An alternative regulatory regime for contract variations to public-private partnership contracts effected after the conduct of a competitive bidding process

• Main Authors: Bacina, Charry Blue, Mendoza, Yralli C.
• Format: text
• Language: English
• Published: Animo Repository 2020
• Subjects: Contracts; Public-private sector cooperation—Law and legislation; Build-operate-transfer (Public contracts); Law
• Online Access: https://animorepository.dlsu.edu.ph/etdm_law/11; https://animorepository.dlsu.edu.ph/cgi/viewcontent.cgi?article=1018&context=etdm_law
• Institution: De La Salle University

This study examines the current approach to contract variations under the Revised Build-Operate-Transfer Law and how the same impacts on the public policy considerations behind the conduct of a competitive bidding process. The researchers then attempt to address the legal dilemma by providing an alternative regulatory regime which aims to protect public policy and balance the interests of all stakeholders. Key informant interviews were conducted given the highly technical requirements of the research and a survey of cases decided by the Supreme Court on the topic was conducted for the formulation of an alternative regulatory approach to contract variations. Our analysis showed that there is a permissive approach to contract variations under current laws primarily due to lack of clear guidelines on the materiality test necessary to gauge the validity of proposed changes to the original contract. Therefore, the researchers recommend a two-pronged alternative regulatory approach to contract variations. First, it establishes a general presumption of impermissibility which the implementing body can then rebut by pointing to a justification based on considerations collated from cases decided by the Supreme Court. The factors which may be taken into consideration varies and cannot be predetermined because they depend on the particular circumstances of each case.