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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.
PHILIPPINE INTERNATIONAL AIR TERMINALS CO., INC., MANILA
INTERNATIONAL AIRPORT AUTHORITY, 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.
PHILIPPINE INTERNATIONAL AIR TERMINALS CO., INC., MANILA
INTERNATIONAL AIRPORT AUTHORITY, 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).

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.

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.

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 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

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-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 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.

I
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)

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.

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 submittedfalls 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 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 Agreementincludes the following:36

(1) aircraft parking fees;

(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.
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, 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 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

(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 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"59which 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, 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 rightto 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 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.
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

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.

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 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:

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 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 percent 12 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 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 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

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

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 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

(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.

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
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."

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 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 indefinitepostponement 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 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 xxx xxx

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 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 xxx 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 xxx xxx

"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

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.

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:

o Providing thru MIAA the land required by Piatco for the taxilane and one
taxiway, at no cost to Piatco
o Implementing the government's existing storm drainage master plan
o 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
o Dealing directly with BCDA and the Philippine Air Force in acquiring
additional land or right of way for the road upgrade and improvement
program
o 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 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.94The 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 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.

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