review of government proposed revision to the bot law irr

Atty. Solomon Castro

June 2007

REVIEW OF GOVERNMENT PROPOSED REVISIONS TO

THE BOT LAW IRR

DISCLAIMER

“The views expressed in this report are strictly those of the authors and do not necessarily reflect those of the United States Agency for International Development (USAID) and the Ateneo de Manila University”.

Abstract This report reveals the results of the review done on the government-proposed revision to the latest version of the BOT Law Implementing Rules and Regulations which became effective in April 2006. The review finds that instead of filling in regulatory gaps to make the BOT process quick yet principled and sound, the proposed IRR seems to have punched new and bigger holes into the system, possibly making it worse. In particular, the intent to place responsibility for reviewing and approving projects in implementing agencies instead of the Investment Coordination Committee ignores these agencies’ lack of development, sponsorship and regulatory capacity. The proposed fast tracking will likely undermine transparency and accountability, and make it more difficult to manage fiscal risks arising from government contingent liabilities. The government, and the whole country for that matter, may simply not be ready for it.

Review of Government Proposed Revision to the BOT Law IRR Final Report

TABLE OF CONTENTS

ABBREVIATIONS ....................................................................................................................................2 INTRODUCTION.....................................................................................................................................3 BOT LAW AND REGULATION: A QUICK OVERVIEW ........................................................................3 PROPOSED REVISION TO THE BOT LAW IRR....................................................................................4 PROPOUNDED LEGAL BASIS...............................................................................................................9 PAST BOT LAW IRR VERSIONS AND REVISIONS..............................................................................11 ANALYZING THE EFFECTS AND TRADEOFFS.................................................................................12

ASSESSMENT........................................................................................................................................12 A LOOK AT THE ICC ............................................................................................................................18 PRECEDENTS AND INTERNATIONAL PRACTICES .....................................................................................19 EMERGE AND TAF POLICY REFORM PROJECT ...................................................................................20

CONCLUSION.......................................................................................................................................21

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ABBREVIATIONS

BOO build-own-operate BOT build-operate-transfer BOT Law Republic Act No. 6957, as amended BT build-transfer DBCC Development Budget Coordination Committee DOF Department of Finance EMERGE Economic Modernization through Efficient Reforms and Governance

Enhancement EPRA Economic Policy Reform and Advocacy GOCC government-owned-and-controlled corporation ICC Investment Coordination Committee InfraCom Infrastructure Committee IPP independent power producer IRR Implementing Rules and Regulations LGU local government unit MTPDP Medium-Term Philippine Development Plan 2004-2010 MTPIP Medium-Term Public Investment Program 2005-2010 NEDA National Economic and Development Authority NPC National Power Corporation ODA Official Development Assistance PPP Public-Private Partnership PSP private sector participation RA Republic Act TAF The Asia Foundation

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Introduction This Final Report reveals the results of the review done on the government-proposed revision to the latest version of the BOT Law Implementing Rules and Regulations, which became effective in April 2006 (“Revised IRR”). This study on the effects of the suggested changes comes as a follow-on activity to the earlier work prepared for EPRA’s Multi-Stakeholder Team on Private Sector Participation in Public Infrastructure, on the possible implications of recent congressional initiatives to substantially amend the existing BOT Law. The effort to revise the implementing rules in the meantime may be considered part of a broader government strategy to accelerate the PSP project development process and ensure the delivery of needed infrastructure expected from the private sector in the medium-term. The document under review officially originated from NEDA, which had it circulated among the member agencies of the ICC for their comments. For the proposed amendments to take effect, they would have to go through a mandatory public hearing prescribed by the law before they could be published and formally issued. A public hearing on the revision to the IRR was conducted by NEDA on 10 May 2007.

BOT Law and Regulation: A Quick Overview Efforts to mobilize greater private sector participation in public infrastructure led to the enactment of the first BOT Law (RA 6957) in 1990. A much simpler model of its current version, the previous law gave limited authority to government agencies to enter into either BOT or BT contracts with qualified private sector proponents for the financing, construction and operation of financially viable infrastructure facilities. Priority projects of such agencies had to be approved by the Congress of the Philippines or the local development council concerned in the case of LGU projects. Congress passed a joint resolution approving all projects identified in the infrastructure program after the law took effect for this purpose. The law went through a substantial revision in 1994 with the passage of RA 7718. The Amended BOT Law expanded the different PPP arrangements that could be lawfully entered into by implementing agencies with private sector proponents (resulting in at least nine different variants) and, at the same time, broadened the eligible types of infrastructure facilities or development projects that may be carried out on a PSP basis. The law also introduced the unsolicited proposal process as a valid implementation mode. Lastly, it institutionalized the possible provision of government support to credit enhance PPP projects and reaffirmed the adoption of market-based principles for the program. While the BOT Law cannot be fully credited for drawing in all private investments in infrastructure and public services, it is the law, nevertheless, that opened up practically all types of development projects to PSP and which widened the discretion and authority of implementing agencies to enter into commercial partnerships with qualified proponents. On that basis it is rightfully considered the seminal law for doing PPP transactions in the Philippines from both policy and implementation standpoints.

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To address implementation issues and perceived weaknesses in the infrastructure privatization program after the amended law was enacted, BOT regulation went through two major revisions in 1998 and 2006. The 1998 revision focused on clarifying the procurement requirements and procedures for the competitive bidding and Swiss challenge processes, while changes to the implementing rules effected during the second quarter of 2006 principally dealt with trying to fast track BOT government approvals by prescribing a single-pass, rather than a two-pass, project review procedure. This latest version of the IRR is the subject of the current revisions, which are now under study.

Proposed Revision to the BOT Law IRR The proposed amendments to the Revised IRR have two principal thrusts:

First, to remove the power of the ICC to review and approve specific or individual BOT projects and contracts, and

Second, to shorten the permissible processing time for BOT projects, in general.

