Documentos de Académico
Documentos de Profesional
Documentos de Cultura
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612
MIASCOR
GROUNDHANDLING
CORPORATION,
DNATAWINGS AVIATION SYSTEMS CORPORATION,
MACROASIAEUREST SERVICES, INC., MACROASIAMENZIES AIRPORT SERVICES CORPORATION,
MIASCOR CATERING SERVICES CORPORATION,
MIASCOR
AIRCRAFT
MAINTENANCE
CORPORATION,
and
MIASCOR
LOGISTICS
CORPORATION, petitioners-in-intervention.
*
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EN BANC.
613
613
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614
subsisting concession agreements between MIAA and petitionersintervenors 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.
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615
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617
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618
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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.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. 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.
Same; The fact that substantial amendments were made on the
1997 Concession Agreement renders the same null and void for
being contrary to public policy.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
621
621
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622
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625
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626
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627
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etc.
Romulo, Mabanta, Buenaventura, Sayoc & Delos
Angeles; Chavez & Laureta & Associates; and Moises
Tolentino, Jr. for PIATCO.
Office of the Government Corporate Counsel for MIAA.
Mario E. Ongkiko, Fernando F. Manas, Jr., Raymund
C. De Castro and Angelito S. Lazaro, Jr. for respondentsintervenors.
631
631
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
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632
a build-operate-and-transfer arrangement
pursuant to RA
1
6957 as amended by RA 7718 (BOT Law).
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 AEDCs unsolicited
proposal, in accordance with Sec. 4-A of RA 6957, as
amended. The alternative bidders were required to submit
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633
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634
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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 theyd (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
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635
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636
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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 AEDCs 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.
637
637
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638
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639
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640
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641
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Philippine Airlines.
642
642
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643
tions 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
8
entered into with PIATCO.
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Sections 3.01 (a) and 3.02, 1997 Concession Agreement; Sections 3.01
644
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Kilosbayan, Inc. v. Morato, G.R. No. 118910, July 17, 1995, 246
SCRA 540, 562-563, citing Baker v. Carr, 369 U.S. 186, 7 L. Ed. 633
(1962).
10
Id.; Bayan v. Zamora, G.R. No. 138570, October 10, 2000, 342
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645
13
14
G.R. No. 29627, December 19, 198, 180 SCRA 254, 260-261.
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15
16
Id.
17
18
Secretary of Agrarian Reform, G.R. No. 78742, July 14, 1989, 175 SCRA
343, 364-365 [1989].
646
646
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647
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21
22
648
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649
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24
650
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27
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capital stock and the shares of stock that are subscribed and paid-up.
651
651
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652
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maintenance of the NAIA IPT III project at the time of prequalification. 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.
_______________
29
Member
Security Bank
P528,525,656.55
PAGS
26,735,700.00
Paircargo
TOTAL
3,123,515.00
P558,384,871.55
653
653
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93359, July 12, 1991, 199 SCRA 134, 146-147. Emphasis supplied.
654
654
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655
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33
656
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35
Id., at p. 375.
657
657
a. Modification on the Public Utility Revenues and NonPublic Utility Revenues that may be collected by PIATCO
The fees that may be imposed and collected by PIATCO
under the draft Concession Agreement and the 1997
Concession Agreement may be classified into three distinct
categories: (1) fees which are subject to periodic adjustment
of once every two years in accordance with a prescribed
parametric formula and adjustments are made effective
only upon written approval by MIAA; (2) fees other than
those included in the first category which maybe adjusted
by PIATCO whenever it deems necessary without need for
consent of DOTC/MIAA; and (3) new fees and charges that
may be imposed by PIATCO which have not been
previously imposed or collected at the Ninoy Aquino
International Airport Passenger Terminal I, pursuant to
Administrative Order No. 1, Series of 1993, as amended.
The glaring distinctions between the draft Concession
Agreement and the 1997 Concession Agreement lie in the
types of fees included in each category and the extent of the
supervision and regulation which MIAA is allowed to
exercise in relation thereto.
For fees under the first category, i.e., those which are
subject to periodic adjustment in accordance with a
prescribed parametric formula and effective only upon
written approval by MIAA,
the draft Concession Agreement
36
includes the following:
(1) aircraft parking fees;
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37
658
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39
Emphasis supplied.
659
659
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Emphasis supplied.
660
660
With respect
to terminal fees that may be charged by
41
PIATCO, 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 42certain extraordinary events
specified in the agreement. However, under the draft
Concession Agreement, terminal fees are not included in the
43
types of fees that may be subject to Interim Adjustment.
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Agreement.
42
44
661
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662
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663
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664
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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 exist_______________
46
665
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....
(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 GRPs 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.
....
666
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Emphasis supplied.
49
Concession Agreement, Art. 4, Sec. 4.04 (b) and (c), Art. 1, Sec. 1.06,
Ibid.
51
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667
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
52
returns, provided that the government would not have to
unnecessarily expend scarcely available funds for the
project itself. As such, direct guarantee, subsidy and equity53
by the government in these projects are strictly prohibited.
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 guaranteeAn 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.
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_______________
52
Record of the Senate Second Regular Session 1993-1994, vol. III, no. 42, p.
362.
53
Republic Act No. 7718, Secs. 2 and 4-A, Implementing Rules and
668
668
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669
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55
670
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671
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58
North Negros Sugar Co., Inc. v. Hidalgo, G.R. No. 42334, October
31, 1936; Intestate estate of the deceased Florentino San Gil. Josefa R.
