MANILA, Philippines - Taipan Lucio Tan’s Asia’s Emerging Dragon Corp. is seeking management control of Ninoy Aquino International Airport Terminal 3 (NAIA 3).
In its original suit, the AEDC said it was bound to get the government contract since the voiding of the Philippine International Air Terminals Co.’s (Piatco) contract has restored its status as the “unchallenged original proponent” of NAIA 3.
AEDC said it becomes automatically entitled to the contract in accordance with Section 4 of Republic Act 6957, as amended by Republic Act 7718, the Build, Operate and Transfer (BOT) Law.
“(The provision) grants the original proponent with an incentive and advantage where, in the absence of any comparative or competitive proposal, the BOT project is automatically awarded to the original proponent,” AEDC said.
“Or, in the event a lower price proposal is offered, the original proponent is given the right to match.”
AEDC said it must be awarded the project to prevent waste of money and resources as the government would not have to pay for the structure using public funds.
“To leave petitioner empty handed after the nullification of the award to Piatco would surely send danger signals across the investing community, leaving the impression that even the framing of proposals for the Philippine government entails far too much risk.”
AEDC has asked the Supreme Court to reconsider its decision denying the firm the build-operate-transfer contract on Terminal 3 since Piatco had no valid second bid as required by law.
“AEDC has offered and is ready, willing and able to implement the NAIA 3 BOT project in accordance with the original plans government itself approved,” read AEDC’s 15-page manifestation filed last Friday.
Piatco won the contract, but the SC later voided it.
AEDC lawyers said Piatco deviated on at least 21 major points envisioned under the original proposal, which was subjected to public bidding.
“Government should not be allowed to compensate the greed of Piatco at the expense of AEDC’s rights, neither should government be allowed to unilaterally breach with impunity its commitments to the original proponent of an unsolicited proposal under the BOT law,” the lawyers said.
The lawyers said there was no need to prove their AEDC’s financial qualification for the contract because it was never questioned.
“The financial qualification of AEDC was passed upon and found adequate by the DOTC and the NEDA which approved AEDC’s unsolicited proposal,” the lawyers said.
“Affirming the majority’s view on this matter would abandon the time-honored doctrine that the courts have no authority or jurisdiction to rule on issues not raised by the parties, and that any judgment issued thereon is irregular, extra-judicial and invalid.
“This would open for adjudication any matter, whether raised or not, simply because the courts say so.”
On April 2008, the SC denied for lack of merit the AEDC’s petition as “substantially and procedurally flawed” in its assertion that being the original proponent of the NAIA 3, 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,” read the SC decision.
“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 an unsolicited proposal is still subject to evaluation, which the government agency or local government unit concerned may accept or reject the proposal outright.
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 SC added.
The SC said AEDC failed to match the more advantageous proposal submitted by Piatco by the time the 30-day working period expired on Nov. 28, 1996.
Without exercising its right to match the advantageous proposal, it cannot now claim award of the project, the SC added.