Close to 50 different sections of the IRR are to be revised in varying ways. A rundown of the proposed changes is presented in Table 1. The revisions seek to accelerate the development and approval process as a whole. The IRR amendments basically intend to do this by: (1) placing primary responsibility for reviewing and approving PPP projects in implementing agencies instead of the ICC (except for BOO projects which by law are required to be approved by the President upon the recommendation of the ICC), and (2) cutting the time required for these agencies to approve, negotiate, launch competitive tenders for, and award PPP projects. Under the current IRR (including its past versions), the general procedure is that a BOT project must be first studied or prepared by the implementing agency and then endorsed to the ICC for its review and approval. For the ICC to do a proper review, the agency’s submission should consist of a full-blown feasibility study with all the supporting documents that include the draft concession contract (which is prepared either by the implementing agency or presented by the original proponent after successful negotiation in the case of unsolicited proposals). The implementing agency will only be allowed to proceed and hold the competitive bidding or Swiss challenge, and eventually make an award, after securing the approval of the ICC and adhering strictly to its terms. The proposed revision effectively downgrades the status of the ICC as an oversight body and converts it into a type of “clearinghouse” for government’s preferred BOT projects. As presently formulated in the draft rules, agencies will prepare their “List of Priority Projects” for submission to the ICC which will then be tasked to assess and approve the list based on applicable guidelines. The guidelines, however, do not form part of the proposed IRR. There is no mention as well of the nature and thoroughness of the review that the ICC is expected to perform. The explanatory remarks, though, suggest that the ICC will have less leeway in deleting projects from the various lists – the only ground indicated is that those projects would be requiring substantial amounts of government subsidy, equity or guarantee. Aside from this comment (in addition to a general statement that the pertinent guidelines should be consistent with the BOT Law and the Revised IRR), no other guiding principle is provided. This makes the draft IRR conspicuously incomplete compared to previous versions which had the ICC BOT-project approval guidelines clearly referenced and incorporated to them as an attachment.

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Review of Government Proposed Revision to the BOT Law IRR Final Report Table 1. Summary of Proposed Revision to BOT Law IRR by Section

Section Number

Heading

Proposed Revision

1.3.e, 3.1 Definition of Terms, Composition of BOT-PBAC

Delete the reference to the “BOT Center” which has been programmed for abolition.

1.3.t Definition of Terms Revise the definition of “Negotiated Contracts.”

1.3.aa Definition of Terms Change “Approving Body” to “ICC” as the agency that would determine the reasonable rate of return for unsolicited projects.

2.2 Eligible Types of Projects Delete the requirement for projects to have a cost recovery component of at least 50%.

2.3 List of Priority Projects Require the endorsement and submission by the Head of Agency/LGU of its list of priority projects to the Approving Body for approval.

2.4 Publication and Notice Add that the List of Priority Projects must be approved by the Approving Body.

2.5 Registration of Project Proponents

The Agency/LGU will prescribe the submission requirements for the registration of proponents, instead of the ICC.

2.7, 2.8, 2.11 Approval of Priority Projects, Detailed Guidelines for the

Approval of Projects, Deadline for Approval of

Solicited Contracts

Change any reference to the approval of “projects” to the “List of Priority Projects” only. Also, delete the requirement for NEDA Board/ICC approval in the case of negotiated projects.

2.9 Policy on Deviations from Approved Contract

Delete this section. There will be no legal consequence for any material deviation from contract terms and conditions set by the Approving Body.

2.10 Presidential Approval, When Required

Minor clarification and editing only.

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Section Number

Heading Proposed Revision

2.11 Deadline for Approval of Solicited Contracts

The Approving Body will act on the List of Priority Projects within 30 working days, which will have a 24-month validity. Agencies may submit revised lists of priority projects annually in case of changes.

4.1.c Bid/Tender Documents Delete the requirement for approval by the Approving Body of the draft contract.

4.2, 4.3, 4.4 Instructions to Bidders, Minimum Designs and

Performance Standards, Draft Contract

Delete all references to approvals given by the Approving Body.

4.4 Draft Contract The Agency/LGU will be made responsible for ensuring the consistency of the draft contract with the terms and conditions for project approval given by said agency/LGU.

5.2 Publication of Invitation to Pre-qualify and Bid

The publication of the invitation to bid will be made only after approval by the Head of Agency/LGU of the bid documents and draft contract. The development of the BOT project, the determination of project feasibility, the preparation of the draft contract, and their approval, will be the sole responsibilities of the agency/LGU.

5.3 Period to Prepare Pre-qualification Documents

The preparation period for pre-qualification documents will be shortened from at least 30 calendar days to 15 working days. For projects costing PHP 300 million or more, the period will be at least 30 working days, from 45 calendar days previously.

5.4 Pre-qualification Requirements

The Agency/LGU shall ensure that pre-qualification requirements will be consistent with applicable laws, rules and regulations.

5.5 Pre-qualified and Disqualified Proponents

The appeal period in case of disqualification will be reduced to 7 working days from 15 working days. The appeal must also be resolved within 30 working days, instead of 45 working days. Lastly, the appeal fee will be brought down to 0.1% of project cost, from 0.5%.

6.1 Responsibility of Bidder Change in grammar only.

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Section Number


6.3 Pre-Bid Conference Reduce the time to prepare bids to 45 to 90 days, from 60 to 120 calendar days, previously.

7.1.b.vi Requirements for Bid Submission

The amount of the bid security will be set by the agency/LGU and will be made the same for all bidders.

7.1.c.i Requirements for Bid Submission

Change the section numbering.

9.3, 10.7 Conditions for Negotiated Projects, Evaluation of Unsolicited Proposals

Change “Approving Body” to “ICC” as the agency that will set the prescribed reasonable rate of return for negotiated projects. Delete the requirements for notification of the Approving Body. Also, add that the agency/LGU should confirm the “original proponent” status of the sponsor in the formal letter of acceptance.

10.5 Submission of a Complete Proposal

Change in grammar and minor editing only.

