Tan Company Asks Court to Reconsider Bid to Operate NAIA 3

by Joel Roja/AJPress

MANILA – Lucio Tan’s Asias’ Emerging Dragon Corporation (AEDC) has asked the Supreme Court to reverse its April 18, 2007 ruling denying its bid to operate the controversial Ninoy Aquino International Airport – International Passenger Terminal III (IPT III) after the contract of the government with Philippine International Air Terminals Co., Inc. (PIATCO) had been nullified.

In a 73-page motion for reconsideration, AEDC through its lawyer Eduardo Ceniza., insisted that as the original project proponent, AEDC has the right under the Build-Operate-Transfer (BOT) Law, which must be respected and recognized.

In a 73-page motion for reconsideration, AEDC through its lawyer Eduardo Ceniza., insisted that as the original project proponent, AEDC has the right under the Build-Operate-Transfer (BOT) Law, which must be respected and recognized.

Based on the said provision, AEDC argued that there are two instances wherein unsolicited project may be awarded to the original proponent on a negotiated basis — when there is no comparative proposals were submitted within the required period under the law and when there are other proposals and the original proponent exercised its right to match the lower or the lowest price proposal.

The petitioner added that the “other proposal” contemplated under Section 4-A of the BOT law and its IRR pertains exclusively to a valid proposal.

“Thus, when the ‘other proposal’, that of Piatco in this case, was declared null and void by the Supreme Court, then the first instance contemplated under Section 4-A of the BOT law should operate. It should therefore be deemed as if no other proposal was submitted within the required period…This should then operate to justify a negotiated contract with AEDC, the unchallenged original proponent…” the petitioner said.

Since the SC has declared Piatco’s contract null and void, AEDC stressed that the NAIA 3 project should be covered by a Section 10.11, Rule 10 of the IRR of the BOT law, wherein invitations for comparative proposals shall again be made and the right of AEDC as the original proponent to match the best offer should be reinstated.

It also dismissed the Court’s findings that AEDC is not financially qualified to operate NAIA 3 since the issue was not raised by any of the parties in the case.

The AEDC further said the decision unfairly faults the firm for not matching the bid or challenge placed by Naia-3 builder Philippine International Air Terminals Co., implying that the AEDC would have been able to operate the Naia-3 project.

In its decision, the SC en banc branded as “substantially and procedurally flawed” AEDC’s assertion that being the original proponent of the NAIA-IPT III, it has the right to the award of the project.

“The rights or privileges of an original proponent of an unsolicited proposal for an infrastructure project are never meant to be absolute. Otherwise, the original proponent can hold the government hostage and secure the award of the infrastructure project based solely on the fact that it was the first to submit a proposal,” the SC said.

(www.asianjournal.com)

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