Agan vs. PIATCO G.R. No. 155001

1/28/22, 7:53 PM G.R. No.
155001
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G.R. No. 155001 May 5, 2003
DEMOSTHENES P. AGAN, JR., JOSEPH B. CATAHAN, JOSE MARI B. REUNILLA, MANUEL ANTONIO B.
BOÑE, MAMERTO S. CLARA, REUEL E. DIMALANTA, MORY V. DOMALAON, CONRADO G. DIMAANO,
LOLITA R. HIZON, REMEDIOS P. ADOLFO, BIENVENIDO C. HILARIO, MIASCOR WORKERS UNION -
NATIONAL LABOR UNION (MWU-NLU), and PHILIPPINE AIRLINES EMPLOYEES ASSOCIATION (PALEA),
petitioners,
vs.
PHILIPPINE INTERNATIONAL AIR TERMINALS CO., INC., MANILA INTERNATIONAL AIRPORT AUTHORITY,
DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS and SECRETARY LEANDRO M. MENDOZA,
in his capacity as Head of the Department of Transportation and Communications, respondents,
MIASCOR GROUNDHANDLING CORPORATION, DNATA-WINGS AVIATION SYSTEMS CORPORATION,
MACROASIA-EUREST SERVICES, INC., MACROASIA-MENZIES AIRPORT SERVICES CORPORATION,
MIASCOR CATERING SERVICES CORPORATION, MIASCOR AIRCRAFT MAINTENANCE CORPORATION,
and MIASCOR LOGISTICS CORPORATION, petitioners-in-intervention,
x---------------------------------------------------------x
G.R. No. 155547 May 5, 2003
SALACNIB F. BATERINA, CLAVEL A. MARTINEZ and CONSTANTINO G. JARAULA, petitioners,
vs.
DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS, DEPARTMENT OF PUBLIC WORKS AND
HIGHWAYS, SECRETARY LEANDRO M. MENDOZA, in his capacity as Head of the Department of
Transportation and Communications, and SECRETARY SIMEON A. DATUMANONG, in his capacity as Head
of the Department of Public Works and Highways, respondents,
JACINTO V. PARAS, RAFAEL P. NANTES, EDUARDO C. ZIALCITA, WILLY BUYSON VILLARAMA, PROSPERO
C. NOGRALES, PROSPERO A. PICHAY, JR., HARLIN CAST ABAYON, and BENASING O. MACARANBON,
respondents-intervenors,
x---------------------------------------------------------x
G.R. No. 155661 May 5, 2003
CEFERINO C. LOPEZ, RAMON M. SALES, ALFREDO B. VALENCIA, MA. TERESA V. GAERLAN, LEONARDO
DE LA ROSA, DINA C. DE LEON, VIRGIE CATAMIN RONALD SCHLOBOM, ANGELITO SANTOS, MA. LUISA
M. PALCON and SAMAHANG MANGGAGAWA SA PALIPARAN NG PILIPINAS (SMPP), petitioners,
vs.
DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS, SECRETARY LEANDRO M. MENDOZA, in
his capacity as Head of the Department of Transportation and Communications, respondents.
PUNO, J.:
Petitioners and petitioners-in-intervention filed the instant petitions for prohibition under Rule 65 of the Revised
Rules of Court seeking to prohibit the Manila International Airport Authority (MIAA) and the Department of
Transportation and Communications (DOTC) and its Secretary from implementing the following agreements
executed by the Philippine Government through the DOTC and the MIAA and the Philippine International Air
Terminals Co., Inc. (PIATCO): (1) the Concession Agreement signed on July 12, 1997, (2) the Amended and
Restated Concession Agreement dated November 26, 1999, (3) the First Supplement to the Amended and Restated
Concession Agreement dated August 27, 1999, (4) the Second Supplement to the Amended and Restated
Concession Agreement dated September 4, 2000, and (5) the Third Supplement to the Amended and Restated
Concession Agreement dated June 22, 2001 (collectively, the PIATCO Contracts).
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The facts are as follows:
In August 1989, the DOTC engaged the services of Aeroport de Paris (ADP) to conduct a comprehensive
study of the Ninoy Aquino International Airport (NAIA) and determine whether the present airport can cope
with the traffic development up to the year 2010. The study consisted of two parts: first, traffic forecasts,
capacity of existing facilities, NAIA future requirements, proposed master plans and development plans; and
second, presentation of the preliminary design of the passenger terminal building. The ADP submitted a Draft
Final Report to the DOTC in December 1989.
Some time in 1993, six business leaders consisting of John Gokongwei, Andrew Gotianun, Henry Sy, Sr.,
Lucio Tan, George Ty and Alfonso Yuchengco met with then President Fidel V. Ramos to explore the
possibility of investing in the construction and operation of a new international airport terminal. To signify their
commitment to pursue the project, they formed the Asia's Emerging Dragon Corp. (AEDC) which was
registered with the Securities and Exchange Commission (SEC) on September 15, 1993.
On October 5, 1994, AEDC submitted an unsolicited proposal to the Government through the DOTC/MIAA for
the development of NAIA International Passenger Terminal III (NAIA IPT III) under a build-operate-and-
transfer arrangement pursuant to RA 6957 as amended by RA 7718 (BOT Law).1
On December 2, 1994, the DOTC issued Dept. Order No. 94-832 constituting the Prequalification Bids and Awards
Committee (PBAC) for the implementation of the NAIA IPT III project.
On March 27, 1995, then DOTC Secretary Jose Garcia endorsed the proposal of AEDC to the National Economic
and Development Authority (NEDA). A revised proposal, however, was forwarded by the DOTC to NEDA on
December 13, 1995. On January 5, 1996, the NEDA Investment Coordinating Council (NEDA ICC) – Technical
Board favorably endorsed the project to the ICC – Cabinet Committee which approved the same, subject to certain
conditions, on January 19, 1996. On February 13, 1996, the NEDA passed Board Resolution No. 2 which approved
the NAIA IPT III project.
On June 7, 14, and 21, 1996, DOTC/MIAA caused the publication in two daily newspapers of an invitation for
competitive or comparative proposals on AEDC's unsolicited proposal, in accordance with Sec. 4-A of RA 6957, as
amended. The alternative bidders were required to submit three (3) sealed envelopes on or before 5:00 p.m. of
September 20, 1996. The first envelope should contain the Prequalification Documents, the second envelope the
Technical Proposal, and the third envelope the Financial Proposal of the proponent.
On June 20, 1996, PBAC Bulletin No. 1 was issued, postponing the availment of the Bid Documents and the
submission of the comparative bid proposals. Interested firms were permitted to obtain the Request for Proposal
Documents beginning June 28, 1996, upon submission of a written application and payment of a non-refundable fee
of P50,000.00 (US$2,000).
The Bid Documents issued by the PBAC provided among others that the proponent must have adequate capability
to sustain the financing requirement for the detailed engineering, design, construction, operation, and maintenance
phases of the project. The proponent would be evaluated based on its ability to provide a minimum amount of equity
to the project, and its capacity to secure external financing for the project.
On July 23, 1996, the PBAC issued PBAC Bulletin No. 2 inviting all bidders to a pre-bid conference on July 29,
1996.
On August 16, 1996, the PBAC issued PBAC Bulletin No. 3 amending the Bid Documents. The following
amendments were made on the Bid Documents:
a. Aside from the fixed Annual Guaranteed Payment, the proponent shall include in its financial proposal an
additional percentage of gross revenue share of the Government, as follows:
i. First 5 years 5.0%

