Republic of the Philippines

SUPREME COURT
Manila

EN BANC

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,

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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,

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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 submitted falls short of the minimum amounts required to be put up by the bidder, said
bidder should be properly disqualified. Considering that at the pre-qualification stage, the
maximum amounts which the Paircargo Consortium may invest in the project fell short of the
minimum amounts prescribed by the PBAC, we hold that Paircargo Consortium was not a
qualified bidder. Thus the award of the contract by the PBAC to the Paircargo Consortium, a
disqualified bidder, is null and void.

While it would be proper at this juncture to end the resolution of the instant controversy, as the
legal effects of the disqualification of respondent PIATCO's predecessor would come into play
and necessarily result in the nullity of all the subsequent contracts entered by it in pursuance of
the project, the Court feels that it is necessary to discuss in full the pressing issues of the present
controversy for a complete resolution thereof.

II

Is the 1997 Concession Agreement valid?

Petitioners and public respondents contend that the 1997 Concession Agreement is invalid as it
contains provisions that substantially depart from the draft Concession Agreement included in
the Bid Documents. They maintain that a substantial departure from the draft Concession
Agreement is a violation of public policy and renders the 1997 Concession Agreement null and
void.

PIATCO maintains, however, that the Concession Agreement attached to the Bid Documents is
intended to be a draft, i.e., subject to change, alteration or modification, and that this intention
was clear to all participants, including AEDC, and DOTC/MIAA. It argued further that said
intention is expressed in Part C (6) of Bid Bulletin No. 3 issued by the PBAC which states:

6. Amendments to the Draft Concessions Agreement

Amendments to the Draft Concessions Agreement shall be issued from time to time. Said
amendments shall only cover items that would not materially affect the preparation of the
proponent's proposal.

By its very nature, public bidding aims to protect the public interest by giving the public the best
possible advantages through open competition. Thus:

Competition must be legitimate, fair and honest. In the field of government contract law,
competition requires, not only `bidding upon a common standard, a common basis, upon
the same thing, the same subject matter, the same undertaking,' but also that it be
legitimate, fair and honest; and not designed to injure or defraud the government.31

An essential element of a publicly bidded contract is that all bidders must be on equal footing.
Not simply in terms of application of the procedural rules and regulations imposed by the
relevant government agency, but more importantly, on the contract bidded upon. Each bidder
must be able to bid on the same thing. The rationale is obvious. If the winning bidder is allowed
to later include or modify certain provisions in the contract awarded such that the contract is
altered in any material respect, then the essence of fair competition in the public bidding is
destroyed. A public bidding would indeed be a farce if after the contract is awarded, the winning
bidder may modify the contract and include provisions which are favorable to it that were not
previously made available to the other bidders. Thus:

It is inherent in public biddings that there shall be a fair competition among the bidders.
The specifications in such biddings provide the common ground or basis for the bidders.
The specifications should, accordingly, operate equally or indiscriminately upon all
bidders.32

The same rule was restated by Chief Justice Stuart of the Supreme Court of Minnesota:

The law is well settled that where, as in this case, municipal authorities can only let a
contract for public work to the lowest responsible bidder, the proposals and specifications
therefore must be so framed as to permit free and full competition. Nor can they enter
into a contract with the best bidder containing substantial provisions beneficial to
him, not included or contemplated in the terms and specifications upon which the
bids were invited.33

In fact, in the PBAC Bid Bulletin No. 3 cited by PIATCO to support its argument that the draft
concession agreement is subject to amendment, the pertinent portion of which was quoted above,
the PBAC also clarified that "[s]aid amendments shall only cover items that would not
materially affect the preparation of the proponent's proposal."

While we concede that a winning bidder is not precluded from modifying or amending certain
provisions of the contract bidded upon, such changes must not constitute substantial or
material amendments that would alter the basic parameters of the contract and would
constitute a denial to the other bidders of the opportunity to bid on the same terms. Hence,
the determination of whether or not a modification or amendment of a contract bidded out
constitutes a substantial amendment rests on whether the contract, when taken as a whole, would
contain substantially different terms and conditions that would have the effect of altering the
technical and/or financial proposals previously submitted by other bidders. The alterations and
modifications in the contract executed between the government and the winning bidder must be
such as to render such executed contract to be an entirely different contract from the one that
was bidded upon.