10.8 (new section)

ICC Determination of Reasonable Rate of Return

Prior to Negotiation

Add a new section providing for the determination by the ICC of the reasonable rate of return for an unsolicited project within 30 working days from its receipt of the endorsement by the Head of the Agency/LGU.

10.8 (now 10.9)

Negotiation with the Original Proponent

Agency/LGU shall advise the original proponent of the mechanics for the negotiation within 7 days upon receipt of the ICC’s decision on the prescribed rate of return. If the negotiations are successful, the agency/LGU and the original proponent will issue a certification that an agreement has been reached and that the Swiss challenge will be launched.

10.9 Approval of Unsolicited Projects/Contracts by the

Approving Body

Delete the whole section. NEDA Board/ICC/local development council approval for unsolicited projects will not be required.

10.10 Tender Documents Take out the reference to approval of the draft contract by the Approving Body.

10.11 Invitation for Comparative Delete the reference and requirement for acceptance by the original proponent of the terms of the

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Section Number


Proposals project and contract approvals given by the Approving Body.

11.3, 11.4 Notice of Award, Formation of Special Purpose Company

Minor editing only.

12.1 Execution/Approval of the Contract

Remove any reference to the draft contract being approved by the Approving Body. Require the submission of a copy of the signed contract to the NEDA Board through the ICC for its information.

12.11, 12.16, 12.18, 13.13

Contract Variation, Repayment Schemes,

Adjustments of Tolls/Fees/ Rentals/Chargers,

Government Undertakings

Delete or change all references with respect to approvals (for contract variation, other repayment schemes, fare adjustment formula, and the grant of government undertakings) given by the “Approving Body” to the “Head of Agency/LGU.”

14.1 The BOT Center To be deleted in its entirety. Monitoring, coordination and reporting functions of the BOT Center will be removed in anticipation of its planned abolition.

14.2 Timelines Delete any reference to monitoring functions of the BOT Center.

14.3 BOT Units Specify the composition of the BOT Units for each agency/LGU.

14.4 Informing Congress The duty of reporting to Congress will be a function of each agency/LGU, rather than the BOT Center.

15.2 Effectivity of these Revised IRR or Amendments Thereto

Include requirement for public hearing before the publication of any amendments.

15.3 Transitory Provision All BOT projects currently being processed or reviewed will be covered by the revised IRR.

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Review of Government Proposed Revision to the BOT Law IRR Final Report Eliminating the requirement for ICC approval will take out a major procedural step in the current BOT process. Presently, it is at the ICC level where a PPP project typically passes through a rigorous review from a cross-sectoral perspective. Taking it out will naturally reduce the subsequent processing time once the ICC has given its consent to an agency’s list of priority projects. There seems to be no expectation that the approval of priority lists by the ICC will be as thorough. The treatment of unsolicited proposals is poised to take an even more sweeping turn. Under the proposed revision, ICC approval for unsolicited projects will no longer be required. Instead, the agencies will assume full responsibility for them and the intervention of the ICC will be sought only for the purpose of setting the prescribed reasonable rate of return of the original proponent prior to negotiation. All existing references to ICC approval for unsolicited proposals are marked for deletion. Scattered in different sections of the document are suggested reductions to timelines for completing key tasks and activities. For instance, the preparation of pre-qualification documents should be done within 15 working days rather than 30 calendar days; the resolution of appeals must be completed within 30 instead of 45 working days; and the packaging of bids should be made within 45 to 90 calendar days, compared to 60 to 120 days currently.

Propounded Legal Basis The approach suggested in the draft IRR would be a clear departure from what has become the established procedure and known practice for the past 12 years. The revision also comes without any substantial amendment being done separately on the BOT Law itself since RA 7718 took effect. It is therefore very relevant to ask what could be the possible legal basis for the planned shift in regulatory procedure and policy. The IRR revisions do not provide a direct answer but the matter is partly discussed in the explanatory notes, which, strange as it sounds, also advert to certain sections of the BOT Law as the justification for the changes. The notes, however, still fail to cite specific provisions of the law but the pertinent sections alluded to in the document may be deduced, as follows:

SEC. 2. Definition of Terms. - The following terms used in this Act shall have the meanings stated below: xxx (o) Reasonable rate of return on investments and operating and maintenance cost - The rate of return that reflects the prevailing cost of capital in the domestic and international markets: Provided, That in case of negotiated contracts, such rate of return shall be determined by ICC of NEDA prior to the negotiation and/or call for proposals: Provided, further, That for negotiated contracts for public utility projects which are monopolies, the rate of return on rate base shall be determined by existing laws, which in no case shall exceed twelve per centum (12%). SEC. 4. Priority Projects. - All concerned government agencies, including government-owned and-controlled corporations and local government units, shall include in their development programs those priority projects that may be financed, constructed, operated and maintained by the private sector under the provisions of this Act. It shall be the duty of all concerned government agencies to give wide publicity to all projects eligible for financing under this Act, including publication in national and, where applicable, international newspapers of general circulation once every six (6) months and official notification of project proponents registered with them.

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The list of all such national projects must be part of the development programs of the agencies concerned. The list of projects costing up to Three hundred million pesos (P300,000,000) shall be submitted to ICC of NEDA for its approval and to the NEDA Board for projects costing more than Three hundred million pesos (P300,000,000). The list of projects submitted to ICC of the NEDA Board shall be acted upon within thirty (30) working days. The list of local projects to be implemented by the local government units concerned shall be submitted, for confirmation, to the municipal development council for projects costing up to Twenty million pesos; those costing above Twenty up to Fifty million pesos, to the provincial development council; those costing up to Fifty million, to the city development council; above Fifty million up to Two hundred million pesos, to the regional development councils; and those above Two hundred million pesos, to ICC of NEDA.

