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LUCIO
Tan’s Asia’s Emerging Dragon Corp. (AEDC) has asked the
Supreme Court (SC) to reverse its April 18, 2007, ruling
denying its bid to operate the controversial Ninoy
Aquino International Airport (Naia) International
Passenger Terminal III (IPT3) after the contract of the
government with Philippine International Air Terminals
Co. Inc. (Piatco) had been nullified.
In a
73-page motion for reconsideration, AEDC, through its
lawyer Eduardo Ceniza, insisted that as the original
project proponent, AEDC has the right under the
build-operate-transfer (BOT) law, which must be
respected and recognized.
It added
that the SC erred when it characterized the process of
unsolicited proposals under Section 4-A of the BOT law
as bidding.
Based on
the said provision, AEDC argued that there are two
instances wherein an unsolicited project may be awarded
to the original proponent on a negotiated basis—when
there is no comparative proposals submitted within the
required period under the law and when there are other
proposals and the original proponent exercised its right
to match the lower or the lowest price proposal.
The
petitioner added that the “other proposal” contemplated
under Section 4-A of the BOT law and its implementing
rules and regulations (IRR) pertains exclusively to a
valid proposal.
“Thus,
when the ‘other proposal’, that of Piatco in this case,
was declared null and void by the Supreme Court, then
the first instance contemplated under Section 4-A of the
BOT law should operate. It should, therefore, be deemed
as if no other proposal was submitted within the
required period….This should then operate to justify a
negotiated contract with AEDC, the unchallenged original
proponent…” the petitioner said.
Since
the SC has declared Piatco’s contract null and void,
AEDC stressed that the Naia 3 project should be covered
by a Section 10.11, Rule 10 of the IRR of the BOT law,
wherein invitations for comparative proposals shall
again be made and the right of AEDC as the original
proponent to match the best offer should be reinstated.
It also
dismissed the High Court’s findings that AEDC is not
financially qualified to operate Naia 3 since the issue
was not raised by any of the parties in the case.
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 Co.,
implying that the AEDC would have been able to operate
the Naia-3 project.
In its
decision, the SC en banc branded as “substantially and
procedurally flawed” AEDC’s assertion that being the
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. |