In the case of Caltex (Philippines), Inc. v. Delgado Brothers, Inc.,34 this Court quoted with
approval the ruling of the trial court that an amendment to a contract awarded through public
bidding, when such subsequent amendment was made without a new public bidding, is null and
void:

The Court agrees with the contention of counsel for the plaintiffs that the due execution
of a contract after public bidding is a limitation upon the right of the contracting parties to
alter or amend it without another public bidding, for otherwise what would a public
bidding be good for if after the execution of a contract after public bidding, the
contracting parties may alter or amend the contract, or even cancel it, at their will?
Public biddings are held for the protection of the public, and to give the public the best
possible advantages by means of open competition between the bidders. He who bids or
 offers the best terms is awarded the contract subject of the bid, and it is obvious that such
protection and best possible advantages to the public will disappear if the parties to a
contract executed after public bidding may alter or amend it without another previous
public bidding.35

Hence, the question that comes to fore is this: is the 1997 Concession Agreement the same
agreement that was offered for public bidding, i.e., the draft Concession Agreement attached to
the Bid Documents? A close comparison of the draft Concession Agreement attached to the Bid
Documents and the 1997 Concession Agreement reveals that the documents differ in at least two
material respects:

a. Modification on the Public

Utility Revenues and Non-Public

Utility Revenues that may be

collected by PIATCO

The fees that may be imposed and collected by PIATCO under the draft Concession Agreement
and the 1997 Concession Agreement may be classified into three distinct categories: (1) fees
which are subject to periodic adjustment of once every two years in accordance with a prescribed
parametric formula and adjustments are made effective only upon written approval by MIAA;
(2) fees other than those included in the first category which maybe adjusted by PIATCO
whenever it deems necessary without need for consent of DOTC/MIAA; and (3) new fees and
charges that may be imposed by PIATCO which have not been previously imposed or collected
at the Ninoy Aquino International Airport Passenger Terminal I, pursuant to Administrative
Order No. 1, Series of 1993, as amended. The glaring distinctions between the draft Concession
Agreement and the 1997 Concession Agreement lie in the types of fees included in each category
and the extent of the supervision and regulation which MIAA is allowed to exercise in relation
thereto.

For fees under the first category, i.e., those which are subject to periodic adjustment in
accordance with a prescribed parametric formula and effective only upon written approval by
MIAA, the draft Concession Agreement includes the following:36

(1) aircraft parking fees;

(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"59 which are necessary for national growth and
development but which the government, unfortunately, could ill-afford to finance at this
point in time.
 IV

Temporary takeover of business affected with public interest

Article XII, Section 17 of the 1987 Constitution provides:

Section 17. In times of national emergency, when the public interest so requires, the State
may, during the emergency and under reasonable terms prescribed by it, temporarily take
over or direct the operation of any privately owned public utility or business affected with
public interest.

The above provision pertains to the right of the State in times of national emergency, and in the
exercise of its police power, to temporarily take over the operation of any business affected with
public interest. In the 1986 Constitutional Commission, the term "national emergency" was
defined to include threat from external aggression, calamities or national disasters, but not strikes
"unless it is of such proportion that would paralyze government service."60 The duration of the
emergency itself is the determining factor as to how long the temporary takeover by the
government would last.61 The temporary takeover by the government extends only to the
operation of the business and not to the ownership thereof. As such the government is not
required to compensate the private entity-owner of the said business as there is no transfer
of ownership, whether permanent or temporary. The private entity-owner affected by the
temporary takeover cannot, likewise, claim just compensation for the use of the said business and
its properties as the temporary takeover by the government is in exercise of its police power and
not of its power of eminent domain.

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

Section 5.10 Temporary Take-over of operations by GRP.

….