ii. Next 10 years 7.5%
iii. Next 10 years 10.0%
b. The amount of the fixed Annual Guaranteed Payment shall be subject of the price challenge. Proponent
may offer an Annual Guaranteed Payment which need not be of equal amount, but payment of which shall
start upon site possession.
c. The project proponent must have adequate capability to sustain the financing requirement for the detailed
engineering, design, construction, and/or operation and maintenance phases of the project as the case may
be. For purposes of pre-qualification, this capability shall be measured in terms of:
i. Proof of the availability of the project proponent and/or the consortium to provide the minimum
amount of equity for the project; and
ii. a letter testimonial from reputable banks attesting that the project proponent and/or the members of
the consortium are banking with them, that the project proponent and/or the members are of good
financial standing, and have adequate resources.
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d. The basis for the prequalification shall be the proponent's compliance with the minimum technical and
financial requirements provided in the Bid Documents and the IRR of the BOT Law. The minimum amount of
equity shall be 30% of the Project Cost.
e. Amendments to the draft Concession Agreement shall be issued from time to time. Said amendments shall
only cover items that would not materially affect the preparation of the proponent's proposal.
On August 29, 1996, the Second Pre-Bid Conference was held where certain clarifications were made. Upon the
request of prospective bidder People's Air Cargo & Warehousing Co., Inc (Paircargo), the PBAC warranted that
based on Sec. 11.6, Rule 11 of the Implementing Rules and Regulations of the BOT Law, only the proposed Annual
Guaranteed Payment submitted by the challengers would be revealed to AEDC, and that the challengers' technical
and financial proposals would remain confidential. The PBAC also clarified that the list of revenue sources contained
in Annex 4.2a of the Bid Documents was merely indicative and that other revenue sources may be included by the
proponent, subject to approval by DOTC/MIAA. Furthermore, the PBAC clarified that only those fees and charges
denominated as Public Utility Fees would be subject to regulation, and those charges which would be actually
deemed Public Utility Fees could still be revised, depending on the outcome of PBAC's query on the matter with the
Department of Justice.
In September 1996, the PBAC issued Bid Bulletin No. 5, entitled "Answers to the Queries of PAIRCARGO as Per
Letter Dated September 3 and 10, 1996." Paircargo's queries and the PBAC's responses were as follows:
1. It is difficult for Paircargo and Associates to meet the required minimum equity requirement as prescribed
in Section 8.3.4 of the Bid Documents considering that the capitalization of each member company is so
structured to meet the requirements and needs of their current respective business undertaking/activities. In
order to comply with this equity requirement, Paircargo is requesting PBAC to just allow each member of (sic)
corporation of the Joint Venture to just execute an agreement that embodies a commitment to infuse the
required capital in case the project is awarded to the Joint Venture instead of increasing each corporation's
current authorized capital stock just for prequalification purposes.
In prequalification, the agency is interested in one's financial capability at the time of prequalification, not
future or potential capability.
A commitment to put up equity once awarded the project is not enough to establish that "present" financial
capability. However, total financial capability of all member companies of the Consortium, to be established by
submitting the respective companies' audited financial statements, shall be acceptable.
2. At present, Paircargo is negotiating with banks and other institutions for the extension of a Performance
Security to the joint venture in the event that the Concessions Agreement (sic) is awarded to them. However,
Paircargo is being required to submit a copy of the draft concession as one of the documentary requirements.
Therefore, Paircargo is requesting that they'd (sic) be furnished copy of the approved negotiated agreement
between the PBAC and the AEDC at the soonest possible time.
A copy of the draft Concession Agreement is included in the Bid Documents. Any material changes would be
made known to prospective challengers through bid bulletins. However, a final version will be issued before
the award of contract.
The PBAC also stated that it would require AEDC to sign Supplement C of the Bid Documents (Acceptance of
Criteria and Waiver of Rights to Enjoin Project) and to submit the same with the required Bid Security.
On September 20, 1996, the consortium composed of People's Air Cargo and Warehousing Co., Inc. (Paircargo),
Phil. Air and Grounds Services, Inc. (PAGS) and Security Bank Corp. (Security Bank) (collectively, Paircargo
Consortium) submitted their competitive proposal to the PBAC. On September 23, 1996, the PBAC opened the first
envelope containing the prequalification documents of the Paircargo Consortium. On the following day, September
24, 1996, the PBAC prequalified the Paircargo Consortium.
On September 26, 1996, AEDC informed the PBAC in writing of its reservations as regards the Paircargo
Consortium, which include:
a. The lack of corporate approvals and financial capability of PAIRCARGO;
b. The lack of corporate approvals and financial capability of PAGS;
c. The prohibition imposed by RA 337, as amended (the General Banking Act) on the amount that Security
Bank could legally invest in the project;
d. The inclusion of Siemens as a contractor of the PAIRCARGO Joint Venture, for prequalification purposes;
and
e. The appointment of Lufthansa as the facility operator, in view of the Philippine requirement in the operation
of a public utility.
The PBAC gave its reply on October 2, 1996, informing AEDC that it had considered the issues raised by the latter,
and that based on the documents submitted by Paircargo and the established prequalification criteria, the PBAC
had found that the challenger, Paircargo, had prequalified to undertake the project. The Secretary of the DOTC
approved the finding of the PBAC.
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The PBAC then proceeded with the opening of the second envelope of the Paircargo Consortium which contained
its Technical Proposal.
On October 3, 1996, AEDC reiterated its objections, particularly with respect to Paircargo's financial capability, in
view of the restrictions imposed by Section 21-B of the General Banking Act and Sections 1380 and 1381 of the
Manual Regulations for Banks and Other Financial Intermediaries. On October 7, 1996, AEDC again manifested its
objections and requested that it be furnished with excerpts of the PBAC meeting and the accompanying technical
evaluation report where each of the issues they raised were addressed.
On October 16, 1996, the PBAC opened the third envelope submitted by AEDC and the Paircargo Consortium
containing their respective financial proposals. Both proponents offered to build the NAIA Passenger Terminal III for
at least $350 million at no cost to the government and to pay the government: 5% share in gross revenues for the
first five years of operation, 7.5% share in gross revenues for the next ten years of operation, and 10% share in
gross revenues for the last ten years of operation, in accordance with the Bid Documents. However, in addition to
the foregoing, AEDC offered to pay the government a total of P135 million as guaranteed payment for 27 years
while Paircargo Consortium offered to pay the government a total of P17.75 billion for the same period.
Thus, the PBAC formally informed AEDC that it had accepted the price proposal submitted by the Paircargo
Consortium, and gave AEDC 30 working days or until November 28, 1996 within which to match the said bid,
otherwise, the project would be awarded to Paircargo.
As AEDC failed to match the proposal within the 30-day period, then DOTC Secretary Amado Lagdameo, on
December 11, 1996, issued a notice to Paircargo Consortium regarding AEDC's failure to match the proposal.
On February 27, 1997, Paircargo Consortium incorporated into Philippine International Airport Terminals Co., Inc.
(PIATCO).
AEDC subsequently protested the alleged undue preference given to PIATCO and reiterated its objections as
regards the prequalification of PIATCO.
On April 11, 1997, the DOTC submitted the concession agreement for the second-pass approval of the NEDA-ICC.
On April 16, 1997, AEDC filed with the Regional Trial Court of Pasig a Petition for Declaration of Nullity of the
Proceedings, Mandamus and Injunction against the Secretary of the DOTC, the Chairman of the PBAC, the voting
members of the PBAC and Pantaleon D. Alvarez, in his capacity as Chairman of the PBAC Technical Committee.
On April 17, 1997, the NEDA-ICC conducted an ad referendum to facilitate the approval, on a no-objection basis, of
the BOT agreement between the DOTC and PIATCO. As the ad referendum gathered only four (4) of the required
six (6) signatures, the NEDA merely noted the agreement.
On July 9, 1997, the DOTC issued the notice of award for the project to PIATCO.
On July 12, 1997, the Government, through then DOTC Secretary Arturo T. Enrile, and PIATCO, through its
President, Henry T. Go, signed the "Concession Agreement for the Build-Operate-and-Transfer Arrangement of the
Ninoy Aquino International Airport Passenger Terminal III" (1997 Concession Agreement). The Government granted
PIATCO the franchise to operate and maintain the said terminal during the concession period and to collect the fees,
rentals and other charges in accordance with the rates or schedules stipulated in the 1997 Concession Agreement.
The Agreement provided that the concession period shall be for twenty-five (25) years commencing from the in-
service date, and may be renewed at the option of the Government for a period not exceeding twenty-five (25)
years. At the end of the concession period, PIATCO shall transfer the development facility to MIAA.
On November 26, 1998, the Government and PIATCO signed an Amended and Restated Concession Agreement
(ARCA). Among the provisions of the 1997 Concession Agreement that were amended by the ARCA were: Sec.
1.11 pertaining to the definition of "certificate of completion"; Sec. 2.05 pertaining to the Special Obligations of GRP;
Sec. 3.02 (a) dealing with the exclusivity of the franchise given to the Concessionaire; Sec. 4.04 concerning the
assignment by Concessionaire of its interest in the Development Facility; Sec. 5.08 (c) dealing with the proceeds of
Concessionaire's insurance; Sec. 5.10 with respect to the temporary take-over of operations by GRP; Sec. 5.16
pertaining to the taxes, duties and other imposts that may be levied on the Concessionaire; Sec. 6.03 as regards the
periodic adjustment of public utility fees and charges; the entire Article VIII concerning the provisions on the
termination of the contract; and Sec. 10.02 providing for the venue of the arbitration proceedings in case a dispute
or controversy arises between the parties to the agreement.
Subsequently, the Government and PIATCO signed three Supplements to the ARCA. The First Supplement was
signed on August 27, 1999; the Second Supplement on September 4, 2000; and the Third Supplement on June 22,
2001 (collectively, Supplements).
The First Supplement to the ARCA amended Sec. 1.36 of the ARCA defining "Revenues" or "Gross Revenues";
Sec. 2.05 (d) of the ARCA referring to the obligation of MIAA to provide sufficient funds for the upkeep,
maintenance, repair and/or replacement of all airport facilities and equipment which are owned or operated by
MIAA; and further providing additional special obligations on the part of GRP aside from those already enumerated
in Sec. 2.05 of the ARCA. The First Supplement also provided a stipulation as regards the construction of a surface
road to connect NAIA Terminal II and Terminal III in lieu of the proposed access tunnel crossing Runway 13/31; the
swapping of obligations between GRP and PIATCO regarding the improvement of Sales Road; and the changes in
the timetable. It also amended Sec. 6.01 (c) of the ARCA pertaining to the Disposition of Terminal Fees; Sec. 6.02 of
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the ARCA by inserting an introductory paragraph; and Sec. 6.02 (a) (iii) of the ARCA referring to the Payments of
Percentage Share in Gross Revenues.
The Second Supplement to the ARCA contained provisions concerning the clearing, removal, demolition or disposal
of subterranean structures uncovered or discovered at the site of the construction of the terminal by the
Concessionaire. It defined the scope of works; it provided for the procedure for the demolition of the said structures
and the consideration for the same which the GRP shall pay PIATCO; it provided for time extensions, incremental
and consequential costs and losses consequent to the existence of such structures; and it provided for some
additional obligations on the part of PIATCO as regards the said structures.
Finally, the Third Supplement provided for the obligations of the Concessionaire as regards the construction of the
surface road connecting Terminals II and III.
Meanwhile, the MIAA which is charged with the maintenance and operation of the NAIA Terminals I and II, had
existing concession contracts with various service providers to offer international airline airport services, such as in-
flight catering, passenger handling, ramp and ground support, aircraft maintenance and provisions, cargo handling
and warehousing, and other services, to several international airlines at the NAIA. Some of these service providers
are the Miascor Group, DNATA-Wings Aviation Systems Corp., and the MacroAsia Group. Miascor, DNATA and
MacroAsia, together with Philippine Airlines (PAL), are the dominant players in the industry with an aggregate
market share of 70%.
On September 17, 2002, the workers of the international airline service providers, claiming that they stand to lose
their employment upon the implementation of the questioned agreements, filed before this Court a petition for
prohibition to enjoin the enforcement of said agreements.2
On October 15, 2002, the service providers, joining the cause of the petitioning workers, filed a motion for
intervention and a petition-in-intervention.
On October 24, 2002, Congressmen Salacnib Baterina, Clavel Martinez and Constantino Jaraula filed a similar
petition with this Court.3
On November 6, 2002, several employees of the MIAA likewise filed a petition assailing the legality of the various
agreements.4
On December 11, 2002. another group of Congressmen, Hon. Jacinto V. Paras, Rafael P. Nantes, Eduardo C.
Zialcita, Willie B. Villarama, Prospero C. Nograles, Prospero A. Pichay, Jr., Harlin Cast Abayon and Benasing O.
Macaranbon, moved to intervene in the case as Respondents-Intervenors. They filed their Comment-In-Intervention
defending the validity of the assailed agreements and praying for the dismissal of the petitions.
During the pendency of the case before this Court, President Gloria Macapagal Arroyo, on November 29, 2002, in
her speech at the 2002 Golden Shell Export Awards at Malacañang Palace, stated that she will not "honor (PIATCO)
contracts which the Executive Branch's legal offices have concluded (as) null and void."5
Respondent PIATCO filed its Comments to the present petitions on November 7 and 27, 2002. The Office of the
Solicitor General and the Office of the Government Corporate Counsel filed their respective Comments in behalf of
the public respondents.
On December 10, 2002, the Court heard the case on oral argument. After the oral argument, the Court then
resolved in open court to require the parties to file simultaneously their respective Memoranda in amplification of the
issues heard in the oral arguments within 30 days and to explore the possibility of arbitration or mediation as
provided in the challenged contracts.
In their consolidated Memorandum, the Office of the Solicitor General and the Office of the Government Corporate
Counsel prayed that the present petitions be given due course and that judgment be rendered declaring the 1997
Concession Agreement, the ARCA and the Supplements thereto void for being contrary to the Constitution, the BOT
Law and its Implementing Rules and Regulations.
On March 6, 2003, respondent PIATCO informed the Court that on March 4, 2003 PIATCO commenced arbitration
proceedings before the International Chamber of Commerce, International Court of Arbitration (ICC) by filing a
Request for Arbitration with the Secretariat of the ICC against the Government of the Republic of the Philippines
acting through the DOTC and MIAA.
In the present cases, the Court is again faced with the task of resolving complicated issues made difficult by their
intersecting legal and economic implications. The Court is aware of the far reaching fall out effects of the ruling
which it makes today. For more than a century and whenever the exigencies of the times demand it, this Court has
never shirked from its solemn duty to dispense justice and resolve "actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been grave abuse of discretion
amounting to lack or excess of jurisdiction."6 To be sure, this Court will not begin to do otherwise today.
We shall first dispose of the procedural issues raised by respondent PIATCO which they allege will bar the
resolution of the instant controversy.
Petitioners' Legal Standing to File
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the present Petitions
a. G.R. Nos. 155001 and 155661
In G.R. No. 155001 individual petitioners are employees of various service providers7 having separate concession
contracts with MIAA and continuing service agreements with various international airlines to provide in-flight
catering, passenger handling, ramp and ground support, aircraft maintenance and provisions, cargo handling and
warehousing and other services. Also included as petitioners are labor unions MIASCOR Workers Union-National
Labor Union and Philippine Airlines Employees Association. These petitioners filed the instant action for prohibition
as taxpayers and as parties whose rights and interests stand to be violated by the implementation of the PIATCO
Contracts.
Petitioners-Intervenors in the same case are all corporations organized and existing under Philippine laws engaged
in the business of providing in-flight catering, passenger handling, ramp and ground support, aircraft maintenance
and provisions, cargo handling and warehousing and other services to several international airlines at the Ninoy
Aquino International Airport. Petitioners-Intervenors allege that as tax-paying international airline and airport-related
service operators, each one of them stands to be irreparably injured by the implementation of the PIATCO
Contracts. Each of the petitioners-intervenors have separate and subsisting concession agreements with MIAA and
with various international airlines which they allege are being interfered with and violated by respondent PIATCO.
In G.R. No. 155661, petitioners constitute employees of MIAA and Samahang Manggagawa sa Paliparan ng
Pilipinas - a legitimate labor union and accredited as the sole and exclusive bargaining agent of all the employees in
MIAA. Petitioners anchor their petition for prohibition on the nullity of the contracts entered into by the Government
and PIATCO regarding the build-operate-and-transfer of the NAIA IPT III. They filed the petition as taxpayers and
persons who have a legitimate interest to protect in the implementation of the PIATCO Contracts.
Petitioners in both cases raise the argument that the PIATCO Contracts contain stipulations which directly
contravene numerous provisions of the Constitution, specific provisions of the BOT Law and its Implementing Rules
and Regulations, and public policy. Petitioners contend that the DOTC and the MIAA, by entering into said contracts,
have committed grave abuse of discretion amounting to lack or excess of jurisdiction which can be remedied only by
a writ of prohibition, there being no plain, speedy or adequate remedy in the ordinary course of law.
In particular, petitioners assail the provisions in the 1997 Concession Agreement and the ARCA which grant
PIATCO the exclusive right to operate a commercial international passenger terminal within the Island of Luzon,
except those international airports already existing at the time of the execution of the agreement. The contracts
further provide that upon the commencement of operations at the NAIA IPT III, the Government shall cause the
closure of Ninoy Aquino International Airport Passenger Terminals I and II as international passenger terminals. With
respect to existing concession agreements between MIAA and international airport service providers regarding
certain services or operations, the 1997 Concession Agreement and the ARCA uniformly provide that such services
or operations will not be carried over to the NAIA IPT III and PIATCO is under no obligation to permit such carry over
except through a separate agreement duly entered into with PIATCO.8
With respect to the petitioning service providers and their employees, upon the commencement of operations of the
NAIA IPT III, they allege that they will be effectively barred from providing international airline airport services at the
NAIA Terminals I and II as all international airlines and passengers will be diverted to the NAIA IPT III. The
petitioning service providers will thus be compelled to contract with PIATCO alone for such services, with no
assurance that subsisting contracts with MIAA and other international airlines will be respected. Petitioning service
providers stress that despite the very competitive market, the substantial capital investments required and the high
rate of fees, they entered into their respective contracts with the MIAA with the understanding that the said contracts
will be in force for the stipulated period, and thereafter, renewed so as to allow each of the petitioning service
providers to recoup their investments and obtain a reasonable return thereon.
Petitioning employees of various service providers at the NAIA Terminals I and II and of MIAA on the other hand
allege that with the closure of the NAIA Terminals I and II as international passenger terminals under the PIATCO
Contracts, they stand to lose employment.
The question on legal standing is whether such parties have "alleged such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court
so largely depends for illumination of difficult constitutional questions."9 Accordingly, it has been held that the
interest of a person assailing the constitutionality of a statute must be direct and personal. He must be able to show,
not only that the law or any government act is invalid, but also that he sustained or is in imminent danger of
sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite
way. It must appear that the person complaining has been or is about to be denied some right or privilege to which
he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act
complained of.10
We hold that petitioners have the requisite standing. In the above-mentioned cases, petitioners have a direct and
substantial interest to protect by reason of the implementation of the PIATCO Contracts. They stand to lose their
source of livelihood, a property right which is zealously protected by the Constitution. Moreover, subsisting
concession agreements between MIAA and petitioners-intervenors and service contracts between international
airlines and petitioners-intervenors stand to be nullified or terminated by the operation of the NAIA IPT III under the
PIATCO Contracts. The financial prejudice brought about by the PIATCO Contracts on petitioners and petitioners-
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intervenors in these cases are legitimate interests sufficient to confer on them the requisite standing to file the
instant petitions.
b. G.R. No. 155547
In G.R. No. 155547, petitioners filed the petition for prohibition as members of the House of Representatives,
citizens and taxpayers. They allege that as members of the House of Representatives, they are especially interested
in the PIATCO Contracts, because the contracts compel the Government and/or the House of Representatives to
appropriate funds necessary to comply with the provisions therein.11 They cite provisions of the PIATCO Contracts
which require disbursement of unappropriated amounts in compliance with the contractual obligations of the
Government. They allege that the Government obligations in the PIATCO Contracts which compel government
expenditure without appropriation is a curtailment of their prerogatives as legislators, contrary to the mandate of the
Constitution that "[n]o money shall be paid out of the treasury except in pursuance of an appropriation made by
law."12
Standing is a peculiar concept in constitutional law because in some cases, suits are not brought by parties who
have been personally injured by the operation of a law or any other government act but by concerned citizens,
taxpayers or voters who actually sue in the public interest. Although we are not unmindful of the cases of Imus
Electric Co. v. Municipality of Imus13 and Gonzales v. Raquiza14 wherein this Court held that appropriation must
be made only on amounts immediately demandable, public interest demands that we take a more liberal view in
determining whether the petitioners suing as legislators, taxpayers and citizens have locus standi to file the
instant petition. In Kilosbayan, Inc. v. Guingona,15 this Court held "[i]n line with the liberal policy of this Court on
locus standi, ordinary taxpayers, members of Congress, and even association of planters, and non-profit civic
organizations were allowed to initiate and prosecute actions before this Court to question the constitutionality or
validity of laws, acts, decisions, rulings, or orders of various government agencies or instrumentalities."16 Further,
"insofar as taxpayers' suits are concerned . . . (this Court) is not devoid of discretion as to whether or not it should
be entertained."17 As such ". . . even if, strictly speaking, they [the petitioners] are not covered by the definition, it is
still within the wide discretion of the Court to waive the requirement and so remove the impediment to its addressing
and resolving the serious constitutional questions raised."18 In view of the serious legal questions involved and their
impact on public interest, we resolve to grant standing to the petitioners.
Other Procedural Matters
Respondent PIATCO further alleges that this Court is without jurisdiction to review the instant cases as factual
issues are involved which this Court is ill-equipped to resolve. Moreover, PIATCO alleges that submission of this
controversy to this Court at the first instance is a violation of the rule on hierarchy of courts. They contend that trial
courts have concurrent jurisdiction with this Court with respect to a special civil action for prohibition and hence,
following the rule on hierarchy of courts, resort must first be had before the trial courts.
After a thorough study and careful evaluation of the issues involved, this Court is of the view that the crux of the
instant controversy involves significant legal questions. The facts necessary to resolve these legal questions are
well established and, hence, need not be determined by a trial court.
The rule on hierarchy of courts will not also prevent this Court from assuming jurisdiction over the cases at bar. The
said rule may be relaxed when the redress desired cannot be obtained in the appropriate courts or where
exceptional and compelling circumstances justify availment of a remedy within and calling for the exercise of this
Court's primary jurisdiction.19
It is easy to discern that exceptional circumstances exist in the cases at bar that call for the relaxation of the rule.
Both petitioners and respondents agree that these cases are of transcendental importance as they involve the
construction and operation of the country's premier international airport. Moreover, the crucial issues submitted for
resolution are of first impression and they entail the proper legal interpretation of key provisions of the Constitution,
the BOT Law and its Implementing Rules and Regulations. Thus, considering the nature of the controversy before
the Court, procedural bars may be lowered to give way for the speedy disposition of the instant cases.
Legal Effect of the Commencement
of Arbitration Proceedings by
PIATCO
There is one more procedural obstacle which must be overcome. The Court is aware that arbitration proceedings
pursuant to Section 10.02 of the ARCA have been filed at the instance of respondent PIATCO. Again, we hold that
the arbitration step taken by PIATCO will not oust this Court of its jurisdiction over the cases at bar.
In Del Monte Corporation-USA v. Court of Appeals,20 even after finding that the arbitration clause in the
Distributorship Agreement in question is valid and the dispute between the parties is arbitrable, this Court affirmed
the trial court's decision denying petitioner's Motion to Suspend Proceedings pursuant to the arbitration clause under
the contract. In so ruling, this Court held that as contracts produce legal effect between the parties, their assigns and
heirs, only the parties to the Distributorship Agreement are bound by its terms, including the arbitration clause
stipulated therein. This Court ruled that arbitration proceedings could be called for but only with respect to the
parties to the contract in question. Considering that there are parties to the case who are neither parties to the
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Distributorship Agreement nor heirs or assigns of the parties thereto, this Court, citing its previous ruling in Salas, Jr.
v. Laperal Realty Corporation,21 held that to tolerate the splitting of proceedings by allowing arbitration as to some of
the parties on the one hand and trial for the others on the other hand would, in effect, result in multiplicity of suits,
duplicitous procedure and unnecessary delay.22 Thus, we ruled that the interest of justice would best be served
if the trial court hears and adjudicates the case in a single and complete proceeding.
It is established that petitioners in the present cases who have presented legitimate interests in the resolution of
the controversy are not parties to the PIATCO Contracts. Accordingly, they cannot be bound by the arbitration
clause provided for in the ARCA and hence, cannot be compelled to submit to arbitration proceedings. A speedy
and decisive resolution of all the critical issues in the present controversy, including those raised by
petitioners, cannot be made before an arbitral tribunal. The object of arbitration is precisely to allow an
expeditious determination of a dispute. This objective would not be met if this Court were to allow the parties to
settle the cases by arbitration as there are certain issues involving non-parties to the PIATCO Contracts which the
arbitral tribunal will not be equipped to resolve.
Now, to the merits of the instant controversy.
Is PIATCO a qualified bidder?
Public respondents argue that the Paircargo Consortium, PIATCO's predecessor, was not a duly pre-qualified bidder
on the unsolicited proposal submitted by AEDC as the Paircargo Consortium failed to meet the financial capability
required under the BOT Law and the Bid Documents. They allege that in computing the ability of the Paircargo
Consortium to meet the minimum equity requirements for the project, the entire net worth of Security Bank, a
member of the consortium, should not be considered.
PIATCO relies, on the other hand, on the strength of the Memorandum dated October 14, 1996 issued by the DOTC
Undersecretary Primitivo C. Cal stating that the Paircargo Consortium is found to have a combined net worth of
P3,900,000,000.00, sufficient to meet the equity requirements of the project. The said Memorandum was in
response to a letter from Mr. Antonio Henson of AEDC to President Fidel V. Ramos questioning the financial
capability of the Paircargo Consortium on the ground that it does not have the financial resources to put up the
required minimum equity of P2,700,000,000.00. This contention is based on the restriction under R.A. No. 337, as
amended or the General Banking Act that a commercial bank cannot invest in any single enterprise in an amount
more than 15% of its net worth. In the said Memorandum, Undersecretary Cal opined:
The Bid Documents, as clarified through Bid Bulletin Nos. 3 and 5, require that financial capability will be
evaluated based on total financial capability of all the member companies of the [Paircargo] Consortium. In
this connection, the Challenger was found to have a combined net worth of P3,926,421,242.00 that could
support a project costing approximately P13 Billion.
It is not a requirement that the net worth must be "unrestricted." To impose that as a requirement now will be
nothing less than unfair.
The financial statement or the net worth is not the sole basis in establishing financial capability. As stated in
Bid Bulletin No. 3, financial capability may also be established by testimonial letters issued by reputable
banks. The Challenger has complied with this requirement.
To recap, net worth reflected in the Financial Statement should not be taken as the amount of the money to
be used to answer the required thirty percent (30%) equity of the challenger but rather to be used in
establishing if there is enough basis to believe that the challenger can comply with the required 30% equity. In
fact, proof of sufficient equity is required as one of the conditions for award of contract (Section 12.1 IRR of
the BOT Law) but not for pre-qualification (Section 5.4 of the same document).23
Under the BOT Law, in case of a build-operate-and-transfer arrangement, the contract shall be awarded to
the bidder "who, having satisfied the minimum financial, technical, organizational and legal standards"
required by the law, has submitted the lowest bid and most favorable terms of the project.24 Further, the 1994
Implementing Rules and Regulations of the BOT Law provide:
Section 5.4 Pre-qualification Requirements.
xxx xxx xxx
c. Financial Capability: The project proponent must have adequate capability to sustain the financing
requirements for the detailed engineering design, construction and/or operation and maintenance phases of
the project, as the case may be. For purposes of pre-qualification, this capability shall be measured in terms
of (i) proof of the ability of the project proponent and/or the consortium to provide a minimum amount
of equity to the project, and (ii) a letter testimonial from reputable banks attesting that the project
proponent and/or members of the consortium are banking with them, that they are in good financial
standing, and that they have adequate resources. The government agency/LGU concerned shall
determine on a project-to-project basis and before pre-qualification, the minimum amount of equity needed.
(emphasis supplied)
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Pursuant to this provision, the PBAC issued PBAC Bulletin No. 3 dated August 16, 1996 amending the financial
capability requirements for pre-qualification of the project proponent as follows:
6. Basis of Pre-qualification
The basis for the pre-qualification shall be on the compliance of the proponent to the minimum technical and
financial requirements provided in the Bid Documents and in the IRR of the BOT Law, R.A. No. 6957, as
amended by R.A. 7718.
The minimum amount of equity to which the proponent's financial capability will be based shall be thirty
percent (30%) of the project cost instead of the twenty percent (20%) specified in Section 3.6.4 of the
Bid Documents. This is to correlate with the required debt-to-equity ratio of 70:30 in Section 2.01a of the
draft concession agreement. The debt portion of the project financing should not exceed 70% of the actual
project cost.
Accordingly, based on the above provisions of law, the Paircargo Consortium or any challenger to the unsolicited
proposal of AEDC has to show that it possesses the requisite financial capability to undertake the project in the
minimum amount of 30% of the project cost through (i) proof of the ability to provide a minimum amount of equity
to the project, and (ii) a letter testimonial from reputable banks attesting that the project proponent or members of
the consortium are banking with them, that they are in good financial standing, and that they have adequate
resources.
As the minimum project cost was estimated to be US$350,000,000.00 or roughly P9,183,650,000.00,25 the
Paircargo Consortium had to show to the satisfaction of the PBAC that it had the ability to provide the minimum
equity for the project in the amount of at least P2,755,095,000.00.
Paircargo's Audited Financial Statements as of 1993 and 1994 indicated that it had a net worth of P2,783,592.00
and P3,123,515.00 respectively.26 PAGS' Audited Financial Statements as of 1995 indicate that it has approximately
P26,735,700.00 to invest as its equity for the project.27 Security Bank's Audited Financial Statements as of 1995
show that it has a net worth equivalent to its capital funds in the amount of P3,523,504,377.00.28
We agree with public respondents that with respect to Security Bank, the entire amount of its net worth could not
be invested in a single undertaking or enterprise, whether allied or non-allied in accordance with the provisions of
R.A. No. 337, as amended or the General Banking Act:
Sec. 21-B. The provisions in this or in any other Act to the contrary notwithstanding, the Monetary Board,
whenever it shall deem appropriate and necessary to further national development objectives or support
national priority projects, may authorize a commercial bank, a bank authorized to provide commercial
banking services, as well as a government-owned and controlled bank, to operate under an expanded
commercial banking authority and by virtue thereof exercise, in addition to powers authorized for
commercial banks, the powers of an Investment House as provided in Presidential Decree No. 129,
invest in the equity of a non-allied undertaking, or own a majority or all of the equity in a financial
intermediary other than a commercial bank or a bank authorized to provide commercial banking services:
Provided, That (a) the total investment in equities shall not exceed fifty percent (50%) of the net worth of the
bank; (b) the equity investment in any one enterprise whether allied or non-allied shall not exceed
fifteen percent (15%) of the net worth of the bank; (c) the equity investment of the bank, or of its wholly or
majority-owned subsidiary, in a single non-allied undertaking shall not exceed thirty-five percent (35%) of the
total equity in the enterprise nor shall it exceed thirty-five percent (35%) of the voting stock in that enterprise;
and (d) the equity investment in other banks shall be deducted from the investing bank's net worth for
purposes of computing the prescribed ratio of net worth to risk assets.
xxx xxx xxx
Further, the 1993 Manual of Regulations for Banks provides:
SECTION X383. Other Limitations and Restrictions. — The following limitations and restrictions shall also
apply regarding equity investments of banks.
a. In any single enterprise. — The equity investments of banks in any single enterprise shall not exceed at
any time fifteen percent (15%) of the net worth of the investing bank as defined in Sec. X106 and Subsec.
X121.5.
Thus, the maximum amount that Security Bank could validly invest in the Paircargo Consortium is only
P528,525,656.55, representing 15% of its entire net worth. The total net worth therefore of the Paircargo
Consortium, after considering the maximum amounts that may be validly invested by each of its members is
P558,384,871.55 or only 6.08% of the project cost,29 an amount substantially less than the prescribed minimum
equity investment required for the project in the amount of P2,755,095,000.00 or 30% of the project cost.
The purpose of pre-qualification in any public bidding is to determine, at the earliest opportunity, the ability of the
bidder to undertake the project. Thus, with respect to the bidder's financial capacity at the pre-qualification stage,
the law requires the government agency to examine and determine the ability of the bidder to fund the entire cost of
the project by considering the maximum amounts that each bidder may invest in the project at the time of
pre-qualification.
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The PBAC has determined that any prospective bidder for the construction, operation and maintenance of the NAIA
IPT III project should prove that it has the ability to provide equity in the minimum amount of 30% of the project cost,
in accordance with the 70:30 debt-to-equity ratio prescribed in the Bid Documents. Thus, in the case of Paircargo
Consortium, the PBAC should determine the maximum amounts that each member of the consortium may commit
for the construction, operation and maintenance of the NAIA IPT III project at the time of pre-qualification. With
respect to Security Bank, the maximum amount which may be invested by it would only be 15% of its net worth in
view of the restrictions imposed by the General Banking Act. Disregarding the investment ceilings provided by
applicable law would not result in a proper evaluation of whether or not a bidder is pre-qualified to undertake the
project as for all intents and purposes, such ceiling or legal restriction determines the true maximum amount which
a bidder may invest in the project.
Further, the determination of whether or not a bidder is pre-qualified to undertake the project requires an evaluation
of the financial capacity of the said bidder at the time the bid is submitted based on the required documents
presented by the bidder. The PBAC should not be allowed to speculate on the future financial ability of the bidder
to undertake the project on the basis of documents submitted. This would open doors to abuse and defeat the very
purpose of a public bidding. This is especially true in the case at bar which involves the investment of billions of
pesos by the project proponent. The relevant government authority is duty-bound to ensure that the awardee of the
contract possesses the minimum required financial capability to complete the project. To allow the PBAC to estimate
the bidder's future financial capability would not secure the viability and integrity of the project. A restrictive and
conservative application of the rules and procedures of public bidding is necessary not only to protect the impartiality
and regularity of the proceedings but also to ensure the financial and technical reliability of the project. It has been
held that:
The basic rule in public bidding is that bids should be evaluated based on the required documents submitted
before and not after the opening of bids. Otherwise, the foundation of a fair and competitive public bidding
would be defeated. Strict observance of the rules, regulations, and guidelines of the bidding process is
the only safeguard to a fair, honest and competitive public bidding.30
Thus, if the maximum amount of equity that a bidder may invest in the project at the time the bids are submitted
falls short of the minimum amounts required to be put up by the bidder, said bidder should be properly disqualified.
Considering that at the pre-qualification stage, the maximum amounts which the Paircargo Consortium may invest in
the project fell short of the minimum amounts prescribed by the PBAC, we hold that Paircargo Consortium was not a
qualified bidder. Thus the award of the contract by the PBAC to the Paircargo Consortium, a disqualified bidder, is
null and void.
While it would be proper at this juncture to end the resolution of the instant controversy, as the legal effects of the
disqualification of respondent PIATCO's predecessor would come into play and necessarily result in the nullity of all
the subsequent contracts entered by it in pursuance of the project, the Court feels that it is necessary to discuss in
full the pressing issues of the present controversy for a complete resolution thereof.
II
Is the 1997 Concession Agreement valid?
Petitioners and public respondents contend that the 1997 Concession Agreement is invalid as it contains provisions
that substantially depart from the draft Concession Agreement included in the Bid Documents. They maintain that a
substantial departure from the draft Concession Agreement is a violation of public policy and renders the 1997
Concession Agreement null and void.
PIATCO maintains, however, that the Concession Agreement attached to the Bid Documents is intended to be a
draft, i.e., subject to change, alteration or modification, and that this intention was clear to all participants, including
AEDC, and DOTC/MIAA. It argued further that said intention is expressed in Part C (6) of Bid Bulletin No. 3 issued
by the PBAC which states:
6. Amendments to the Draft Concessions Agreement
Amendments to the Draft Concessions Agreement shall be issued from time to time. Said amendments shall
only cover items that would not materially affect the preparation of the proponent's proposal.
By its very nature, public bidding aims to protect the public interest by giving the public the best possible advantages
through open competition. Thus:
Competition must be legitimate, fair and honest. In the field of government contract law, competition requires,
not only `bidding upon a common standard, a common basis, upon the same thing, the same subject matter,
the same undertaking,' but also that it be legitimate, fair and honest; and not designed to injure or
defraud the government.31
An essential element of a publicly bidded contract is that all bidders must be on equal footing. Not simply in terms of
application of the procedural rules and regulations imposed by the relevant government agency, but more
importantly, on the contract bidded upon. Each bidder must be able to bid on the same thing. The rationale is
obvious. If the winning bidder is allowed to later include or modify certain provisions in the contract awarded such
that the contract is altered in any material respect, then the essence of fair competition in the public bidding is
destroyed. A public bidding would indeed be a farce if after the contract is awarded, the winning bidder may modify
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the contract and include provisions which are favorable to it that were not previously made available to the other
bidders. Thus:
It is inherent in public biddings that there shall be a fair competition among the bidders. The specifications in
such biddings provide the common ground or basis for the bidders. The specifications should, accordingly,
operate equally or indiscriminately upon all bidders.32
The same rule was restated by Chief Justice Stuart of the Supreme Court of Minnesota:
The law is well settled that where, as in this case, municipal authorities can only let a contract for public work
to the lowest responsible bidder, the proposals and specifications therefore must be so framed as to permit
free and full competition. Nor can they enter into a contract with the best bidder containing substantial
provisions beneficial to him, not included or contemplated in the terms and specifications upon which
the bids were invited.33
In fact, in the PBAC Bid Bulletin No. 3 cited by PIATCO to support its argument that the draft concession agreement
is subject to amendment, the pertinent portion of which was quoted above, the PBAC also clarified that "[s]aid
amendments shall only cover items that would not materially affect the preparation of the proponent's
proposal."
While we concede that a winning bidder is not precluded from modifying or amending certain provisions of the
contract bidded upon, such changes must not constitute substantial or material amendments that would alter
the basic parameters of the contract and would constitute a denial to the other bidders of the opportunity to
bid on the same terms. Hence, the determination of whether or not a modification or amendment of a contract
bidded out constitutes a substantial amendment rests on whether the contract, when taken as a whole, would
contain substantially different terms and conditions that would have the effect of altering the technical and/or
financial proposals previously submitted by other bidders. The alterations and modifications in the contract executed
between the government and the winning bidder must be such as to render such executed contract to be an
entirely different contract from the one that was bidded upon.
In the case of Caltex (Philippines), Inc. v. Delgado Brothers, Inc.,34 this Court quoted with approval the ruling of
the trial court that an amendment to a contract awarded through public bidding, when such subsequent amendment
was made without a new public bidding, is null and void:
The Court agrees with the contention of counsel for the plaintiffs that the due execution of a contract after
public bidding is a limitation upon the right of the contracting parties to alter or amend it without another public
bidding, for otherwise what would a public bidding be good for if after the execution of a contract after
public bidding, the contracting parties may alter or amend the contract, or even cancel it, at their will?
Public biddings are held for the protection of the public, and to give the public the best possible advantages
by means of open competition between the bidders. He who bids or offers the best terms is awarded the
contract subject of the bid, and it is obvious that such protection and best possible advantages to the public
will disappear if the parties to a contract executed after public bidding may alter or amend it without another
previous public bidding.35
Hence, the question that comes to fore is this: is the 1997 Concession Agreement the same agreement that was
offered for public bidding, i.e., the draft Concession Agreement attached to the Bid Documents? A close comparison
of the draft Concession Agreement attached to the Bid Documents and the 1997 Concession Agreement reveals
that the documents differ in at least two material respects:
a. Modification on the Public
Utility Revenues and Non-Public
Utility Revenues that may be
collected by PIATCO
The fees that may be imposed and collected by PIATCO under the draft Concession Agreement and the 1997
Concession Agreement may be classified into three distinct categories: (1) fees which are subject to periodic
adjustment of once every two years in accordance with a prescribed parametric formula and adjustments are made
effective only upon written approval by MIAA; (2) fees other than those included in the first category which maybe
adjusted by PIATCO whenever it deems necessary without need for consent of DOTC/MIAA; and (3) new fees and
charges that may be imposed by PIATCO which have not been previously imposed or collected at the Ninoy Aquino
International Airport Passenger Terminal I, pursuant to Administrative Order No. 1, Series of 1993, as amended. The
glaring distinctions between the draft Concession Agreement and the 1997 Concession Agreement lie in the types
of fees included in each category and the extent of the supervision and regulation which MIAA is allowed to exercise
in relation thereto.
For fees under the first category, i.e., those which are subject to periodic adjustment in accordance with a
prescribed parametric formula and effective only upon written approval by MIAA, the draft Concession Agreement
includes the following:36
(1) aircraft parking fees;
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(2) aircraft tacking fees;
(3) groundhandling fees;
(4) rentals and airline offices;
(5) check-in counter rentals; and
(6) porterage fees.
Under the 1997 Concession Agreement, fees which are subject to adjustment and effective upon MIAA approval
are classified as "Public Utility Revenues" and include:37
(1) aircraft parking fees;
(2) aircraft tacking fees;
(3) check-in counter fees; and
(4) Terminal Fees.
The implication of the reduced number of fees that are subject to MIAA approval is best appreciated in relation to
fees included in the second category identified above. Under the 1997 Concession Agreement, fees which
PIATCO may adjust whenever it deems necessary without need for consent of DOTC/MIAA are "Non-Public Utility
Revenues" and is defined as "all other income not classified as Public Utility Revenues derived from operations of
the Terminal and the Terminal Complex."38 Thus, under the 1997 Concession Agreement, ground handling fees,
rentals from airline offices and porterage fees are no longer subject to MIAA regulation.
Further, under Section 6.03 of the draft Concession Agreement, MIAA reserves the right to regulate (1) lobby and
vehicular parking fees and (2) other new fees and charges that may be imposed by PIATCO. Such regulation may
be made by periodic adjustment and is effective only upon written approval of MIAA. The full text of said provision is
quoted below:
Section 6.03. Periodic Adjustment in Fees and Charges. Adjustments in the aircraft parking fees, aircraft
tacking fees, groundhandling fees, rentals and airline offices, check-in-counter rentals and porterage fees
shall be allowed only once every two years and in accordance with the Parametric Formula attached hereto
as Annex F. Provided that adjustments shall be made effective only after the written express approval of the
MIAA. Provided, further, that such approval of the MIAA, shall be contingent only on the conformity of the
adjustments with the above said parametric formula. The first adjustment shall be made prior to the In-Service
Date of the Terminal.
The MIAA reserves the right to regulate under the foregoing terms and conditions the lobby and
vehicular parking fees and other new fees and charges as contemplated in paragraph 2 of Section
6.01 if in its judgment the users of the airport shall be deprived of a free option for the services they
cover.39
On the other hand, the equivalent provision under the 1997 Concession Agreement reads:
Section 6.03 Periodic Adjustment in Fees and Charges.
xxx xxx xxx
(c) Concessionaire shall at all times be judicious in fixing fees and charges constituting Non-Public Utility
Revenues in order to ensure that End Users are not unreasonably deprived of services. While the vehicular
parking fee, porterage fee and greeter/well wisher fee constitute Non-Public Utility Revenues of
Concessionaire, GRP may intervene and require Concessionaire to explain and justify the fee it may
set from time to time, if in the reasonable opinion of GRP the said fees have become exorbitant resulting in
the unreasonable deprivation of End Users of such services.40
Thus, under the 1997 Concession Agreement, with respect to (1) vehicular parking fee, (2) porterage fee and (3)
greeter/well wisher fee, all that MIAA can do is to require PIATCO to explain and justify the fees set by PIATCO. In
the draft Concession Agreement, vehicular parking fee is subject to MIAA regulation and approval under the
second paragraph of Section 6.03 thereof while porterage fee is covered by the first paragraph of the same
provision. There is an obvious relaxation of the extent of control and regulation by MIAA with respect to the
particular fees that may be charged by PIATCO.
Moreover, with respect to the third category of fees that may be imposed and collected by PIATCO, i.e., new fees
and charges that may be imposed by PIATCO which have not been previously imposed or collected at the Ninoy
Aquino International Airport Passenger Terminal I, under Section 6.03 of the draft Concession Agreement MIAA
has reserved the right to regulate the same under the same conditions that MIAA may regulate fees under the first
category, i.e., periodic adjustment of once every two years in accordance with a prescribed parametric formula and
effective only upon written approval by MIAA. However, under the 1997 Concession Agreement, adjustment of
fees under the third category is not subject to MIAA regulation.
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With respect to terminal fees that may be charged by PIATCO,41 as shown earlier, this was included within the
category of "Public Utility Revenues" under the 1997 Concession Agreement. This classification is significant
because under the 1997 Concession Agreement, "Public Utility Revenues" are subject to an "Interim Adjustment"
of fees upon the occurrence of certain extraordinary events specified in the agreement.42 However, under the draft
Concession Agreement, terminal fees are not included in the types of fees that may be subject to "Interim
Adjustment."43
Finally, under the 1997 Concession Agreement, "Public Utility Revenues," except terminal fees, are denominated
in US Dollars44 while payments to the Government are in Philippine Pesos. In the draft Concession Agreement,
no such stipulation was included. By stipulating that "Public Utility Revenues" will be paid to PIATCO in US Dollars
while payments by PIATCO to the Government are in Philippine currency under the 1997 Concession Agreement,
PIATCO is able to enjoy the benefits of depreciations of the Philippine Peso, while being effectively insulated from
the detrimental effects of exchange rate fluctuations.
When taken as a whole, the changes under the 1997 Concession Agreement with respect to reduction in the types
of fees that are subject to MIAA regulation and the relaxation of such regulation with respect to other fees are
significant amendments that substantially distinguish the draft Concession Agreement from the 1997 Concession
Agreement. The 1997 Concession Agreement, in this respect, clearly gives PIATCO more favorable terms
than what was available to other bidders at the time the contract was bidded out. It is not very difficult to see
that the changes in the 1997 Concession Agreement translate to direct and concrete financial advantages for
PIATCO which were not available at the time the contract was offered for bidding. It cannot be denied that under the
1997 Concession Agreement only "Public Utility Revenues" are subject to MIAA regulation. Adjustments of all other
fees imposed and collected by PIATCO are entirely within its control. Moreover, with respect to terminal fees, under
the 1997 Concession Agreement, the same is further subject to "Interim Adjustments" not previously stipulated in
the draft Concession Agreement. Finally, the change in the currency stipulated for "Public Utility Revenues" under
the 1997 Concession Agreement, except terminal fees, gives PIATCO an added benefit which was not available at
the time of bidding.
b. Assumption by the
Government of the liabilities of
PIATCO in the event of the latter's
default thereof
Under the draft Concession Agreement, default by PIATCO of any of its obligations to creditors who have
provided, loaned or advanced funds for the NAIA IPT III project does not result in the assumption by the
Government of these liabilities. In fact, nowhere in the said contract does default of PIATCO's loans figure in the
agreement. Such default does not directly result in any concomitant right or obligation in favor of the Government.
However, the 1997 Concession Agreement provides:
Section 4.04 Assignment.
xxx xxx xxx
(b) In the event Concessionaire should default in the payment of an Attendant Liability, and the default has
resulted in the acceleration of the payment due date of the Attendant Liability prior to its stated date of
maturity, the Unpaid Creditors and Concessionaire shall immediately inform GRP in writing of such default.
GRP shall, within one hundred eighty (180) Days from receipt of the joint written notice of the Unpaid
Creditors and Concessionaire, either (i) take over the Development Facility and assume the Attendant
Liabilities, or (ii) allow the Unpaid Creditors, if qualified, to be substituted as concessionaire and operator of
the Development Facility in accordance with the terms and conditions hereof, or designate a qualified
operator acceptable to GRP to operate the Development Facility, likewise under the terms and conditions of
this Agreement; Provided that if at the end of the 180-day period GRP shall not have served the Unpaid
Creditors and Concessionaire written notice of its choice, GRP shall be deemed to have elected to take over
the Development Facility with the concomitant assumption of Attendant Liabilities.
(c) If GRP should, by written notice, allow the Unpaid Creditors to be substituted as concessionaire, the latter
shall form and organize a concession company qualified to take over the operation of the Development
Facility. If the concession company should elect to designate an operator for the Development Facility, the
concession company shall in good faith identify and designate a qualified operator acceptable to GRP within
one hundred eighty (180) days from receipt of GRP's written notice. If the concession company, acting in
good faith and with due diligence, is unable to designate a qualified operator within the aforesaid period, then
GRP shall at the end of the 180-day period take over the Development Facility and assume Attendant
Liabilities.
The term "Attendant Liabilities" under the 1997 Concession Agreement is defined as:
Attendant Liabilities refer to all amounts recorded and from time to time outstanding in the books of the
Concessionaire as owing to Unpaid Creditors who have provided, loaned or advanced funds actually
used for the Project, including all interests, penalties, associated fees, charges, surcharges, indemnities,
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reimbursements and other related expenses, and further including amounts owed by Concessionaire to its
suppliers, contractors and sub-contractors.
Under the above quoted portions of Section 4.04 in relation to the definition of "Attendant Liabilities," default by
PIATCO of its loans used to finance the NAIA IPT III project triggers the occurrence of certain events that
leads to the assumption by the Government of the liability for the loans. Only in one instance may the
Government escape the assumption of PIATCO's liabilities, i.e., when the Government so elects and allows a
qualified operator to take over as Concessionaire. However, this circumstance is dependent on the existence
and availability of a qualified operator who is willing to take over the rights and obligations of PIATCO under
the contract, a circumstance that is not entirely within the control of the Government.
Without going into the validity of this provision at this juncture, suffice it to state that Section 4.04 of the 1997
Concession Agreement may be considered a form of security for the loans PIATCO has obtained to finance the
project, an option that was not made available in the draft Concession Agreement. Section 4.04 is an important
amendment to the 1997 Concession Agreement because it grants PIATCO a financial advantage or benefit which
was not previously made available during the bidding process. This financial advantage is a significant
modification that translates to better terms and conditions for PIATCO.
PIATCO, however, argues that the parties to the bidding procedure acknowledge that the draft Concession
Agreement is subject to amendment because the Bid Documents permit financing or borrowing. They claim that it
was the lenders who proposed the amendments to the draft Concession Agreement which resulted in the 1997
Concession Agreement.
We agree that it is not inconsistent with the rationale and purpose of the BOT Law to allow the project proponent or
the winning bidder to obtain financing for the project, especially in this case which involves the construction,
operation and maintenance of the NAIA IPT III. Expectedly, compliance by the project proponent of its undertakings
therein would involve a substantial amount of investment. It is therefore inevitable for the awardee of the contract to
seek alternate sources of funds to support the project. Be that as it may, this Court maintains that amendments to
the contract bidded upon should always conform to the general policy on public bidding if such procedure is to be
faithful to its real nature and purpose. By its very nature and characteristic, competitive public bidding aims to
protect the public interest by giving the public the best possible advantages through open competition.45 It has been
held that the three principles in public bidding are (1) the offer to the public; (2) opportunity for competition; and (3) a
basis for the exact comparison of bids. A regulation of the matter which excludes any of these factors destroys the
distinctive character of the system and thwarts the purpose of its adoption.46 These are the basic parameters which
every awardee of a contract bidded out must conform to, requirements of financing and borrowing notwithstanding.
Thus, upon a concrete showing that, as in this case, the contract signed by the government and the contract-
awardee is an entirely different contract from the contract bidded, courts should not hesitate to strike down said
contract in its entirety for violation of public policy on public bidding. A strict adherence on the principles, rules and
regulations on public bidding must be sustained if only to preserve the integrity and the faith of the general public on
the procedure.
Public bidding is a standard practice for procuring government contracts for public service and for furnishing
supplies and other materials. It aims to secure for the government the lowest possible price under the most
favorable terms and conditions, to curtail favoritism in the award of government contracts and avoid suspicion of
anomalies and it places all bidders in equal footing.47 Any government action which permits any substantial
variance between the conditions under which the bids are invited and the contract executed after the award
thereof is a grave abuse of discretion amounting to lack or excess of jurisdiction which warrants proper
judicial action.
In view of the above discussion, the fact that the foregoing substantial amendments were made on the 1997
Concession Agreement renders the same null and void for being contrary to public policy. These amendments
convert the 1997 Concession Agreement to an entirely different agreement from the contract bidded out or the
draft Concession Agreement. It is not difficult to see that the amendments on (1) the types of fees or charges that
are subject to MIAA regulation or control and the extent thereof and (2) the assumption by the Government, under
certain conditions, of the liabilities of PIATCO directly translates concrete financial advantages to PIATCO that
were previously not available during the bidding process. These amendments cannot be taken as merely
supplements to or implementing provisions of those already existing in the draft Concession Agreement. The
amendments discussed above present new terms and conditions which provide financial benefit to PIATCO which
may have altered the technical and financial parameters of other bidders had they known that such terms were
available.
III
Direct Government Guarantee
Article IV, Section 4.04(b) and (c), in relation to Article 1.06, of the 1997 Concession Agreement provides:
Section 4.04 Assignment
xxx xxx xxx
(b) In the event Concessionaire should default in the payment of an Attendant Liability, and the default
resulted in the acceleration of the payment due date of the Attendant Liability prior to its stated date of
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maturity, the Unpaid Creditors and Concessionaire shall immediately inform GRP in writing of such default.
GRP shall within one hundred eighty (180) days from receipt of the joint written notice of the Unpaid Creditors
and Concessionaire, either (i) take over the Development Facility and assume the Attendant Liabilities, or
(ii) allow the Unpaid Creditors, if qualified to be substituted as concessionaire and operator of the
Development facility in accordance with the terms and conditions hereof, or designate a qualified operator
acceptable to GRP to operate the Development Facility, likewise under the terms and conditions of this
Agreement; Provided, that if at the end of the 180-day period GRP shall not have served the Unpaid Creditors
and Concessionaire written notice of its choice, GRP shall be deemed to have elected to take over the
Development Facility with the concomitant assumption of Attendant Liabilities.
(c) If GRP, by written notice, allow the Unpaid Creditors to be substituted as concessionaire, the latter shall
form and organize a concession company qualified to takeover the operation of the Development Facility. If
the concession company should elect to designate an operator for the Development Facility, the concession
company shall in good faith identify and designate a qualified operator acceptable to GRP within one hundred
eighty (180) days from receipt of GRP's written notice. If the concession company, acting in good faith and
with due diligence, is unable to designate a qualified operator within the aforesaid period, then GRP shall at
the end of the 180-day period take over the Development Facility and assume Attendant Liabilities.
….
Section 1.06. Attendant Liabilities
Attendant Liabilities refer to all amounts recorded and from time to time outstanding in the books of the
Concessionaire as owing to Unpaid Creditors who have provided, loaned or advanced funds actually used
for the Project, including all interests, penalties, associated fees, charges, surcharges, indemnities,
reimbursements and other related expenses, and further including amounts owed by Concessionaire to its
suppliers, contractors and sub-contractors.48
It is clear from the above-quoted provisions that Government, in the event that PIATCO defaults in its loan
obligations, is obligated to pay "all amounts recorded and from time to time outstanding from the books" of
PIATCO which the latter owes to its creditors.49 These amounts include "all interests, penalties, associated fees,
charges, surcharges, indemnities, reimbursements and other related expenses."50 This obligation of the
Government to pay PIATCO's creditors upon PIATCO's default would arise if the Government opts to take over
NAIA IPT III. It should be noted, however, that even if the Government chooses the second option, which is to allow
PIATCO's unpaid creditors operate NAIA IPT III, the Government is still at a risk of being liable to PIATCO's
creditors should the latter be unable to designate a qualified operator within the prescribed period.51 In effect,
whatever option the Government chooses to take in the event of PIATCO's failure to fulfill its loan
obligations, the Government is still at a risk of assuming PIATCO's outstanding loans. This is due to the fact
that the Government would only be free from assuming PIATCO's debts if the unpaid creditors would be able to
designate a qualified operator within the period provided for in the contract. Thus, the Government's assumption
of liability is virtually out of its control. The Government under the circumstances provided for in the 1997
Concession Agreement is at the mercy of the existence, availability and willingness of a qualified operator. The
above contractual provisions constitute a direct government guarantee which is prohibited by law.
One of the main impetus for the enactment of the BOT Law is the lack of government funds to construct the
infrastructure and development projects necessary for economic growth and development. This is why private sector
resources are being tapped in order to finance these projects. The BOT law allows the private sector to participate,
and is in fact encouraged to do so by way of incentives, such as minimizing the unstable flow of returns,52 provided
that the government would not have to unnecessarily expend scarcely available funds for the project itself. As such,
direct guarantee, subsidy and equity by the government in these projects are strictly prohibited.53 This is but
logical for if the government would in the end still be at a risk of paying the debts incurred by the private
entity in the BOT projects, then the purpose of the law is subverted.
Section 2(n) of the BOT Law defines direct guarantee as follows:
(n) Direct government guarantee — An agreement whereby the government or any of its agencies or local
government units assume responsibility for the repayment of debt directly incurred by the project
proponent in implementing the project in case of a loan default.
Clearly by providing that the Government "assumes" the attendant liabilities, which consists of PIATCO's unpaid
debts, the 1997 Concession Agreement provided for a direct government guarantee for the debts incurred by
PIATCO in the implementation of the NAIA IPT III project. It is of no moment that the relevant sections are
subsumed under the title of "assignment". The provisions providing for direct government guarantee which is
prohibited by law is clear from the terms thereof.
The fact that the ARCA superseded the 1997 Concession Agreement did not cure this fatal defect. Article IV,
Section 4.04(c), in relation to Article I, Section 1.06, of the ARCA provides:
Section 4.04 Security
xxx xxx xxx
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(c) GRP agrees with Concessionaire (PIATCO) that it shall negotiate in good faith and enter into direct
agreement with the Senior Lenders, or with an agent of such Senior Lenders (which agreement shall be
subject to the approval of the Bangko Sentral ng Pilipinas), in such form as may be reasonably acceptable to
both GRP and Senior Lenders, with regard, inter alia, to the following parameters:
xxx xxx xxx
(iv) If the Concessionaire [PIATCO] is in default under a payment obligation owed to the Senior
Lenders, and as a result thereof the Senior Lenders have become entitled to accelerate the Senior
Loans, the Senior Lenders shall have the right to notify GRP of the same, and without prejudice to any
other rights of the Senior Lenders or any Senior Lenders' agent may have (including without limitation
under security interests granted in favor of the Senior Lenders), to either in good faith identify and
designate a nominee which is qualified under sub-clause (viii)(y) below to operate the Development
Facility [NAIA Terminal 3] or transfer the Concessionaire's [PIATCO] rights and obligations under this
Agreement to a transferee which is qualified under sub-clause (viii) below;
xxx xxx xxx
(vi) if the Senior Lenders, acting in good faith and using reasonable efforts, are unable to designate a
nominee or effect a transfer in terms and conditions satisfactory to the Senior Lenders within one
hundred eighty (180) days after giving GRP notice as referred to respectively in (iv) or (v) above, then
GRP and the Senior Lenders shall endeavor in good faith to enter into any other arrangement relating
to the Development Facility [NAIA Terminal 3] (other than a turnover of the Development Facility [NAIA
Terminal 3] to GRP) within the following one hundred eighty (180) days. If no agreement relating to the
Development Facility [NAIA Terminal 3] is arrived at by GRP and the Senior Lenders within the said
180-day period, then at the end thereof the Development Facility [NAIA Terminal 3] shall be
transferred by the Concessionaire [PIATCO] to GRP or its designee and GRP shall make a
termination payment to Concessionaire [PIATCO] equal to the Appraised Value (as hereinafter
defined) of the Development Facility [NAIA Terminal 3] or the sum of the Attendant Liabilities, if
greater. Notwithstanding Section 8.01(c) hereof, this Agreement shall be deemed terminated upon the
transfer of the Development Facility [NAIA Terminal 3] to GRP pursuant hereto;
xxx xxx xxx
Section 1.06. Attendant Liabilities
Attendant Liabilities refer to all amounts in each case supported by verifiable evidence from time to time
owed or which may become owing by Concessionaire [PIATCO] to Senior Lenders or any other
persons or entities who have provided, loaned, or advanced funds or provided financial facilities to
Concessionaire [PIATCO] for the Project [NAIA Terminal 3], including, without limitation, all principal,
interest, associated fees, charges, reimbursements, and other related expenses (including the fees,
charges and expenses of any agents or trustees of such persons or entities), whether payable at maturity, by
acceleration or otherwise, and further including amounts owed by Concessionaire [PIATCO] to its professional
consultants and advisers, suppliers, contractors and sub-contractors.54
It is clear from the foregoing contractual provisions that in the event that PIATCO fails to fulfill its loan obligations to
its Senior Lenders, the Government is obligated to directly negotiate and enter into an agreement relating to NAIA
IPT III with the Senior Lenders, should the latter fail to appoint a qualified nominee or transferee who will take the
place of PIATCO. If the Senior Lenders and the Government are unable to enter into an agreement after the
prescribed period, the Government must then pay PIATCO, upon transfer of NAIA IPT III to the Government,
termination payment equal to the appraised value of the project or the value of the attendant liabilities whichever
is greater. Attendant liabilities as defined in the ARCA includes all amounts owed or thereafter may be owed by
PIATCO not only to the Senior Lenders with whom PIATCO has defaulted in its loan obligations but to all other
persons who may have loaned, advanced funds or provided any other type of financial facilities to PIATCO for NAIA
IPT III. The amount of PIATCO's debt that the Government would have to pay as a result of PIATCO's default in its
loan obligations -- in case no qualified nominee or transferee is appointed by the Senior Lenders and no other
agreement relating to NAIA IPT III has been reached between the Government and the Senior Lenders -- includes,
but is not limited to, "all principal, interest, associated fees, charges, reimbursements, and other related expenses . .
. whether payable at maturity, by acceleration or otherwise."55
It is clear from the foregoing that the ARCA provides for a direct guarantee by the government to pay
PIATCO's loans not only to its Senior Lenders but all other entities who provided PIATCO funds or services
upon PIATCO's default in its loan obligation with its Senior Lenders. The fact that the Government's obligation
to pay PIATCO's lenders for the latter's obligation would only arise after the Senior Lenders fail to appoint a qualified
nominee or transferee does not detract from the fact that, should the conditions as stated in the contract occur, the
ARCA still obligates the Government to pay any and all amounts owed by PIATCO to its lenders in connection with
NAIA IPT III. Worse, the conditions that would make the Government liable for PIATCO's debts is triggered by
PIATCO's own default of its loan obligations to its Senior Lenders to which loan contracts the Government was
never a party to. The Government was not even given an option as to what course of action it should take in case
PIATCO defaulted in the payment of its senior loans. The Government, upon PIATCO's default, would be merely
notified by the Senior Lenders of the same and it is the Senior Lenders who are authorized to appoint a qualified
nominee or transferee. Should the Senior Lenders fail to make such an appointment, the Government is then
automatically obligated to "directly deal and negotiate" with the Senior Lenders regarding NAIA IPT III. The only way
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the Government would not be liable for PIATCO's debt is for a qualified nominee or transferee to be appointed in
place of PIATCO to continue the construction, operation and maintenance of NAIA IPT III. This "pre-condition",
however, will not take the contract out of the ambit of a direct guarantee by the government as the existence,
availability and willingness of a qualified nominee or transferee is totally out of the government's control. As such
the Government is virtually at the mercy of PIATCO (that it would not default on its loan obligations to its Senior
Lenders), the Senior Lenders (that they would appoint a qualified nominee or transferee or agree to some other
arrangement with the Government) and the existence of a qualified nominee or transferee who is able and willing to
take the place of PIATCO in NAIA IPT III.
The proscription against government guarantee in any form is one of the policy considerations behind the
BOT Law. Clearly, in the present case, the ARCA obligates the Government to pay for all loans, advances and
obligations arising out of financial facilities extended to PIATCO for the implementation of the NAIA IPT III project
should PIATCO default in its loan obligations to its Senior Lenders and the latter fails to appoint a qualified nominee
or transferee. This in effect would make the Government liable for PIATCO's loans should the conditions as set forth
in the ARCA arise. This is a form of direct government guarantee.
The BOT Law and its implementing rules provide that in order for an unsolicited proposal for a BOT project may be
accepted, the following conditions must first be met: (1) the project involves a new concept in technology and/or is
not part of the list of priority projects, (2) no direct government guarantee, subsidy or equity is required, and (3)
the government agency or local government unit has invited by publication other interested parties to a public
bidding and conducted the same.56 The failure to meet any of the above conditions will result in the denial of the
proposal. It is further provided that the presence of direct government guarantee, subsidy or equity will "necessarily
disqualify a proposal from being treated and accepted as an unsolicited proposal."57 The BOT Law clearly and
strictly prohibits direct government guarantee, subsidy and equity in unsolicited proposals that the mere inclusion of
a provision to that effect is fatal and is sufficient to deny the proposal. It stands to reason therefore that if a proposal
can be denied by reason of the existence of direct government guarantee, then its inclusion in the contract executed
after the said proposal has been accepted is likewise sufficient to invalidate the contract itself. A prohibited
provision, the inclusion of which would result in the denial of a proposal cannot, and should not, be allowed to later
on be inserted in the contract resulting from the said proposal. The basic rules of justice and fair play alone militate
against such an occurrence and must not, therefore, be countenanced particularly in this instance where the
government is exposed to the risk of shouldering hundreds of million of dollars in debt.
This Court has long and consistently adhered to the legal maxim that those that cannot be done directly cannot be
done indirectly.58 To declare the PIATCO contracts valid despite the clear statutory prohibition against a
direct government guarantee would not only make a mockery of what the BOT Law seeks to prevent --
which is to expose the government to the risk of incurring a monetary obligation resulting from a contract
of loan between the project proponent and its lenders and to which the Government is not a party to -- but
would also render the BOT Law useless for what it seeks to achieve –- to make use of the resources of the
private sector in the "financing, operation and maintenance of infrastructure and development projects"59
which are necessary for national growth and development but which the government, unfortunately, could
ill-afford to finance at this point in time.
IV
Temporary takeover of business affected with public interest
Article XII, Section 17 of the 1987 Constitution provides:
Section 17. In times of national emergency, when the public interest so requires, the State may, during the
emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any
privately owned public utility or business affected with public interest.
The above provision pertains to the right of the State in times of national emergency, and in the exercise of its police
power, to temporarily take over the operation of any business affected with public interest. In the 1986 Constitutional
Commission, the term "national emergency" was defined to include threat from external aggression, calamities or
national disasters, but not strikes "unless it is of such proportion that would paralyze government service."60 The
duration of the emergency itself is the determining factor as to how long the temporary takeover by the government
would last.61 The temporary takeover by the government extends only to the operation of the business and not to
the ownership thereof. As such the government is not required to compensate the private entity-owner of the
said business as there is no transfer of ownership, whether permanent or temporary. The private entity-owner
affected by the temporary takeover cannot, likewise, claim just compensation for the use of the said business and its
properties as the temporary takeover by the government is in exercise of its police power and not of its power of
eminent domain.
Article V, Section 5.10 (c) of the 1997 Concession Agreement provides:
Section 5.10 Temporary Take-over of operations by GRP.
….
(c) In the event the development Facility or any part thereof and/or the operations of Concessionaire or any
part thereof, become the subject matter of or be included in any notice, notification, or declaration concerning
or relating to acquisition, seizure or appropriation by GRP in times of war or national emergency, GRP shall,
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by written notice to Concessionaire, immediately take over the operations of the Terminal and/or the Terminal
Complex. During such take over by GRP, the Concession Period shall be suspended; provided, that upon
termination of war, hostilities or national emergency, the operations shall be returned to Concessionaire, at
which time, the Concession period shall commence to run again. Concessionaire shall be entitled to
reasonable compensation for the duration of the temporary take over by GRP, which compensation
shall take into account the reasonable cost for the use of the Terminal and/or Terminal Complex,
(which is in the amount at least equal to the debt service requirements of Concessionaire, if the
temporary take over should occur at the time when Concessionaire is still servicing debts owed to project
lenders), any loss or damage to the Development Facility, and other consequential damages. If the parties
cannot agree on the reasonable compensation of Concessionaire, or on the liability of GRP as aforesaid, the
matter shall be resolved in accordance with Section 10.01 [Arbitration]. Any amount determined to be payable
by GRP to Concessionaire shall be offset from the amount next payable by Concessionaire to GRP.62
PIATCO cannot, by mere contractual stipulation, contravene the Constitutional provision on temporary
government takeover and obligate the government to pay "reasonable cost for the use of the Terminal
and/or Terminal Complex."63 Article XII, section 17 of the 1987 Constitution envisions a situation wherein the
exigencies of the times necessitate the government to "temporarily take over or direct the operation of any privately
owned public utility or business affected with public interest." It is the welfare and interest of the public which is the
paramount consideration in determining whether or not to temporarily take over a particular business. Clearly, the
State in effecting the temporary takeover is exercising its police power. Police power is the "most essential, insistent,
and illimitable of powers."64 Its exercise therefore must not be unreasonably hampered nor its exercise be a source
of obligation by the government in the absence of damage due to arbitrariness of its exercise.65 Thus, requiring the
government to pay reasonable compensation for the reasonable use of the property pursuant to the operation of the
business contravenes the Constitution.
Regulation of Monopolies
A monopoly is "a privilege or peculiar advantage vested in one or more persons or companies, consisting in the
exclusive right (or power) to carry on a particular business or trade, manufacture a particular article, or control the
sale of a particular commodity."66 The 1987 Constitution strictly regulates monopolies, whether private or public,
and even provides for their prohibition if public interest so requires. Article XII, Section 19 of the 1987 Constitution
states:
Sec. 19. The state shall regulate or prohibit monopolies when the public interest so requires. No combinations
in restraint of trade or unfair competition shall be allowed.
Clearly, monopolies are not per se prohibited by the Constitution but may be permitted to exist to aid the
government in carrying on an enterprise or to aid in the performance of various services and functions in the
interest of the public.67 Nonetheless, a determination must first be made as to whether public interest requires a
monopoly. As monopolies are subject to abuses that can inflict severe prejudice to the public, they are subject to a
higher level of State regulation than an ordinary business undertaking.
In the cases at bar, PIATCO, under the 1997 Concession Agreement and the ARCA, is granted the "exclusive right
to operate a commercial international passenger terminal within the Island of Luzon" at the NAIA IPT III.68 This is
with the exception of already existing international airports in Luzon such as those located in the Subic Bay Freeport
Special Economic Zone ("SBFSEZ"), Clark Special Economic Zone ("CSEZ") and in Laoag City.69 As such, upon
commencement of PIATCO's operation of NAIA IPT III, Terminals 1 and 2 of NAIA would cease to function as
international passenger terminals. This, however, does not prevent MIAA to use Terminals 1 and 2 as domestic
passenger terminals or in any other manner as it may deem appropriate except those activities that would compete
with NAIA IPT III in the latter's operation as an international passenger terminal.70 The right granted to PIATCO to
exclusively operate NAIA IPT III would be for a period of twenty-five (25) years from the In-Service Date71 and
renewable for another twenty-five (25) years at the option of the government.72 Both the 1997 Concession
Agreement and the ARCA further provide that, in view of the exclusive right granted to PIATCO, the
concession contracts of the service providers currently servicing Terminals 1 and 2 would no longer be
renewed and those concession contracts whose expiration are subsequent to the In-Service Date would
cease to be effective on the said date.73
The operation of an international passenger airport terminal is no doubt an undertaking imbued with public interest.
In entering into a Build–Operate-and-Transfer contract for the construction, operation and maintenance of NAIA IPT
III, the government has determined that public interest would be served better if private sector resources were used
in its construction and an exclusive right to operate be granted to the private entity undertaking the said project, in
this case PIATCO. Nonetheless, the privilege given to PIATCO is subject to reasonable regulation and supervision
by the Government through the MIAA, which is the government agency authorized to operate the NAIA complex, as
well as DOTC, the department to which MIAA is attached.74
This is in accord with the Constitutional mandate that a monopoly which is not prohibited must be regulated.75 While
it is the declared policy of the BOT Law to encourage private sector participation by "providing a climate of minimum
government regulations,"76 the same does not mean that Government must completely surrender its sovereign
power to protect public interest in the operation of a public utility as a monopoly. The operation of said public utility
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can not be done in an arbitrary manner to the detriment of the public which it seeks to serve. The right granted to the
public utility may be exclusive but the exercise of the right cannot run riot. Thus, while PIATCO may be authorized to
exclusively operate NAIA IPT III as an international passenger terminal, the Government, through the MIAA, has the
right and the duty to ensure that it is done in accord with public interest. PIATCO's right to operate NAIA IPT III
cannot also violate the rights of third parties.
Section 3.01(e) of the 1997 Concession Agreement and the ARCA provide:
3.01 Concession Period
xxx xxx xxx
(e) GRP confirms that certain concession agreements relative to certain services and operations currently
being undertaken at the Ninoy Aquino International Airport passenger Terminal I have a validity period
extending beyond the In-Service Date. GRP through DOTC/MIAA, confirms that these services and
operations shall not be carried over to the Terminal and the Concessionaire is under no legal obligation to
permit such carry-over except through a separate agreement duly entered into with Concessionaire. In the
event Concessionaire becomes involved in any litigation initiated by any such concessionaire or operator,
GRP undertakes and hereby holds Concessionaire free and harmless on full indemnity basis from and
against any loss and/or any liability resulting from any such litigation, including the cost of litigation and the
reasonable fees paid or payable to Concessionaire's counsel of choice, all such amounts shall be fully
deductible by way of an offset from any amount which the Concessionaire is bound to pay GRP under this
Agreement.
During the oral arguments on December 10, 2002, the counsel for the petitioners-in-intervention for G.R. No.
155001 stated that there are two service providers whose contracts are still existing and whose validity
extends beyond the In-Service Date. One contract remains valid until 2008 and the other until 2010.77
We hold that while the service providers presently operating at NAIA Terminal 1 do not have an absolute right for the
renewal or the extension of their respective contracts, those contracts whose duration extends beyond NAIA IPT III's
In-Service-Date should not be unduly prejudiced. These contracts must be respected not just by the parties thereto
but also by third parties. PIATCO cannot, by law and certainly not by contract, render a valid and binding contract
nugatory. PIATCO, by the mere expedient of claiming an exclusive right to operate, cannot require the Government
to break its contractual obligations to the service providers. In contrast to the arrastre and stevedoring service
providers in the case of Anglo-Fil Trading Corporation v. Lazaro78 whose contracts consist of temporary hold-
over permits, the affected service providers in the cases at bar, have a valid and binding contract with the
Government, through MIAA, whose period of effectivity, as well as the other terms and conditions thereof, cannot be
violated.
In fine, the efficient functioning of NAIA IPT III is imbued with public interest. The provisions of the 1997 Concession
Agreement and the ARCA did not strip government, thru the MIAA, of its right to supervise the operation of the
whole NAIA complex, including NAIA IPT III. As the primary government agency tasked with the job,79 it is MIAA's
responsibility to ensure that whoever by contract is given the right to operate NAIA IPT III will do so within the
bounds of the law and with due regard to the rights of third parties and above all, the interest of the public.
VI
CONCLUSION
In sum, this Court rules that in view of the absence of the requisite financial capacity of the Paircargo Consortium,
predecessor of respondent PIATCO, the award by the PBAC of the contract for the construction, operation and
maintenance of the NAIA IPT III is null and void. Further, considering that the 1997 Concession Agreement contains
material and substantial amendments, which amendments had the effect of converting the 1997 Concession
Agreement into an entirely different agreement from the contract bidded upon, the 1997 Concession Agreement is
similarly null and void for being contrary to public policy. The provisions under Sections 4.04(b) and (c) in relation to
Section 1.06 of the 1997 Concession Agreement and Section 4.04(c) in relation to Section 1.06 of the ARCA, which
constitute a direct government guarantee expressly prohibited by, among others, the BOT Law and its Implementing
Rules and Regulations are also null and void. The Supplements, being accessory contracts to the ARCA, are
likewise null and void.
WHEREFORE, the 1997 Concession Agreement, the Amended and Restated Concession Agreement and the
Supplements thereto are set aside for being null and void.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, Corona, and Carpio-Morales,
JJ., concur.
Vitug, J., see separate (dissenting) opinion.
Panganiban, J., please see separate opinion.
Quisumbing, J., no jurisdiction, please see separate opinion of J. Vitug in which he concurs.
Carpio, J., no part.
Callejo, Sr., J., also concur in the separate opinion of J. Panganiban.
Azcuna, J., joins the separate opinion of J. Vitug.
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SEPARATE OPINIONS
VITUG, J.:
This Court is bereft of jurisdiction to hear the petitions at bar. The Constitution provides that the Supreme Court shall
exercise original jurisdiction over, among other actual controversies, petitions for certiorari, prohibition, mandamus,
quo warranto, and habeas corpus.1 The cases in question, although denominated to be petitions for prohibition,
actually pray for the nullification of the PIATCO contracts and to restrain respondents from implementing said
agreements for being illegal and unconstitutional.
Section 2, Rule 65 of the Rules of Court states:
"When the proceedings of any tribunal, corporation, board, officer or person, whether exercising judicial,
quasi-judicial or ministerial functions, are without or in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is no appeal or any other plain, speedy and
adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty and praying that judgment be rendered commanding the
respondent to desist from further proceedings in the action or matter specified therein, or otherwise granting
such incidental reliefs as law and justice may require."
The rule is explicit. A petition for prohibition may be filed against a tribunal, corporation, board, officer or person,
exercising judicial, quasi-judicial or ministerial functions. What the petitions seek from respondents do not involve
judicial, quasi-judicial or ministerial functions. In prohibition, only legal issues affecting the jurisdiction of the tribunal,
board or officer involved may be resolved on the basis of undisputed facts.2 The parties allege, respectively,
contentious evidentiary facts. It would be difficult, if not anomalous, to decide the jurisdictional issue on the basis of
the contradictory factual submissions made by the parties.3 As the Court has so often exhorted, it is not a trier of
facts.
The petitions, in effect, are in the nature of actions for declaratory relief under Rule 63 of the Rules of Court. The
Rules provide that any person interested under a contract may, before breach or violation thereof, bring an action in
the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a
declaration of his rights or duties thereunder.4 The Supreme Court assumes no jurisdiction over petitions for
declaratory relief which are cognizable by regional trial courts.5
As I have so expressed in Tolentino vs. Secretary of Finance,6 reiterated in Santiago vs. Guingona, Jr.7 , the
Supreme Court should not be thought of as having been tasked with the awesome responsibility of overseeing the
entire bureaucracy. Pervasive and limitless, such as it may seem to be under the 1987 Constitution, judicial power
still succumbs to the paramount doctrine of separation of powers. The Court may not at good liberty intrude, in the
guise of sovereign imprimatur, into every affair of government. What significance can still then remain of the time-
honored and widely acclaimed principle of separation of powers if, at every turn, the Court allows itself to pass upon
at will the disposition of a co-equal, independent and coordinate branch in our system of government. I dread to
think of the so varied uncertainties that such an undue interference can lead to.
Accordingly, I vote for the dismissal of the petition.
Quisumbing, and Azcuna, JJ., concur.
PANGANIBAN, J.:
The five contracts for the construction and the operation of Ninoy Aquino International Airport (NAIA) Terminal III,
the subject of the consolidated Petitions before the Court, are replete with outright violations of law, public policy and
the Constitution. The only proper thing to do is declare them all null and void ab initio and let the chips fall where
they may. Fiat iustitia ruat coelum.
The facts leading to this controversy are already well presented in the ponencia. I shall not burden the readers with
a retelling thereof. Instead, I will cut to the chase and directly address the two sets of gut issues:
1. The first issue is procedural: Does the Supreme Court have original jurisdiction to hear and decide the Petitions?
Corollarily, do petitioners have locus standi and should this Court decide the cases without any mandatory referral to
arbitration?
2. The second one is substantive in character: Did the subject contracts violate the Constitution, the laws, and public
policy to such an extent as to render all of them void and inexistent?
My answer to all the above questions is a firm "Yes."
The Procedural Issue:

