Newsbreak SC: Lucio Tan's argument on NAIA-3 flawed

Newsbreak
SC: Lucio Tan's argument on NAIA-3 flawed

Written by Aries Rufo
Monday, 21 April 2008

The Supreme Court (SC) has dismissed for being “substantially and procedurally flawed” bordering on “absurdity” the petition of the Lucio Tan-led Asia Emerging Dragon Corp. (AEDC) to operate the mothballed Ninoy Aquino International Airport Terminal 3 (NAIA-3).

In a 62-page en banc decision penned by Associate Justice Minita Chico-Nazario, the tribunal junked for lack of merit Tan’s move to compel the Department of Transportation and Communication and the Manila International Airport Authority to award the NAIA-3 to AEDC.

The decision said the arguments of AEDC that it has the automatic right to operate the terminal on the sole ground that it is the original proponent “is substantially and procedurally flawed” as the rights and privileges of an original proponent to an unsolicited project proposal are never meant to be absolute.

"Otherwise, the original proponent can hold the government hostage and secure the award of the infrastructure project based solely on the fact that it was the first to submit a proposal. The absurdity of such a situation becomes even more apparent when considering that the proposal is unsolicited by the government," the SC ruled.

Subject to evaluation

The Court said an unsolicited proposal, like the AEDC’s, is subject to evaluation, and that the government agency or local government unit concerned may accept or reject the proposal.
The acceptance of the unsolicited proposal only precludes the agency or local government unit (LGU) from entertaining other similar proposals.

"Upon acceptance then of the unsolicited proposal, the original proponent is recognized as such but no award is yet made to it. The commitment of the agency/LGU upon acceptance of the unsolicited proposal is to the pursuit of the project, regardless of to whom it shall subsequently award the same," the SC explained.

The SC stressed that "the special rights or privileges of an original proponent come into play only when there are other proposals submitted during the public bidding of the infrastructure project".

But then, such rights and privileges depends on the compliance with the procedure and conditions explicitly provided by the statutes and their implementing rules and regulations, it said.

Bidding already over

In the case of the NAIA-3 project, the bidding process was already over after its award to the Philippine International Air Terminals Co. Inc. (PIATCO), even if the award was later nullified and voided.

PIATCO was the consortium that won the contract to build and operate NAIA-3. The award was subsequently voided by the SC for a number of anomalies.

The court said the nullification of the award to PIATCO “did not revive the proposal nor re-open the bidding”.

It said the “AEDC cannot insist that this Court turn back the hands of time and award the NAIA-3 project to it, as if the bid of PIATCO never existed and the award of the project to PIATCO did not take place.”

The court pointed out that the proposal of AEDC was for a Build Operate Transfer (BOT) project, which is no longer applicable under the circumstances since the physical structure of the airport facility is already substantially built and there is almost nothing more for the petitioner to construct.

Justices for, against

Those who concurred with the decision were Chief Justice Reynato Puno, Associate Justices Consuelo Ynares-Santiago, Ma. Alicia Austria-Martinez, Conchita Carpio Morales, Dante Tinga and Teresita Leonardo-de Castro.

The dissenters were Justices Renato Corona, Leonardo Quisumbing, Presbitero Velasco and Arturo Brion.

Those who took no part in the voting were Antonio Carpio, Adolfo Azcuna, Ruben Reyes and Antonio Eduardo Nachura.

AEDC wanted exclusive right

The AEDC had petitioned the court to direct DOTC and MIAA respondents to cease and desist from awarding the NAIA-3 project to third parties or negotiating into any concession contract with third parties.

AEDC argued that since it was the original proponent, it has the exclusive, clear and vested statutory right to be awarded the NAIA-3 project

The decision came a month after the SC also rejected a bid of the Manila Hotel Corporation to intervene in the AEDC suit, and to take over the airport facility by virtue of being a substantial stockholder of PIATCO. (abs-cbnNEWS.com/Newsbreak)

(Since at the onset, Lucio Tan’s bid on NAIA 3 had been known as that of a crook’s, absurd and ruinous to the Filipino country’s economy. The dissenting justices did not see what we saw? Money surely talked to these! Look, this AEDC was initially composed of Henry Sy, John Gokongwei, Alfonso Yuchengco, Andrew Gotianun and this tax cheating bogus philanthropist – Lucio Tan. Why did they abandoned him to be left alone? You ask them. They will tell you that they could not stomach his evil schemes!)