ERC seeks reconsideration for 105 PSAs invalidated by CSP ruling of High Court

By Myrna M. Velasco – July 25, 2019, 10:00 PM
from Manila Bulletin

The Energy Regulatory Commission (ERC), in collaboration with the Office of the Solicitor General (OSG), had filed a motion for reconsideration with the Supreme Court (SC) en banc for a reversal of the ruling invalidating the effectivity and enforcement of at least 105 power supply agreements (PSAs) that had not gone through competitive selection process (CSP) on their supply procurements.

The PSAs had been deemed voided as the high court junked the six-month extension (from November 2015 to April 2016) set by the ERC on the supply contracts that should have been spared from the competitive auction process.

“There are about 105 contracts which are being supposed to be invalidated but the parties to these contracts were actually never been part of the case, so they were not able to present their cases in court,” ERC Chairperson Agnes T. Devanadera said.

The ERC chief expounded that “the problem is: They are not parties to the case – in fact, officially they have not been served with the decision, so there is no legal standing for them to be going to the Supreme Court.”

Taking cue from that then, Devanadera stressed “because of that very peculiar situation, ERC through OSG decided to tackle the subject matter of those that are affected but have never been made part of the case.”

At this juncture though, the ERC chief qualified that the supposedly invalidated PSAs are still being enforced – and many of the distribution utilities (DUs) are also now moving forward with their CSPs to comply with the SC decision. And on a more comprehensive sphere, it is also for these power utilities to fend off any future uncertainties in their supply portfolio.

“Pending the motion, we can say that it’s a legal fiction – that for as long as there is no entry of judgment, the decision is not considered final, so it is on that basis that they continue,” she explained.

Devanadera further noted the motion for reconsideration on the CSP ruling had been grounded on two major points: one is hinged on the affected contracts; and the second is on the re-affirmation of the rule-making powers of the ERC.

“We filed the motion for reconsideration in that case despite the fact that the voting was 11 to 2 because of two major points,” the ERC chairperson stressed.

Primarily on the powers of the ERC to issue rules and regulations, she averred that “we have to go back to EPIRA (Electric Power Industry Reform Act) and we had to cite previous decisions also penned by some present members of the Court.”