In a comment with urgent motion to lift the TRO filed through its lawyer Joel Ruiz Butuyan, Kolonwel Trading said the SC has precipitately issued a restraining order on the mere basis of the self-serving allegations of the petitioners without even giving the respondent a chance to first submit its comment.
"By issuing a restraining order the Supreme Court is paving the way for the consummation of the contract even before the High Tribunal hears the side of the respondent," Kolonwel said.
Kolonwel, represented by Butuyan and lawyer Christopher Bolastig, had earlier won a petition it filed before the Manila RTC against the Department of Budget and Management Procurement Service (DBM-PS), the Inter-Agency Bids and Awards Committee (IABAC) of the Department of Education (DepEd) and private respondents Vibal Publishing House, SD Publications Inc., LG and M Corp., Watana Phanit Printing and Publishing Co. Ltd. and Alkem Co. Pte, Ltd.
In a decision dated Dec. 4, 2006, Manila RTC Judge Myra Garcia-Fernandez said there is basis to prevent the government to bid out the contract for textbooks to Vibal, citing that the petitioner Kolonwel, being the lowest bidder, will suffer irreparable damage because of the flawed bidding process.
The textbook acquisition program would be partially funded by the World Bank under its second social expenditure management program (SEMP2) loan agreement and the Asian Development Bank (ADB) through its secondary education development and improvement project (SEDIP) loan agreement.
Court records showed that Kolonwel was among the 18 companies that joined the bidding for the purchase of 17.5 million copies of Social Studies books and teachers’ manual for elementary and high schools.
Of the 18 initial prospective bidders, only 11 publishing companies, including Kolonwel and Vibal, submitted their respective proposals on Dec. 9, 2005.
On Sept. 12, 2006, the DBM-PS entered into a purchaser-supplier contracts with Vibal and Watana prompting Kolonwel to question the agreement.
The delivery of the textbooks by Vibal and Watana was supposed to start last Nov. 20, 2006, but the TRO and later on a permanent injunction by the Manila RTC prevented the delivery of the books until the Supreme Court intervened and issued a TRO.
The lawyers of Kolonwel said that unless immediately lifted, the TRO issued by the SC on Dec. 20, 2006 will "render this case moot and academic and divest the Supreme Court of any jurisdiction to still hear the merits of the case."
"By issuing a restraining order, the High Tribunal has set the state for its ouster from jurisdiction in the instant case," Kolonwel said.
Kolonwel said that had the SC waited for their comment before issuing the TRO, it would have learned that based on "undisputed facts and judicial notice matters," there were already complete factual and legal basis for Judge Garcia-Fernandez to render judgment in an expeditious and summary manner and in faithful compliance with the special civil action provisions of Sections 7 and 8 of Rule 65 of the special civil actions rules.
Kolonwel was referring to the original IABAC resolution 001-2006 disqualifying Vibal publishing, Watana Phanit et al due to "conflict of interest" brought about by the interlocking board of directors of the publishing companies which are respondent to the case.
The same IABAC resolution declared a failure of bidding and this "remains valid because there was no quorum and no majority decision to pass the subsequent IABAC resolution 2006, which attempted to reverse the disqualification of the Vibal group."
Kolonwel also maintained that the Supreme Court was misled by the Vibal group into getting the impression that the books are urgently needed now when in truth, since there are only three months between now, January 2007 and the end of the school year in March 2007, the books are needed for the next school year beginning in June 2007 and there is enough time for the re-bidding and re-awarding of the contracts.
In its Dec. 22, 2006 two-page en banc resolution, the SC granted the petition for a TRO filed by the government, through the Office of the Solicitor General (OSG), questioning the legality of the injunction issued by the Manila RTC Branch 18 Judge Fernandez.
Fernandez issued an injunction stopping the government and Vibal Publishing House from proceeding with the World Bank-funded textbook project for elementary and high school students.
The project involved $100 million, of which $40 million is set for the purchase of textbooks in Science, English and Social Studies.
The books have already been delivered to public schools all over the country.