(c) In the event the development Facility or any part thereof and/or the operations of
Concessionaire or any part thereof, become the subject matter of or be included in any
notice, notification, or declaration concerning or relating to acquisition, seizure or
appropriation by GRP in times of war or national emergency, GRP shall, by written
notice to Concessionaire, immediately take over the operations of the Terminal and/or the
Terminal Complex. During such take over by GRP, the Concession Period shall be
suspended; provided, that upon termination of war, hostilities or national emergency, the
operations shall be returned to Concessionaire, at which time, the Concession period shall
commence to run again. Concessionaire shall be entitled to reasonable compensation
for the duration of the temporary take over by GRP, which compensation shall take
into account the reasonable cost for the use of the Terminal and/or Terminal
Complex, (which is in the amount at least equal to the debt service requirements of
Concessionaire, if the temporary take over should occur at the time when Concessionaire
is still servicing debts owed to project lenders), any loss or damage to the Development
Facility, and other consequential damages. If the parties cannot agree on the reasonable
 compensation of Concessionaire, or on the liability of GRP as aforesaid, the matter shall
be resolved in accordance with Section 10.01 [Arbitration]. Any amount determined to be
payable by GRP to Concessionaire shall be offset from the amount next payable by
Concessionaire to GRP.62

PIATCO cannot, by mere contractual stipulation, contravene the Constitutional provision

on temporary government takeover and obligate the government to pay "reasonable cost
for the use of the Terminal and/or Terminal Complex."63 Article XII, section 17 of the 1987
Constitution envisions a situation wherein the exigencies of the times necessitate the government
to "temporarily take over or direct the operation of any privately owned public utility or business
affected with public interest." It is the welfare and interest of the public which is the paramount
consideration in determining whether or not to temporarily take over a particular business.
Clearly, the State in effecting the temporary takeover is exercising its police power. Police power
is the "most essential, insistent, and illimitable of powers."64 Its exercise therefore must not be
unreasonably hampered nor its exercise be a source of obligation by the government in the
absence of damage due to arbitrariness of its exercise.65 Thus, requiring the government to pay
reasonable compensation for the reasonable use of the property pursuant to the operation of the
business contravenes the Constitution.

Regulation of Monopolies

A monopoly is "a privilege or peculiar advantage vested in one or more persons or companies,
consisting in the exclusive right (or power) to carry on a particular business or trade,
manufacture a particular article, or control the sale of a particular commodity."66 The 1987
Constitution strictly regulates monopolies, whether private or public, and even provides for
their prohibition if public interest so requires. Article XII, Section 19 of the 1987 Constitution
states:

Sec. 19. The state shall regulate or prohibit monopolies when the public interest so
requires. No combinations in restraint of trade or unfair competition shall be allowed.

Clearly, monopolies are not per se prohibited by the Constitution but may be permitted to exist to
aid the government in carrying on an enterprise or to aid in the performance of various services
and functions in the interest of the public.67 Nonetheless, a determination must first be made as
to whether public interest requires a monopoly. As monopolies are subject to abuses that can
inflict severe prejudice to the public, they are subject to a higher level of State regulation than an
ordinary business undertaking.

In the cases at bar, PIATCO, under the 1997 Concession Agreement and the ARCA, is granted
the "exclusive right to operate a commercial international passenger terminal within the Island
of Luzon" at the NAIA IPT III.68 This is with the exception of already existing international
airports in Luzon such as those located in the Subic Bay Freeport Special Economic Zone
("SBFSEZ"), Clark Special Economic Zone ("CSEZ") and in Laoag City.69 As such, upon
commencement of PIATCO's operation of NAIA IPT III, Terminals 1 and 2 of NAIA would
cease to function as international passenger terminals. This, however, does not prevent MIAA to
use Terminals 1 and 2 as domestic passenger terminals or in any other manner as it may deem
appropriate except those activities that would compete with NAIA IPT III in the latter's operation
as an international passenger terminal.70 The right granted to PIATCO to exclusively operate
NAIA IPT III would be for a period of twenty-five (25) years from the In-Service Date71 and
renewable for another twenty-five (25) years at the option of the government.72 Both the 1997
Concession Agreement and the ARCA further provide that, in view of the exclusive right
granted to PIATCO, the concession contracts of the service providers currently servicing
Terminals 1 and 2 would no longer be renewed and those concession contracts whose
expiration are subsequent to the In-Service Date would cease to be effective on the said
date.73