SEC. 4-A. Unsolicited Proposals. - Unsolicited proposals for projects may be accepted by any government agency or local government unit on a negotiated basis: Provided, That, all the following conditions are met: (1) such projects involve a new concept or technology and/or are not part of the list of priority projects, (2) no direct government guarantee, subsidy or equity is required, and (3) the government agency or local government unit has invited by publication, for three (3) consecutive weeks, in a newspaper of general circulation, comparative or competitive proposals and no other proposal is received for a period of sixty (60) working days: Provided, further, That in the event another proponent submits a lower price proposal, the original proponent shall have the right to match that price within thirty (30) working days.

It is noticeable that Section 4 of the amended BOT Law does refer to the submission of a “list of projects” to the ICC/NEDA Board for its approval. In the same way, Section 4-A does not specifically mention any requirement for government approval, whether by the ICC or the NEDA Board, of an unsolicited proposal. Section 2(o) of the law, however, provides that for negotiated contracts, the reasonable rate of return on investment must be determined by the ICC prior to negotiation and/or the call for comparative proposals. As discussed earlier, these are the exact arrangements that have been reflected in the proposed revisions to the IRR. To support this change in legal interpretation, advocates assert that the current approvals process is actually inconsistent with the law’s text and its original intent. But a check of the congressional records tells something different. The collective legislative intent seems to be that the effort to liberalize the approvals process under RA 7718 at that point did not mean giving full control to implementing agencies or LGUs. Given the devolution of approvals under the law, the records still suggest that it would be specific projects that should be approved. In fact, during the interpellations, when asked why congressional approval was being substituted by ICC review if what would be submitted was just a generic listing of projects (which made the process not at all tedious), the response of the principal author was that the amendment to the BOT Law entailed “an approval of a specific project, not of the generic list.”1 Moreover, in the original Senate bill, there was a clear distinction between projects that were purely private sector financed and those that were also government financed or guaranteed. For those fully private sector financed – the list of projects would be submitted to the ICC for information. In the 1 See Records of the Senate, Vol. III, No. 45, 1 February 1994, page 476.

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Review of Government Proposed Revision to the BOT Law IRR Final Report case when government financing or a direct government guarantee was required, the financing aspect of the contract would be subject to the review and approval of the ICC. In other words, the understanding was that “if there would be government expenditure or government guarantee involved, then that is when the ICC will have to approve the project.”2 However, the harmonized bill that came out of the bicameral conference committee removed this distinction and replaced it with the multi-tiered project approval structure now seen in the law. Again, in response to a query regarding potential abuses and the need for controls as a result of the devolution of approving authority, the answer was that “the scope of the approval [was] made stricter” because the Senate originally provided for “the approval of a program” at the national level which could be “in very generic terms,” but since the approval process had been devolved, it would be “projects now that have to be approved.”3

But regardless of what the real legislative intent was, while records could be an extrinsic aid to statutory construction under Philippine jurisprudence, the views expressed by the legislators during the deliberations of a bill as to its purpose, meaning or effect would not be controlling in the final interpretation of the law by the courts.

Past BOT Law IRR Versions and Revisions Tracing the history of BOT regulation more carefully, it was mentioned that the first version of the BOT Law enacted in 1990 (RA 6957) required congressional approval for all national projects. This requirement was abandoned with the passage of RA 7718 in 1994. Instead of Congress, the ICC and/or the NEDA Board became the approving body for PPP projects sponsored by national agencies. The first IRR carrying out the provisions of RA 7718 also took effect the same year. Predictably, the 1994 rules required ICC/NEDA Board approval for the implementation of competitively bid and unsolicited projects as stated in the law. Thus, the earliest set of rules interpreting the amended BOT Law (which remains untouched until today) had called for a project specific-type of review and approval, and not an approval of priority lists. After the first version in 1994, the IRR went through a major revision in 1998. The changes featured clarifications on the government approval and procurement requirements for both the competitive bidding and the Swiss challenge processes. They also included a contract re-opener provision that would allow the contracting parties to re-negotiate the terms of their agreement under exceptional cases. But again, the requirement for a project-specific ICC/NEDA Board approval was upheld and the first-pass/second-pass review procedure was kept. Finally, in 2006, critical modifications were introduced in an effort to speed up the approvals process and to improve the level of transparency. The 2006 IRR set tighter criteria for projects that may be carried out on an unsolicited basis. The latest IRR provides that all projects listed on government development or investment plans can no longer be implemented through the unsolicited mode. The more relevant variation, however, is that the rules now prescribe a single-pass approval, rather than two passes, previously, by the ICC/NEDA Board for all BOT projects, whether solicited or unsolicited. In this process, the PPP project and the concession contract are submitted for the review and approval of the ICC as one package.

2 Id. 3 See Records of the Senate, Vol. IV, No. 72, 19 April 1994, page 822.

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Review of Government Proposed Revision to the BOT Law IRR Final Report But even with the single-pass approach, the requirement for ICC/NEDA Board approval was retained. Projects and concession agreements would still have to be reviewed and approved by the implementing agencies and by the ICC/NEDA Board, separately. The relevant features of the different IRR versions have been summarized in Table 2 below. Table 2. Relevant Features of Amended BOT Law IRR Versions

IRR Version Agency/LGU Review and

Approval Required?

Approving Body Approval Procedure

1994 Yes ICC, NEDA Board, Local Development Council

First and Second Pass

1998 Yes ICC, NEDA Board, Local Development Council

First and Second Pass

2006 (current IRR)

Yes ICC, NEDA Board, Local Development Council

Single Pass

Proposed Revision

(2006-2007)

Yes ICC, Local Development Council (but only for the

list of priority projects and the prescribed reasonable

rate of return for negotiated contracts)

No separate approval by any government oversight body is

required.

Analyzing the Effects and Tradeoffs

Assessment

There are serious issues arising from the regulatory track suggested in the draft amendments to the IRR. The implications are far-reaching as well. The main concerns include the following:

Functions and Roles of Concerned Public Institutions Relegating ICC’s position and having it take on a less substantive role in BOT project development (through administrative rule change) may be considered an impingement upon its mandated policymaking and oversight functions over major capital projects4 (MCPs) that are programmed to be implemented by public agencies under applicable laws.

