SALCON HEAD MAINTAINS ELECTRIC/WATER DEAL ABOVE BOARD

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SALCON HEAD MAINTAINS ELECTRIC/WATER DEAL ABOVE BOARD

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Dennis T. Villareal, the lone private individual among the sixteen respondents found by the Ombudsman to have conspired with top provincial officials who entered into an alleged anomalous Joint Venture Agreement (JVA) asked the Sandiganbayan (SB) “to put an end to this vexation that he has been made to suffer for more than one and a half decades”.

In a 41 page Omnibus Motion filed on November 9, 2015, Villareal thru his legal counsel, Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW) appealed to the SB  that the case should be dismissed to shield him from “tribulations, expenses and anxiety of a public trial” because there is “no probable cause against him”.

Villareal raised before the SB “the various and serious transgressions of his fundamental rights committed by the Ombudsman”.

Villareal also asked the Sandiganbayan to cancel the arraignment on November 26, 2015 at 8:30AM until his omnibus motion is determined or resolved with finality.

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Languishing in the Ombudsman for fifteen years the case is now with the 1st Division of the SB after Ombudsman Conchita Carpio Morales found probable cause to include Villareal together with the fifteen provincial officials for violation of Section 3 (g), RA 3019 as amended or the Anti Graft and Corrupt Practices Act.

BUYER OF GOOD FAITH

Villareal, President, Chief Executive Officer and Director of a consortium of four Salcon companies bought the assets and franchise of the province owned  Provincial Water System (PWS) and the Provincial Electric System (PES) for Php150 million.

Six lawyers led by former OIC Governor Atty. Victor De La Serna accused officials of the PGB and Villareal in a conspiracy to sell the province owned utilities for only “10% of their professionally appraised value of P1.48 billion for a measly Php150 million”.

The appraised value of Php1.48 billion for the assets and franchise of the water and electric utilities were culled from an appraisal report submitted by Asian Appraisal Company, Inc. (AACI) by the complainants.

MIXED FIGURES

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However, the AACI valuation report, according to the own findings of the Ombudsman “complainants basis for the alleged total appraisal value of P1.48 billion” was not even stated in the AACI appraisal report.

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The Php1.48 billion figure, according to the Ombudsman “is supposed to be realized within a period of 20 years and were never meant as the actual worth of the utilities”.

But Villareal bared that AACI’s valuation report was not part of the bid documents, nor was it disclosed nor discussed during the pre bid conference.

According to Villareal, SALCON had no knowledge of the valuation report and is not privy to the contract between PGB and AACI for the appraisal of the value of the two utilities.

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Villareal decried as unfair the use of the Franchise Value stated in the AACI report as the standard for determining whether SALCON’s bid price was “manifestly and grossly disadvantageous to the government”.

FAIR DEAL

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Villareal also pointed out that if he were in “cahoots” with the officials responsible for the JVA “then it would be more logical and practical to just directly negotiate with each other or for SALCON to submit an unsolicited proposal under the Build, Operate and Transfer (BOT) Law or RA 6957”.

Also, Villareal in his Reply to Complainants Opposition filed on October 20, 2014 with the Office of the Ombudsman clarified that the sale of the assets and franchise of the water and electric utilities to SALCON was a condition in the privatization of the two utilities and is a standard process of privatizing government assets.

After the sale to SALCON, the assets and franchise of the two utilities were transferred and are now owned by the the two joint venture corporations, Bohol Water Utilities Inc, (BWUI) and Bohol Light Company Inc, (BLCI) pursuant to the public bidding and execution of the JVA’s between SALCON and the PGB.

Complainants also alleged that SALCON submitted a bid of P75 million for the electric system while Aboitiz Equity Ventures bid was P113 million pesos yet Aboitiz lost to Salcon after an evaluation was conducted by top Capitol officials.

SALCON was the lone bidder for the water system and bagged the deal for Php80 million.

“The SALCON bid of Php150 million was its own honest assessments of the total worth of the assets and painstakingly complied with all the necessary bidding laws, rules, regulations and procedures”, stressed Villareal.

“SALCON’s participation in the rigorous public bidding contradicts the malicious yet baseless insinuation of conspiracy to defraud the government”.

BENEFICIAL

Court documents filed by respondents stressed that SALCON’S tariff proposal outweighed the apparent disadvantage of their financial proposal.

Respondents pointed out that SALCON’s tariff proposal of P1.90/kwh for residential and P2.10 for commercial was more beneficial compared to Aboitiz P2.60/kwh and P2.70/kwh respectively since it will have a
direct and immediate impact to the consumers.