The operation of an international passenger airport terminal is no doubt an undertaking imbued

with public interest. In entering into a Build–Operate-and-Transfer contract for the construction,
operation and maintenance of NAIA IPT III, the government has determined that public interest
would be served better if private sector resources were used in its construction and an exclusive
right to operate be granted to the private entity undertaking the said project, in this case
PIATCO. Nonetheless, the privilege given to PIATCO is subject to reasonable regulation and
supervision by the Government through the MIAA, which is the government agency authorized
to operate the NAIA complex, as well as DOTC, the department to which MIAA is attached.74

This is in accord with the Constitutional mandate that a monopoly which is not prohibited must
be regulated.75 While it is the declared policy of the BOT Law to encourage private sector
participation by "providing a climate of minimum government regulations,"76 the same does not
mean that Government must completely surrender its sovereign power to protect public interest
in the operation of a public utility as a monopoly. The operation of said public utility 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 percent12 of the minimum
project cost of US$350 million, the minimum amount of equity required of any proponent stood
at US$105 million. Converted to pesos at the exchange rate then of P26.239 to US$1.00 (as
quoted by the Bangko Sentral ng Pilipinas), the peso equivalent of the minimum equity was
P2,755,095,000.

However, the combined equity or net worth of the Paircargo consortium stood at only
P558,384,871.55.13 This amount was only slightly over 6 percent of the minimum project cost
and very much short of the required minimum equity, which was equivalent to 30 percent of the
project cost. Such deficiency should have immediately caused the disqualification of the
Paircargo consortium. This matter was brought to the attention of the Prequalification and
Bidding Committee (PBAC).

Notwithstanding the glaring deficiency, DOTC Undersecretary Primitivo C. Cal, concurrent

chair of the PBAC, declared in a Memorandum dated 14 October 1996 that "the Challenger
(Paircargo consortium) was found to have a combined net worth of P3,926,421,242.00 that
could support a project costing approximately P13 billion." To justify his conclusion, he
asserted: "It is not a requirement that the networth must be `unrestricted'. To impose this as a
requirement now will be nothing less than unfair."
He further opined, "(T)he networth reflected in the Financial Statement should not be taken as
the amount of money to be used to answer the required thirty (30%) percent equity of the
challenger but rather to be used in establishing if there is enough basis to believe that the
challenger can comply with the required 30% equity. In fact, proof of sufficient equity is
required as one of the conditions for award of contract (Sec. 12.1 of IRR of the BOT Law) but
not for prequalification (Sec. 5.4 of same document)."

On the basis of the foregoing dubious declaration, the Paircargo consortium was deemed
prequalified and thus permitted to proceed to the other stages of the bidding process.

By virtue of the prequalified status conferred upon the Paircargo, Undersecretary Cal's findings
in effect relieved the consortium of the need to comply with the financial capability requirement
imposed by the BOT Law and IRR. This position is unmistakably and squarely at odds with the
Supreme Court's consistent doctrine emphasizing the strict application of pertinent rules,
regulations and guidelines for the public bidding process, in order to place each bidder - actual or
potential - on the same footing. Thus, it is unarguably irregular and contrary to the very concept
of public bidding to permit a variance between the conditions under which bids are invited and
those under which proposals are submitted and approved.

Republic v. Capulong,14 teaches that if one bidder is relieved from having to conform to the
conditions that impose some duty upon it, that bidder is not contracting in fair competition with
those bidders that propose to be bound by all conditions. The essence of public bidding is, after
all, an opportunity for fair competition and a basis for the precise comparison of bids.15 Thus,
each bidder must bid under the same conditions; and be subject to the same guidelines,
requirements and limitations. The desired result is to be able to determine the best offer or lowest
bid, all things being equal.

Inasmuch as the Paircargo consortium did not possess the minimum equity equivalent to 30
percent of the minimum project cost, it should not have been prequalified or allowed to
participate further in the bidding. The Prequalification and Bidding Committee (PBAC) should
therefore not have opened the two envelopes of the consortium containing 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 indefinite postponement of payment of all of Piatco's obligations to the government, in order
to ensure that Piatco's obligations to the Senior Lenders are paid in full first. That is nothing
more or less than the direct government subsidy prohibited by the BOT Law and the IRR. The
fact that Piatco will pay interest on the unpaid amounts owed to government does not change the
situation or render the prohibited subsidy any less unacceptable.