The Revised Administrative Code of 19875 and the NEDA Charter,6 for instance, direct the ICC to evaluate the fiscal, monetary and balance of payments implications of MCPs. Its review covers determining the peso or foreign exchange requirements of capital outlays needing financial support and identifying suitable sources (including the terms and conditions) of financing. It should also 4 Currently defined under ICC guidelines as those costing at least PHP 500 million. 5 Executive Order No. 292 (1987) 6 Executive Order No. 230 (1987)

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Review of Government Proposed Revision to the BOT Law IRR Final Report assess the technical, economic, financial, social and institutional viability of specific MCPs and their consistency with sectoral plans and geographical strategies. NEDA, as an independent planning agency, is tasked to study, review and recommend development plans and public investment programs for the country. Furthermore, the ODA Act of 1996 places oversight responsibility over the utilization of ODA funds in NEDA. As a result, projects proposed to be financed by ODA loans or grants are processed and approved by the ICC in accordance with its guidelines. This requisite specifically complicates matters for BOT projects that are co-financed by the government through ODA if the proposed IRR revision is carried in its current form.7 How then would the two regimes work in these cases? It is a critical question because the government has started to employ this scheme in actual projects (e.g., LRT Line 1 Extension, Panguil Bay Bridge) as a practical strategy to revive private sector interest in the country’s BOT program. Finally, ICC review and clearance are preconditions for Monetary Board authorization to negotiate foreign loans and approve foreign borrowing, which are among the key government consents for project financing.

Taking all these into account, it should not come as a surprise that the BOT Law had also vested approving authority for PSP projects in the ICC/NEDA Board. Logically too, in the government’s own interpretation of the law based on the 1994, 1998 and 2006 versions of the IRR, it had consistently required separate ICC review and approval for individual BOT projects. This was done in spite of what the BOT Law appeared to have said. In other words, its provisions had never been construed in its literal sense. The interpretation that has been applied continually so far in all versions of the IRR on the powers of the ICC is consistent with the basic rules of statutory construction. Every law should be interpreted and harmonized with other statutes so that a uniform system of law is formed. Furthermore, in the absence of an express repeal or amendment, a statute is deemed enacted consistent with the legislative policy embodied in existing laws. These seem to be the underlying construction principles in this situation.

Thus, any planned shift in interpretation or regulatory approach with respect to the role of the ICC at this stage would look odd from a policy viewpoint and would naturally beg for a compelling legal justification. The main arguments propounded by supporters of the measure do not appear to be that convincing or definitive in any case. For instance, while Section 4 of the BOT Law mentions the approval of the “list of projects,” Section 5, which immediately follows, makes reference to the approval of “projects” as a requirement before any public bidding is conducted. And as shown earlier, legislative intent is not so clear and supportive either. With the oversight functions of the ICC removed, the proposed revision seeks to grant exclusive approving authority over PSP projects to the heads or governing boards of the different implementing agencies or LGUs. Public sponsors therefore become solely responsible for doing all the due diligence work and giving official approval on behalf of the government. This is not an inherently objectionable proposition, in principle. In fact, the past and current IRRs have constantly subscribed to this norm. Implementing agencies always had full contractual responsibility and final accountability in the end. The planned way of BOT contracting is also consistent with the broad delegation of approving and contracting authority given to the heads of procuring entities for government contracts awarded

7 Section 2(a) of the BOT Law allows projects to be financed up to 50 percent from government appropriations and/or ODA.

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Review of Government Proposed Revision to the BOT Law IRR Final Report through public bidding following the Government Procurement Reform Act (RA 9184). But compared to what has been proposed for PSP projects, even if general contracting authority has been given to agency heads for public infrastructure under RA 9184, they would have still gone through some type of independent review or approval by NEDA (acting through the ICC, InfraCom or DBCC) because those projects would have been earmarked for ODA or central government budget funding beforehand. The basic issue, however, with making implementing agencies the lone level of government review and approval for PSP projects is the recognized lack of development, sponsorship and regulatory capacity on their part. Only a few agencies have the necessary technical capability and financial resources to prepare full pre-investment studies, devise bankable deal structures, draft or negotiate complex PSP contracts, arrange security packages and credit enhancements, launch international competitive tenders, and later, monitor and regulate the performance of their chosen service providers. Weak capacity in these aspects can lead to poor quality projects at entry,8 increase the risk of selecting incompetent proponents, and lay the groundwork for eventual regulatory capture. To fill the gap, the more prudent agencies engage transaction advisors to help them in project development and origination. But this practice has not been fully institutionalized or logistically supported by the government at the needed scale. In addition, if at the outset the ability of agencies to rationally plan and develop their priority lists is unsure, it will most likely result in government relying more on unsolicited proposals which is a less transparent and historically more problematic way of pursuing infrastructure privatization. Mandating agencies to assume a bigger role without accompanying measures to build their capacities systematically or have ready access to technical assistance may just increase the possibility of government entering into bad deals or experiencing failures. Dispensing with the more deliberative, collegial and institutional approach toward PPP project review and approval will effectively lead to a recentralization of approving authority. Since all line agencies are directly supervised and controlled by the Office of the President, the chances are high that, ultimately, all PSP investment decisions will be made by a single public officer who is free to exercise personal discretion. Having that system of governance is far from ideal.

Transparency and Accountability in Implementing PSP Projects

As already pointed out, the draft rules intend to eliminate ICC approval for unsolicited proposals altogether except to set the reasonable rate of return of the original proponent. This poses many problems, which are more likely to occur because of the nature of the unsolicited process itself. The trouble generally with directly negotiated transactions is the lack of transparency and, in the particular case of unsolicited proposals under the BOT Law, the effective suppression of fair competition. Both heavily impact on the chances of government getting value for its money with the best possible offer from the market. Also, as a public agency develops a closer working relationship with and a dependency on a sponsor, the probability of their association evolving into a proponent-captured one rises. The natural tendency will be to favor the results of the bargain at the possible expense of public welfare and convenience.

