Various technicalities, including the questionable validity of consent from tribal communities and indigenous people in Quezon province, have been raised by the Commission on Audit on the construction of a new potable water project called the New Centennial Water Source- Kaliwa Dam Project.
In the recently-released 2019 annual audit report for MWSS, COA questioned the issuance by the Metropoitan Waterworks and Sewerage System of the notice to proceed (NTP) for the detailed engineering, design and construction of the project awarded to the China Energy Engineer Company Inc..
“The expropriation of lots particularly for the right of way affected by Kaliwa Dam Project is still pending, hence considered a ground for the termination of the contract under Section 17.6 of the Revised Implementing Rules and Regulations of the Republic Act 9184 also known as the Government Procurement Reform Law,” COA said.
Auditors noted that since the contract between the MWSS and CEEC is not covered by any treaty , international or executive agreement, the provisions of RA 9184 must apply.
In accordance with RA 9184, the NTP was supposed to be issued seven calendar days from the date of approval of the contract and that upon its receipt by the contractor which is deemed to have already complied with all the requirements uprovided under the loan agreement.
Since there remains no compliance to the said requirement, the Commercial contract is considered to have not been in effect.
On the other hand, conditions for the issuance of an Environmental Compliance Certificate have yet to be complied with, thus, preventing the MWSS and CEEC to implement the project.
Among the ECC conditions is the issuance of 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 (RP), allegedly executed by the members of the tribal groups/indigenous people’s (Ips) living within the MWSS Kaliwa Dam project site, is a requirement for the Free and Prior Informed Consent (FPIC) and a condition precedent to the issuance of the ECC, is not compliant with the guidelines under NCIP Adminsitrative Order No. 3, s, 2012,” COA said.
The auditors stated: “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 noted that the RP issued by Dumagat/Remontado tribe of General Nakar, Quezon failed to mention the names of the tribal leaders and elders who will attest to the identity of the IP members who signed the resolutoin.
Auditors also questioned discrepancies in the dates the documents were signed and the lack of notarial notice of the document.
The auditors also stressed that the “dubious/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,”:COA said.
The audit agency asked MWSS to “craft a valid and proper” resolution of consent that will comply with the requirements of the National Commission for Indigenous Peoples.
In reaction, the MWSS said 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 said.
Auditors said the failure of the MWSS to expropriate lots for the right of way is considered a ground for the termination of the contract under the law.
“The pending status of the right of way acquisitions and court proceedings for the expropriation of lots to be utilized for the dam site, treatment plants, tunnel conveyance outlet, access roads and other permanent structures can adversely affect the duration of the project,” COA said.
Reacting to the audit observation, the MWSS said the community quarantine situation triggered by the COVID 19 pandemic has caused the delay in the expropriation proceedings.
Further, MWSS officials disagreed with the audit findings, saying that being a design and Build Contract, it is exempted from the provisions of RA 9184.