banc approve the requesi of the PPPCP, the undersigned recommends thet: (1) The confirmation of the exception from the prohibition in Section 261 (v) and (w) of the OEC be limited to the projects olearly identified by the PPPCP in Annex A of the Letier; (2) Section 261 (v) and (w) vill stil apply when public funds will be disbursed or released, as in the case where the services of an independent consultant will be contracted through public bidding under Republic Act No. 9184, or the Goverment Procurement Reform Act, (3) The PPP projects must be clearly identified as such in any information, education and communication (IEC) materials, with only the name and/or logo of the implementing agancy and the i private sector entityiwinning bidder indicated in the said materials. (4) The PPPCP must ensure that all PPP projects must never be used as material for any election propaganda, Public notices of the said projects must not contain the name, logo, image. initials and any identifying symbol attributable to certain public officials or individuals that are currently in the leadership of the implementing agencies of the said PPP projects. 4 \ 4 XY,FROM :0FF I page S of 6 M.R. No. 15-05 The Commission RESOLVED, as it hereby RESOLVES, to grant the request of the Public-Private Partnership Center of the Philippines (PPPCP) for confirmation that the infrastructure projects of government agencies executed under Republic Act (R.A) No. 6967, as amended by RA. No. 7718, commonly known as the “Build-Operate-Transfer’ (BOT) Law are not covered by the prohibitions stated in Section 261 (v) and (w) of the Omnibus Election. Code (OEC), subject to the following recommendations of Commissioner Christian Robert S. Lim (1) The confirmation of the exception from the prohibition in Section 261 (v) and (w) of the OEC be limited to the projects clearly identified by the PPPCP in Annex A of the Letter; (2) Section 261 (v) and (w) will stil apply when public funds will be disbursed ot released, as in the case where the services of an independent consultant will be contracted through public bidding under RA. No, 9184, or the Government Procurement Reform Act; (3) The PPP projects must be clearly identified as such in any information, education and communication (IEC) materials, with only the name and/or logo of the implementing agency and the private sector entity/winning bidder indicated in the said materials; and (4) The PPPCP must ensure that all PPP projects must et be used as material for any election propaganda. contain the nev Public notices of the said projects must not name, logo, image, initials and any identifying symbol attributable to certain public officials or individuals that are currently in the leadership of the implementing agencies of the said PPP Uae « OF COMM. LIM ~ CORELEC FAM HD, :S24-25-65 20 Oct, 2015 3:88PM PTmooie on wecmet mie ses mow ane 2 " Page 6 0f6 MLR, No, 15-0681 Let the Campaign Finan implement this Resolution. a SO ORDERED. eee J ANDRES D. BAUTISTA Chairman at the time ~ (On Official Bus: @EF- - beleive tered CHRISTIAN ROBERT S. LIM AL A. PARRENO Commissioner Commissioner e (On Official Business) i LUIE TITO F. GUIA ARTHUR D. LIM ‘omppssioner Commissioner i mA. nah cll V. GUANZON SHERIFF M. ABAS Commissioner Commissioner Ca: Ghakenan : ‘i Coowniesionera Exacuive Drecior (Campaige Finance Une ey iwi REPUBLIC OF THE PHILIPPINES —_ PUBLIC-PRIVATE PARTNERSHIP CENTER [the project wil provide weated bulk water tothe various | Metropolitan as onerate-| s2years 1. Bulacan Bulk Water Supply [water ditrics (WD) of Bulacan to help meet theincreasing | Waterworks and | MIS OPSTNS| UNC | phe 24.40 |september20,] November Project froter demand ofits consumers, expandits current sence | Sewerage System | “MENS | UNUM | sition | 2018. | 12,2015 area coverage and increase the households serve. (ows) |The project wil ental the construction and maintenance of @ modern prison facility n Fort Magsaysay, Nueva Ec a retonal son Fetes TMOUBH the project, asutable prion acy wilbe created | sessment | BuleTraster oul acre ho provide adequate ving spaces facies, and addressthe | SOPSTITEN A | and-aintin | 20yeers | "nn PPStye lnasc need of inmates incarcerated inthe existing penal (em) faites suchas the New Bilibd Prison (NP) and the [correctional institution for Wornen (CW),|The LRT Line 2 Operation and Maintenance Project willinfus| protest etfcenes tothe opron ke ie | Deparment Ptopowetetrsovelevehtote rng pute The” | Tamsoraton | Opemteand bs. option nd oecenter | sonar penton snd |e pr undtate te opened tea” | aman | 20t025 yeas | Ho care a [Maintenance of LAT Line 2) intenance of the existing LRT Line 2, the 4.10 kilometer | Communications (0am) aad fetenon and ayer Mr eersns toned] ooTO rine Govern ving he pests : ie ce