Again, taking all these factors into consideration, it should be easy to understand why controversy has hounded the Philippine PSP Program at various points and why most of the setbacks had been linked

8 This was cited as one of the major problems affecting the Philippine BOT/PSP Program today. See Canlas, Dante B., et al., A Proposed BOT Bill to Enhance Public-Private Partnership in Infrastructure Development, EMERGE, Manila, 2006.

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Review of Government Proposed Revision to the BOT Law IRR Final Report to projects which originated as unsolicited proposals. Without any checks-and-balances in place that will deal specifically with directly negotiated transactions coupled with weak capacity among agencies in general, there will be a moral hazard of fostering deals burdened by unfair risk sharing. There may be also an instinctive push to make unsolicited proposals the preferred implementation mode if it turns out to be an easier and surer process of locking in development rights with less competition for rent seeking proponents and firms. Agencies can also facilitate this outcome by simply not submitting their list of priority projects to the ICC, making all projects open to unsolicited proposals if they will not require any direct government guarantee, equity or subsidy. If the ICC also takes a project off the list, the draft rules do not disqualify that project from being implemented later on as an unsolicited proposal. With agencies acting as sole approving authorities, one may ask if their planning and decision-making processes can be made transparent and informed enough. How can these be assured if implementing agencies are given full discretion to set their own approval terms, standards and procedures? Would the public have access to agency deliberations and project documents? A related issue is ensuring that decisions to provide government support or credit enhancements (which would have been discussed openly and decided based on policies and through consensus) are similarly done in a fair, transparent, rational and predictable manner.

In terms of accountability, existing IRR provisions which declare contracts that have deviated from ICC approval parameters and conditionalities invalid, become moot under the draft rules. All these are lined up for deletion in the proposed amendments. Outside of judicial intervention, it seems that there will be no equivalent administrative check or penalty which will ensure that public approvals are respected and material contract terms are upheld. Implementing agencies will be completely accountable if things go wrong for sure but that has always been the case, in theory. There is nothing innovative about it.

Approval Process, Competitive Bidding Procedures, and Project Monitoring

The draft IRR basically intends to skip the ICC review process for both competitive bidding and unsolicited projects. The steps to be taken following the existing and proposed IRRs are compared in Figures 1 and 2 below. Figure 1. Steps for Competitive Bidding of BOT Projects

Current IRR (2006)

Step 1

Preparation of pre-investment study and draft PSP contract by implementing agencies

Step 2

Review and approval by ICC or other approving body on a per project basis

Step 3

Preparation of bid/tender documents and launch of competitive bidding; contract award and signing

Proposed IRR

Step 1

Submission to ICC of list of priority projects prepared by implementing agencies

Step 2

ICC/local development council approval of list of priority projects

Step 3

Project development, approvals, bid package, and launch of competitive bidding of listed projects;

Contract award and signing

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Review of Government Proposed Revision to the BOT Law IRR Final Report The main difference between the two versions is that under the proposed IRR, the ICC would only be called on to approve the agencies’ list of priority projects set for public tender. Except for this, no other intervention from the ICC is expected. The duties and functions of implementing agencies will remain essentially the same. However, the importance of the agencies’ evaluation would be much greater since it would be the only form of public approval under the proposed rules. For unsolicited proposals, ICC approval will also be taken out and official action on its end will be limited to the setting of the prescribed rate of return for the original proponent. Removing ICC review, which is a key step, will definitely reduce processing time. But again, considering the unsolicited proposal system in place and the present state of most implementing agencies, it may not be a wise and prudent move at all. Because the process is known to be less transparent and the risk of regulatory capture is higher, ICC approval may be certainly viewed as a critical counterbalance in the handling of sole-sourced proposals. One of the principal reasons, for instance, why unsolicited proposals take longer to develop is that the ICC usually moves to correct risk allocations or negotiated terms that are perceived to be unfair to government. And since there is already a vested interest at stake represented by the original proponent (unlike in projects to be implemented through open competition), a lot of haggling occurs and political pressure is likely to be employed. As a result, the negotiating process becomes iterative, which makes the whole development cycle long and unwieldy. Figure 2. Steps for Unsolicited Proposals Step 4 is skipped under the proposed IRR

Step 1Review and acceptance by agency of complete unsolicited proposal

Step 2

Secure prescribed rate of return from Approving Body

Note: Under the proposed IRR, only the ICC sets the prescribed rate of return.

Step 3

Contract negotiation

Step 4

ICC/local development council approval of unsolicited project and contract

Step 5

Swiss challenge and contract award

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Review of Government Proposed Revision to the BOT Law IRR Final Report Comparing the two systems, it is easier to understand why it has been said that unsolicited proposals can become the preferred mode of BOT implementation. The advantages of unsolicited proposals under the draft rules are overwhelming – agencies get to develop projects at the original proponents’ cost; deals are directly negotiated; there is less competition (the first three are given); but there would also be no requirement for ICC project and contract review and approval (the last one is the “killer”). The perception that unsolicited proposals have become the rule rather than the exception may eventually turn out to be not a fallacy anymore. With that, the government’s ability to set bidding conditions, contract specifications and performance standards for public services on its own terms will now entirely depend on the results of the bargain with project proponents. And without access by agencies to technical assistance or ways to build up their capacity, that process will always be asymmetrical. Monitoring may be a problem too with the intended abolition of the BOT Center which is specifically tasked under the BOT Law to coordinate, monitor and report on the progress of all projects to the President, the ICC, and Congress.9 With no dedicated, central PPP unit providing technical assistance and performing coordination/monitoring functions, agencies are again asked to assume this additional role and do self-monitoring and reporting under the proposed IRR. The relevant questions to ask are the following: (1) Is separate reporting the ideal procedure in the first place, that is, having each department, agency, GOCC, and LGU prepare and send individual reports to the Office of the President and Congress? (2) Which agency will consolidate and analyze those reports and will make the findings available and useful for decision-makers? (3) And finally, who will enforce compliance by agencies in respect of their monitoring and reporting obligations, and will there be sanctions? These are left unanswered. Another seemingly innocuous change that may have a regressive impact is the supposed correction of the current IRR’s broad reference to an “Approving Body” that would set the reasonable rate of return for developers offering unsolicited proposals. The draft IRR provides that the right body should be the ICC in all instances because the law specifically says so. However, if this is conceded, it will mean that even local projects costing less than Php200 million (which the pertinent local development council is authorized to approve under the BOT Law) will have to be brought to the ICC for that purpose. It counters government’s decentralization and devolution policies, and goes against the harmonized interpretation fittingly adopted in the past and existing IRRs.