Jurisdiction, Standing and Arbitration
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Definitely and surely, the issues involved in these Petitions are clearly of transcendental importance and of national
interest. The subject contracts pertain to the construction and the operation of the country's premiere international
airport terminal - an ultramodern world-class public utility that will play a major role in the country's economic
development and serve to project a positive image of our country abroad. The five build-operate-&-transfer (BOT)
contracts, while entailing the investment of billions of pesos in capital and the availment of several hundred millions
of dollars in loans, contain provisions that tend to establish a monopoly, require the disbursements of public funds
sans appropriations, and provide government guarantees in violation of statutory prohibitions, as well as other
provisions equally offensive to law, public policy and the Constitution. Public interest will inevitably be affected
thereby.
Thus, objections to these Petitions, grounded upon (a) the hierarchy of courts, (b) the need for arbitration prior to
court action, and (c) the alleged lack of sufficient personality, standing or interest, being in the main procedural
matters, must now be set aside, as they have been in past cases. This Court must be permitted to perform its
constitutional duty of determining whether the other agencies of government have acted within the limits of the
Constitution and the laws, or if they have gravely abused the discretion entrusted to them.1
Hierarchy of Courts
The Court has, in the past, held that questions relating to gargantuan government contracts ought to be settled
without delay.2 This holding applies with greater force to the instant cases. Respondent Piatco is partly correct in
averring that petitioners can obtain relief from the regional trial courts via an action to annul the contracts.
Nevertheless, the unavoidable consequence of having to await the rendition and the finality of any such judgment
would be a prolonged state of uncertainty that would be prejudicial to the nation, the parties and the general public.
And, in light of the feared loss of jobs of the petitioning workers, consequent to the inevitable pretermination of
contracts of the petitioning service providers that will follow upon the heels of the impending opening of NAIA
Terminal III, the need for relief is patently urgent, and therefore, direct resort to this Court through the special civil
action of prohibition is thus justified.3
Contrary to Piatco's argument that the resolution of the issues raised in the Petitions will require delving into factual
questions,4 I submit that their disposition ultimately turns on questions of law.5 Further, many of the significant and
relevant factual questions can be easily addressed by an examination of the documents submitted by the parties. In
any event, the Petitions raise some novel questions involving the application of the amended BOT Law, which this
Court has seen fit to tackle.
Arbitration
Should the dispute be referred to arbitration prior to judicial recourse? Respondent Piatco claims that Section 10.02
of the Amended and Restated Concession Agreement (ARCA) provides for arbitration under the auspices of the
International Chamber of Commerce to settle any dispute or controversy or claim arising in connection with the
Concession Agreement, its amendments and supplements. The government disagrees, however, insisting that there
can be no arbitration based on Section 10.02 of the ARCA, since all the Piatco contracts are void ab initio.
Therefore, all contractual provisions, including Section 10.02 of the ARCA, are likewise void, inexistent and
inoperative. To support its stand, the government cites Chavez v. Presidential Commission on Good Government:6
"The void agreement will not be rendered operative by the parties' alleged performance (partial or full) of their
respective prestations. A contract that violates the Constitution and the law is null and void ab initio and vests no
rights and creates no obligations. It produces no legal effect at all."
As will be discussed at length later, the Piatco contracts are indeed void in their entirety; thus, a resort to the
aforesaid provision on arbitration is unavailing. Besides, petitioners and petitioners-in-intervention have pointed out
that, even granting arguendo that the arbitration clause remained a valid provision, it still cannot bind them
inasmuch as they are not parties to the Piatco contracts. And in the final analysis, it is unarguable that the arbitration
process provided for under Section 10.02 of the ARCA, to be undertaken by a panel of three (3) arbitrators
appointed in accordance with the Rules of Arbitration of the International Chamber of Commerce, will not be able to
address, determine and definitively resolve the constitutional and legal questions that have been raised in the
Petitions before us.
Locus Standi
Given this Court's previous decisions in cases of similar import, no one will seriously doubt that, being taxpayers
and members of the House of Representatives, Petitioners Baterina et al. have locus standi to bring the Petition in
GR No. 155547. In Albano v. Reyes,7 this Court held that the petitioner therein, suing as a citizen, taxpayer and
member of the House of Representatives, was sufficiently clothed with standing to bring the suit questioning the
validity of the assailed contract. The Court cited the fact that public interest was involved, in view of the important
role of the Manila International Container Terminal (MICT) in the country's economic development and the
magnitude of the financial consideration. This, notwithstanding the fact that expenditure of public funds was not
required under the assailed contract.
In the cases presently under consideration, petitioners' personal and substantial interest in the controversy is shown
by the fact that certain provisions in the Piatco contracts create obligations on the part of government (through the
DOTC and the MIAA) to disburse public funds without prior congressional appropriations.
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Petitioners thus correctly assert that the injury to them has a twofold aspect: (1) they are adversely affected as
taxpayers on account of the illegal disbursement of public funds; and (2) they are prejudiced qua legislators, since
the contractual provisions requiring the government to incur expenditures without appropriations also operate as
limitations upon the exclusive power and prerogative of Congress over the public purse. As members of the House
of Representatives, they are actually deprived of discretion insofar as the inclusion of those items of expenditure in
the budget is concerned. To prevent such encroachment upon the legislative privilege and obviate injury to the
institution of which they are members, petitioners-legislators have locus standi to bring suit.
Messrs. Agan et al. and Lopez et al., are likewise taxpayers and thus possessed of standing to challenge the illegal
disbursement of public funds. Messrs. Agan et al., in particular, are employees (or representatives of employees) of
various service providers that have (1) existing concession agreements with the MIAA to provide airport services
necessary to the operation of the NAIA and (2) service agreements to furnish essential support services to the
international airlines operating at the NAIA.
On the other hand, Messrs. Lopez et al. are employees of the MIAA. These petitioners (Messrs. Agan et al. and
Messrs. Lopez et al.) are confronted with the prospect of being laid off from their jobs and losing their means of
livelihood when their employer-companies are forced to shut down or otherwise retrench and cut back on
manpower. Such development would result from the imminent implementation of certain provisions in the contracts
that tend toward the creation of a monopoly in favor of Piatco, its subsidiaries and related companies.
Petitioners-in-intervention are service providers in the business of furnishing airport-related services to international
airlines and passengers in the NAIA and are therefore competitors of Piatco as far as that line of business is
concerned. On account of provisions in the Piatco contracts, petitioners-in-intervention have to enter into a written
contract with Piatco so as not to be shut out of NAIA Terminal III and barred from doing business there. Since there
is no provision to ensure or safeguard free and fair competition, they are literally at its mercy. They claim injury on
account of their deprivation of property (business) and of the liberty to contract, without due process of law.
And even if petitioners and petitioners-in-intervention were not sufficiently clothed with legal standing, I have at the
outset already established that, given its impact on the public and on national interest, this controversy is laden with
transcendental importance and constitutional significance. Hence, I do not hesitate to adopt the same position as
was enunciated in Kilosbayan v. Guingona Jr.8 that "in cases of transcendental importance, the Court may relax the
standing requirements and allow a suit to prosper even when there is no direct injury to the party claiming the right
of judicial review."9
The Substantive Issue:

