YOU know it’s nearing reelection time when our lawmakers, possibly in aid of name recall, start appearing in various congressional committee hearings, with seemingly no knowledge of the technical aspects of what they are inquiring about. I am not saying that this applies to all – perhaps only to some.
Dengvaxia vaccine hearings
At last Wednesday’s committee hearings on the Dengvaxia controversy, committee chairman Sen. Richard Gordon said that criminal cases can now be filed against those responsible for the Dengvaxia mass immunization program. Gordon, who is a lawyer, said that it was very clear to him that former and present officials of the government were criminally negligent. I totally agree with him.
However, prosecuting these “crimes” to fruition is different from the mere filing of complaints. When a criminal complaint is initiated, it will go up to the court only if there is a finding of “probable cause.” Simple enough for everyone to understand – “mayroon batayan ang pagkakasala” (there is a basis for the commission of the crime as charged).
On the other hand, once the case is in court, the finding of criminal guilt must be based on evidence that is “beyond reasonable doubt.” In local parlance, “walang kaduda duda.”
Let us look at some documents that were not played up during the public hearings.
There exists a joint venture agreement between Zuellig Pharma Corp. and F.E. Zuellig (M) Inc., with the objective of participating in the bidding of government procurement projects and ultimately “selling/distributing/supplying to the said procuring entity its required supply of goods.”
Is the Department of Health (DoH) the procuring entity? A big no. The procuring entity for the Dengvaxia project is the Philippine Children’s Medical Center (PCMC). When a supposed public bidding was conducted, it was only the joint venture of Zuellig Pharma Corp. and F.E. Zuellig (M) Inc., which participated. Of course, the Zuellig joint venture won the project.
In the bidding documents, particularly the bid evaluation forms, the name of the bidder was clearly stated as “Zuellig Pharma Corp. and F.E. Zuellig (M) Inc. joint venture.” Nowhere can you see the name of Sanofi-Pasteur, Inc.
The head of the procuring entity (HOPE), who signed the award and the contract for the Zuellig JV is PCMC’s Executive Director Julius Lecciones. The papers do not bear the signature of former Health Secretary Janette Garin.
Essentially, if Sanofi-Pasteur, Inc. had to be pinned down, there should be a solid basis. In this case, Sanofi was a supplier of goods to the Zuellig JV. It was the latter that had a contract with the Philippine government. The better approach is to sue the Zuellig JV to the max, and then let Zuellig sue Sanofi. Legally, this is called a “third-party-claim.”
A third-party claim is defined as a claim made by a defendant or respondent in an existing legal proceeding enjoining an entity which is not a party to the original action. The objective here is to bring in another party which is responsible for or should share in the damages sought for by the plaintiff (the suing party).
In my opinion, and I don’t pretend to be a legal expert, suing Sanofi would be for naught. Why? It is not privy to the contract between Zuellig JV and the government. Easy escape for it. However, if we pushed Zuellig JV too hard, it would have no other recourse but to sue (by filing a third-party claim) Sanofi.
MRT-3 woes hearings
The Senate committee on public services, headed by Sen. Grace Poe, conducted a hearing last Tuesday on the problems besetting MRT-3. Poe seemed to be surprised, and eventually dismissed, the pronouncements of Rolf Bieri.
Bierri, a technical consultant of Comm Builders and Technology Philippines Corp., claimed that the weight of the Dalian trains is still within the allowed limits of the train tracks even when filled with passengers.
Are the Dalian coaches overweight? Is its weight within the allowable limits? No one will ever be sure unless they refer directly to the technical specifications of the bidding documents (or the TOR – terms of reference).
Section 1.1.7 of Section VII Technical Specifications states, “the car builder is encouraged to minimize weight” and the “maximum axle load under (full load) shall be between 8,500 kg and 10,000 kg.” The tare weight (or empty weight) is 46,300 kg.
Section 220.127.116.11 indicates the imposable penalties for overweight coaches. It says, “If the vehicles are heavier than the indicated maximum weight, a penalty will be applied per vehicle at the rate of- 0.1 percent of vehicle price per every 100 kg above maximum weight, for each vehicle. If the weight of the vehicle is more than 1,000 kg above the indicated maximum weight the employer has the right to refuse the acceptance of the vehicles.”
Some quarters are claiming that the final empty weight of a Dalian coach is 49 tons, about 2.7 tons more than the suggested 46.3 tons. Thus, the price of each car can be reduced by 2.7percent. However, since the excess is more than 1,000 kg, then the government, if it so desires, can refuse the acceptance of the coaches.
Each car can accommodate 394 passengers, each with an estimated weight of 65 kg, for a net weight of 25,610 kg. Thus, the laden weight is 74,610 kg. Using this laden weight, the resulting static axle load is 9,326 kg – well within the range of the 8,500 kg and 10,000 kg.
The static axle load is taken when the train is at a standstill while the dynamic axle load is considered when the train is moving. For safety reasons, the acceptable dynamic axle load should only be 9,000 kg. If this will be the basis, then the computed 9,326 kg static axle load is beyond the safety limits.
Well, it is now the call of the transport department to decide whether to use these trains or not.