CEBU City Mayor Mike Rama has rejected in a direct veto an ordinance that requires live-streaming of the bidding process of the City Government. And the City Council won't seek to override the veto.
Last Wednesday (September 13, 2023), the Sanggunian merely noted it, indicating, ordinance author Councilor Rey Gealon told me later, "the ordinance is killed."
The mayor apparently won't follow the example of some local governments, which are already experimenting with online bidding, notably Zamboanga City, which conducted online streaming of public bidding for civil works last June 27, 2023. Or Malaybalay, reportedly saving P57 million by broadcasting online bidding sessions. New technology offers LGUs a device for making public bidding more "public" and more honest.
ATTACK ON VALIDITY. In a two-page message dated September 5, and presented at the City Council's last regular session a week later, Mayor Rama cited four reasons he wouldn't sign or allow to lapse into law City Ordinance #2703, series of 2023, which would "institutionalize live-streaming of the bidding process of the bids and awards committee" in Cebu City. But only two arguments strike at the legal validity of the ordinance.
One, the ordinance, Mayor Rama said, will infringe on bidders' right to privacy as personal and sensitive information will be read aloud during the bidding, a violation, he said, of the Data Privacy Act of 2012 (Republic Act #10173 ).
Two, it is "ultra vires" because the Government Procurement Act (RA #9184) does not require live-streaming of public biddings. The spring cannot rise above its source, he said: "the ordinance cannot provide something in contravention with or not provided for under the law... it seeks to implement." It's not in the national law, so a local ordinance cannot require it.
In sum the Gealon ordinance, the mayor said, "failed to pass both the formal and substantive tests" in determining a law's validity.
GEALON SUBMITS. Author Councilor Gealon, committee on laws chairman, was expected not to let the mayor's arguments on legal validity fly unchallenged. But he did. "I submit to the wisdom" of the Sanggunian, which he reminds us "is a collegial body, of which I am a member."
GENERAL WELFARE CLAUSE, COUNCILORS' WISDOM. He said though that he and Mayor Mike invoked the same precept: the mayor in striking the ordinance down "to preserve the comfort and convenience" of his constituents and Gealon in "upholding the primordial right of the people to know..." And that precept is, pause, "the general welfare clause."
On collective "wisdom" of the City Council, one may question its presence since the City Council voted to "kill" the ordinance even though some councilors haven't read the mayor's veto reasons or have not formed an opinion about it. (The mayor's message is routinely tucked into the packet of information circulated among councilors by the City Council secretariat before each session. The councilors are duty-bound to read it to vote intelligently on any question. Apparently many councilors don't, as they admitted on the controversial Carbon Market joint venture.)
Asked for an opinion on the veto: Minority Floor Leader Nestor Archival Sr. said: "Sorry, I haven't read the mayor's reasons." Councilor Joy Young said "Sori hv not read that news item -- also hve no opinion." Kons Noel Wenceslao said he hadn't read the mayor's message yet but he supported the ordinance, he said, because it would promote transparency ("transparent kaau ang bidding process"). Majority Floor Leader Jocelyn Pesquera got my question but "ghosted" it.
BIDDERS SHED OFF SECRECY: MARY ANN. On the mayor's wish to protect the privacy of bidders, Councilor Mary Ann de los Santos disagreed. She doesn't see any provision in Gealon's ordinance violating the Data Privacy Act. When a private individual or entity "enters into or pursues and interest" in a contract with the Government, he or she is required to "shed that cloak of secrecy."
De los Santos agreed with the mayor that nothing in RA 9184 or the procurement law requires live-streaming. But he's "wrong," she told me Sunday (September 17), the same law "does not categorically prohibit the live-streaming of the public bidding." The ordinance calls for transparency in governance, she said. "Only those who are hiding something are afraid of transparency."
The mayor explained in his message that bidders are private individuals or entities and their bids often involve large amounts of money. The live-streaming, to Mayor Rama, will put at risk unnecessarily the "interest, safety and security of the bidders." It seems that before the contract is awarded, the mayor believes bidder is purely a private citizen entitled to protection of his private data.
PRESENCE OF COA, OBSERVERS. The mayor said the City has followed rules (specifically Section 13 of the revised regulations on bids and awards) that enhance transparency, including the provision inviting the presence of two observers at the bidding, in addition to a COA representative and allowing them access to "essential documents" free of charge.
Mayor Rama's point being: The existing rules are enough to achieve transparency. The point of the ordinance being: Maybe not because the public welcomes more openness. Besides, it won't hurt if one more device for transparency is put in place.