Violations of the Constitution and the Laws
From the Outset, the Bidding Process Was Flawed and Tainted
After studying the documents submitted and arguments advanced by the parties, I have no doubt that, right at the
outset, Piatco was not qualified to participate in the bidding process for the Terminal III project, but was nevertheless
permitted to do so. It even won the bidding and was helped along by what appears to be a series of collusive and
corrosive acts.
The build-operate-and-transfer (BOT) project for the NAIA Passenger Terminal III comes under the category of an
"unsolicited proposal," which is the subject of Section 4-A of the BOT Law.10 The unsolicited proposal was originally
submitted by the Asia's Emerging Dragon Corporation (AEDC) to the Department of Transportation and
Communications (DOTC) and the Manila International Airport Authority (MIAA), which reviewed and approved the
proposal.
The draft of the concession agreement as negotiated between AEDC and DOTC/MIAA was endorsed to the
National Economic Development Authority (NEDA-ICC), which in turn reviewed it on the basis of its scope,
economic viability, financial indicators and risks; and thereafter approved it for bidding.
The DOTC/MIAA then prepared the Bid Documents, incorporating therein the negotiated Draft Concession
Agreement, and published invitations for public bidding, i.e., for the submission of comparative or competitive
proposals. Piatco's predecessor-in-interest, the Paircargo Consortium, was the only company that submitted a
competitive bid or price challenge.
At this point, I must emphasize that the law requires the award of a BOT project to the bidder that has satisfied the
minimum requirements; and met the technical, financial, organizational and legal standards provided in the BOT
Law. Section 5 of this statute states:
"Sec. 5. Public bidding of projects. - . . .
"In the case of a build-operate-and-transfer arrangement, the contract shall be awarded to the bidder who,
having satisfied the minimum financial, technical, organizational and legal standards required by this
Act, has submitted the lowest bid and most favorable terms for the project, based on the present value of its
proposed tolls, fees, rentals and charges over a fixed term for the facility to be constructed, rehabilitated,
operated and maintained according to the prescribed minimum design and performance standards, plans and
specifications. . . ." (Emphasis supplied.)
The same provision requires that the price challenge via public bidding "must be conducted under a two-
envelope/two-stage system: the first envelope to contain the technical proposal and the second envelope to contain
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the financial proposal." Moreover, the 1994 Implementing Rules and Regulations (IRR) provide that only those
bidders that have passed the prequalification stage are permitted to have their two envelopes reviewed.
In other words, prospective bidders must prequalify by submitting their prequalification documents for evaluation;
and only the pre-qualified bidders would be entitled to have their bids opened, evaluated and appreciated. On the
other hand, disqualified bidders are to be informed of the reason for their disqualification. This procedure was
confirmed and reiterated in the Bid Documents, which I quote thus: "Prequalified proponents will be considered
eligible to move to second stage technical proposal evaluation. The second and third envelopes of pre-disqualified
proponents will be returned."11
Aside from complying with the legal and technical requirements (track record or experience of the firm and its key
personnel), a project proponent desiring to prequalify must also demonstrate its financial capacity to undertake the
project. To establish such capability, a proponent must prove that it is able to raise the minimum amount of equity
required for the project and to procure the loans or financing needed for it. Section 5.4(c) of the 1994 IRR provides:
"Sec. 5.4. Prequalification Requirements. - To pre-qualify, a project proponent must comply with the following
requirements:
x x x x x x x x x
"c. Financial Capability. The project proponent must have adequate capability to sustain the financing
requirements for the detailed engineering design, construction, and/or operation and maintenance phases of
the project, as the case may be. For purposes of prequalification, this capability shall be measured in terms
of: (i) proof of the ability of the project proponent and/or the consortium to provide a minimum amount of
equity to the project, and (ii) a letter testimonial from reputable banks attesting that the project proponent
and/or members of the consortium are banking with them, that they are in good financial standing, and that
they have adequate resources. The government Agency/LGU concerned shall determine on a project-to-
project basis, and before prequalification, the minimum amount of equity needed. . . . ." (Italics supplied)
Since the minimum amount of equity for the project was set at 30 percent12 of the minimum project cost of US$350
million, the minimum amount of equity required of any proponent stood at US$105 million. Converted to pesos at the
exchange rate then of P26.239 to US$1.00 (as quoted by the Bangko Sentral ng Pilipinas), the peso equivalent of
the minimum equity was P2,755,095,000.
However, the combined equity or net worth of the Paircargo consortium stood at only P558,384,871.55.13 This
amount was only slightly over 6 percent of the minimum project cost and very much short of the required minimum
equity, which was equivalent to 30 percent of the project cost. Such deficiency should have immediately caused the
disqualification of the Paircargo consortium. This matter was brought to the attention of the Prequalification and
Bidding Committee (PBAC).
Notwithstanding the glaring deficiency, DOTC Undersecretary Primitivo C. Cal, concurrent chair of the PBAC,
declared in a Memorandum dated 14 October 1996 that "the Challenger (Paircargo consortium) was found to have a
combined net worth of P3,926,421,242.00 that could support a project costing approximately P13 billion." To justify
his conclusion, he asserted: "It is not a requirement that the networth must be `unrestricted'. To impose this as a
requirement now will be nothing less than unfair."
He further opined, "(T)he networth reflected in the Financial Statement should not be taken as the amount of money
to be used to answer the required thirty (30%) percent equity of the challenger but rather to be used in establishing if
there is enough basis to believe that the challenger can comply with the required 30% equity. In fact, proof of
sufficient equity is required as one of the conditions for award of contract (Sec. 12.1 of IRR of the BOT Law) but not
for prequalification (Sec. 5.4 of same document)."
On the basis of the foregoing dubious declaration, the Paircargo consortium was deemed prequalified and thus
permitted to proceed to the other stages of the bidding process.
By virtue of the prequalified status conferred upon the Paircargo, Undersecretary Cal's findings in effect relieved the
consortium of the need to comply with the financial capability requirement imposed by the BOT Law and IRR. This
position is unmistakably and squarely at odds with the Supreme Court's consistent doctrine emphasizing the strict
application of pertinent rules, regulations and guidelines for the public bidding process, in order to place each bidder
- actual or potential - on the same footing. Thus, it is unarguably irregular and contrary to the very concept of public
bidding to permit a variance between the conditions under which bids are invited and those under which proposals
are submitted and approved.
Republic v. Capulong,14 teaches that if one bidder is relieved from having to conform to the conditions that impose
some duty upon it, that bidder is not contracting in fair competition with those bidders that propose to be bound by
all conditions. The essence of public bidding is, after all, an opportunity for fair competition and a basis for the
precise comparison of bids.15 Thus, each bidder must bid under the same conditions; and be subject to the same
guidelines, requirements and limitations. The desired result is to be able to determine the best offer or lowest bid, all
things being equal.
Inasmuch as the Paircargo consortium did not possess the minimum equity equivalent to 30 percent of the minimum
project cost, it should not have been prequalified or allowed to participate further in the bidding. The Prequalification
and Bidding Committee (PBAC) should therefore not have opened the two envelopes of the consortium containing
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its technical and financial proposals; required AEDC to match the consortium's bid; 16 or awarded the Concession
Agreement to the consortium's successor-in-interest, Piatco.
As there was effectively no public bidding to speak of, the entire bidding process having been flawed and tainted
from the very outset, therefore, the award of the concession to Paircargo's successor Piatco was void, and the
Concession Agreement executed with the latter was likewise void ab initio. For this reason, Piatco cannot and
should not be allowed to benefit from that Agreement.17
AEDC Was Deprived of the Right to Match PIATCO's Price Challenge
In DOTC PBAC Bid Bulletin No. 4 (par. 3), Undersecretary Cal declared that, for purposes of matching the price
challenge of Piatco, AEDC as originator of the unsolicited proposal would be permitted access only to the schedule
of proposed Annual Guaranteed Payments submitted by Piatco, and not to the latter's financial and technical
proposals that constituted the basis for the price challenge in the first place. This was supposedly in keeping with
Section 11.6 of the 1994 IRR, which provides that proprietary information is to be respected, protected and treated
with utmost confidentiality, and is therefore not to form part of the bidding/tender and related documents.
This pronouncement, I believe, was a grievous misapplication of the mentioned provision. The "proprietary
information" referred to in Section 11.6 of the IRR pertains only to the proprietary information of the originator of an
unsolicited proposal, and not to those belonging to a challenger. The reason for the protection accorded proprietary
information at all is the fact that, according to Section 4-A of the BOT Law as amended, a proposal qualifies as an
"unsolicited proposal" when it pertains to a project that involves "a new concept or technology", and/or a project that
is not on the government's list of priority projects.
To be considered as utilizing a new concept or technology, a project must involve the possession of exclusive rights
(worldwide or regional) over a process; or possession of intellectual property rights over a design, methodology or
engineering concept.18 Patently, the intent of the BOT Law is to encourage individuals and groups to come up with
creative innovations, fresh ideas and new technology. Hence, the significance and necessity of protecting
proprietary information in connection with unsolicited proposals. And to make the encouragement real, the law also
extends to such individuals and groups what amounts to a "right of first refusal" to undertake the project they
conceptualized, involving the use of new technology or concepts, through the mechanism of matching a price
challenge.
A competing bid is never just any figure conjured from out of the blue; it is arrived at after studying economic,
financial, technical and other, factors; it is likewise based on certain assumptions as to the nature of the business,
the market potentials, the probable demand for the product or service, the future behavior of cost items, political and
other risks, and so on. It is thus self-evident that in order to be able to intelligently match a bid or price challenge, a
bidder must be given access to the assumptions and the calculations that went into crafting the competing bid.
In this instance, the financial and technical proposals of Piatco would have provided AEDC with the necessary
information to enable it to make a reasonably informed matching bid. To put it more simply, a bidder unable to
access the competitor's assumptions will never figure out how the competing bid came about; requiring him to
"counter-propose" is like having him shoot at a target in the dark while blindfolded.
By withholding from AEDC the challenger's financial and technical proposals containing the critical information it
needed, Undersecretary Cal actually and effectively deprived AEDC of the ability to match the price challenge. One
could say that AEDC did not have the benefit of a "level playing field." It seems to me, though, that AEDC was
actually shut out of the game altogether.
At the end of the day, the bottom line is that the validity and the propriety of the award to Piatco had been irreparably
impaired.
Delayed Issuance of the Notice of Award Violated the BOT Law and the IRR
Section 9.5 of the IRR requires that the Notice of Award must indicate the time frame within which the winner of the
bidding (and therefore the prospective awardee) shall submit the prescribed performance security, proof of
commitment of equity contributions, and indications of sources of financing (loans); and, in the case of joint
ventures, an agreement showing that the members are jointly and severally responsible for the obligations of the
project proponent under the contract.
The purpose of having a definite and firm timetable for the submission of the aforementioned requirements is not
only to prevent delays in the project implementation, but also to expose and weed out unqualified proponents, who
might have unceremoniously slipped through the earlier prequalification process, by compelling them to put their
money where their mouths are, so to speak.
Nevertheless, this provision can be easily circumvented by merely postponing the actual issuance of the Notice of
Award, in order to give the favored proponent sufficient time to comply with the requirements. Hence, to avert or
minimize the manipulation of the post-bidding process, the IRR not only set out the precise sequence of events
occurring between the completion of the evaluation of the technical bids and the issuance of the Notice of Award,
but also specified the timetables for each such event. Definite allowable extensions of time were provided for, as
were the consequences of a failure to meet a particular deadline.
In particular, Section 9.1 of the 1994 IRR prescribed that within 30 calendar days from the time the second-stage
evaluation shall have been completed, the Committee must come to a decision whether or not to award the contract
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and, within 7 days therefrom, the Notice of Award must be approved by the head of agency or local government unit
(LGU) concerned, and its issuance must follow within another 7 days thereafter.
Section 9.2 of the IRR set the procedure applicable to projects involving substantial government undertakings as
follows: Within 7 days after the decision to award is made, the draft contract shall be submitted to the ICC for
clearance on a no-objection basis. If the draft contract includes government undertakings already previously
approved, then the submission shall be for information only.
However, should there be additional or new provisions different from the original government undertakings, the draft
shall have to be reviewed and approved. The ICC has 15 working days to act thereon, and unless otherwise
specified, its failure to act on the contract within the specified time frame signifies that the agency or LGU may
proceed with the award. The head of agency or LGU shall approve the Notice of Award within seven days of the
clearance by the ICC on a no-objection basis, and the Notice itself has to be issued within seven days thereafter.
The highly regulated time-frames within which the agents of government were to act evinced the intent to impose
upon them the duty to act expeditiously throughout the process, to the end that the project be prosecuted and
implemented without delay. This regulated scenario was likewise intended to discourage collusion and substantially
reduce the opportunity for agents of government to abuse their discretion in the course of the award process.
Despite the clear timetables set out in the IRR, several lengthy and still-unexplained delays occurred in the award
process, as can be observed from the presentation made by the counsel for public respondents,19 quoted
hereinbelow:
"11 Dec. 1996 - The Paircargo Joint Venture was informed by the PBAC that AEDC failed to match and that
negotiations preparatory to Notice of Award should be commenced. This was the decision to award that
should have commenced the running of the 7-day period to approve the Notice of Award, as per Section 9.1
of the IRR, or to submit the draft contract to the ICC for approval conformably with Section 9.2.
"01 April 1997 - The PBAC resolved that a copy of the final draft of the Concession Agreement be submitted
to the NEDA for clearance on a no-objection basis. This resolution came more than 3 months too late as it
should have been made on the 20th of December 1996 at the latest.
"16 April 1997 - The PBAC resolved that the period of signing the Concession Agreement be extended by 15
days.
"18 April 1997 - NEDA approved the Concession Agreement. Again this is more than 3 months too late as the
NEDA's decision should have been released on the 16th of January 1997 or fifteen days after it should have
been submitted to it for review.
"09 July 1997 - The Notice of Award was issued to PIATCO. Following the provisions of the IRR, the Notice of
Award should have been issued fourteen days after NEDA's approval, or the 28th of January 1997. In any
case, even if it were to be assumed that the release of NEDA's approval on the 18th of April was timely, the
Notice of Award should have been issued on the 9th of May 1997. In both cases, therefore, the release of the
Notice of Award occurred in a decidedly less than timely fashion."
This chronology of events bespeaks an unmistakable disregard, if not disdain, by the persons in charge of the award
process for the time limitations prescribed by the IRR. Their attitude flies in the face of this Court's solemn
pronouncement in Republic v. Capulong,20 that "strict observance of the rules, regulations and guidelines of the
bidding process is the only safeguard to a fair, honest and competitive public bidding."
From the foregoing, the only conclusion that can possibly be drawn is that the BOT law and its IRR were repeatedly
violated with unmitigated impunity - and by agents of government, no less! On account of such violation, the award
of the contract to Piatco, which undoubtedly gained time and benefited from the delays, must be deemed null and
void from the beginning.
Further Amendments Resulted in a Substantially Different Contract, Awarded Without Public Bidding
But the violations and desecrations did not stop there. After the PBAC made its decision on December 11, 1996 to
award the contract to Piatco, the latter negotiated changes to the Contract bidded out and ended up with what
amounts to a substantially new contract without any public bidding. This Contract was subsequently further
amended four more times through negotiation and without any bidding. Thus, the contract actually executed
between Piatco and DOTC/MIAA on July 12, 1997 (the Concession Agreement or "CA") differed from the contract
bidded out (the draft concession agreement or "DCA") in the following very significant respects:
1. The CA inserted stipulations creating a monopoly in favor of Piatco in the business of providing airport-
related services for international airlines and passengers.21
2. The CA provided that government is to answer for Piatco's unpaid loans and debts (lumped under the term
Attendant Liabilities) in the event Piatco fails to pay its senior lenders.22
3. The CA provided that in case of termination of the contract due to the fault of government, government
shall pay all expenses that Piatco incurred for the project plus the appraised value of the Terminal.23
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4. The CA imposed new and special obligations on government, including delivery of clean possession of the
site for the terminal; acquisition of additional land at the government's expense for construction of road
networks required by Piatco's approved plans and specifications; and assistance to Piatco in securing site
utilities, as well as all necessary permits, licenses and authorizations.24
5. Where Section 3.02 of the DCA requires government to refrain from competing with the contractor with
respect to the operation of NAIA Terminal III, Section 3.02(b) of the CA excludes and prohibits everyone,
including government, from directly or indirectly competing with Piatco, with respect to the operation of, as
well as operations in, NAIA Terminal III. Operations in is sufficiently broad to encompass all retail and other
commercial business enterprises operating within Terminal III, inclusive of the businesses of providing various
airport-related services to international airlines, within the scope of the prohibition.
6. Under Section 6.01 of the DCA, the following fees are subject to the written approval of MIAA: lease/rental
charges, concession privilege fees for passenger services, food services, transportation utility concessions,
groundhandling, catering and miscellaneous concession fees, porterage fees, greeter/well-wisher fees,
carpark fees, advertising fees, VIP facilities fees and others. Moreover, adjustments to the groundhandling
fees, rentals and porterage fees are permitted only once every two years and in accordance with a parametric
formula, per DCA Section 6.03. However, the CA as executed with Piatco provides in Section 6.06 that all the
aforesaid fees, rentals and charges may be adjusted without MIAA's approval or intervention. Neither are the
adjustments to these fees and charges subject to or limited by any parametric formula.25
7. Section 1.29 of the DCA provides that the terminal fees, aircraft tacking fees, aircraft parking fees, check-in
counter fees and other fees are to be quoted and paid in Philippine pesos. But per Section 1.33 of the CA, all
the aforesaid fees save the terminal fee are denominated in US Dollars.
8. Under Section 8.07 of the DCA, the term attendant liabilities refers to liabilities pertinent to NAIA Terminal
III, such as payment of lease rentals and performance of other obligations under the Land Lease Agreement;
the obligations under the Tenant Agreements; and payment of all taxes, fees, charges and assessments of
whatever kind that may be imposed on NAIA Terminal III or parts thereof. But in Section 1.06 of the CA,
Attendant Liabilities refers to unpaid debts of Piatco: "All amounts recorded and from time to time outstanding
in the books of (Piatco) as owing to Unpaid Creditors who have provided, loaned or advanced funds actually
used for the Project, including all interests, penalties, associated fees, charges, surcharges, indemnities,
reimbursements and other related expenses, and further including amounts owed by [Piatco] to its suppliers,
contractors and subcontractors."
9. Per Sections 8.04 and 8.06 of the DCA, government may, on account of the contractors breach, rescind the
contract and select one of four options: (a) take over the terminal and assume all its attendant liabilities; (b)
allow the contractor's creditors to assign the Project to another entity acceptable to DOTC/MIAA; (c) pay the
contractor rent for the facilities and equipment the DOTC may utilize; or (d) purchase the terminal at a price
established by independent appraisers. Depending on the option selected, government may take immediate
possession and control of the terminal and its operations. Government will be obligated to compensate the
contractor for the "equivalent or proportionate contract costs actually disbursed," but only where government
is the one in breach of the contract. But under Section 8.06(a) of the CA, whether on account of Piatco's
breach of contract or its inability to pay its creditors, government is obliged to either (a) take over Terminal III
and assume all of Piatco's debts or (b) permit the qualified unpaid creditors to be substituted in place of
Piatco or to designate a new operator. And in the event of government's breach of contract, Piatco may
compel it to purchase the terminal at fair market value, per Section 8.06(b) of the CA.
10. Under the DCA, any delay by Piatco in the payment of the amounts due the government constitutes
breach of contract. However, under the CA, such delay does not necessarily constitute breach of contract,
since Piatco is permitted to suspend payments to the government in order to first satisfy the claims of its
secured creditors, per Section 8.04(d) of the CA.
It goes without saying that the amendment of the Contract bidded out (the DCA or draft concession agreement) - in
such substantial manner, without any public bidding, and after the bidding process had been concluded on
December 11, 1996 - is violative of public policy on public biddings, as well as the spirit and intent of the BOT Law.
The whole point of going through the public bidding exercise was completely lost. Its very rationale was totally
subverted by permitting Piatco to amend the contract for which public bidding had already been concluded.
Competitive bidding aims to obtain the best deal possible by fostering transparency and preventing favoritism,
collusion and fraud in the awarding of contracts. That is the reason why procedural rules pertaining to public bidding
demand strict observance.26
In a relatively early case, Caltex v. Delgado Brothers,27 this Court made it clear that substantive amendments to a
contract for which a public bidding has already been finished should only be awarded after another public bidding:
"The due execution of a contract after public bidding is a limitation upon the right of the contracting parties to
alter or amend it without another public bidding, for otherwise what would a public bidding be good for if after
the execution of a contract after public bidding, the contracting parties may alter or amend the contract, or
even cancel it, at their will? Public biddings are held for the protection of the public, and to give the public the
best possible advantages by means of open competition between the bidders. He who bids or offers the best
terms is awarded the contract subject of the bid, and it is obvious that such protection and best possible
advantages to the public will disappear if the parties to a contract executed after public bidding may alter or
amend it without another previous public bidding."28
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The aforementioned case dealt with the unauthorized amendment of a contract executed after public bidding; in the
situation before us, the amendments were made also after the bidding, but prior to execution. Be that as it may, the
same rationale underlying Caltex applies to the present situation with equal force. Allowing the winning bidder to
renegotiate the contract for which the bidding process has ended is tantamount to permitting it to put in anything it
wants. Here, the winning bidder (Piatco) did not even bother to wait until after actual execution of the contract before
rushing to amend it. Perhaps it believed that if the changes were made to a contract already won through bidding
(DCA) instead of waiting until it is executed, the amendments would not be noticed or discovered by the public.
In a later case, Mata v. San Diego,29 this Court reiterated its ruling as follows:
"It is true that modification of government contracts, after the same had been awarded after a public bidding,
is not allowed because such modification serves to nullify the effects of the bidding and whatever advantages
the Government had secured thereby and may also result in manifest injustice to the other bidders. This
prohibition, however, refers to a change in vital and essential particulars of the agreement which results in a
substantially new contract."
Piatco's counter-argument may be summed up thus: There was nothing in the 1994 IRR that prohibited further
negotiations and eventual amendments to the DCA even after the bidding had been concluded. In fact, PBAC Bid
Bulletin No. 3 states: "[A]mendments to the Draft Concession Agreement shall be issued from time to time. Said
amendments will only cover items that would not materially affect the preparation of the proponent's proposal."
I submit that accepting such warped argument will result in perverting the policy underlying public bidding. The BOT
Law cannot be said to allow the negotiation of contractual stipulations resulting in a substantially new contract after
the bidding process and price challenge had been concluded. In fact, the BOT Law, in recognition of the time,
money and effort invested in an unsolicited proposal, accords its originator the privilege of matching the challenger's
bid.
Section 4-A of the BOT Law specifically refers to a "lower price proposal" by a competing bidder; and to the right of
the original proponent "to match the price" of the challenger. Thus, only the price proposals are in play. The terms,
conditions and stipulations in the contract for which public bidding has been concluded are understood to remain
intact and not be subject to further negotiation. Otherwise, the very essence of public bidding will be destroyed -
there will be no basis for an exact comparison between bids.
Moreover, Piatco misinterpreted the meaning behind PBAC Bid Bulletin No. 3. The phrase amendments . . . from
time to time refers only to those amendments to the draft concession agreement issued by the PBAC prior to the
submission of the price challenge; it certainly does not include or permit amendments negotiated for and introduced
after the bidding process, has been terminated.
Piatco's Concession Agreement Was Further Amended, (ARCA) Again Without Public Bidding
Not satisfied with the Concession Agreement, Piatco - once more without bothering with public bidding - negotiated
with government for still more substantial changes. The result was the Amended and Restated Concession
Agreement (ARCA) executed on November 26, 1998. The following changes were introduced:
1. The definition of Attendant Liabilities was further amended with the result that the unpaid loans of Piatco,
for which government may be required to answer, are no longer limited to only those loans recorded in
Piatco's books or loans whose proceeds were actually used in the Terminal III project.30
2. Although the contract may be terminated due to breach by Piatco, it will not be liable to pay the government
any Liquidated Damages if a new operator is designated to take over the operation of the terminal.31
3. The Liquidated Damages which government becomes liable for in case of its breach of contract were
substantially increased.32
4. Government's right to appoint a comptroller for Piatco in case the latter encounters liquidity problems was
deleted.33
5. Government is made liable for Incremental and Consequential Costs and Losses in case it fails to comply
or cause any third party under its direct or indirect control to comply with the special obligations imposed on
government.34
6. The insurance policies obtained by Piatco covering the terminal are now required to be assigned to the
Senior Lenders as security for the loans; previously, their proceeds were to be used to repair and rehabilitate
the facility in case of damage.35
7. Government bound itself to set the initial rate of the terminal fee, to be charged when Terminal III begins
operations, at an amount higher than US$20.36
8. Government waived its defense of the illegality of the contract and even agreed to be liable to pay
damages to Piatco in the event the contract was declared illegal.37
9. Even though government may be entitled to terminate the ARCA on account of breach by Piatco,
government is still liable to pay Piatco the appraised value of Terminal III or the Attendant Liabilities, if the
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termination occurs before the In-Service Date.38 This condition contravenes the BOT Law provision on
termination compensation.
10. Government is obligated to take the administrative action required for Piatco's imposition, collection and
application of all Public Utility Revenues.39 No such obligation existed previously.
11. Government is now also obligated to perform and cause other persons and entities under its direct or
indirect control to perform all acts necessary to perfect the security interests to be created in favor of Piatco's
Senior Lenders.40 No such obligation existed previously.
12. DOTC/MIAA's right of intervention in instances where Piatco's Non-Public Utility Revenues become
exorbitant or excessive has been removed.41
13. The illegality and unenforceability of the ARCA or any of its material provisions was made an event of
default on the part of government only, thus constituting a ground for Piatco to terminate the ARCA.42
14. Amounts due from and payable by government under the contract were made payable on demand - net of
taxes, levies, imposts, duties, charges or fees of any kind except as required by law.43
15. The Parametric Formula in the contract, which is utilized to compute for adjustments/increases to the
public utility revenues (i.e., aircraft parking and tacking fees, check-in counter fee and terminal fee), was
revised to permit Piatco to input its more costly short-term borrowing rates instead of the longer-terms rates in
the computations for adjustments, with the end result that the changes will redound to its greater financial
benefit.
16. The Certificate of Completion simply deleted the successful performance-testing of the terminal facility in
accordance with defined performance standards as a pre-condition for government's acceptance of the
terminal facility.44
In sum, the foregoing revisions and amendments as embodied in the ARCA constitute very material alterations of
the terms and conditions of the CA, and give further manifestly undue advantage to Piatco at the expense of
government. Piatco claims that the changes to the CA were necessitated by the demands of its foreign lenders.
However, no proof whatsoever has been adduced to buttress this claim.
In any event, it is quite patent that the sum total of the aforementioned changes resulted in drastically weakening the
position of government to a degree that seems quite excessive, even from the standpoint of a businessperson who
regularly transacts with banks and foreign lenders, is familiar with their mind-set, and understands what motivates
them. On the other hand, whatever it was that impelled government officials concerned to accede to those grossly
disadvantageous changes, I can only hazard a guess.
There is no question in my mind that the ARCA was unauthorized and illegal for lack of public bidding and for being
patently disadvantageous to government.
The Three Supplements Imposed New Obligations on Government, Also Without Prior Public Bidding
After Piatco had managed to breach the protective rampart of public bidding, it recklessly went on a rampage of
further assaults on the ARCA.
The First Supplement Is as Void as the ARCA
In the First Supplement ("FS") executed on August 27, 1999, the following changes were made to the ARCA:
1. The amounts payable by Piatco to government were reduced by allowing additional exceptions to the
Gross Revenues in which government is supposed to participate.45
2. Made part of the properties which government is obliged to construct and/or maintain and keep in good
repair are (a) the access road connecting Terminals II and III - the construction of this access road is the
obligation of Piatco, in lieu of its obligation to construct an Access Tunnel connecting Terminals II and III; and
(b) the taxilane and taxiway - these are likewise part of Piatco's obligations, since they are part and parcel of
the project as described in Clause 1.3 of the Bid Documents .46
3. The MIAA is obligated to provide funding for the maintenance and repair of the airports and facilities owned
or operated by it and by third persons under its control. It will also be liable to Piatco for the latter's losses,
expenses and damages as well as liability to third persons, in case MIAA fails to perform such obligations. In
addition, MIAA will also be liable for the incremental and consequential costs of the remedial work done by
Piatco on account of the former's default.47
4. The FS also imposed on government ten (10) "Additional Special Obligations," including the following:
(a) Working for the removal of the general aviation traffic from the NAIA airport complex48
(b) Providing through MIAA the land required by Piatco for the taxilane and one taxiway at no cost to
Piatco49
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(c) Implementing the government's existing storm drainage master plan50
(d) Coordinating with DPWH the financing, the implementation and the completion of the following
works before the In-Service Date: three left-turning overpasses (EDSA to Tramo St., Tramo to Andrews
Ave., and Manlunas Road to Sales Ave.);51 and a road upgrade and improvement program involving
widening, repair and resurfacing of Sales Road, Andrews Avenue and Manlunas Road; improvement of
Nichols Interchange; and removal of squatters along Andrews Avenue.52
(e) Dealing directly with BCDA and the Phil. Air Force in acquiring additional land or right of way for the
road upgrade and improvement program.53
5. Government is required to work for the immediate reversion to MIAA of the Nayong Pilipino National
Park.54
6. Government's share in the terminal fees collected was revised from a flat rate of P180 to 36 percent
thereof; together with government's percentage share in the gross revenues of Piatco, the amount will be
remitted to government in pesos instead of US dollars.55 This amendment enables Piatco to benefit from the
further erosion of the peso-dollar exchange rate, while preventing government from building up its foreign
exchange reserves.
7. All payments from Piatco to government are now to be invoiced to MIAA, and payments are to accrue to
the latter's exclusive benefit.56 This move appears to be in support of the funds MIAA advanced to DPWH.
I must emphasize that the First Supplement is void in two respects. First, it is merely an amendment to the ARCA,
upon which it is wholly dependent; therefore, since the ARCA is void, inexistent and not capable of being ratified or
amended, it follows that the FS too is void, inexistent and inoperative. Second, even assuming arguendo that the
ARCA is somehow remotely valid, nonetheless the FS, in imposing significant new obligations upon government,
altered the fundamental terms and stipulations of the ARCA, thus necessitating a public bidding all over again. That
the FS was entered into sans public bidding renders it utterly void and inoperative.
The Second Supplement Is Similarly Void and Inexistent
The Second Supplement ("SS") was executed between the government and Piatco on September 4, 2000. It calls
for Piatco, acting not as concessionaire of NAIA Terminal III but as a public works contractor, to undertake - in the
government's stead - the clearing, removal, demolition and disposal of improvements, subterranean obstructions
and waste materials at the project site.57
The scope of the works, the procedures involved, and the obligations of the contractor are provided for in Parts II
and III of the SS. Section 4.1 sets out the compensation to be paid, listing specific rates per cubic meter of materials
for each phase of the work - excavation, leveling, removal and disposal, backfilling and dewatering. The amounts
collectible by Piatco are to be offset against the Annual Guaranteed Payments it must pay government.
Though denominated as Second Supplement, it was nothing less than an entirely new public works contract. Yet it,
too, did not undergo any public bidding, for which reason it is also void and inoperative.
Not surprisingly, Piatco had to subcontract the works to a certain Wintrack Builders, a firm reputedly owned by a
former high-ranking DOTC official. But that is another story altogether.
The Third Supplement Is Likewise Void and Inexistent
The Third Supplement ("TS"), executed between the government and Piatco on June 22, 2001, passed on to the
government certain obligations of Piatco as Terminal III concessionaire, with respect to the surface road connecting
Terminals II and III.
By way of background, at the inception of and forming part of the NAIA Terminal III project was the proposed
construction of an access tunnel crossing Runway 13/31, which. would connect Terminal III to Terminal II. The Bid
Documents in Section 4.1.2.3[B][i] declared that the said access tunnel was subject to further negotiation; but for
purposes of the bidding, the proponent should submit a bid for it as well. Therefore, the tunnel was supposed to be
part and parcel of the Terminal III project.
However, in Section 5 of the First Supplement, the parties declared that the access tunnel was not economically
viable at that time. In lieu thereof, the parties agreed that a surface access road (now called the T2-T3 Road) was to
be constructed by Piatco to connect the two terminals. Since it was plainly in substitution of the tunnel, the surface
road construction should likewise be considered part and parcel of the same project, and therefore part of Piatco's
obligation as well. While the access tunnel was estimated to cost about P800 million, the surface road would have a
price tag in the vicinity of about P100 million, thus producing significant savings for Piatco.
Yet, the Third Supplement, while confirming that Piatco would construct the T2-T3 Road, nevertheless shifted to
government some of the obligations pertaining to the former, as follows:
1. Government is now obliged to remove at its own expense all tenants, squatters, improvements and/or
waste materials on the site where the T2-T3 road is to be constructed.58 There was no similar obligation on
the part of government insofar as the access tunnel was concerned.
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2. Should government fail to carry out its obligation as above described, Piatco may undertake it on
government's behalf, subject to the terms and conditions (including compensation payments) contained in the
Second Supplement.59
3. MIAA will answer for the operation, maintenance and repair of the T2-T3 Road.60
The TS depends upon and is intended to supplement the ARCA as well as the First Supplement, both of which are
void and inexistent and not capable of being ratified or amended. It follows that the TS is likewise void, inexistent
and inoperative. And even if, hypothetically speaking, both ARCA and FS are valid, still, the Third Supplement -
imposing as it does significant new obligations upon government - would in effect alter the terms and stipulations of
the ARCA in material respects, thus necessitating another public bidding. Since the TS was not subjected to public
bidding, it is consequently utterly void as well. At any rate, the TS created new monetary obligations on the part of
government, for which there were no prior appropriations. Hence it follows that the same is void ab initio.
In patiently tracing the progress of the Piatco contracts from their inception up to the present, I noted that the whole
process was riddled with significant lapses, if not outright irregularity and wholesale violations of law and public
policy. The rationale of beginning at the beginning, so to speak, will become evident when the question of what to do
with the five Piatco contracts is discussed later on.
In the meantime, I shall take up specific, provisions or changes in the contracts and highlight the more prominent
objectionable features.
Government Directly Guarantees Piatco Debts
Certainly the most discussed provision in the parties' arguments is the one creating an unauthorized, direct
government guarantee of Piatco's obligations in favor of the lenders.
Section 4-A of the BOT Law as amended states that unsolicited proposals, such as the NAIA Terminal III Project,
may be accepted by government provided inter alia that no direct government guarantee, subsidy or equity is
required. In short, such guarantee is prohibited in unsolicited proposals. Section 2(n) of the same legislation defines
direct government guarantee as "an agreement whereby the government or any of its agencies or local government
units (will) assume responsibility for the repayment of debt directly incurred by the project proponent in implementing
the project in case of a loan default."
Both the CA and the ARCA have provisions that undeniably create such prohibited government guarantee. Section
4.04 (c)(iv) to (vi) of the ARCA, which is similar to Section 4.04 of the CA, provides thus:
"(iv) that if Concessionaire is in default under a payment obligation owed to the Senior Lenders, and as a
result thereof the Senior Lenders have become entitled to accelerate the Senior Loans, the Senior Lenders
shall have the right to notify GRP of the same . . .;
(v) . . . the Senior Lenders may after written notification to GRP, transfer the Concessionaire's rights and
obligations to a transferee . . .;
(vi) if the Senior Lenders . . . are unable to . . . effect a transfer . . ., then GRP and the Senior Lenders shall
endeavor . . . to enter into any other arrangement relating to the Development Facility . . . If no agreement
relating to the Development Facility is arrived at by GRP and the Senior Lenders within the said 180-day
period, then at the end thereof the Development Facility shall be transferred by the Concessionaire to GRP or
its designee and GRP shall make a termination payment to Concessionaire equal to the Appraised Value (as
hereinafter defined) of the Development Facility or the sum of the Attendant Liabilities, if greater. . . ."
In turn, the term Attendant Liabilities is defined in Section 1.06 of the ARCA as follows:
"Attendant Liabilities refer to all amounts in each case supported by verifiable evidence from time to time
owed or which may become, owing by Concessionaire to Senior Lenders or any other persons or entities who
have provided, loaned or advanced funds or provided financial facilities to Concessionaire for the Project,
including, without limitation, all principal, interest, associated fees, charges, reimbursements, and other
related expenses (including the fees, charges and expenses of any agents or trustees of such persons or
entities), whether payable at maturity, by acceleration or otherwise, and further including amounts owed by
Concessionaire to its professional consultants and advisers, suppliers, contractors and sub-contractors."
Government's agreement to pay becomes effective in the event of a default by Piatco on any of its loan
obligations to the Senior Lenders, and the amount to be paid by government is the greater of either the Appraised
Value of Terminal III or the aggregate amount of the moneys owed by Piatco - whether to the Senior Lenders or
to other entities, including its suppliers, contractors and subcontractors. In effect, therefore, this agreement already
constitutes the prohibited assumption by government of responsibility for repayment of Piatco's debts in case of a
loan default. In fine, a direct government guarantee.
It matters not that there is a roundabout procedure prescribed by Section 4.04(c)(iv), (v) and (vi) that would require,
first, an attempt (albeit unsuccessful) by the Senior Lenders to transfer Piatco's rights to a transferee of their choice;
and, second, an effort (equally unsuccessful) to "enter into any other arrangement" with the government regarding
the Terminal III facility, before government is required to make good on its guarantee. What is abundantly clear is the
fact that, in the devious labyrinthine process detailed in the aforesaid section, it is entirely within the Senior Lenders'
power, prerogative and control - exercisable via a mere refusal or inability to agree upon "a transferee" or "any other
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arrangement" regarding the terminal facility - to push the process forward to the ultimate contractual cul-de-sac,
wherein government will be compelled to abjectly surrender and make good on its guarantee of payment.
Piatco also argues that there is no proviso requiring government to pay the Senior Lenders in the event of Piatco's
default. This is literally true, in the sense that Section 4.04(c)(vi) of ARCA speaks of government making the
termination payment to Piatco, not to the lenders. However, it is almost a certainty that the Senior Lenders will
already have made Piatco sign over to them, ahead of time, its right to receive such payments from government;
and/or they may already have had themselves appointed its attorneys-in-fact for the purpose of collecting and
receiving such payments.
Nevertheless, as petitioners-in-intervention pointed out in their Memorandum,61 the termination payment is to be