wt ronidesih sunday wth buteranter| 37s ce Seer eee rarer eee cece ene | ee eamataeore [Secor tapas thay | ie oan emo ange 128 | Harber. | Cane _ |run from Taguig in Metro Manila through the towns of Highways (OPWH |" anefer (BT) riod) - " |Calambe to the Los Banos-Bay boundary in Laguna, fe Department of | x leet cst operon admatrance afte | ans fewtabl apostate tne cere tehien | and S,Deveopment Operations lao. The Ne Bohol Aiport wil be bult by the communatons | Operatetdes | yo, | PHP234 Vestry a6, Jachol(Panglao) Airport |Department of Transportation and Communications through | (DOTC) and Civil | and-Transfer Le Billion y sigs _ the technical and financial assistance of the Japan Aviation Authority Jertorl oonton Athy) “rin Dons (CAAP) | he ana Apacer sone sth mn sine fotectesottorte tinder shar Bgrnchy | aputmet soneopment operations [apeende Ov tame eral andres ttsu-The | Tams | opto gaa entrance ene [te prow al ndeate the oerton ns ea” | Smeal | Soyeay | PP285% lean ate aii | minnie [Sconcnerearort’” [ramermer he ouanamn Agee andere ts | Conmanaton sagt mocneditestruresnd tcc endinsa sewed] TOOT) lequipment to meet applicable Internetional standards.17. Development, Operations [the project aims to decangest the airport which fs currenthy lonerating beyond its capacity. isin fact, the third busiest airport in the Phillpines. The private partner will undertake Department of Transportation Je Maintenance ofDavao eee otheesecenan and | Oe AEE: | Soyeay | PHOS? Lebrun 2016, Api 2026, | May 2006 Japon Communications lnorovemenso enhance passenger safety secur, access, | NES | Jrssengerandcargo movement efcency ad operations eine under eed concession pred. |Bacolod Airport generally caters to traffic for the Negros | sind with around 22% share ofthe ar pasengr trafic of lwerten veya nhasasgnieantshre ofa andthe | yes smentof firagestarporin the ein. The poet wil decongest s. oevelopment Operations Transportation Development operations ie paclod Aiport, whichis curety operating poration | operated | apyean | P2028 aun 216) Ap 2016 | tay 206 eee overcapacty he vate partner wll operate andmaintain | coy, oM yong | ant-Traster Bion ine siport ss wel epee atonal acites and ther | O™™N necesary improvements tenance passege’ ae, | ecurty acces, patserger and cargo movement fen, | end operator efleney unde defined concesion period fine now oo pore isamong the top apts in the | Phiipines in tes of wae The ret wl deconges the iio spor whch scorer operating vecapacty. The | Deparment Jo. Deveopment, operations. fpvate pare wl undertake the operton and Transpocaton fatanenennct to,” |mintennce sh art or wl a prove on te” | OFA | soyean | 9049 bata 205| ap 2016 | Mey 206 tno facies nd aber necessary improvements enhance | Communications eesenger safety, secary, access, passenger and cargo tore) | Jnovementefflency, ord operational een under eine concession peri lhe Project wiivehe the development ofthe cist | Departentof ona asa Portin Davao Cy into a oder, international | Transporation ncardcotsiner ternal that wilimprove ade cessto] and | Bli-Traner. lee lo pacenesmaron [tna andthe gpnesbypewinge dered | Conmansaton: | andre | ovens |i? ane | Our containerized portin thereto. This wilintum support the | (OCTC}and | (TO) Jeon rowing aposndustl sectr, suring economic | Philippine Pars | Jroweh in Mindanao Author Pa)Fine New Centennial Water Source (NCWS) ~Kaliva Damn Project involves the financing, design, and construction of an acitional raw water supply source witha design capacity of Jad improve access to public information and provide [channel for feedback. Netopottan ' ltencanteminwaer [ERM rosette conmisonngaieraiva em | vereotsant | utant | SOI |oypaa72| sanan xe fore Rava Dam ret severe pe | Teneren) biton | a8 ote proletinvatconence year tha | SWABS cmt) eer craiy f200 0, mantconon ot wos tows or then am hich ate he Kawa bo nner south avy Project part the Government of aeraduay [nePhierner {SOPs eorete romaine som | os samamoe | anne lnePeletera torrie thertony trove prove | Deermertt | Operate | | tz-nerhsouthnatway ampere sndicgtr sre oct dee erator | Ma an | PICT : role Souting)”—[urnsand cerns mae eucivencvaie Te | com atone (Oe? tien : freer ne south PP coves tM to oe Kees ay prs mst xing on oped rere enc nes ttl to sprint 30m ae Heri wl wee exiting oration Tecinoboey Iminraiucure the Land Trepratn snd Fanching nay wd {Fgh compaaiaton tis], Deparientf fa souranen lum oes ie dle ei and Trmporten | Butane i normaonTechctonym) | etoataton of tnetwornfasticuretarvars) | and | am-opemte 12Syean |PMPO236 | Febuny 24 Infrastructure Project (Phase 4 qatabase, and applications (software). AS result, this | Communications (gT0) Mat esn te proce tine fr favemacion romate | ODT te Aon 2006, Mareh 31, 2016. ‘vay 2016.