Monday, June 02, 2008 SC told to reconsider non-operation of Naia-3
THE Lucio Tan-led Asia's Emerging Dragon Corporation (AEDC) has asked the Supreme Court (SC) to reconsider its decision declaring that it cannot operate the mothballed Terminal 3 of the Ninoy Aquino International Airport (Naia) on the mere basis that it is the original proponent of the project.
AEDC insisted that the April 18, 2008 ruling of the high court mistakenly characterized as a bidding the process of unsolicited proposals under Republic Act (RA) 6957, as amended by RA 7718, or the Build-Operate-Transfer (BOT) Law.
AEDC said, as original proponent or originator of the project, it has rights under the BOT law, which must be respected and recognized.
"The unsolicited process is not the equivalent of bidding where all parties stand on equal footing. This Honorable Court, in the exercise of its judicial power, may not wrest from AEDC its rights under the BOT law, which may be deemed as vested upon AEDC by legislative fiat after AEDC's unsolicited proposal was accepted and approved by the National Economic and Development Authority (Neda) and the Department of Transportation and Communication (DOTC)," AEDC said through lawyer Eduardo Ceniza.
To do so, the lawyer said, would constitute an unwarranted encroachment by the court upon a legislative prerogative or intent that cannot be justified under the BOT law.
The AEDC further said the decision unfairly faults the firm for not matching the bid or challenge placed by Naia-3 builder Philippine International Air Terminals Company (Piatco), implying that the AEDC would have been able to operate the Naia-3 project.
Piatco is a consortium that previously entered into a contract with government to build and operate Naia-3 before it was subsequently voided by the SC for a number of anomalies.
"Being the original proponent, AEDC can legally expect that only a valid challenge may defeat its originally accepted proposal. This is a necessary implication of the right to match the comparative bid of the best price challenger. AEDC may only be declared to have lost its rights as original proponent if, first, there is a valid challenge; and second, if AEDC waives and/or failed to exercise its rights to match the valid lower or lowest price proposal," AEDC said.
AEDC anchored its arguments on Section 4-A of the BOT law on unsolicited proposals, stating that being the recognized and unchallenged original proponent, it has the exclusive, clear and vested statutory right to the award of the Naia-3 project; and that respondents have the duty to protect petitioner, as a result of the SC's nullification of the award of the project to Piatco.
In its petition, AEDC also asked the tribunal to execute and formalize with petitioner the approved Draft Concession Agreement embodying the agreed terms and conditions for the operation of the Naia-3 project and directing respondents to cease and desist from awarding the Naia-3 project to third parties or negotiating into any concession contract with third parties.
But in its April 18 split decision, the SC dismissed for lack of merit the petition filed by AEDC seeking to compel the DOTC and the Manila International Airport Authority (MIAA) to formally award the Naia-3 project to AEDC.
The high court junked AEDC's arguments for being "substantially and procedurally flawed," pointing out that 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."
An unsolicited proposal, according to the court, is subject to evaluation, after which, the government agency or local government unit (LGU) concerned may accept or reject the proposal outright.
The acceptance of the unsolicited proposal only precludes the agency/LGU from entertaining other similar proposals until the solicitation of comparative proposals.
The SC said the rights and privileges of an original proponent depend on the compliance with the procedure and conditions explicitly provided by the statutes and their implementing rules and regulations. (ECV/Sunnex)