made to Piatco, not to the lenders; and there is no provision anywhere in the contract documents to prevent it from
diverting the proceeds to its own benefit and/or to ensure that it will necessarily use the same to pay off the Senior
Lenders and other creditors, in order to avert the foreclosure of the mortgage and other liens on the terminal facility.
Such deficiency puts the interests of government at great risk. Indeed, if the unthinkable were to happen,
government would be paying several hundreds of millions of dollars, but the mortgage liens on the facility may still
be foreclosed by the Senior Lenders just the same.
Consequently, the Piatco contracts are also objectionable for grievously failing to adequately protect government's
interests. More accurately, the contracts would consistently weaken and do away with protection of government
interests. As such, they are therefore grossly lopsided in favor of Piatco and/or its Senior Lenders.
While on this subject, it is well to recall the earlier discussion regarding a particularly noticeable alteration of the
concept of "Attendant Liabilities." In Section 1.06 of the CA defining the term, the Piatco debts to be assumed/paid
by government were qualified by the phrases recorded and from time to time outstanding in the books of the
Concessionaire and actually used for the project. These phrases were eliminated from the ARCA's definition of
Attendant Liabilities.
Since no explanation has been forthcoming from Piatco as to the possible justification for such a drastic change, the
only conclusion, possible is that it intends to have all of its debts covered by the guarantee, regardless of whether or
not they are disclosed in its books. This has particular reference to those borrowings which were obtained in
violation of the loan covenants requiring Piatco to maintain a minimum 70:30 debt-to-equity ratio, and even if the
loan proceeds were not actually used for the project itself.
This point brings us back to the guarantee itself. In Section 4.04(c)(vi) of ARCA, the amount which government has
guaranteed to pay as termination payment is the greater of either (i) the Appraised Value of the terminal facility or
(ii) the aggregate of the Attendant Liabilities. Given that the Attendant Liabilities may include practically any Piatco
debt under the sun, it is highly conceivable that their sum may greatly exceed the appraised value of the facility, and
government may end up paying very much more than the real worth of Terminal III. (So why did government have to
bother with public bidding anyway?)
In the final analysis, Section 4.04(c)(iv) to (vi) of the ARCA is diametrically at odds with the spirit and the intent of the
BOT Law. The law meant to mobilize private resources (the private sector) to take on the burden and the risks of
financing the construction, operation and maintenance of relevant infrastructure and development projects for the
simple reason that government is not in a position to do so. By the same token, government guarantee was
prohibited, since it would merely defeat the purpose and raison d'être of a build-operate-and-transfer project to be
undertaken by the private sector.
To the extent that the project proponent is able to obtain loans to fund the project, those risks are shared between
the project proponent on the one hand, and its banks and other lenders on the other. But where the proponent or its
lenders manage to cajol or coerce the government into extending a guarantee of payment of the loan obligations,
the risks assumed by the lenders are passed right back to government. I cannot understand why, in the instant case,
government cheerfully assented to re-assuming the risks of the project when it gave the prohibited guarantee and
thus simply negated the very purpose of the BOT Law and the protection it gives the government.
Contract Termination Provisions in the Piatco Contracts Are Void
The BOT Law as amended provides for contract termination as follows:
"Sec. 7. Contract Termination. - In the event that a project is revoked, cancelled or terminated by the
government through no fault of the project proponent or by mutual agreement, the Government shall
compensate the said project proponent for its actual expenses incurred in the project plus a reasonable rate
of return thereon not exceeding that stated in the contract as of the date of such revocation, cancellation or
termination: Provided, That the interest of the Government in this instances [sic] shall be duly insured with the
Government Service Insurance System or any other insurance entity duly accredited by the Office of the
Insurance Commissioner: Provided, finally, That the cost of the insurance coverage shall be included in the
terms and conditions of the bidding referred to above.
"In the event that the government defaults on certain major obligations in the contract and such failure is not
remediable or if remediable shall remain unremedied for an unreasonable length of time, the project
proponent/contractor may, by prior notice to the concerned national government agency or local government
unit specifying the turn-over date, terminate the contract. The project proponent/contractor shall be
reasonably compensated by the Government for equivalent or proportionate contract cost as defined in the
contract."
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The foregoing statutory provision in effect provides for the following limited instances when termination
compensation may be allowed:
1. Termination by the government through no fault of the project proponent
2. Termination upon the parties' mutual agreement
3. Termination by the proponent due to government's default on certain major contractual obligations
To emphasize, the law does not permit compensation for the project proponent when contract termination is due to
the proponent's own fault or breach of contract.
This principle was clearly violated in the Piatco Contracts. The ARCA stipulates that government is to pay
termination compensation to Piatco even when termination is initiated by government for the following causes:
"(i) Failure of Concessionaire to finish the Works in all material respects in accordance with the Tender Design
and the Timetable;
(ii) Commission by Concessionaire of a material breach of this Agreement . . .;
(iii) . . . a change in control of Concessionaire arising from the sale, assignment, transfer or other disposition
of capital stock which results in an ownership structure violative of statutory or constitutional limitations;
(iv) A pattern of continuing or repeated non-compliance, willful violation, or non-performance of other terms
and conditions hereof which is hereby deemed a material breach of this Agreement . . ."62
As if that were not bad enough, the ARCA also inserted into Section 8.01 the phrase "Subject to Section 4.04." The
effect of this insertion is that in those instances where government may terminate the contract on account of Piatco's
breach, and it is nevertheless required under the ARCA to make termination compensation to Piatco even though
unauthorized by law, such compensation is to be equivalent to the payment amount guaranteed by government -
either a) the Appraised Value of the terminal facility or (b) the aggregate of the Attendant Liabilities, whichever
amount is greater!
Clearly, this condition is not in line with Section 7 of the BOT Law. That provision permits a project proponent to
recover the actual expenses it incurred in the prosecution of the project plus a reasonable rate of return not in
excess of that provided in the contract; or to be compensated for the equivalent or proportionate contract cost as
defined in the contract, in case the government is in default on certain major contractual obligations.
Furthermore, in those instances where such termination compensation is authorized by the BOT Law, it is
indispensable that the interest of government be duly insured. Section 5.08 the ARCA mandates insurance
coverage for the terminal facility; but all insurance policies are to be assigned, and all proceeds are payable, to the
Senior Lenders. In brief, the interest being secured by such coverage is that of the Senior Lenders, not that of
government. This can hardly be considered compliance with law.
In essence, the ARCA provisions on termination compensation result in another unauthorized government
guarantee, this time in favor of Piatco.
A Prohibited Direct Government Subsidy, Which at the Same Time Is an Assault on the National Honor
Still another contractual provision offensive to law and public policy is Section 8.01(d) of the ARCA, which is a
"bolder and badder" version of Section 8.04(d) of the CA.
It will be recalled that Section 4-A of the BOT Law as amended prohibits not only direct government guarantees, but
likewise a direct government subsidy for unsolicited proposals. Section 13.2. b. iii. of the 1999 IRR defines a direct
government subsidy as encompassing "an agreement whereby the Government . . . will . . . postpone any payments
due from the proponent."
Despite the statutory ban, Section 8.01 (d) of the ARCA provides thus:
"(d) The provisions of Section 8.01(a) notwithstanding, and for the purpose of preventing a disruption of the
operations in the Terminal and/or Terminal Complex, in the event that at any time Concessionaire is of the
reasonable opinion that it shall be unable to meet a payment obligation owed to the Senior Lenders,
Concessionaire shall give prompt notice to GRP, through DOTC/MIAA and to the Senior Lenders. In such
circumstances, the Senior Lenders (or the Senior Lenders' Representative) may ensure that after making
provision for administrative expenses and depreciation, the cash resources of Concessionaire shall first be
used and applied to meet all payment obligations owed to the Senior Lenders. Any excess cash, after
meeting such payment obligations, shall be earmarked for the payment of all sums payable by
Concessionaire to GRP under this Agreement. If by reason of the foregoing GRP should be unable to collect
in full all payments due to GRP under this Agreement, then the unpaid balance shall be payable within a 90-
day grace period counted from the relevant due date, with interest per annum at the rate equal to the average
91-day Treasury Bill Rate as of the auction date immediately preceding the relevant due date. If payment is
not effected by Concessionaire within the grace period, then a spread of five (5%) percent over the applicable
91-day Treasury Bill Rate shall be added on the unpaid amount commencing on the expiry of the grace period
up to the day of full payment. When the temporary illiquidity of Concessionaire shall have been corrected and
the cash position of Concessionaire should indicate its ability to meet its maturing obligations, then the
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provisions set forth under this Section 8.01(d) shall cease to apply. The foregoing remedial measures shall be
applicable only while there remains unpaid and outstanding amounts owed to the Senior Lenders." (Emphasis
supplied)
By any manner of interpretation or application, Section 8.01(d) of the ARCA clearly mandates the indefinite
postponement of payment of all of Piatco's obligations to the government, in order to ensure that Piatco's obligations
to the Senior Lenders are paid in full first. That is nothing more or less than the direct government subsidy prohibited
by the BOT Law and the IRR. The fact that Piatco will pay interest on the unpaid amounts owed to government does
not change the situation or render the prohibited subsidy any less unacceptable.
But beyond the clear violations of law, there are larger issues involved in the ARCA. Earlier, I mentioned that Section
8.01(d) of the ARCA completely eliminated the proviso in Section 8.04(d) of the CA which gave government the right
to appoint a financial controller to manage the cash position of Piatco during situations of financial distress. Not only
has government been deprived of any means of monitoring and managing the situation; worse, as can be seen from
Section 8.01(d) above-quoted, the Senior Lenders have effectively locked in on the right to exercise financial
controllership over Piatco and to allocate its cash resources to the payment of all amounts owed to the Senior
Lenders before allowing any payment to be made to government.
In brief, this particular provision of the ARCA has placed in the hands of foreign lenders the power and the authority
to determine how much (if at all) and when the Philippine government (as grantor of the franchise) may be allowed
to receive from Piatco. In that situation, government will be at the mercy of the foreign lenders. This is a situation
completely contrary to the rationale of the BOT Law and to public policy.
The aforesaid provision rouses mixed emotions - shame and disgust at the parties' (especially the
government officials') docile submission and abject servitude and surrender to the imperious and excessive
demands of the foreign lenders, on the one hand; and vehement outrage at the affront to the sovereignty of
the Republic and to the national honor, on the other. It is indeed time to put an end to such an unbearable,
dishonorable situation.
The Piatco Contracts Unarguably Violate Constitutional Injunctions
I will now discuss the manner in which the Piatco Contracts offended the Constitution.
The Exclusive Right Granted to Piatco to Operate a Public Utility Is Prohibited by the Constitution
While Section 2.02 of the ARCA spoke of granting to Piatco "a franchise to operate and maintain the Terminal
Complex," Section 3.02(a) of the same ARCA granted to Piatco, for the entire term of the concession agreement,
"the exclusive right to operate a commercial international passenger terminal within the Island of Luzon" with the
exception of those three terminals already existing63 at the time of execution of the ARCA.
Section 11 of Article XII of the Constitution prohibits the grant of a "franchise, certificate, or any other form of
authorization for the operation of a public utility" that is "exclusive in character."
In its Opinion No. 078, Series of 1995, the Department of justice held that "the NAIA Terminal III which . . . is a
'terminal for public use' is a public utility." Consequently, the constitutional prohibition against the exclusivity of a
franchise applies to the franchise for the operation of NAIA Terminal III as well.
What was granted to Piatco was not merely a franchise, but an "exclusive right" to operate an international
passenger terminal within the "Island of Luzon." What this grant effectively means is that the government is now
estopped from exercising its inherent power to award any other person another franchise or a right to operate such
a public utility, in the event public interest in Luzon requires it. This restriction is highly detrimental to government
and to the public interest. Former Secretary of Justice Hernando B. Perez expressed this point well in his
Memorandum for the President dated 21 May 2002:
"Section 3.02 on 'Exclusivity'
"This provision gives to PIATCO (the Concessionaire) the exclusive right to operate a commercial
international airport within the Island of Luzon with the exception of those already existing at the time of the
execution of the Agreement, such as the airports at Subic, Clark and Laoag City. In the case of the Clark
International Airport, however, the provision restricts its operation beyond its design capacity of 850,000
passengers per annum and the operation of new terminal facilities therein until after the new NAIA Terminal III
shall have consistently reached or exceeded its design capacity of ten (10) million passenger capacity per
year for three (3) consecutive years during the concession period.
"This is an onerous and disadvantageous provision. It effectively grants PIATCO a monopoly in Luzon and
ties the hands of government in the matter of developing new airports which may be found expedient and
necessary in carrying out any future plan for an inter-modal transportation system in Luzon.
"Additionally, it imposes an unreasonable restriction on the operation of the Clark International Airport which
could adversely affect the operation and development of the Clark Special Economic Zone to the economic
prejudice of the local constituencies that are being benefited by its operation." (Emphasis supplied)
While it cannot be gainsaid that an enterprise that is a public utility may happen to constitute a monopoly on account
of the very nature of its business and the absence of competition, such a situation does not however constitute
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justification to violate the constitutional prohibition and grant an exclusive franchise or exclusive right to operate a
public utility.
Piatco's contention that the Constitution does not actually prohibit monopolies is beside the point. As correctly
argued,64 the existence of a monopoly by a public utility is a situation created by circumstances that do not
encourage competition. This situation is different from the grant of a franchise to operate a public utility, a privilege
granted by government. Of course, the grant of a franchise may result in a monopoly. But making such franchise
exclusive is what is expressly proscribed by the Constitution.
Actually, the aforementioned Section 3.02 of the ARCA more than just guaranteed exclusivity; it also guaranteed
that the government will not improve or expand the facilities at Clark - and in fact is required to put a cap on the
latter's operations - until after Terminal III shall have been operated at or beyond its peak capacity for three
consecutive years.65 As counsel for public respondents pointed out, in the real world where the rate of influx of
international passengers can fluctuate substantially from year to year, it may take many years before Terminal III
sees three consecutive years' operations at peak capacity. The Diosdado Macapagal International Airport may thus
end up stagnating for a long time. Indeed, in order to ensure greater profits for Piatco, the economic progress of a
region has had to be sacrificed.
The Piatco Contracts Violate the Time Limitation on Franchises
Section 11 of Article XII of the Constitution also provides that "no franchise, certificate or any other form of
authorization for the operation of a public utility shall be . . . for a longer period than fifty years." After all, a franchise
held for an unreasonably long time would likely give rise to the same evils as a monopoly.
The Piatco Contracts have come up with an innovative way to circumvent the prohibition and obtain an extension.
This fact can be gleaned from Section 8.03(b) of the ARCA, which I quote thus:
"Sec. 8.03. Termination Procedure and Consequences of Termination. -
a) x x x x x x x x x
b) In the event the Agreement is terminated pursuant to Section 8.01 (b) hereof, Concessionaire shall
be entitled to collect the Liquidated Damages specified in Annex 'G'. The full payment by GRP to
Concessionaire of the Liquidated Damages shall be a condition precedent to the transfer by
Concessionaire to GRP of the Development Facility. Prior to the full payment of the Liquidated
Damages, Concessionaire shall to the extent practicable continue to operate the Terminal and the
Terminal Complex and shall be entitled to retain and withhold all payments to GRP for the purpose of
offsetting the same against the Liquidated Damages. Upon full payment of the Liquidated Damages,
Concessionaire shall immediately transfer the Development Facility to GRP on 'as-is-where-is' basis."
The aforesaid easy payment scheme is less beneficial than it first appears. Although it enables government to avoid
having to make outright payment of an obligation that will likely run into billions of pesos, this easy payment plan will
nevertheless cost government considerable loss of income, which it would earn if it were to operate Terminal III by
itself. Inasmuch as payments to the concessionaire (Piatco) will be on "installment basis," interest charges on the
remaining unpaid balance would undoubtedly cause the total outstanding balance to swell. Piatco would thus be
entitled to remain in the driver's seat and keep operating the terminal for an indefinite length of time.
The Contracts Create Two Monopolies for Piatco
By way of background, two monopolies were actually created by the Piatco contracts. The first and more obvious
one refers to the business of operating an international passenger terminal in Luzon, the business end of which
involves providing international airlines with parking space for their aircraft, and airline passengers with the use of
departure and arrival areas, check-in counters, information systems, conveyor systems, security equipment and
paraphernalia, immigrations and customs processing areas; and amenities such as comfort rooms, restaurants and
shops.
In furtherance of the first monopoly, the Piatco Contracts stipulate that the NAIA Terminal III will be the only facility to
be operated as an international passenger terminal;66 that NAIA Terminals I and II will no longer be operated as
such;67 and that no one (including the government) will be allowed to compete with Piatco in the operation of an
international passenger terminal in the NAIA Complex.68 Given that, at this time, the government and Piatco are the
only ones engaged in the business of operating an international passenger terminal, I am not acutely concerned
with this particular monopolistic situation.
There was however another monopoly within the NAIA created by the subject contracts for Piatco - in the business
of providing international airlines with the following: groundhandling, in-flight catering, cargo handling, and aircraft
repair and maintenance services. These are lines of business activity in which are engaged many service providers
(including the petitioners-in-intervention), who will be adversely affected upon full implementation of the Piatco
Contracts, particularly Sections 3.01(d)69 and (e)70 of both the ARCA and the CA.
On the one hand, Section 3.02(a) of the ARCA makes Terminal III the only international passenger terminal at the
NAIA, and therefore the only place within the NAIA Complex where the business of providing airport-related services
to international airlines may be conducted. On the other hand, Section 3.01(d) of the ARCA requires government,
through the MIAA, not to allow service providers with expired MIAA contracts to renew or extend their contracts to
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render airport-related services to airlines. Meanwhile, Section 3.01(e) of the ARCA requires government, through
the DOTC and MIAA, not to allow service providers - those with subsisting concession agreements for services and
operations being conducted at Terminal I - to carry over their concession agreements, services and operations to
Terminal III, unless they first enter into a separate agreement with Piatco.
The aforementioned provisions vest in Piatco effective and exclusive control over which service provider may and
may not operate at Terminal III and render the airport-related services needed by international airlines. It thereby
possesses the power to exclude competition. By necessary implication, it also has effective control over the fees
and charges that will be imposed and collected by these service providers.
This intention is exceedingly clear in the declaration by Piatco that it is "completely within its rights to exclude any
party that it has not contracted with from NAIA Terminal III."71
Worse, there is nothing whatsoever in the Piatco Contracts that can serve to restrict, control or regulate the
concessionaire's discretion and power to reject any service provider and/or impose any term or condition it may see
fit in any contract it enters into with a service provider. In brief, there is no safeguard whatsoever to ensure free and
fair competition in the service-provider sector.
In the meantime, and not surprisingly, Piatco is first in line, ready to exploit the unique business opportunity. It
announced72 that it has accredited three groundhandlers for Terminal III. Aside from the Philippine Airlines, the
other accredited entities are the Philippine Airport and Ground Services Globeground, Inc. ("PAGSGlobeground")
and the Orbit Air Systems, Inc. ("Orbit"). PAGSGlobeground is a wholly-owned subsidiary of the Philippine Airport
and Ground Services, Inc. or PAGS,73 while Orbit is a wholly-owned subsidiary of Friendship Holdings, Inc.,74 which
is in turn owned 80 percent by PAGS.75 PAGS is a service provider owned 60 percent by the Cheng Family;76 it is a
stockholder of 35 percent of Piatco77 and is the latter's designated contractor-operator for NAIA Terminal III.78
Such entry into and domination of the airport-related services sector appear to be very much in line with the
following provisions contained in the First Addendum to the Piatco Shareholders Agreement,79 executed on July 6,
1999, which appear to constitute a sort of master plan to create a monopoly and combinations in restraint of trade:
"11. The Shareholders shall ensure:
a. x x x x x x x x x.;
b. That (Phil. Airport and Ground Services, Inc.) PAGS and/or its designated Affiliates shall, at all times during
the Concession Period, be exclusively authorized by (PIATCO) to engage in the provision of ground-handling,
catering and fueling services within the Terminal Complex.
c. That PAIRCARGO and/or its designated Affiliate shall, during the Concession Period, be the only entities
authorized to construct and operate a warehouse for all cargo handling and related services within the Site."
Precisely, proscribed by our Constitution are the monopoly and the restraint of trade being fostered by the Piatco
Contracts through the erection of barriers to the entry of other service providers into Terminal III. In Tatad v.
Secretary of the Department of Energy,80 the Court ruled:
". . . [S]ection 19 of Article XII of the Constitution . . . mandates: 'The State shall regulate or prohibit
monopolies when the public interest so requires. No combinations in restraint of trade or unfair competition
shall be allowed.'
"A monopoly is a privilege or peculiar advantage vested in one or more persons or companies, consisting in
the exclusive right or power to carry on a particular business or trade, manufacture a particular article, or
control the sale or the whole supply of a particular commodity. It is a form of market structure in which one or
only a few firms dominate the total sales of a product or service. On the other hand, a combination in restraint
of trade is an agreement or understanding between two or more persons, in the form of a contract, trust, pool,
holding company, or other form of association, for the purpose of unduly restricting competition, monopolizing
trade and commerce in a certain commodity, controlling its production, distribution and price, or otherwise
interfering with freedom of trade without statutory authority. Combination in restraint of trade refers to the
means while monopoly refers to the end.
"x x x x x x x x x
"Section 19, Article XII of our Constitution is anti-trust in history and in spirit. It espouses competition. The
desirability of competition is the reason for the prohibition against restraint of trade, the reason for the
interdiction of unfair competition, and the reason for regulation of unmitigated monopolies. Competition is thus
the underlying principle of [S]ection 19, Article XII of our Constitution, . . ."81
Gokongwei Jr. v. Securities and Exchange Commission82 elucidates the criteria to be employed: "A 'monopoly'
embraces any combination the tendency of which is to prevent competition in the broad and general sense, or to
control prices to the detriment of the public. In short, it is the concentration of business in the hands of a few. The
material consideration in determining its existence is not that prices are raised and competition actually excluded,
but that power exists to raise prices or exclude competition when desired."83 (Emphasis supplied)
The Contracts Encourage Monopolistic Pricing, Too