But beyond the clear violations of law, there are larger issues involved in the ARCA. Earlier, I
mentioned that Section 8.01(d) of the ARCA completely eliminated the proviso in Section
8.04(d) of the CA which gave government the right to appoint a financial controller to manage
the cash position of Piatco during situations of financial distress. Not only has government been
deprived of any means of monitoring and managing the situation; worse, as can be seen from
Section 8.01(d) above-quoted, the Senior Lenders have effectively locked in on the right to
exercise financial controllership over Piatco and to allocate its cash resources to the payment of
all amounts owed to the Senior Lenders before allowing any payment to be made to government.
In brief, this particular provision of the ARCA has placed in the hands of foreign lenders the
power and the authority to determine how much (if at all) and when the Philippine government
(as grantor of the franchise) may be allowed to receive from Piatco. In that situation, government
will be at the mercy of the foreign lenders. This is a situation completely contrary to the rationale
of the BOT Law and to public policy.

The aforesaid provision rouses mixed emotions - shame and disgust at the parties'
(especially the government officials') docile submission and abject servitude and surrender
to the imperious and excessive demands of the foreign lenders, on the one hand; and
vehement outrage at the affront to the sovereignty of the Republic and to the national
honor, on the other. It is indeed time to put an end to such an unbearable, dishonorable
situation.

The Piatco Contracts Unarguably Violate Constitutional Injunctions

I will now discuss the manner in which the Piatco Contracts offended the Constitution.

The Exclusive Right Granted to Piatco to Operate a Public Utility Is Prohibited by the
Constitution

While Section 2.02 of the ARCA spoke of granting to Piatco "a franchise to operate and maintain
the Terminal Complex," Section 3.02(a) of the same ARCA granted to Piatco, for the entire term
of the concession agreement, "the exclusive right to operate a commercial international
passenger terminal within the Island of Luzon" with the exception of those three terminals
already existing63 at the time of execution of the ARCA.

Section 11 of Article XII of the Constitution prohibits the grant of a "franchise, certificate, or any
other form of authorization for the operation of a public utility" that is "exclusive in character."

In its Opinion No. 078, Series of 1995, the Department of justice held that "the NAIA Terminal
III which . . . is a 'terminal for public use' is a public utility." Consequently, the constitutional
prohibition against the exclusivity of a franchise applies to the franchise for the operation of
NAIA Terminal III as well.

What was granted to Piatco was not merely a franchise, but an "exclusive right" to operate an
international passenger terminal within the "Island of Luzon." What this grant effectively means
is that the government is now estopped from exercising its inherent power to award any other
person another franchise or a right to operate such a public utility, in the event public interest in
Luzon requires it. This restriction is highly detrimental to government and to the public interest.
Former Secretary of Justice Hernando B. Perez expressed this point well in his Memorandum for
the President dated 21 May 2002:

"Section 3.02 on 'Exclusivity'

"This provision gives to PIATCO (the Concessionaire) the exclusive right to operate a
commercial international airport within the Island of Luzon with the exception of those
 already existing at the time of the execution of the Agreement, such as the airports at
Subic, Clark and Laoag City. In the case of the Clark International Airport, however, the
provision restricts its operation beyond its design capacity of 850,000 passengers per
annum and the operation of new terminal facilities therein until after the new NAIA
Terminal III shall have consistently reached or exceeded its design capacity of ten (10)
million passenger capacity per year for three (3) consecutive years during the concession
period.

"This is an onerous and disadvantageous provision. It effectively grants PIATCO a

monopoly in Luzon and ties the hands of government in the matter of developing new
airports which may be found expedient and necessary in carrying out any future plan for
an inter-modal transportation system in Luzon.

"Additionally, it imposes an unreasonable restriction on the operation of the Clark

International Airport which could adversely affect the operation and development of the
Clark Special Economic Zone to the economic prejudice of the local constituencies that
are being benefited by its operation." (Emphasis supplied)

While it cannot be gainsaid that an enterprise that is a public utility may happen to constitute a
monopoly on account of the very nature of its business and the absence of competition, such a
situation does not however constitute 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.94 The logical
conclusion then is that the obligations in the Supplements are not to be performed on a best-
efforts basis only, but are unarguably mandatory in character.