Government Exposure to Fiscal Risks

Managing fiscal risks arising from government contingent liabilities in PSP projects may become stickier as well. One of the important lessons learned from the BOT program is that government guarantees are a limited resource, which should be rationally allocated and managed. Credit enhancements and other forms of government support given to the first wave of BOT projects in the country have triggered operative calls and have resulted in huge losses (e.g., Php200 billion stranded cost bailout for IPP contractual payment obligations incurred by NPC; substantial subsidy payments for the MRT 3 and Casecnan projects). Obviously, the cost of getting things wrong is tremendous. Since then, the role of the ICC as a de facto gatekeeper has been reinforced. It provided the proper venue for sponsors and fiscal policymakers to discuss and validate the appropriateness of granting government support to PPP projects. And while the DOF, acting on behalf of the President, had signing authority for the issue of sovereign guarantees, decision-making had become more policy-based, calibrated and consensual at that level.

9 Section 12, Republic Act No. 6957, as amended. See also Rule 14, Revised IRR of the BOT Law.

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Review of Government Proposed Revision to the BOT Law IRR Final Report Abandoning the ICC process will definitely eliminate the queue at NEDA for project approvals but it may necessarily create a new beeline toward agencies authorized to decide on the provision of government support (such as the DOF for government guarantees and the DBM for direct subsidies). The decision to give guarantees or enhancements will then be less tied to public policies and also less transparent, which makes it very discretionary and consequently, easier to influence politically. From both substantive and procedural standpoints, it is also quite difficult to understand how the ICC, under the proposed IRR, will be able to determine if substantial government support will be required in a BOT project (thus meriting its deletion from an agency’s priority list) if the committee will only be getting a simple listing of projects without any supporting information. If the ICC will require feasibility studies or other types of analyses to back up listed projects in these cases anyway, then the difference between the suggested and the current procedures and requirements will be almost trivial.

Economic and Social Tradeoffs There are expected economic and social tradeoffs between fast tracking the BOT project development cycle and ensuring sound approval and competitive bidding processes. Accelerating the process hopes to result in the faster delivery of improved infrastructure and public services. For developers, timely implementation should lead to lower transaction and opportunity costs. A quicker mobilization of direct investment is also anticipated to speed up job generation and immediately result in the introduction of an economic catalyst in the targeted area. Furthermore, the assurance of unimpeded project execution may create a strong enough incentive that could rekindle private sector interest in PPP transactions overall. All these factors can help improve the country’s competitiveness and attraction as an investment site. But while the chief complaint is that the approval process is time-consuming, it may in fact be beneficial to the project in the long term. Going through the proper procedure and passing tight scrutiny should help a project gain political validity and win public support. Past BOT projects that have been the subject of suits, congressional investigations or wide criticism involve those that have been developed or procured under less transparent circumstances or those that have taken shortcuts and deviated, one way or another, from the prescribed approval process. As a practical matter, since what are involved are mostly big-ticket government infrastructure items that directly affect the public, it is important that the mechanisms be entirely transparent, subject to proper review and approvals at a technical level, competitive, and also limited, perhaps, by certain ceilings. The current BOT process, despite its weaknesses, provides for this. For the many reasons explained above, it is unsure if the proposed framework under the new IRR will be able to match that.

A Look at the ICC Even during the congressional deliberations on the amended BOT Law back in 1994, the ICC was already perceived as being bureaucratic and slow in the approval of projects.10 This still appears to be the reason that is driving the current move to eliminate ICC approval as part of the PSP project development process. In fairness, there are valid grounds to try to improve existing procedures. The statutory 30-working day processing time has not been strictly followed and agencies have not been assertive enough (for practical reasons) to invoke automatic approval. ICC working arrangements and timetables are structurally ad hoc by nature. Project review and approval work on PPPs depends heavily on the commitments and schedules of technical working group and committee members who are asked to perform ICC review functions over and above their normal duties at their home agencies. Aside from BOT/PSP projects, the ICC Secretariat processes and provides support to 10 See Record of the Senate, Vol. III, No. 46, 2 February 1994, page 509.

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Review of Government Proposed Revision to the BOT Law IRR Final Report ODA and all other government-funded projects as well. There is reason to doubt if the same staff (without building up their numbers and capabilities) can efficiently handle both portfolios simultaneously. Nonetheless, the ICC has been able to provide reasonable oversight by ensuring that (1) BOT projects are consistent with national development goals, (2) government support arrangements are fair to the public sector, and (3) deal structures take into account the lessons learned in the past. In the scheme of things, the country’s BOT program still needs that kind of strict and close oversight. Important PSP development policies formed out of the experiences and previous reviews done by the ICC (which are now institutionally applied to all BOT projects up for approval) include:

Overall preference for competitive bidding as an implementation mode and more openness to the provision of government support for projects implemented through public tender

Requiring a positive cash flow or at least a “deficit neutral” position on the part of the government in projects needing direct subsidies

Rational and efficient sharing and mitigation of project risks No market/demand/commercial risk guarantees, as a general rule Better management of fiscal risks and higher concern for incurring large government

contingent liabilities. (This has translated to specific guarantee policies such as the issue of performance undertakings for unsolicited bulk water supply projects which would be limited to backstopping the agencies’ buyout obligations for any change in national laws only.)

These are sound principles, which, if applied consistently, can ensure fairly structured projects that are more protective of the public interest. The ICC provided the venue for these policies to be formed, shared and implemented.