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Aside from creating a monopoly, the Piatco contracts also give the concessionaire virtually limitless power over the
charging of fees, rentals and so forth. What little "oversight function" the government might be able and minded to
exercise is less than sufficient to protect the public interest, as can be gleaned from the following provisions:
"Sec. 6.06. Adjustment of Non-Public Utility Fees and Charges
"For fees, rentals and charges constituting Non-Public Utility Revenues, Concessionaire may make any
adjustments it deems appropriate without need for the consent of GRP or any government agency subject to
Sec. 6.03(c)."
Section 6.03(c) in turn provides:
"(c) Concessionaire shall at all times be judicious in fixing fees and charges constituting Non-Public Utility
Revenues in order to ensure that End Users are not unreasonably deprived of services. While the vehicular
parking fee, porterage fee and greeter/wellwisher fee constitute Non-Public Utility Revenues of
Concessionaire, GRP may require Concessionaire to explain and justify the fee it may set from time to time, if
in the reasonable opinion of GRP the said fees have become exorbitant resulting in the unreasonable
deprivation of End Users of such services."
It will be noted that the above-quoted provision has no teeth, so the concessionaire can defy the government without
fear of any sanction. Moreover, Section 6.06 - taken together with Section 6.03(c) of the ARCA - falls short of the
standard set by the BOT Law as amended, which expressly requires in Section 2(b) that the project proponent is
"allowed to charge facility users appropriate tolls, fees, rentals and charges not exceeding those proposed in its
bid or as negotiated and incorporated in the contract x x x."
The Piatco Contracts Violate Constitutional Prohibitions Against