SALCON’s tariff proposal will translate into more than P211 million in electric savings for residential and commercial consumers over a period of five years more than the P18 million difference in the bid
price of Aboitiz, according to respondents court documents.

SALCON will also not apply for an adjustment of the basic rate for five years while Aboitiz will immediately charged Tagbilaran consumers their proposed rates including an earlier Energy Regulatory Board
(ERB) approved rate increase, respondents told the Ombudsman.

As for the sale of the water utility, SALCON was the lone bidder and bought the assets and franchise for Php80 million.

A Php0.30/cu.m reduction of the present water rates was enjoyed by the water consumers upon the implementation of the JVA

According to Villareal, as a private citizen whose SALCON corporation participated in a transparent, competitive and regular public bidding – “no evidence whatsoever did not point to any indicating that he conspired with the other respondents for SALCON to win in the public bidding”.

SLOW MO

Villareal raised the issue of the length of delay in the resolution by the Ombudsman of the graft case that took fifteen long years after the criminal complaint was filed.

Citing a string of Supreme Court (SC) decisions to support his claim of violation of his constitutional right to a speedy trial, Villareal told the SB “if the Supreme Court found eight years of delay in Coscolluela vs SB 1st Division, six years in Roque vs Desierto and even three years in Tatad vs SB – “what more for the fifteen years of delay that has transpired in the case at bar?”.

“In accordance with the Coscolluela decision, the Ombudsman glaringly violated Villareal’s right to speedy disposition of cases and should dismiss this case outright”, according to Villareal’s omnibus motion.

The graft case that included Villareal was recommended for dismissal for lack of merit on February 22, 2001 and the recommendation was approved seven years later by Acting Ombudsman Orlando Casimiro on July 2, 2008.

But to the surprise of both the complainants and respondents, Morales approved the recommendation to reverse the dismissal order of Casimiro on August 22, 2014 and ordered the elevation of the graft case to the SB on October 21, 2015.

NO BASIS

Villareal questioned the application of the principle of finality and immutability of cases as the Ombudsman claimed that Casimiro lacks the authority to dismiss  the graft case, additional pieces of evidence were not admitted by the investigation officer and the signed copy of the dismissal resolution was a mere photocopy and not attached to the original case.

Villareal argued that “if Casimiro had no authority then the Ombudsman should not have waited for seven years to reverse the resolution which is highly suspect and irregular at such a late stage”.

Villareal also stressed that the Supreme Court recognized the authority of Casimiro to issue resolutions finding probable cause and dismissals of criminal complaints from 2008-2009 which is the “same period the 2001 resolution was released”

The alleged additional pieces of evidence submitted by Atty. Amado Caballero, collaborating counsel for the complainants on April 3, 2001 were not admitted by the investigation officer since these were submitted after the case was submitted for review and decision, according to the Casimiro dismissal order.

The omnibus motion also stated that the lack of original copies are “trivial matters” and should not be the main reason for the reversal.

According to Villareal the reasons advanced by the Ombudsman were “efforts to escape the application of the principle of finality and immutability”

Villareal filed on October 30, 2015 an Ex Abundanti Ad Cautelam for his voluntary surrender, posting of cash bond and a written undertaking to comply with the conditions of bail.

The Omnibus Motion prayed for the outright dismissal of the case or alternatively for judicial determination of probable cause, deferment and or suspension of proceedings and the production of the records of the preliminary investigation.

The Ombudsman, based on the complaints and their preliminary investigations filed a criminal information with the Sandiganbayan against then Governor Rene Relampagos, now 1st District Congressman, then Vice Governor Edgar Chatto, now Governor and then Board Member Concepcion Lim, now Vice Governor entering into contracts or transactions which are manifestly and grossly disadvantageous to the government.

Also included were then Board Members Tomas Abapo, Jr., Isabelito Tongco, Felix Uy, Arnold Lungay, Eufracio Mascarinas and former Provincial Attorney Inocentes Lopez.

Also accused Former Provincial Development Officer Juanito Cambangay, Francisco Alesna, Sr., Severino Caberte, Renato Lim, Exequiel Madrinan and Lemuel Digal are now deceased.

All accused filed bail except Relampagos who filed an Omnibus Motion to dismiss based on lack of probable cause and/or to quash the information for violation of accused’s right to speedy disposition of cases while Mascarinas and Lungay are reportedly abroad.

The criminal case is now docketed as Criminal Case No. SB 15-0283 and was raffled to the Sandiganbayan 1st Division under Chairman Associate Justice Efren De la Cruz and Rodolfo Ponferrada and Rafael Lagos, senior and junior members respectively. (Chito M. Visarra)

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