First United Constructors Corporation (FUCC) v.

Poro Point Management Corporation (PPMC)

January 19, 2009

Nachura, J:

FACTS:

 FUCC filed this special civil action for certiorari and prohibition with prayer for the issuance of a
temporary restraining order.
o It seeks to annul (1) the re-bidding of the contract for the Upgrading of the San
Fernando Airport Project, Phase I, held on May 8, 2007 (2) the Notice of Award dated
May 23, 2007 to Satrap Construction Company, Inc. (SCCI); and (3) Notice to Proceed
dated May 29, 2007 also to SCCI.
o It also seeks to permanently enjoin the Special Bids and Awards Committee (SBAC) and
Poro Point Management Corporation (PPMC) from implementing the Contract in favor
of SCCI.
o Additionally, it seeks to direct respondent SBAC and/or respondent PPMC and/or
respondent Atty. Recadio (PPMC Head) to reconsider the "Failed" rating of the bid of
FUCC, open the Financial Proposal Envelope submitted by FUCC during the original
bidding, declare FUCC as the winning bidder, and forthwith award the contract to FUCC,
as the winning bidder and being the only qualified contractor for the project.
 PPMC approved the Contract for the Upgrading of the San Fernando Airport Phase I. The SBAC
then issued invitations to reputable contractors to pre-qualify for the project.
 FUCC and two other contractors — C.M. Pancho Construction, Inc. (C.M. Pancho) and EEI-New
Kanlaon Construction, Inc. Joint Venture (EEI-New Kanlaon JV) responded to the invitation and
were pre-qualified to bid for the project.
 However, upon evaluation, none of the pre-qualified bidders was chosen. C.M. Pancho was
disqualified because it did not possess the required minimum years of experience in airport
projects, while EEI New Kanlaon JV was disqualified because it did not submit a special license
to bid as joint venture.
 FUCC's technical proposal, on the other hand, obtained a failing mark because it failed to
submit the automated weather observation system (AWOS) and its authorized representative
did not sign some pages of the narrative construction method and the tax returns. FUCC sought
reconsideration of the SBAC decision, but it was denied.
 FUCC filed a protest with the PPMC but on March 26, 2007, the PPMC Head ruled that there is
no reversible error finding and that there exists a presumption of regularity of official action of a
public officer.
 SBAC then scheduled a re-bidding and issued new invitations to bid for the project. To enjoin
the re-bidding set on May 8, 2007, FUCC filed a petition for injunction with prayer for the
issuance of a preliminary injunction or temporary restraining order (TRO) with the Regional Trial
Court (RTC) of La Union, docketed as Civil Case No. 7274.
 RTC: issued a TRO which was lifted because under Section 3 of Republic Act No. 8975, no court,
except the Supreme Court, shall issue a TRO or injunction or prohibit the bidding or award of a
 government infrastructure project. SBAC thus proceeded with the re-bidding of the project on
May 8, 2007 and awarded the project to SCCI as the lowest qualified bidder.
o FUCC filed an amended petition with the RTC to enjoin the implementation of the
project. The Office of the Government Corporate Counsel (OGCC) moved to dismiss the
petition for lack of jurisdiction.
o Pending resolution of OGCC's motion to dismiss, FUCC moved for the dismissal of its
amended petition, which was granted by the RTC.
 Claiming that there is no appeal, or any speedy and adequate remedy in the ordinary course of
law, FUCC comes to the SC via this petition. It also asks for the issuance of a TRO to enjoin the
implementation of the project, asserting that SCCI is not qualified to undertake the project and
the award clearly poses a real threat to the public welfare and safety.
o In its November 12, 2007 Resolution, this Court denied FUCC's application for the
issuance of a TRO for lack of merit.

ISSUE: Whether or not the SC has original jurisdiction over special civil action for certiorari and
prohibition with prayer for the issuance of a temporary restraining order with regard to a bid award of
a procuring entity.

HELD: NO. Dismiss the petition.

RATIO:

 According to Section 58 of the Government Procurement Reform Act, Court action may be
resorted only after the protest contemplated in this Article shall have been completed. Cases
that are filed in violation of the process specified in this Article shall be dismissed for lack of
jurisdiction. The regional trial court shall have jurisdiction over final decisions of the head of the
procuring entity. Court actions shall be governed by Rule 65 of the 1997 Rules of Civil Procedure.
 FUCC challenged the decision of SBAC in a protest filed with Atty. Racadio of the PPMC who
affirmed the SBAC decision. Instead of filing a petition for certiorari, as provided in Section 58,
FUCC filed a petition for injunction with prayer for the issuance of a temporary restraining order
and/or preliminary injunction with the RTC.
 FUCC, however, later moved for its dismissal theorizing that the RTC had no jurisdiction over
petitions for injunction. Thereafter, it filed this petition for certiorari with this Court.
 Section 4, Rule 65 of the 1997 Rules of Civil Procedure provides that a special civil action for
certiorari shall be filed not later than sixty (60) days from the notice of the judgment, order or
resolution.
 FUCC admitted that it received the PPMC decision on March 27, 2007. However, it filed this
petition assailing the said decision only on July 30, 2007. It is, therefore, too late in the day for
FUCC, via this petition, to assail the PPMC decision which rated its bid as failed.
 Besides, FUCC violated the doctrine of judicial hierarchy in filing this petition for certiorari
directly with this Court. Section 58 is clear that petitions for the issuance of a writ of certiorari
against the decision of the head of the procuring agency, like PPMC, should be filed with the
Regional Trial Court.
 Indeed, the jurisdiction of the RTC over petitions for certiorari is concurrent with this Court.
However, such concurrence does not allow unrestricted freedom of choice of the court forum. A
direct invocation of the Supreme Court's original jurisdiction to issue this writ should be allowed
 only when there are special and important reasons, clearly and specifically set out in the
petition.
 In the present case, FUCC adduced no special and important reason why direct recourse to this
Court should be allowed. The Court reaffirms the judicial policy that this Court will not entertain
a direct invocation of its jurisdiction unless the redress desired cannot be obtained in the
appropriate lower courts, and exceptional and compelling circumstances justify the resort to the
extraordinary remedy of a writ of certiorari.
 Similarly, the RTC is the proper venue to hear FUCC's prayer for permanent injunction.
Unquestionably, RA No. 8975 enjoins all courts, except the Supreme Court, from issuing any
temporary restraining order, preliminary injunction, or preliminary mandatory injunction against
the government, or any of its subdivisions, officials or any person or entity to restrain, prohibit
or compel the bidding or awarding of a contract or project of the national government.
 The proscription, however, covers only temporary restraining orders or writs but not decisions
on the merits granting permanent injunction. Therefore, while courts below are prohibited by
RA No. 8795 from issuing TROs or preliminary restraining orders pending the adjudication of the
case, said statute, however, does not explicitly proscribe the issuance of a permanent injunction
granted by a court of law arising from an adjudication of a case on the merits.
 Clearly, except for the prayer for the issuance of a TRO or preliminary injunction, the issues
raised by FUCC and the relief it sought are within the jurisdiction of the RTC. It is a procedural
faux pas for FUCC to invoke the original jurisdiction of this Court over the issuance of a writ of
certiorari and permanent injunction.

Additional Notes:

 The invitation to bid contains a reservation for PPMC to reject any bid. The discretion to accept
or reject bid and award contracts is vested in the government agencies entrusted with that
function. Thus, where PPMC as advertiser, availing itself of that right, opts to reject any or all
bids, the losing bidder has no cause to complain or right to dispute that choice, unless
fraudulent acts, injustice, unfairness or grave abuse of discretion is shown.