THE OFFICE of the Solicitor General (OSG) asked the Court of Appeals (CA) to dismiss Now Telecom Company, Inc.’s case questioning the selection process for the third telecommunications player.
In a 31-page comment filed last Feb. 4 before the CA Special Twelfth Division, the OSG said only the Supreme Court (SC) is authorized to issue a writ of preliminary injunction or prohibition against bidding or awarding of government projects.
To recall, Now Telecom last year filed a petition for certiorari seeking to stop the National Telecommunications Communication (NTC) from implementing certain provisions of the terms of reference in the third telco selection process. Now Telecom challenged the NTC requirement of a P700-million “participation security,” a P14 to P24 billion performance security, and a P10-million non-refundable appeal fee.
However, a Manila court last Nov. 5 denied Now Telecom’s petition.
“(Republic Act No.) 8975 prohibits the issuance of any injunctive writ to prohibit or restrain, among others, the bidding or awarding of an infrastructure project of the government,” the OSG said.
Section 3 of RA 8975 stated that “no court, except the SC,” shall issue any temporary restraining order (TRO), preliminary injunction or preliminary mandatory injunction against the government to restrain acquisition, clearance and development of the right-of-way and/or site or location of projects and bidding or awarding of contract or project, among others.
The OSG also said Now Telecom failed to prove that it “had a clear and unmistakable right, which is entitled to protection; and it shall suffer ‘grave injustice and irreparable injury,’” which are the requisites for the grant of writ for preliminary injunction.
It noted Now Telecom “waived or abandoned its claim in civil case… when it failed to submit its bid last Nov. 7, 2018.”
“With petitioner’s failure to submit its bid on November 7, 2018, it has, through its inaction, abandoned or waived what it originally intended to do when it filed the Complaint,” the OSG said.
“Otherwise stated, the ancillary remedy as well as the permanent injunction prayed for was meant to secure or protect its intention to bid. When petitioner failed to submit its bid, it has effectively abandoned or waived what it initially claimed was entitled to be secured or protected through injunctive writ-TRO (temporary restraining order), writ of preliminary injunction and, later on, a permanent injunction,” it added. The OSG also said “it is a well-settled rule” that courts should avoid issuing a writ of preliminary injunction as it would dispose a main case without trial.
A consortium formed by China Telecommunications Corp., Dennis A. Uy’s Udenna Corp. and its subsidiary Chelsea Logistics Holdings Corp. under the name of franchise holder Mindanao Islamic Telephone Company, Inc. was named as provisional third major telco last Nov. 7, 2018. — Vann Marlo M. Villegas