Precedents and International Practices As the earlier part of this Final Report has explained, the planned elimination of government oversight through a revision of the IRR is unprecedented. The original BOT Law (RA 6957) even required congressional approval of PSP projects in the beginning. This was given up and the oversight function was passed on to the ICC under the amended law, which was preserved in the 1994, 1998 and 2006 IRR versions that followed. This system of having project-specific approvals given by a centralized, cross-sectoral planning/fiscal agency or PPP unit has been adopted in other countries. Table 3 provides an overview of country practices in different parts of the world. Table 3. BOT Approvals – International Practices

Country

Separate Project Specific Approval Required?

Approving Body

India Yes Public-Private Partnership Appraisal

Committee State of Gujarat,

India Yes Gujarat Infrastructure Development Board

Singapore No, but the Ministry of Finance works closely with

agencies and ensures consistent application of

N.A.

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Country

Separate Project Specific Approval Required? Approving Body

partnership principles

Indonesia Yes Central PPP Unit, KKPPI Secretariat Vietnam Yes Prime Minister (after evaluation by the

Ministry of Planning and Investment) South Korea Yes Private Investment Project Committee,

Ministry of Planning & Budget United Kingdom Yes (for local authority PPP

projects that receive government support)

Project Review Group, HM Treasury

Ireland No, but the Central Policy Unit in the Department of

Finance coordinates the PPP process, provides policy

guidance and disseminates best practice

N.A.

Chile No, but most PPP projects are evaluated and originated

by the Ministry of Public Works and approved by the Ministry of Finance on the

basis of macroeconomic and fiscal sustainability

N.A.

South Africa Yes PPP Unit, National Treasury

Source: See listing of regulations and sources at the end As shown above, PSP regulatory frameworks that require project-specific approvals, like the Philippines, are common. However, there appears to be no single best practice or standard. PPP units differ in roles, mandates, coverages, and procedures. There is no model that fits all circumstances and situations.

EMERGE and TAF Policy Reform Project Separate consultations on the proposed IRR were held with other policy advocacy missions, in particular, EMERGE and the TAF Policy Reform Project. For EMERGE, the ICC review process is necessary to determine accountability and to ensure that projects conform to policy objectives stipulated in the MTPDP and MTPIP. It would be also difficult for one agency to consider all the legal, technical, financial, fiscal and macroeconomic policy issues involved. Furthermore, because ICC deliberations are recorded, personal liabilities are traceable specially in instances when decisions made at a technical level are overruled for political reasons. Finally, for them, the proposed regulation blurs the distinction between competitively bid and unsolicited projects. It can therefore circumvent the carefully devised rules and preferences that were intentionally meant to differentiate the two modalities. On the part of the TAF, it sees the need for oversight but a workable solution to make current processes more demand-responsive must be found at the same time.

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Conclusion Trying to correct snags and eliminating causes of delay in the PPP development process are valid objectives to be sure. But as proposed, there are negative tradeoffs between fast-tracking project approvals through the suggested amendments to the IRR, on one hand, and ensuring sound investment decisions in infrastructure and competitive selection processes, on the other. The bottom line is that the proper checks-and-balances in project preparation, procurement and contract management must be in place. This is irrefutable. The defining goals for any PPP program are to ensure that (1) only well-structured, technically and economically feasible projects are implemented; (2) the most open and competitive procurement process is achieved and the government gets value for money; and finally, (3) project sponsors comply with service level commitments and act in the public interest throughout the life of their contracts. These would be difficult without an effective form of public regulation and oversight. Unfortunately, instead of filling in the regulatory gaps to make the process quick yet principled and sound, the proposed IRR seems to have punched new and bigger holes into the system possibly making it worse than before. In the recent public hearing on the draft IRR, participants took a common position that the oversight role of the ICC should be retained to confirm project quality, ensure transparency and accountability, and provide a fair, rational and predictable review and approval process, for the benefit of all stakeholders. The problem of red tape and the costs associated with lengthy approval processes is a serious concern. Other reform initiatives that have been put forward include the creation of a separate approving body exclusively for PPPs (in the form of a central BOT Authority) and the streamlining of ICC approval guidelines and mechanisms for the same purpose. Ideally, all the options should be studied and considered together to see what would be the most practical and sensible course of action. The question “What works best?” has not been sufficiently answered. This proposed revision to the IRR may pass as a practical answer but it imposes an overly high expectation from the public system. The government, and the whole country for that matter, may simply not be ready for it. This makes the entire proposition fairly unrealistic and very risky.

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SOURCES Canlas, Dante B., et al., A Proposed BOT Bill to Enhance Public-Private Partnership in Infrastructure Development, EMERGE, Manila, 2006. Castro, Solomon R. B., The BOT Law at the Crossroads: Issues and Reforms, EPRA, Manila, 2006. Dutz, Mark, PPP Systems for Good Governance of Public Service Provision: A Menu of Support Options for Contract Design, Bidding and Monitoring, The World Bank Group, 2003. Dutz, Mark, et al. Public-Private Partnership Units: What Are They and What Do They Do? Public Policy for the Private Sector, The World Bank Group, Note Number 311, September 2006. Engel, Eduardo, et al., The Chilean Infrastructure Concessions Program: Evaluation, Lessons and Prospects for the Future, 2003. Government of India, Guidelines for the Formulation, Appraisal and Approval of Public Private Partnership Projects, Ministry of Finance, 2006. HM Treasury, Project Review Group – Process and Code of Practice, United Kingdom. International Monetary Fund, Chile: Selected Issues, IMF Country Report No. 05/316, 2005 Ministry of Finance, Singapore Revised PPP Handbook, 2004. South Africa, National Treasury PPP Manual Module 1: South African Regulations for PPP, 2004.

LIST OF INTERVIEWEES EMERGE Dr. Gilbert Llanto, Ph.D. TAF Policy Reform Project Prof. Henry Basilio Mr. Jaime Faustino

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