Regarding MIAA's obligation to coordinate with the DPWH for the complete implementation of
the road upgrading and improvement program for Sales, Andrews and Manlunas Roads (which
provide access to the Terminal III site) prior to the In-Service Date, it is essential to take note of
the fact that there was a pressing need to complete the program before the opening of Terminal
III.95 For that reason, the MIAA was compelled to enter into a memorandum of agreement with
the DPWH in order to ensure the timely completion of the road widening and improvement
program. MIAA agreed to advance the total amount of P410.11 million to DPWH for the works,
while the latter was committed to do the following:

"2.2.8. Reimburse all advance payments to MIAA including but not limited to interest,
fees, plus other costs of money within the periods CY2004 and CY2006 with payment of
no less than One Hundred Million Pesos (PhP100M) every year.

"2.2.9. Perform all acts necessary to include in its CY2004 to CY2006 budget allocation
the repayments for the advances made by MIAA, to ensure that the advances are fully
repaid by CY2006. For this purpose, DPWH shall include the amounts to be appropriated
for reimbursement to MIAA in the "Not Needing Clearance" column of their Agency
Budget Matrix (ABM) submitted to the Department of Budget and Management."

It can be easily inferred, then, that DPWH did not set aside enough funds to be able to complete
the upgrading program for the crucially situated access roads prior to the targeted opening date
of Terminal III; and that, had MIAA not agreed to lend the P410 Million, DPWH would not have
been able to complete the program on time. As a consequence, government would have been in
breach of a material obligation. Hence, this particular undertaking of government may likewise
not be construed as being for best-efforts compliance only.

They also Infringe on the Legislative Prerogative and Power Over the Public Purse

But the particularly sad thing about this transaction between MIAA and DPWH is the fact that
both agencies were maneuvered into (or allowed themselves to be maneuvered into) an
agreement that would ensure delivery of upgraded roads for Piatco's benefit, using funds not
allocated for that purpose. The agreement would then be presented to Congress as a done deal.
Congress would thus be obliged to uphold the agreement and support it with the necessary
allocations and appropriations for three years, in order to enable DPWH to deliver on its
committed repayments to MIAA. The net result is an infringement on the legislative power over
the public purse and a diminution of Congress' control over expenditures of public funds - a
development that would not have come about, were it not for the Supplements. Very clever but
very illegal!

EPILOGUE
What Do We Do Now?

In the final analysis, there remains but one ultimate question, which I raised during the Oral
Argument on December 10, 2002: What do we do with the Piatco Contracts and Terminal
III?96 (Feeding directly into the resolution of the decisive question is the other nagging issue:
Why should we bother with determining the legality and validity of these contracts, when the
Terminal itself has already been built and is practically complete?)

Prescinding from all the foregoing disquisition, I find that all the Piatco contracts, without
exception, are void ab initio, and therefore inoperative. Even the very process by which the
contracts came into being - the bidding and the award - has been riddled with irregularities galore
and blatant violations of law and public policy, far too many to ignore. There is thus no
conceivable way, as proposed by some, of saving one (the original Concession Agreement) while
junking all the rest.

Neither is it possible to argue for the retention of the Draft Concession Agreement (referred to in
the various pleadings as the Contract Bidded Out) as the contract that should be kept in force and
effect to govern the situation, inasmuch as it was never executed by the parties. What Piatco and
the government executed was the Concession Agreement which is entirely different from the
Draft Concession Agreement.

Ultimately, though, it would be tantamount to an outrageous, grievous and unforgivable

mutilation of public policy and an insult to ourselves if we opt to keep in place a contract - any
contract - for to do so would assume that we agree to having Piatco continue as the
concessionaire for Terminal III.
Despite all the insidious contraventions of the Constitution, law and public policy Piatco
perpetrated, keeping Piatco on as concessionaire and even rewarding it by allowing it to operate
and profit from Terminal III - instead of imposing upon it the stiffest sanctions permissible under
the laws - is unconscionable.

It is no exaggeration to say that Piatco may not really mind which contract we decide to keep in
place. For all it may care, we can do just as well without one, if we only let it continue and
operate the facility. After all, the real money will come not from building the Terminal, but from
actually operating it for fifty or more years and charging whatever it feels like, without any
competition at all. This scenario must not be allowed to happen.

