Position Paper - Aci - PNP
Position Paper - Aci - PNP
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POSITION PAPER
PREPARATORY STATEMENT
ASCENTIA CONSTRUCTION, INC., (“ACI”), is a corporation duly organized and existing by
virtue of and under Philippine laws, with principal place of business at M.L. Quezon St.,
Cabancalan Mandaue City. It was awarded by the PHILIPPINE NATIONAL POLICE, POLICE
REGIONAL OFFICE 8 (PNP-PRO8), located in Camp Kangleon, Palo, Leyte, to make the
necessary repairs of the above-mentioned projects.
STATEMENT OF FACTS
Notices of Award were addressed to ACI by the PNP- PRO8 to make the necessary repairs of the
projects mentioned herein. The said notices of award were conformed by the Sales Engineer of
ACI, Lorebel D. Flores, on October 27, 2014. Subsequently, Notices to Proceed were also
received by ACI from PNP-PRO8 on October 29, 2014.
II
On November 22, 2014, a letter of request for a time extension and adjusted target completion
date (attached hereto as Annex “A”) was submitted by ACI, to the PRO8- Director of PNP
Carigara, Leyte, HENRY LOSANES. In the said letter, ACI was requesting for a time extension
to complete the projects from thirty (30) to thirty-five (35) days because of the following reasons
and in substance, to wit:
a. The procurement of resources/materials took time due to the fact that majority of
materials were not available locally. Besides, as a corporation, ACI has a set of standards
to follow in terms of procurement process.
b. The mobilization was not located in one area only but the project sites were scattered in
different places with at least 30 kilometers away from one project to another, hence,
making the lead time not feasible and unrealistic.
c. Upon receipt of the notice of award, the project team still needed to assess scrupulously
every site with different kind of site inspections being done during the pre-bid meetings.
d. There were sites which were occupied by the employees of the PNP-PRO8 at the same
time, thus, slowed down the construction movement.
e. The Program of Works (“POW”) did not coincide with the actual and the review, as well
as the revisions, were conducted so as to have a realistic and consistent POW as basis.
The PNP-PRO8 made a reply to this letter dated December 18, 2014 (attached hereto as ANNEX
“B”) and duly approved the request for time extension and adjusted completion date. Instead of
completing the project on December 25, 2014, the completion date was moved to December 29,
2014. Nevertheless, it was only received by ACI on February 23, 2015.
III
In furtherance hereof, on December 12, 2014, a letter of request for a fifteen (15) day suspension
of work (attached hereto as Annex “C”) was submitted by ACI, again, to Director HENRY
LOSANES. In the said letter, ACI was requesting for a 15-day suspension of work because ACI
had difficulty in transporting the materials and manpower as there were roads which were not
passable due to damages brought about by typhoon “Ruby”.
IV
In addition, a letter was also submitted by ACI on February 24, 2015, and addressed to Police
Chief Superintendent and Officer In-Charge of PRO8, PNP PAWING CAMPETIC of Palo,
Leyte, ASHER A. DOLINA, (attached hereto as ANNEX “D”). In the said letter, ACI further
stipulated that it requested for at least 30 working days extension in a letter addressed to Director
ASHER A. DOLINA, which was scanned and sent to his e-mail at [email protected] on
December 10, 2014 (attached hereto as ANNEX “E”), due to typhoon “Ruby” and the workers
went back to the project sites only two (2) weeks after. However, ACI only came to know
recently that only five (5) days was approved for the time extension request, i.e., on December
29, 2014. This is with reference to ANNEX “B”, wherein such reply was only received by ACI
on February 23, 2015 and that was the only time it came to know of the approved adjusted
completion date.
Moreover, the roads going to the project sites were not passable due to the damages brought
about by the above-mentioned typhoon. Thus, the works were rendered not to be continuous and
it led to a more difficult mobilization of materials, equipment and the workers.
Moreso, another typhoon “Seniang” came along towards the end of December, 2014, which
caused catastrophic outpour. Needless to state, this has caused additional dilemma for ACI to
catch up with the projects. Unfortunately, the weather condition in the Leyte region became so
unpredictable as it always experienced frequent rains that oftentimes caused the delay and or
scheduled work stoppage in between.
Finally, an internal process of procuring materials which is done through an online system
requires internet connection. Nonetheless, in most areas in Leyte at the time the repairs were
started, there was no signal of the internet service provider. As a result, it delayed and worsened
the processing of the requested materials. The best efforts were exerted to do the manual
procurement so as to cut short the process just to expedite the projects. ACI is determined and
serious to complete them all given the so requested time extension.
DISCUSSION
ACI is in a strong position to believe that the reasons provided for in the statement of facts,
which were more particularly embodied in the series of letters it duly submitted to PNP-PRO8,
were valid, justifiable and legitimate, thus, deserve merit and consideration.
Under our Civil Code of the Philippines specifically Article 1198, it provides that;
a. “The debtor shall lose every right to make use of the period:
(1) When after the obligation has been contracted, he becomes insolvent, unless he gives
a guaranty or security for the debt;
(2) When he does not furnish to the creditor the guaranties or securities which he has
promised;
(3) When by his own acts he has impaired said guaranties or securities after their
establishment, and when through a fortuitous event they disappear, unless he
immediately gives new ones equally satisfactory;
(4) When the debtor violates any undertaking, in consideration of which the creditor
agreed to the period;
Thus, by being a contractor to the projects of PNP-PRO8, ACI can be deemed and be considered
as a debtor. Even so, by reviewing the wisdom of the law, it can be understood that, only those
debtor who cannot use the right to of the period cannot ask for another extension of time if the
debtor becomes insolvent, does not furnish the securities as promised, impaired the said
guaranties and lastly, violates any undertaking with the PNP-PRO8.
