Piatco files motion on SC ruling voiding NAIA-3 deals

The Philippine International Air Terminals Co. (Piatco) asked the Supreme Court yesterday to reverse its May 5 decision nullifying the firm’s contracts with the government to build and operate the Ninoy Aquino International Airport Terminal 3 (NAIA-3).

In a 92-page motion for reconsideration, lawyers of Piatco said it would like to disabuse the mind of the SC that it "tried to put one over the government, to the prejudice of the Filipino people."

Piatco said it constructed an ultra-modern, state-of-the-art international airport worth $350 million "at no cost to the government to serve the Filipino people."

The consortium noted it agreed to pay the government P17.75 billion over 27 years unlike its rival in the public bidding, Asia’s Emerging Dragon Corp. that offered only P500 million for the project.

Piatco insisted that a scrutiny of the entire agreements signed with the government would show that no Build-Operate-Transfer laws were violated since the provisions could also be found in other BOT contracts upheld by the SC.

The consortium lamented that after constructing and remitting the pre-operating payments to the government, it still could not operate the airport.

Piatco stressed that the signatories of the contracts were three secretaries of the Department of Transportation and Communications (DOTC) of different administrations and that two former presidents, Fidel Ramos and Joseph Estrada, ordered their implementation.

"The concession agreement cannot be prejudicial to the Filipino people because the construction of the NAIA Terminal 3 was done without the use of public funds. Moreover, at the end of 25 years, such airport will be delivered to the government for P1," Piatco said.

"However, if the decision by the Supreme Court will not be reconsidered — paving the way for an imminent government takeover — then, government will have to pay the cost of the airport, which is not less than $350 million," it added.

Meanwhile, employees of Piatco and NAIA-3 have filed a separate motion for reconsideration-in-intervention, asking the high tribunal to reverse its decision.

Raul Tamayo, spokesman for the Piatco workers, said that the SC decision was anti-worker. He said around 5,000 construction workers, maintenance personnel and subcontractors would be affected by the SC decision. The Piatco workers held a protest rally in front of the Supreme Court to express their sentiments.

While the SC, voting 10-3 on May 5, ruled that Piatco was not qualified to participate in the 1997 bidding for the construction and operation of NAIA-3 because its equity fell short of the P3.9 billion required by the Prequalification Bids and Awards Committee, Piatco maintained it was able to show the committee that it had the financial capability to undertake the project.

Since NAIA-3 is now practically complete, Piatco said there should be no more reason to doubt that it had more than 30 percent of the minimum project cost.

In the 76-page decision of the High Court penned by Justice Reynato Puno, the SC said that Piatco’s contract violated the build-operate-transfer law because it contained a government guarantee to shoulder Piatco’s financial obligations in case of default.

Piatco, however, maintained that the Amended and Restated Concession Agreement did not contain such a guarantee.

Piatco explained all contracts requiring a direct government guarantee should have a letter or agreement issued by the finance secretary attesting to a "sovereign obligation directly guaranteeing a loan obligation to creditors, proponents, or concessionaires" but there was none in this case.

What was stated in the ARCA, Piatco said, was a provision for just compensation in case of a government buy-out or takeover of the NAIA-3.

The SC held that with the exclusive right granted to Piatco, the concession contracts of the service providers for Terminals 1 and 2 would no longer be renewed.

Piatco said it did not care whether the contracts of the other service providers would be renewed or extended but it was the government, through the Manila International Airport Authority (MIAA) that decided that NAIA 3 would replace the existing international passenger terminals.

"Should the service providers in Terminals 1 and 2 desire to operate the Terminal 3, they may negotiate and enter into separate agreements with Piatco," the motion said.

"It is unfair to blame Piatco for any alleged violation of the rights of third parties," Piatco said.

In fact, Piatco contended that MIAA extended the contracts of service providers DNATA Wings to 2008 and MIASCOR to 2010 and ignored the risk of contract violation with Piatco.