Impairment of Contracts and Deprivation of Property Without Due Process
Earlier, I discussed how Section 3.01(e)84 of both the CA and the ARCA requires government, through DOTC/MIAA,
not to permit the carry-over to Terminal III of the services and operations of certain service providers currently
operating at Terminal I with subsisting contracts.
By the In-Service Date, Terminal III shall be the only facility to be operated as an international passenger terminal at
the NAIA;85 thus, Terminals I and II shall no longer operate as such,86 and no one shall be allowed to compete with
Piatco in the operation of an international passenger terminal in the NAIA.87 The bottom line is that, as of the In-
Service Date, Terminal III will be the only terminal where the business of providing airport-related services to
international airlines and passengers may be conducted at all.
Consequently, government through the DOTC/MIAA will be compelled to cease honoring existing contracts with
service providers after the In-Service Date, as they cannot be allowed to operate in Terminal III.
In short, the CA and the ARCA obligate and constrain government to break its existing contracts with these service
providers.
Notably, government is not in a position to require Piatco to accommodate the displaced service providers, and it
would be unrealistic to think that these service providers can perform their service contracts in some other
international airport outside Luzon. Obviously, then, these displaced service providers are - to borrow a quaint
expression - up the river without a paddle. In plainer terms, they will have lost their businesses entirely, in the blink
of an eye.
What we have here is a set of contractual provisions that impair the obligation of contracts and contravene the
constitutional prohibition against deprivation of property without due process of law.88
Moreover, since the displaced service providers, being unable to operate, will be forced to close shop, their
respective employees - among them Messrs. Agan and Lopez et al. - have very grave cause for concern, as they
will find themselves out of employment and bereft of their means of livelihood. This situation comprises still another
violation of the constitution prohibition against deprivation of property without due process.
True, doing business at the NAIA may be viewed more as a privilege than as a right. Nonetheless, where that
privilege has been availed of by the petitioners-in-intervention service providers for years on end, a situation arises,
similar to that in American Inter-fashion v. GTEB.89 We held therein that a privilege enjoyed for seven years
"evolved into some form of property right which should not be removed x x x arbitrarily and without due process."
Said pronouncement is particularly relevant and applicable to the situation at bar because the livelihood of the
employees of petitioners-intervenors are at stake.
The Piatco Contracts Violate Constitutional Prohibition

Against Deprivation of Liberty Without Due Process
The Piatco Contracts by locking out existing service providers from entry into Terminal III and restricting entry of
future service providers, thereby infringed upon the freedom - guaranteed to and heretofore enjoyed by international
airlines - to contract with local service providers of their choice, and vice versa.
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Both the service providers and their client airlines will be deprived of the right to liberty, which includes the right to
enter into all contracts,90 and/or the right to make a contract in relation to one's business.91
By Creating New Financial Obligations for Government,

Supplements to the ARCA Violate the Constitutional
Ban on Disbursement of Public Funds Without Valid Appropriation
Clearly prohibited by the Constitution is the disbursement of public funds out of the treasury, except in pursuance of
an appropriation made by law.92 The immediate effect of this constitutional ban is that all the various agencies of
government are constrained to limit their expenditures to the amounts appropriated by law for each fiscal year; and
to carefully count their cash before taking on contractual commitments. Giving flesh and form to the injunction of the
fundamental law, Sections 46 and 47 of Executive Order 292, otherwise known as the Administrative Code of 1987,
provide as follows:
"Sec. 46. Appropriation Before Entering into Contract. - (1) No contract involving the expenditure of public
funds shall be entered into unless there is an appropriation therefor, the unexpended balance of which, free of
other obligations, is sufficient to cover the proposed expenditure; and . .
"Sec. 47. Certificate Showing Appropriation to Meet Contract. - Except in the case of a contract for personal
service, for supplies for current consumption or to be carried in stock not exceeding the estimated
consumption for three (3) months, or banking transactions of government-owned or controlled banks, no
contract involving the expenditure of public funds by any government agency shall be entered into or
authorized unless the proper accounting official of the agency concerned shall have certified to the officer
entering into the obligation that funds have been duly appropriated for the purpose and that the amount
necessary to cover the proposed contract for the current calendar year is available for expenditure on account
thereof, subject to verification by the auditor concerned. The certificate signed by the proper accounting
official and the auditor who verified it, shall be attached to and become an integral part of the proposed
contract, and the sum so certified shall not thereafter be available for expenditure for any other purpose until
the obligation of the government agency concerned under the contract is fully extinguished."
Referring to the aforequoted provisions, this Court has held that "(I)t is quite evident from the tenor of the language
of the law that the existence of appropriations and the availability of funds are indispensable pre-requisites to or
conditions sine qua non for the execution of government contracts. The obvious intent is to impose such conditions
as a priori requisites to the validity of the proposed contract."93
Notwithstanding the constitutional ban, statutory mandates and Jurisprudential precedents, the three Supplements
to the ARCA, which were not approved by NEDA, imposed on government the additional burden of spending public
moneys without prior appropriation.
In the First Supplement ("FS") dated August 27, 1999, the following requirements were imposed on the government:
• To construct, maintain and keep in good repair and operating condition all airport support services, facilities,
equipment and infrastructure owned and/or operated by MIAA, which are not part of the Project or which are
located outside the Site, even though constructed by Concessionaire - including the access road connecting
Terminals II and III and the taxilane, taxiways and runways
• To obligate the MIAA to provide funding for the upkeep, maintenance and repair of the airports and facilities
owned or operated by it and by third persons under its control in order to ensure compliance with international
standards; and holding MIAA liable to Piatco for the latter's losses, expenses and damages as well as for the
latter's liability to third persons, in case MIAA fails to perform such obligations; in addition, MIAA will also be
liable for the incremental and consequential costs of the remedial work done by Piatco on account of the
former's default.
• Section 4 of the FS imposed on government ten (10) "Additional Special Obligations," including the
following:
Providing thru MIAA the land required by Piatco for the taxilane and one taxiway, at no cost to Piatco
Implementing the government's existing storm drainage master plan
Coordinating with DPWH the financing, implementation and completion of the following works before
the In-Service Date: three left-turning overpasses (Edsa to Tramo St., Tramo to Andrews Ave., and
Manlunas Road to Sales Ave.) and a road upgrade and improvement program involving widening,
repair and resurfacing of Sales Road, Andrews Avenue and Manlunas Road; improvement of Nichols
Interchange; and removal of squatters along Andrews Avenue
Dealing directly with BCDA and the Philippine Air Force in acquiring additional land or right of way for
the road upgrade and improvement program
Requiring government to work for the immediate reversion to MIAA of the Nayong Pilipino National
Park, in order to permit the building of the second west parallel taxiway
• Section 5 of the FS also provides that in lieu of the access tunnel, a surface access road (T2-T3) will be
constructed. This provision requires government to expend funds to purchase additional land from Nayong
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Pilipino and to clear the same in order to be able to deliver clean possession of the site to Piatco, as required
in Section 5(c) of the FS.
On the other hand, the Third Supplement ("TS") obligates the government to deliver, within 120 days from date
thereof, clean possession of the land on which the T2-T3 Road is to be constructed.
The foregoing contractual stipulations undeniably impose on government the expenditures of public funds not
included in any congressional appropriation or authorized by any other statute. Piatco however attempts to take
these stipulations out of the ambit of Sections 46 and 47 of the Administrative Code by characterizing them as
stipulations for compliance on a "best-efforts basis" only.
To determine whether the additional obligations under the Supplements may really be undertaken on a best-efforts
basis only, the nature of each of these obligations must be examined in the context of its relevance and significance
to the Terminal III Project, as well as of any adverse impact that may result if such obligation is not performed or
undertaken on time. In short, the criteria for determining whether the best-efforts basis will apply is whether the
obligations are critical to the success of the Project and, accordingly, whether failure to perform them (or to perform
them on time) could result in a material breach of the contract.
Viewed in this light, the "Additional Special Obligations" set out in Section 4 of the FS take on a different aspect. In
particular, each of the following may all be deemed to play a major role in the successful and timely prosecution of
the Terminal III Project: the obtention of land required by PIATCO for the taxilane and taxiway; the implementation of
government's existing storm drainage master plan; and coordination with DPWH for the completion of the three left-
turning overpasses before the In-Service Date, as well as acquisition and delivery of additional land for the
construction of the T2-T3 access road.
Conversely, failure to deliver on any of these obligations may conceivably result in substantial prejudice to the
concessionaire, to such an extent as to constitute a material breach of the Piatco Contracts. Whereupon, the
concessionaire may outrightly terminate the Contracts pursuant to Section 8.01(b)(i) and (ii) of the ARCA and seek
payment of Liquidated Damages in accordance with Section 8.02(a) of the ARCA; or the concessionaire may
instead require government to pay the Incremental and Consequential Losses under Section 1.23 of the ARCA.94
The logical conclusion then is that the obligations in the Supplements are not to be performed on a best-efforts basis
only, but are unarguably mandatory in character.
Regarding MIAA's obligation to coordinate with the DPWH for the complete implementation of the road upgrading
and improvement program for Sales, Andrews and Manlunas Roads (which provide access to the Terminal III site)
prior to the In-Service Date, it is essential to take note of the fact that there was a pressing need to complete the
program before the opening of Terminal III.95 For that reason, the MIAA was compelled to enter into a memorandum
of agreement with the DPWH in order to ensure the timely completion of the road widening and improvement
program. MIAA agreed to advance the total amount of P410.11 million to DPWH for the works, while the latter was
committed to do the following:
"2.2.8. Reimburse all advance payments to MIAA including but not limited to interest, fees, plus other costs of
money within the periods CY2004 and CY2006 with payment of no less than One Hundred Million Pesos
(PhP100M) every year.
"2.2.9. Perform all acts necessary to include in its CY2004 to CY2006 budget allocation the repayments for
the advances made by MIAA, to ensure that the advances are fully repaid by CY2006. For this purpose,
DPWH shall include the amounts to be appropriated for reimbursement to MIAA in the "Not Needing
Clearance" column of their Agency Budget Matrix (ABM) submitted to the Department of Budget and
Management."
It can be easily inferred, then, that DPWH did not set aside enough funds to be able to complete the upgrading
program for the crucially situated access roads prior to the targeted opening date of Terminal III; and that, had MIAA
not agreed to lend the P410 Million, DPWH would not have been able to complete the program on time. As a
consequence, government would have been in breach of a material obligation. Hence, this particular undertaking of
government may likewise not be construed as being for best-efforts compliance only.
They also Infringe on the Legislative Prerogative and Power Over the Public Purse
But the particularly sad thing about this transaction between MIAA and DPWH is the fact that both agencies were
maneuvered into (or allowed themselves to be maneuvered into) an agreement that would ensure delivery of
upgraded roads for Piatco's benefit, using funds not allocated for that purpose. The agreement would then be
presented to Congress as a done deal. Congress would thus be obliged to uphold the agreement and support it with
the necessary allocations and appropriations for three years, in order to enable DPWH to deliver on its committed
repayments to MIAA. The net result is an infringement on the legislative power over the public purse and a
diminution of Congress' control over expenditures of public funds - a development that would not have come about,
were it not for the Supplements. Very clever but very illegal!
EPILOGUE
What Do We Do Now?
In the final analysis, there remains but one ultimate question, which I raised during the Oral Argument on December
10, 2002: What do we do with the Piatco Contracts and Terminal III?96 (Feeding directly into the resolution of
1/28/22, 7:53 PM G.R. No. 155001
the decisive question is the other nagging issue: Why should we bother with determining the legality and validity of
these contracts, when the Terminal itself has already been built and is practically complete?)
Prescinding from all the foregoing disquisition, I find that all the Piatco contracts, without exception, are void ab
initio, and therefore inoperative. Even the very process by which the contracts came into being - the bidding and the
award - has been riddled with irregularities galore and blatant violations of law and public policy, far too many to
ignore. There is thus no conceivable way, as proposed by some, of saving one (the original Concession Agreement)
while junking all the rest.
Neither is it possible to argue for the retention of the Draft Concession Agreement (referred to in the various
pleadings as the Contract Bidded Out) as the contract that should be kept in force and effect to govern the situation,
inasmuch as it was never executed by the parties. What Piatco and the government executed was the Concession
Agreement which is entirely different from the Draft Concession Agreement.
Ultimately, though, it would be tantamount to an outrageous, grievous and unforgivable mutilation of public policy
and an insult to ourselves if we opt to keep in place a contract - any contract - for to do so would assume that we
agree to having Piatco continue as the concessionaire for Terminal III.
Despite all the insidious contraventions of the Constitution, law and public policy Piatco perpetrated, keeping Piatco
on as concessionaire and even rewarding it by allowing it to operate and profit from Terminal III - instead of imposing
upon it the stiffest sanctions permissible under the laws - is unconscionable.
It is no exaggeration to say that Piatco may not really mind which contract we decide to keep in place. For all it may
care, we can do just as well without one, if we only let it continue and operate the facility. After all, the real money
will come not from building the Terminal, but from actually operating it for fifty or more years and charging whatever
it feels like, without any competition at all. This scenario must not be allowed to happen.
If the Piatco contracts are junked altogether as I think they should be, should not AEDC automatically be considered
the winning bidder and therefore allowed to operate the facility? My answer is a stone-cold 'No'. AEDC never won
the bidding, never signed any contract, and never built any facility. Why should it be allowed to automatically step in
and benefit from the greed of another?
Should government pay at all for reasonable expenses incurred in the construction of the Terminal? Indeed it
should, otherwise it will be unjustly enriching itself at the expense of Piatco and, in particular, its funders, contractors
and investors - both local and foreign. After all, there is no question that the State needs and will make use of
Terminal III, it being part and parcel of the critical infrastructure and transportation-related programs of government.
In Melchor v. Commission on Audit,97 this Court held that even if the contract therein was void, the principle of
payment by quantum meruit was found applicable, and the contractor was allowed to recover the reasonable value
of the thing or services rendered (regardless of any agreement as to the supposed value), in order to avoid unjust
enrichment on the part of government. The principle of quantum meruit was likewise applied in Eslao v. Commission
on Audit,98 because to deny payment for a building almost completed and already occupied would be to permit
government to unjustly enrich itself at the expense of the contractor. The same principle was applied in Republic v.
Court of Appeals.99
One possible practical solution would be for government - in view of the nullity of the Piatco contracts and of the fact
that Terminal III has already been built and is almost finished - to bid out the operation of the facility under the same
or analogous principles as build-operate-and-transfer projects. To be imposed, however, is the condition that the
winning bidder must pay the builder of the facility a price fixed by government based on quantum meruit; on the real,
reasonable - not inflated - value of the built facility.
How the payment or series of payments to the builder, funders, investors and contractors will be staggered and
scheduled, will have to be built into the bids, along with the annual guaranteed payments to government. In this
manner, this whole sordid mess could result in something truly beneficial for all, especially for the Filipino people.
WHEREFORE, I vote to grant the Petitions and to declare the subject contracts NULL and VOID.
Footnotes
1 An Act Authorizing the Financing, Construction, Operation and Maintenance of Infrastructure Projects by the
Private Sector.
2 G.R. No. 155001.
3 G.R. No. 155547.
4 G.R. No. 155661.
5 An international airport is any nation's gateway to the world, the first contact of foreigners with the Philippine
Republic, especially those foreigners who have not been in contact with the wonderful exports of the
Philippine economy, those foreigners who have not had the benefit of enjoying Philippine export products.
1/28/22, 7:53 PM G.R. No. 155001
Because for them, when they see your products, that is the face of the Philippines they see. But if they are
not exposed to your products, then it's the airport that's the first face of the Philippines they see. Therefore,
it's not only a matter of opening yet, but making sure that it is a world class airport that operates without any
hitches at all and without the slightest risk to travelers. But it's also emerging as a test case of my
administration's commitment to fight corruption to rid our state from the hold of any vested interest, the
Solicitor General, and the Justice Department have determined that all five agreements covering the
NAIA Terminal 3, most of which were contracted in the previous administration, are null and void. I
cannot honor contracts which the Executive Branch's legal offices have concluded (as) null and void.
I am, therefore, ordering the Department of Justice and the Presidential Anti-Graft Commission
to investigate any anomalies and prosecute all those found culpable in connection with the
NAIA contract. But despite all of the problems involving the PIATCO contracts, I am assuring
our people, our travelers, our exporters, my administration will open the terminal even if it
requires invoking the whole powers of the Presidency under the Constitution and we will open a
safe, secure and smoothly functioning airport, a world class airport, as world class as the
exporters we are honoring today. (Speech of President Arroyo, emphasis supplied)
6 Art. VIII, Sec. 1, Philippine Constitution.
7 MIASCOR, MACROASIA-EUREST, MACROASIA OGDEN and Philippine Airlines.
8 Sections 3.01 (a) and 3.02, 1997 Concession Agreement; Sections 3.01 (d) and (e) and 3.02, ARCA.
9 Kilosbayan, Inc. v. Morato, G.R. No. 118910, July 17, 1995, 246 SCRA 540, 562-563, citing Baker v. Carr,
369 U.S. 186, 7 L. Ed. 633 (1962).
10 Id.; Bayan v. Zamora, G.R. No. 138570, October 10, 2000; 342 SCRA 449, 478.
11 Rollo, G.R. No. 155547, p.12.
12 Article VI, Section 29 (1).
13 G.R. No. 39842, March 28, 1934, 59 Phil 823.
14 G.R. No. 29627, December 19, 1989; 180 SCRA 254, 260-261.
15 G. R. No. 113375, May 5, 1994.
16 Id.
17 Id. citing Tan vs. Macapagal, 43 SCRA 677, 680 [1972].
18 Association of Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform, G. R. No.
78742, July 14, 1989; 175 SCRA 343, 364-365 [1989].
19 Santiago v. Vasquez, G.R. Nos. 99289-90, January 27, 1993; 217 SCRA 633, 652.
20 G.R. No. 136154, February 7, 2001; 351 SCRA 373, 381.
21 G.R. No. 135362, December 13, 1999; 320 SCRA 610.
22 Del Monte Corporation-USA v. Court of Appeals, G.R. No. 136154, February 7, 2001; 351 SCRA 373, 382.
23 Rollo, G.R. No.155001, pp. 2487-2488.
24 Section 5, R.A. No. 7718.
25 At the United States Dollar-Philippine Peso exchange rate of US$1:P26.239 quoted by the Bangko Sentral
ng Pilipinas at that time.
26 Rollo, G.R. No.155001, pp. 2471-2474.
27 Id. at 2475-2477. Derived from the figures on the authorized capital stock and the shares of stock that are
subscribed and paid-up.
28 Id. at 2478-2484.
29Member Amount of Equity

