Jarius Bondoc | The Philippine Star | October 27, 2017

The graft rap against ex-transport chief Joseph Abaya for MRT-3's shoddy maintenance can be upgraded to non-bailable plunder. And eight other ex-Cabinet men of President Noynoy Aquino could be impleaded, sources say.

The questioned contract of Busan Universal Rail Inc. (BURI) has cost the government P921.2 million so far. The amount far exceeds the P50-million threshold to constitute the heinous offense of plunder.

The plunder case can also include past secretaries Mar Roxas of interior, Florencio Abad of budget, Cesar Purisima of finance, Jericho Petilla of energy, Mario Montejo of science, Voltaire Gazmin of defense, Rogelio Singson of public works, and Arsenio Balisacan of economic planning. They were members of the Government Procurement Policy Board (GPPB) that approved Abaya’s secret negotiations for the P3.8-billion BURI contract in 2015.

Two other elements constitute plunder: commission of a series or combination of other crimes to consummate the sleaze; and directly benefiting from the proceeds.

The charge against Abaya, filed with the Ombudsman Monday, already cited two violations of the Anti-Graft and Corrupt Practices Act. That is, that he, ten underlings, and ten BURI stockholders conspired to give unwarranted advantage to BURI and cause undue injury to the government and the riding public. And, that they entered into a transaction that is grossly and manifestly disadvantageous to the government.

Also cited were two breaches of the Government Procurement Reform Act (R.A. 9184). One, that Abaya and underlings negotiated with an as-yet unregistered joint venture of Korea's Busan Transport Co. with four Filipino outfits, then ended up contracting the newly incorporated BURI. Two, that BURI lacked the requisite 15-year experience and a previous work worth at least half the contracted amount of P3.8 billion.

Should the eight other Cabinet members be impleaded, sources say, it would be for violating their duty as GPPB members to protect the government interest and promote transparency. Despite its huge amount, the BURI contract was negotiated behind closed doors instead of by open public bidding.

The GPPB was formed under R.A. 9184 to set and enforce policies and rules on government purchases of goods and services. The eight Cabinet members approved Abaya's request for negotiated contracting under irregular circumstances, the sources explain. Two previous public biddings for a long-term three-year maintenance deal for MRT-3 had failed. That paved the way for negotiated procurement. But then Abaya threw in, with the GPPB's consent, three other components: overhaul of 43 coaches, total replacement of the signaling, and miscellaneous upkeep works. That was yet another breach of R.A. 9184 by the Cabinet men.

Other crimes may be cited, like dummying. With consent of Abaya et al, P39-billion Busan of Korea pretended to be a mere minority to Filipino partners that had to combine assets to reach P1 billion. Those interrelated companies had no business in rails: Edison Construction Development Corp. was into real estate, Tramat Corp. into trading, TMI Corp. into agricultural supply, and Castan Corp. into plumbing. The last three shared some incorporators and addresses.

Other breaches of R.A. 9184 consisted of altering the terms of reference, specifications, capital requirements, and documentation during the secret negotiations. Too, an emergency was contrived to justify negotiated contracting.

Evidence of financial benefit are the payment receipts that the Dept. of Transportation issued to BURI since Jan. 2016 covering the P921.2 million.

Proofs of injuries to the government and MRT-3 commuter train riders were BURI's documented failures to provide safe, efficient, reliable rides. Since BURI took over maintenance, MRT-3 has been suffering twice to thrice daily breakdowns due to signaling and mechanical faults. Trains suddenly would brake or conk out between stations, and passengers would be unloaded perilously on the elevated tracks. In Apr. to Oct. this year MRT-3 suffered seven derailments due to rundown bogey wheels and frames. Transport officials allege that BURI has been stinting on spare parts despite the lump-sum P54.5-million monthly maintenance payments it received under Abaya.

The slipshod maintenance has tarnished not only Busan but also other Korean contractors in the Philippines, sources say. Two of its executives are co-accused with Abaya of graft. One of them represented Busan in the negotiations, the other signed as BURI minority incorporator. After BURI irregularly entered the picture on Jan. 7, 2016, it turned around and subcontracted Busan for actual maintenance works.

Also co-accused is BURI incorporator and managing partner Eugene Rapanut. He also allegedly brokered the separate P3.8-billion purchase of 48 coaches from China's Dalian Corp. As the supplier was unqualified, the coaches arrived without motors, wheels, and signaling; disassembled; and untested for 5,000 km at the factory for safety, comfort, and durability. None of the coaches were delivered on time, and none are operative to date. That could merit another plunder rap as the government has spent more than P265 million on it so far.