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THE
Supreme Court (SC), voting 7-4, has denied “for lack of
merit” the petition filed by Lucio Tan’s Asia’s Emerging
Dragon Corp., (AEDC) seeking to operate the
controversial Ninoy Aquino International
Airport-International Passenger Terminal III (Naia-IPT
III) after the government abandoned its contract with
its builder Philippine International Air Terminals Co.
Inc. (Piatco).
In a
62-page decision penned by Associate Justice Minita V.
Chico-Nazario, the SC en banc described as
“substantially and procedurally flawed” the AEDC’s
assertion that as original proponent of the Naia-IPT
III, it has the right to the award of the project.
“The
rights or privileges of an original proponent of an
unsolicited proposal for an infrastructure project 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 SC
said.
Meanwhile, the decision also dismissed for “being moot
and academic” the petition of the government, through
the Department of Transportation and Communications (DOTC)
and the Manila International Airport Authority (MIAA),
challenging the order of the Court of Appeals (CA)
stopping temporarily the payment to Piatco of more than
P3 billion representing the proferred value of IPT III,
pending final adjudication of the just compensation for
the facility.
It said
the DOTC and MIAA’s petition has been mooted, not only
because the CA had lifted its restraining order, but
also because the government had turned over to Piatco a
check representing P3.002 billion in line with an
earlier SC decision.
In
rejecting the AEDC petition, the Court said an
unsolicited proposal is still subject to evaluation, and
the government agency or local government unit concerned
may accept or reject the proposal outright.
It noted
that the rights of an original proponent depend on
compliance with the procedure and conditions provided by
the statutes and their implementing rules and
regulations (IRR).
Under
Section 10.6 of Republic Act 6957, as amended by RA 7718
(An Act Authorizing the Financing, Construction,
Operation and Maintenance of Infrastructure Projects by
the Private Sector), the acceptance of the unsolicited
proposal by the agency or local government unit is
limited to the commitment of the agency to pursue the
project and recognition of the proponent as original
proponent.
It
further held that before the project could be awarded to
the original proponent, it must have been able to match
the lowest or most advantageous proposal within the
prescribed period.
The
Court said AEDC failed to match the more advantageous
proposal submitted by Piatco by the time the 30-day
working period expired on November 28, 1996; and without
exercising its right to match the advantageous proposal,
it cannot now claim to the award of the project.
“The
bidding process as to the Naia IPT III project was
already over after the award thereof to Piatco, even if
eventually, the said award was nullified and voided. The
nullification of the award to Piatco did not revive the
proposal nor reopen the bidding. AEDC cannot insist that
this Court turn back the hands of time and award the
Naia IPT III project to it, as if the bid of Piatco
never existed and the award of the project to Piatco did
not take place. Such is a simplistic approach to a very
complex problem that is the Naia IPT III project,” the
SC stressed.
The
Court noted that the physical structures of Naia III are
already substantially built, thus, there is almost
nothing left for AEDC to construct.
“Hence,
the project could no longer be awarded to AEDC based on
the theory of legal impossibility of performance,” the
decision added.
Likewise, the Court said AEDC’s offer to reimburse the
government the amount it will pay to Piatco for the
facilities cannot restore the petitioner to its status
and rights as the project proponent. The reimbursement,
according to the Court, may even result in AEDC’s unjust
enrichment.
In its
original proposal, AEDC offered to construct Naia III
for $350 million or P9 billion at that time. In
exchange, AEDC would share a certain percentage of the
gross revenues with, and pay a guaranteed annual income
to the government upon operation of the said facilities.
“In
Gingoyon, the proffered value of the NAIA IPT III
facilities was already determined to be P3 billion. It
seems improbable at this point that the balance of the
value of said facilities for which the government is
still obligated to pay Piatco shall reach or exceed P6
billion. There is thus the possibility that the
government shall be required to pay Piatco an amount
less than P9 billion,” the SC pointed out.
“If AEDC
is to reimburse the government only for the said amount,
then it shall acquire the Naia IPT III facilities for a
price less than its original proposal of P9 billion.
Yet, per the other terms of its original proposal, it
may still recoup a capital investment of P9 billion plus
a reasonable rate of return of investment,” it added.
Chief
Justice Reynato S. Puno and Justices Consuelo Ynares
Santiago, Ma. Alicia Austria Martinez, Conchita Carpio
Morales, Dante O. Tinga, and Teresita J. Leonardo de
Castro concurred with the decision.
Senior
Justice Leonardo A. Quisumbing and Justices Presbitero
J. Velasco Jr. and Arturo D. Brion joined the dissenting
opinion of Justice Renato C. Corona.
Justices
Antonio T. Carpio, Adolfo S. Azcuna, Antonio Eduardo B.
Nachura and Ruben T. Reyes inhibited themselves. |