Maximum
Security Bank P528,525,656.55
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PAGS 26,735,700.00
Paircargo 3,123,515.00
TOTAL P558,384,871.55
30 Republic of the Philippines vs. Hon. Ignacio C. Capulong, G.R. No. 93359, July 12, 1991; 199 SCRA 134,
146-147. Emphasis supplied.
31 Danville Maritime, Inc. v. Commission on Audit, G.R. No. 85285, July 28, 1989, 175 SCRA 701, 713.
Citations omitted.
32 A. Cobacha & D. Lucenario, Law on Public Bidding and Government Contracts 13 (1960).
33 Diamond v. City of Mankato, et al., 93 N.W. 912.
34 G.R. No. L-5439, December 29, 1954; 96 Phil 368.
35 Id. at 375.
36 Section 6.03, draft Concession Agreement.
37 Sections 1.33 and 6.03(b), 1997 Concession Agreement.
38 Sections 1.27 and 6.06, 1997 Concession Agreement.
39 Emphasis supplied.
41 Referred to as "Passenger Service Fee" under the draft Concession Agreement.
42 Section 6.05 Interim Adjustment
(a) Concessionaire may apply for and, if warranted, may be granted an interim adjustment of the fees and
charges constituting Public Utility Revenues upon the occurrence of extraordinary events resulting from any
of the following:
a depreciation since the last adjustment by at least fifteen percent (15%) of the value of the Philippine
Peso relative to the US Dollar using the exchange rates published by the Philippine Dealing System as
reference;
an increase since the last adjustment by at least fifteen percent (15%) in the Metro Manila Consumer
Price Index based on National Census and Statistics Office publications;
an increase since the last adjustment in MERALCO power rates billing by at least fifteen percent
(15%);
an increase since the last adjustment in the 180-day Treasury Bill interest rates by at least thirty (30%).
xxx xxx xxx

43 Section 6.05, draft Concession Agreement.
44 Section 1.33, 1997 Concession Agreement.
45 Supra note 31.
46 Malaga v. Penachos, Jr., G.R No. 86695, September 3, 1992; 213 SCRA 516, 526.
47 A. Cobacha & D. Lucenario, Law on Public Bidding and Government Contracts 6-7 (1960).
49 Concession Agreement, Art. 4, Sec. 4.04 (b) and (c), Art. 1, Sec. 1.06, July 12, 1997.
50 Ibid.
51 Id. at Art. 4, Sec. 4.04 (c).
52 Record of the Senate Second Regular Session 1993-1994, vol. III, no. 42, p. 362.
1/28/22, 7:53 PM G.R. No. 155001
53 Republic Act No. 7718, Secs. 2 and 4-A, Implementing Rules and Regulations, Rule 11, Secs. 11.1 and
11.3.
54 Emphasis and caption supplied.
55 Sec. 1.06, ARCA.
56 Republic Act No. 7718, as amended, Sec. 4-A, May 5, 1994; Implementing Rules and Regulations, Rule
10, Sec. 10.1.
57 Implementing Rules and Regulations, Rule 10, Sec. 10.4.
58 North Negros Sugar Co., Inc. v. Hidalgo, G.R. No. 42334, October 31, 1936; Intestate estate of the
deceased Florentino San Gil. Josefa R. Oppus v. Bonifacio San Gil, G.R. No. 48115, October 12, 1942; San
Diego v. Municipality of Naujan, G.R. No. L-9920, February 29, 1960; Favis vs. Municipality of Sabañgan,
G.R. No. L-26522, 27 February 1969; City of Manila vs. Tarlac Development Corporation, L-24557, L-24469 &
L-24481, 31 July 1968; In the matter of the Petition for Declaratory Judgment on Title to Real Property
(Quieting of Title) Pechueco Sons Company v. Provincial Board of Antique, G.R. No. L-27038, January 30,
1970; Fornilda v. The Branch 164, Regional Trial Court IVth Judicial Region, Pasig, G.R. No. L-72306,
October 5, 1988; Laurel v. Civil Service Commission, G.R. No. 71562, October 28, 1991; Davac v. Court of
Appeals, G.R. No. 106105, April 21, 1994.
59 Republic Act No. 7718, Sec. 1.
60 III Record of the Constitutional Commission, pp. 266-267 (1986).
61 Id.
62 Except for providing for the suspension of all payments due to the Government for the duration of the
takeover, Article V, Section 5.10(b) of the ARCA contains the same provision. Emphasis and caption supplied.
63 Id.
64 Bataan Shipyard and Engineering Co., Inc. v. Presidential Commission on Good Government, G.R. No.
75885, May 27, 1987 citing Freund, The Police Power (Chicago, 1904).
65 Genuino v. Court of Agrarian Relations, G.R. No. L-25035, February 26, 1968.
66 Black's Law Dictionary, 4th Ed., p. 1158.
67 36 Am Jur 480 citing Slaughter-House Cases, 16 Wall. (US) 36, 21 L ed 394.
68 Concession Agreement ("CA") dated July 12, 1997, Art. III, Sec. 3.02(a); Amended and Restated
Concession Agreement ("ARCA") dated November 26, 1998, Art. III, Sec. 3.02(a).
69 Ibid.
70 Id. at CA, Art. III, Sec. 3.02(b); ARCA, Art. III, Sec. 3.02(b).
71 The day immediately following the day on which the Certificate of Completion is issued or deemed to be
issued.
72 Id. at CA, Art. III, Sec. 3.01(a) and (b); ARCA, Art. III, Sec. 3.01 (a) and (b).
73 Id. at CA, Art. III, Sec. 3.01(d) and (e); ARCA, Art. III, Sec. 3.01(d) and (e).
74 Executive Order No. 903, as amended, Sec. 4 (b) and (c).
75 Art. XII, Sec. 19, Philippine Constitution.
76 Republic Act No. 7718, Sec. 1.
77 Transcript of Oral Arguments, p. 157, December 10, 2002.
78 G.R. No. L-54958, September 2, 1983; 09 Phil. 400.
79 Executive Order No. 903, July 21, 1983, provides:
Section 5. Functions, Powers, and Duties. — The Authority shall have the following functions, powers
and duties:
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xxx
(b) To control, supervise, construct, maintain, operate and provide such facilities or services as
shall be necessary for the efficient functioning of the Airport;
(c) To promulgate rules and regulations governing the planning, development, maintenance,
operation and improvement of the Airport and to control and/or supervise as may be necessary
the construction of any structure or the rendition of any service within the Airport;
VITUG, J.:
1 Article VIII, Section 5(1), 1987 Constitution.
2 Matuguina Integrated Products, Inc. vs. CA, 263 SCRA 490; Mafinco Trading Corporation vs. Ople, 70
SCRA 139.
3 Mafinco Trading Corporation vs. Ople, supra.
4 Section 1, Rule 63, Rules of Court.
5 In re: Bermudez, 145 SCRA 160.
6 235 SCRA 630, 720.
7 298 SCRA 795.
PANGANIBAN, J.:
1 See Kilosbayan, Inc. v. Guingona Jr., 232 SCRA 110, May 5, 1994; and Basco v. Phil. Amusements and
Gaming Corporation, 197 SCRA 52, May 14, 1991.
2 COMELEC v. Quijano-Padilla, GR No. 151992, September 18, 2002.
3 Vide: ABS-CBN Broadcasting Corp. v. Commission on Elections, 323 SCRA 811, January 28, 2000;
likewise, COMELEC v. Quijano-Padilla, supra.
4 See Respondent PIATCO's Memorandum, pp. 25-26.
5 See public respondents' Memorandum, p. 24.
6 307 SCRA 394, 399, May 19, 1999, per Panganiban, J.
7 175 SCRA 264, July 11, 1989.
8 Supra, Paras, J.
9 As reiterated in Bayan (Bagong Alyansang Makabayan) v. Zamora, 342 SCRA 449, 480-481, October 10,
2000.
10 RA No. 6957 as amended by RA No. 7718.
11 Par. 3.6.1 on page 8 of the Bid Documents.
12 Initially the minimum equity was set at 20%, per Sec. 3.6.4 of the Bid Documents. However, this was later
clarified in Bid Bulletin No. 3(B)(6) to read 30% of Project Cost, to bring the same in line with the draft
concession agreement's Art. II Sec. 2.01(a), which specifically set the project's debt-to-equity ratio at 70:30,
thereby requiring a minimum equity of 30% of project cost.
13 The consortium was composed of Paircargo, PAGS and Security Bank. Paircargo's audited financial
statements as of 1993 and 1994 showed a net worth of P2,783,592 and P3,123,515 respectively. PAGS'
audited financial statements as of 1995 showed a paid-up capital of P5,000,000 and deposits on future
subscriptions of P21,735,700, or an aggregate of P26,735,700 of equity available to invest in the project.
Security Bank's audited statements for 1995 showed a net worth of P3,523,504,377. However, the bank's
entire net worth was not available for investment in the project since Sec. 21-B of the General Banking Act
provides inter alia that a commercial bank's equity investment in any one enterprise, whether allied or non-
allied, should not exceed 15% of the net worth of the investing bank. This limitation is reiterated in Sec.
1381.1.a. of the Manual for Banks and Other Financial Intermediaries. Thus, the maximum amount which
Security Bank could have legally invested in the project was only P528,525,656.55. And consequently, the
maximum amount of equity which the consortium could have put up was only P558,384,871.55.
14 199 SCRA 134, July 12, 1991.
1/28/22, 7:53 PM G.R. No. 155001
15 Malaga v. Penachos Jr., 213 SCRA 516, September 3, 1992.
16 Part of the bid process under the BOT Law is the right of the originator of an unsolicited proposal to match
a price challenge. Pursuant to Sec. 4-A, "in the event another proponent submits a lower price proposal, the
original proponent shall have the right to match that price within thirty (30) working days."
17 Cf. Malaga v. Penachos, Jr., supra.
18 §11.2, 1994 IRR.
19 Public respondents' Memorandum, pp. 86-87; prepared jointly by the solicitor general, the acting
government corporate counsel, and their respective deputies and assistants.
20 Supra, note 14, per Medialdea, J.
21 §§3.01(d), 3.01(e), 3.02(a), 3.02(b) and 5.15 of the CA.
22 See §1.06 of the CA.
23 §3.02 of the CA.
24 §2.05 of the CA.
25 The parametric formula referred to in the CA applies only to the following so-called public utility fees:
aircraft parking and tacking fees, check-in counter fees and terminal fees.
26 Fernandez, A Treatise on Government Contracts under Philippine Law, 2001 ed., p. 70.
27 96 Phil. 368, December 29, 1954.
28 Id., p. 375, per Paras, CJ.
29 63 SCRA 170, 177-178, March 21, 1975, per Antonio, J.
30 Cf . §1.06 of the ARCA vis-à-vis § 1.06 of the CA.
31 §4.04 and 8.01 of the ARCA vis-à-vis §8.04 of the CA.
32 As cf. Annex "G" of the ARCA vis-à-vis Annex "G" of the CA.
33 Cf . §8.04(d) of the ARCA vis-à-vis §9.01(d) of the CA.
34 Cf . §2.05 of the ARCA vis-à-vis §2.05 of the CA.
35 Cf . §5.08(a) of the ARCA vis-à-vis §5.08(a) of the CA.
36 Cf . § 6.03(a)(i) of the ARCA vis-à-vis §6.03(a) of the CA.
37 Cf . §8.01(b) and §12.09 of the ARCA vis-à-vis §8.04(b) and 12.09 of the CA.
38 Cf . §8.03(a)(i) of the ARCA vis-à-vis §8.06(a)(i) of the CA.
39 §2.05(g) of the ARCA.
40 §4.04(b) of the ARCA.
41 §6.03(c) of the ARCA vis-à-vis §6.03(c) of the CA.
42 Cf . §8.01(b) of the ARCA vis-à-vis § 8.04(b) of the CA.
43 §12.14 of the ARCA.
44 Cf. §§1.11(b) and 5.06 of the ARCA vis-à-vis §§1.11(b) and 5.06 of the CA.
45 §2 of the FS, amending §1.36 of the ARCA.
46 §3 of the FS, amending §2.05(d) of the ARCA.
47 Ibid.
1/28/22, 7:53 PM G.R. No. 155001
48 §4 of the FS, adding §2.05(h) to ARCA.
49 §4 of the FS, adding §2.05(i) to ARCA.
50 §4 of the FS, adding §2.05(p) to ARCA.
51 Per §4 of the FS, adding §2.05(n) to ARCA.
52 Per §4 of the FS, adding §2.05(o) to ARCA.
53 Per §4 of the FS, adding §2.05(p) to ARCA.
54 Per §4 of the FS, adding §2.05(j) to ARCA.
55 §8 of the FS, amending §6.01(c) of the ARCA.
56 §9 of the FS, amending §6.02 of the ARCA.
57 §Sec. 21 of the SS.
58 Per §3.1 of the TS.
59 Vide §3.4 of the TS.
60 §4.2 of the TS.
61 Page 37.
62 §8.01 (a) of the ARCA.
63 Namely, the airports at the Subic Bay Freeport Special Economic Zone, the Clark Special Economic Zone,
and Laoag City.
64 Memorandum, pp. 5-7, of the petitioners-in-intervention.
65 §3.02 a): ". . . With regard to CSEZ, GRP shall ensure that, until such time as the Development Facility
Capacity shall have been consistently reached or exceeded for three (3) consecutive years during the
Concession Period, (i) Clark International Airport shall not be operated beyond its design capacity of Eight
Hundred Fifty Thousand (850,000) passengers per annum and (ii) no new terminal facilities shall be operated
therein. "Development Facility Capacity" refers to the ten million (10,000,000) passenger capacity per year of
the Development Facility."
66 §3.02(a) of the ARCA and §3.02(a) of the CA.
67 §3.02(b) and (c) of the ARCA, and §3.02(b) of the CA.
68 §3.02(b) and (c) of the ARCA and §3.02(b) of the CA. Pertinent portions of §3.02(b) of the ARCA are
quoted hereinbelow:
"(b) On the In-Service Date, GRP shall cause the closure of the Ninoy Aquino International Airport
Passenger Terminals I and II as international passenger terminals in order to allow Concessionaire,
during the entire Concession Period, to exclusively operate a commercial international passenger
terminal within the island of Luzon; provided that the aforesaid exclusive right to operate a commercial
international passenger terminal shall be without prejudice to the international passenger terminal
operations already existing on the date of this Agreement in SBFSEZ, CSEZ and Laoag City (but
subject to the limitation with regard to CSEZ referred to in Section 3.02[a]). Neither shall GRP, DOTC or
MIAA use or permit the use of Terminals I and/or II under any arrangement or scheme, for
compensation or otherwise, with any party which would directly or indirectly compete with
Concessionaire in the latter's operation of and the operations in the Terminal and Terminal Complex,
including without limitation the use of Terminals I and/or II for the handling of international traffic;
provided that if Terminals I and/or II are operated as domestic passenger terminals, the conduct of any
activity therein which under the ordinary course of operating a domestic passenger terminal is normally
undertaken, shall not be considered to be in direct or indirect competition with Concessionaire in its
operation of the Development Facility."
69 Sec. 3.01(d) of the ARCA and the CA reads as follows:
"(d) For the purpose of an orderly transition, MIAA shall not renew any expired concession agreement relative
to any service or operation currently being undertaken at the Ninoy Aquino International Airport Passenger
Terminal I, or extend any concession agreement which may expire subsequent hereto, except to the extent
that the continuation of existing services and operations shall lapse on or before the In-Service Date. Nothing
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herein shall be construed to prohibit MIAA from maintaining arrangements for the uninterrupted provision of
essential services at the Ninoy Aquino International Airport Passenger Terminal I until the Terminal shall have
commenced operations on the In-Service Date, and thereafter, from making such arrangements as are
necessary for the utilization of NAIA Passenger Terminal I as a domestic passenger terminal or as a facility
other than an international passenger terminal.
70 Sec. 3.01(e) of the ARCA and the CA reads as follows:
"(e) GRP confirms that certain concession agreements relative to certain services or operations
currently being undertaken at the Ninoy Aquino International Airport Passenger Terminal I have a
validity period extending beyond the In-Service Date. GRP, through DOTC/MIAA, confirms that these
services and operations shall not be carried over to the Terminal and that Concessionaire is under no
legal obligation to permit such carry-over except through a separate agreement duly entered into with
Concessionaire. In the event Concessionaire becomes involved in any litigation initiated by any such
concessionaire or operator, GRP undertakes and hereby holds Concessionaire free and harmless on a
full indemnity basis from and against any loss and/or liability resulting from any such litigation, including
the cost of litigation and the reasonable fees paid or payable to Concessionaire's counsel of choice, all
such amounts being fully deductible by way of an offset from any amount which Concessionaire is
bound to pay GRP under this Agreement."
71 PIATCO Comment, par. 9, on p. 6.
72 PIATCO letter dated October 14, 2002 addressed to the Board of Airline Representatives, copy attached
as Annex "OO-Service Providers".
73 Based on the PAGSGlobeground GIS as of July 2000, attached as Annex "LL-Service Providers" to the
Memorandum of petitioners-in-intervention.
74 Based on the Orbit GIS as of August 2000, attached as Annex "MM-Service Providers" to the
Memorandum of petitioners-in-intervention.
75 Based on the Friendship Holdings, Inc. GIS as of December 2001, attached as Annex "NN-Service
Providers" to the Memorandum of petitioners-in-intervention.
76 Per the Articles of Incorporation of PAGS, attached as Annex "Y-Service Providers" to the petition-in-
intervention.
77 Per the GIS of Piatco as of May 2000.
78 Per §5.15 of both the CA and the ARCA.
79 Copy of which was presented by Piatco to the Senate Blue Ribbon Committee during committee hearings.
80 281 SCRA 330, November 5, 1997.
81 Id., pp. 355-358, per Puno, J.
82 89 SCRA 336, April 11, 1979.
83 Id., p. 376, per Antonio, J.
84 Please see footnote 70 supra.
85 §3.02(a) of the CA and §3.02(a) of the ARCA.
86 §3.02(b) of the CA and §3.02(b) and (c) of the ARCA.
87 Ibid.
88 §1, Art. III, Constitution.
89 197 SCRA 409, May 23, 1991, per Gutierrez Jr., J.
90 See Rubi v. Provincial Board of Mindoro, 39 Phil. 660, March 7, 1919.
91 Davao Stevedores Mutual Benefit Association v. Compañia Maritima, 90 Phil. 847, February 29, 1952.
92 §29(1), Article VI, 1987 Constitution.
93 Commission on Elections v. Quijano-Padilla, GR No. 151992, September 18, 2002, p. 20, per Sandoval-
Gutierrez, J.
1/28/22, 7:53 PM G.R. No. 155001
94 §1.23 of the ARCA defines Incremental and Consequential Costs as "additional costs properly documented
and reasonably incurred by Concessionaire (including without limitation additional overhead costs, cost of any
catch-up program, demobilization, re-mobilization, storage costs, termination penalties, increase in
construction costs, additional interest expense, costs, fees and other expenses and increase in the cost of
financing) in excess of a budgeted or contracted amount, occasioned by, among other things, delay in the
prosecution of Works by reason not attributable to Concessionaire or a deviation from the Tender Design or
any suspension or interference with the operation of the Terminal Complex by reason not attributable to
Concessionaire. . . ."
95 Memorandum of Agreement between the Manila International Airport Authority and the Department of
Public Works and Highways, p. 2.
96 When I asked this question, Atty. Jose A. Bernas replied that if Piatco is deemed a builder in good faith
then it may be entitled to some form of compensation under the principle barring unjust enrichment. But if it is
found to be a builder in bad faith then it may not be entitled to compensation. (See TSN, December 10, 2002,
pp. 58-71.) Faced with the same question, Solicitor General Alfredo L. Benipayo responded that the facility
will not be torn down but taken over by government by virtue of police power or eminent domain. (Id., pp. 94-
99.) When asked the same question, Atty. Eduardo delos Angeles explained that under the provision on Step
in Rights, the senior lenders can designate a qualified operator to operate the facility. (Id., pp. 225-226.) This
solution, however, assumes that this contractual provision is valid.
97 200 SCRA 704, August 16, 1991.
98 195 SCRA 730, April 8, 1991.
99 299 SCRA 199, November 25, 1998.
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1/28/22, 7:53 PM G.R. No.

Today is Friday, January 28, 2022

G.R. No. 155001 May 5, 2003

G.R. No. 155547 May 5, 2003

SALACNIB F. BATERINA, CLAVEL A. MARTINEZ and CONSTANTINO G. JARAULA, petitioners,

G.R. No. 155661 May 5, 2003

i. First 5 years 5.0%

a. The lack of corporate approvals and financial capability of PAIRCARGO;

b. The lack of corporate approvals and financial capability of PAGS;

Petitioners' Legal Standing to File

a. G.R. Nos. 155001 and 155661

b. G.R. No. 155547

Other Procedural Matters

Legal Effect of the Commencement

Now, to the merits of the instant controversy.

Is PIATCO a qualified bidder?

Section 5.4 Pre-qualification Requirements.

xxx xxx xxx

xxx xxx xxx

Further, the 1993 Manual of Regulations for Banks provides:

Is the 1997 Concession Agreement valid?

6. Amendments to the Draft Concessions Agreement

a. Modification on the Public

Utility Revenues and Non-Public

Utility Revenues that may be

(1) aircraft parking fees;

(3) groundhandling fees;

(4) rentals and airline offices;

(5) check-in counter rentals; and

(6) porterage fees.

(1) aircraft parking fees;

(2) aircraft tacking fees;

(3) check-in counter fees; and

(4) Terminal Fees.

Section 6.03 Periodic Adjustment in Fees and Charges.

xxx xxx xxx

Government of the liabilities of

PIATCO in the event of the latter's

However, the 1997 Concession Agreement provides:

Section 4.04 Assignment.

xxx xxx xxx

Direct Government Guarantee

Section 4.04 Assignment

xxx xxx xxx

Section 1.06. Attendant Liabilities

Section 2(n) of the BOT Law defines direct guarantee as follows:

Section 4.04 Security

xxx xxx xxx

xxx xxx xxx

xxx xxx xxx

xxx xxx xxx

Section 1.06. Attendant Liabilities

Temporary takeover of business affected with public interest

Article XII, Section 17 of the 1987 Constitution provides:

Article V, Section 5.10 (c) of the 1997 Concession Agreement provides:

Section 5.10 Temporary Take-over of operations by GRP.

3.01 Concession Period

xxx xxx xxx

Section 2, Rule 65 of the Rules of Court states:

Accordingly, I vote for the dismissal of the petition.