Oppus v. Bonifacio San Gil, G.R. No. 48115, October 12, 1942; San Diego
v. Municipality of Naujan, G.R. No. L-9920, February 29, 1960; Favis vs.
Municipality of Sabagan, G.R. No. L-26522, 27 February 1969, 27 SCRA
92; City of Manila vs. Tarlac Development Corporation, L-24557, Lhttp://www.central.com.ph/sfsreader/session/00000149a8e979b86d1ad108000a0082004500cc/t/?o=False
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24469 & L-24481, 31 July 1968, 24 SCRA 466; In the matter of the
Petition for Declaratory Judgment on Title to Real Property (Quieting of
Title) Pechueco Sons Company v. Provincial Board of Antique, G.R. No.
L-27038, January 30, 1970, 31 SCRA 320; Fornilda v. The Branch 164,
Regional
672
672
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60
60
61
Id.
673
673
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Except for providing for the suspension of all payments due to the
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Id.
Bataan Shipyard and Engineering Co., Inc. v. Presidential
Commission on Good Government, G.R. No. 75885, May 27, 1987, 150
SCRA 181; citing Freund, The Police Power (Chicago, 1904).
65
675
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ed 394.
68
Concession Agreement (CA) dated July 12, 1997, Art. III, Sec.
Ibid.
70
Id., at CA, Art. III, Sec. 3.02(b); ARCA, Art. III, Sec. 3.02(b).
71
Id., at CA, Art. III, Sec. 3.01(a) and (b); ARCA, Art. III, Sec. 3.01 (a)
and (b).
676
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676
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73
Id., at CA, Art. Ill, Sec. 3.01(d) and (e); ARCA, Art. III, Sec. 3.01(d) and (e).
74
75
76
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78
678
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. As79 the primary
government agency tasked with the job, it is MIAAs
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
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promulgate
rules
and
regulations
governing
the
planning,
679
679
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SEPARATE OPINION
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, 1 prohibition,
mandamus, quo warranto, and habeas corpus. 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
_______________
1
680
680
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490 (1996); Mafinco Trading Corporation vs. Ople, 70 SCRA 139 (1976).
3
681
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682
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See Kilosbayan, Inc. v. Guingona, Jr., 232 SCRA 110, May 5, 1994;
and Basco v. Phil. Amusements and Gaming Corporation, 197 SCRA 52,
May 14, 1991.
2
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684
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685
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686
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8
Supra, Paras, J.
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687
687
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688
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13
Initially the minimum equity was set at 20%, per Sec. 3.6.4 of the
Bid Documents. However, this was later clarified in Bid Bulletin No. 3(B)
(6) to read 30% of Project Cost, to bring the same in line with the draft
concession agreements Art. II Sec. 2.01 (a), which specifically set the
projects debt-to-equity ratio at 70:30, thereby requiring a minimum
equity of 30% of project cost.
13
689
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690
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15
16
Part of the bid process under the BOT Law is the right of the
691
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97/149
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692
692
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693
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694
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695
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22
23
696
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25
following so-called public utility fees: aircraft parking and tacking fees,
check-in counter fees and terminal fees.
697
697
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698
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28
699
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700
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31
701
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33
33
34
35
36
37
the CA.
38
702
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No such
40
41
42
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43
44
Cf. 1.11(b) and 5.06 of the ARCA vis--vis 1.11(b) and 5.06 of the
CA.
703
703
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704
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47
Ibid.
48
49
50
51
705
Interchange; and
removal of squatters along
52
Andrews Avenue.
(e) Dealing directly with BCDA and the Phil. Air Force
in acquiring additional land or right of way
for the
53
road upgrade and improvement program.
5 . Government is required to work for the immediate
reversion
to MIAA of the Nayong Pilipino National
54
Park.
6. Governments share in the terminal fees collected
was revised from a flat rate of P180 to 36 percent
thereof; together with governments percentage
share in the gross revenues of Piatco, the amount
will be remitted
to government in pesos instead of
55
US dollars. 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
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53
54
55
56
706
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707
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59
60
708
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709
709
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710
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Page 37.
711
711
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712
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713
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714
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715
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716
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717
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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. (Italics supplied)
718
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65
3.02 a): x x x. With regard to CSEZ, GRP shall ensure that, until
719
xxx
Procedure
and
Consequences
of
xxx
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720
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67
68
3.02(b) and (c) of the ARCA and 3.02(b) of the CA. Pertinent
721
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721
(d) For the purpose of an orderly transition, MIAA shall not renew any expired
concession agreement relative to any service or operation currently being
undertaken at the Ninoy Aquino International Airport Passenger Terminal I, or
extend any concession agreement which may expire subsequent hereto, except to
the extent that the continuation of existing services and operations shall lapse
on or before the In-Service Date. Nothing herein shall be construed to prohibit
MIAA from maintaining arrangements for the uninterrupted provision of
essential services at the Ninoy Aquino International Airport Passenger
Terminal I until the Terminal shall have commenced operations on the InService Date, and thereafter, from making such arrangements as are necessary
for the utilization of NAIA Passenger Terminal I as a domestic passenger
terminal or as a facility other than an international passenger terminal.
70
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722
722
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723
xxx
x x x;
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78
79
724
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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
x x x.
82
82
83
725
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726
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85
86
87
Ibid.
727
727
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89
728
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91
729
729
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_______________
93
730
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731
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732
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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 bestefforts compliance only.
_______________
95
733
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734
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735
735
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_______________
97
98
99
736
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