But, by looking up the facts stated above, it can be gleaned from the records of this project that
ACI is NOT INSOLVENT, more so that it was not declared as insolvent by any government
entity that has authority to do so. Further, to show its willingness to do the project, it secured and
furnishes a security bond in favor of PNP-PRO8. Furthermore, the Corporation has no intention
to impair such guaranties because until this moment of time such guaranties were not rescinded
and still effective. In addition to that, ACI has no intention to violate any undertaking of the
contract with PNP-PRO8. Much more, ACI has no plan to abscond and avoid its responsibilities
with PNP-PRO8. In fact, ACI proceeded to complete the projects and exerted all efforts to
expedite their delivery.
To additionally strengthen the argument of ACI, PNP- PRO8 was accordingly made aware in a
letter dated November 22, 2014 submitted by ACI of the following reasons for the request of
time extension and to reiterate:
a. The procurement of resources/materials took time due to the fact that majority of
materials were not available locally. Besides, as a corporation, ACI has a set of standards
to follow in terms of procurement process.
b. The mobilization was not located in one area only but the project sites were scattered in
different places with at least 30 kilometers away from one project to another, hence,
making the lead time not feasible and unrealistic.
c. Upon receipt of the notice of award, the project team still needed to assess scrupulously
every site with different kind of site inspections being done during the pre-bid meetings.
d. There were sites which were occupied by the employees of the PNP-PRO8 at the same
time, thus, slowed down the construction movement. To proceed with the repairs with
the said employees around would be unsafe and violative of the Occupational Health and
Safety Standards.
e. The Program of Works (“POW”) did not coincide with the actual and the review, as well
as the revisions, were conducted so as to have a realistic and consistent POW as basis.
Be it noted that the PNP-PRO8 made a reply to this letter dated December 18, 2014 and
approved the said request for extension. The reply letter was only received by ACI on February
23, 2015 and upon such receipt, it came to know that the approved adjusted date was on
December 29, 2014. In view of hereof, suffice it to say that ACI can all the more avail of the
right to use the period and stands not to lose the same.
II
Also, Article 1154 of the Civil Code of the Philippines states that;
“The period during which the obligee was prevented by a fortuitous event from
enforcing his right is not reckoned against him. (n)”
Positively, as seen from the records, ACI asked for extension of time not only once but twice due
to typhoons “RUBY” and “SENIANG” as specifically stated in its letters dated December 10,
2014 and February 24, 2014. The said typhoons vastly devastated the sites where the works are
to be made by the ACI. It cannot be denied that the typhoons were very strong and in fact, prior
to its land fall, all ships from Cebu, where ACI is mainly based, were not allowed to travel,
hence, it alleviated the days of postponement of the works. Worse, the workers got stranded;
they were not able to resume work immediately thereafter, as well as made the mobilization of
the materials and equipments more difficult since the roads were not passable.
To aggravate the dilemma of not completing the projects on time, the signals of the internet
service provider were cut off due to the worsened weather conditions. Consequently, the
procurement of the requested to materials were manually done which prolonged the process.
Highlight must also be made of the fact that sometime on January 2015, another storm named
“AMANG” hit the area of the site of the projects, which unluckily exacerbated the delivery of
the projects. It made the weather condition in the areas of Leyte more unpredictable and
impulsive. Apparently, all those fortuitous events were beyond the control of ACI.
Regrettably, due to fortuitous events that occurred during the execution of the contract, ACI
deviated the supposed undertaking, but, such deviation was not intentional, as in fact its
personnel of are still in the area recently doing the works that are required to do under the terms
of the contracts.
Henceforth, applying Article 1154 of the Civil Code of the Philippines, such fortuitous events
were not attributable to ACI. Therefore, the period which ACI was prevented from performing
its obligation to PNP-PRO8 cannot be reckoned against it.
III
Likewise, under our Civil Code of the Philippines, specifically Article 1383, the law provides
that;
“The action for rescission is subsidiary; it cannot be instituted except when the party
suffering damage has no other legal means to obtain reparation for the same”
Now, in the above-mentioned provision of law, a contract may only be rescinded when a party
suffered damages and has no other legal means to obtain reparation. It can be seen from the facts
that rescission cannot even be availed hereof against ACI. There should be other remedies that
are available, feasible and applicable before resorting to rescission.
The Supreme Court in the case of [Multinational Village Homeowners Association Inc. vs. ARA
security, Gr. No. 154852, October 21, 2004] it states that “it is a settled principle of law that
rescission will not be permitted for a slight or casual breach of a contract, but only for such
breaches as are so substantial and fundamental as to defeat the object of the parties in entering
into the agreement.” Thus, by perusal checking of the contract between PNP-PRO8 and ACI, it
cannot be validly admitted/accepted that the contract may be rescinded because of a
substantial breach since it must categorically be done as “willful” which is absent in this case.