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COA disputes ‘notice to proceed’ for Kaliwa Dam project

KALIWA Dam’s ‘Notice To Proceed’ (NTP) has been put under tight scrutiny by the Commission on Audit (COA) as it disputed several technicalities that include an alleged doubtful validity of consent from tribal communities and indigenous people in the project areas.

Detailed engineering, designs and construction of the project which was awarded to China Energy Engineer Company, Inc. (CEEC) were among the concerns within the NTP being questioned by the COA in its recently-released 2019 annual audit report for the Metropolitan Waterworks and Sewerage System (MWSS).

Citing provisions under the revised Implementing Rules and Regulations of Republic Act 9184, or the Government Procurement Reform Law, the state auditors said that the pendency of the expropriations of lots particularly for the right of way affected by Kaliwa Dam project is “considered a ground for the termination of the contract.”

The state auditors noted that because the contract between the MWSS and the CEEC is not covered by any international treaty or executive agreement, the provisions of RA 9184 must be applied.

The NTP was supposed to have been issued seven calendar days from the date of approval of the contract, in accordance of RA 9184, and that upon its receipt by the contractor which is deemed to have already complied with all the requirements provides under the loan agreement.

“Since there’s still no compliance to the said requirement, the Commercial contract is, then, considered to have not been in effect,” they opined.

Conditions for the issuance of an Environmental Compliance Certificate, on the other hand, have yet to be complied with, thus, preventing the MWSS and CEEC to implement the project.

Among the ECC conditions are the issuance of a Certificate of Precondition after the free and prior informed consent that should have been obtained from cultural communities and indigenous people who will be displaced ar adversely affected by the project in the provinces of Rizal and Quezon.

“The Resolution ng Pagpayag allegedly executed by the members of the tribal groups and indigenous people’s living within the MWSS Kaliwa Dam project site, is a requirement for the Free and Prior Informed Consent and a condition precedent to the issuance of the ECC, is not compliant with the guidelines under NCIP Adminsitrative Order No. 3, s, 2012,” the COA said.

It stressed that “hence, this renders the project proponent non-compliant with the CC and thus affects the effectivity of the Loan Agreement and the Commercial Contract.”

Audit examiners also noted that the RP issued by Dumagat Remontado tribe of General Nakar, Quezon has failed to mention the names of the tribal leaders and elders who will attest to the identity of the IP members who signed the resolution.

State auditors also questioned the discrepancies in the dates the documents were signed and the lack of notarial notices of the documents.

The auditors further stressed that the “doubtful or questionable character of the consent of the IP members “was bolstered during a Senate hearing on January 22, 2020, when several stakeholders and tribal groups questioned the legitimacy of the leaders who supposedly represented them in the document.

“Within these groups include residents who argued that they were neither consulted nor informed on the implementation of the project,” the COA said.

The audit agency has advised the MWSS to “craft a valid and proper” resolution of consent that will comply with the requirements of the National Commission for Indigenous Peoples.

The MWSS said in reaction to the COA report that the issuance FPIC from affected people has been prevented by protests staged by “differing interest groups.

However, a draft MOA is already being worked out with the NCIP, the state owned water agency claimed.

MWSS officials also disagreed with the audit findings, saying that being a design and Build Contract, it is exempted from the provisions of RA 9184.