If the Piatco contracts are junked altogether as I think they should be, should not AEDC
automatically be considered the winning bidder and therefore allowed to operate the facility? My
answer is a stone-cold 'No'. AEDC never won the bidding, never signed any contract, and never
built any facility. Why should it be allowed to automatically step in and benefit from the greed of
another?

Should government pay at all for reasonable expenses incurred in the construction of the
Terminal? Indeed it should, otherwise it will be unjustly enriching itself at the expense of Piatco
and, in particular, its funders, contractors and investors - both local and foreign. After all, there is
no question that the State needs and will make use of Terminal III, it being part and parcel of the
critical infrastructure and transportation-related programs of government.

In Melchor v. Commission on Audit,97 this Court held that even if the contract therein was void,
the principle of payment by quantum meruit was found applicable, and the contractor was
allowed to recover the reasonable value of the thing or services rendered (regardless of any
agreement as to the supposed value), in order to avoid unjust enrichment on the part of
government. The principle of quantum meruit was likewise applied in Eslao v. Commission on
Audit,98 because to deny payment for a building almost completed and already occupied would
be to permit government to unjustly enrich itself at the expense of the contractor. The same
principle was applied in Republic v. Court of Appeals.99

One possible practical solution would be for government - in view of the nullity of the Piatco
contracts and of the fact that Terminal III has already been built and is almost finished - to bid
out the operation of the facility under the same or analogous principles as build-operate-and-
transfer projects. To be imposed, however, is the condition that the winning bidder must pay the
builder of the facility a price fixed by government based on quantum meruit; on the real,
reasonable - not inflated - value of the built facility.

How the payment or series of payments to the builder, funders, investors and contractors will be
staggered and scheduled, will have to be built into the bids, along with the annual guaranteed
payments to government. In this manner, this whole sordid mess could result in something truly
beneficial for all, especially for the Filipino people.

WHEREFORE, I vote to grant the Petitions and to declare the subject contracts NULL and
VOID.
Footnotes
1
An Act Authorizing the Financing, Construction, Operation and Maintenance of
Infrastructure Projects by the Private Sector.
2
G.R. No. 155001.
3
G.R. No. 155547.
4
G.R. No. 155661.
5
An international airport is any nation's gateway to the world, the first contact of
foreigners with the Philippine Republic, especially those foreigners who have not been in
contact with the wonderful exports of the Philippine economy, those foreigners who have
not had the benefit of enjoying Philippine export products. Because for them, when they
see your products, that is the face of the Philippines they see. But if they are not exposed
to your products, then it's the airport that's the first face of the Philippines they see.
Therefore, it's not only a matter of opening yet, but making sure that it is a world class
airport that operates without any hitches at all and without the slightest risk to travelers.
But it's also emerging as a test case of my administration's commitment to fight
corruption to rid our state from the hold of any vested interest, the Solicitor General,
and the Justice Department have determined that all five agreements covering the
NAIA Terminal 3, most of which were contracted in the previous administration,
are null and void. I cannot honor contracts which the Executive Branch's legal
offices have concluded (as) null and void.

I am, therefore, ordering the Department of Justice and the Presidential

Anti-Graft Commission to investigate any anomalies and prosecute all those
found culpable in connection with the NAIA contract. But despite all of the
problems involving the PIATCO contracts, I am assuring our people, our
travelers, our exporters, my administration will open the terminal even if it
requires invoking the whole powers of the Presidency under the Constitution
and we will open a safe, secure and smoothly functioning airport, a world
class airport, as world class as the exporters we are honoring today. (Speech
of President Arroyo, emphasis supplied)
6
Art. VIII, Sec. 1, Philippine Constitution.
7
MIASCOR, MACROASIA-EUREST, MACROASIA OGDEN and Philippine Airlines.
8
Sections 3.01 (a) and 3.02, 1997 Concession Agreement; Sections 3.01 (d) and (e) and
3.02, ARCA.
9
Kilosbayan, Inc. v. Morato, G.R. No. 118910, July 17, 1995, 246 SCRA 540, 562-563,
citing Baker v. Carr, 369 U.S. 186, 7 L. Ed. 633 (1962).
10
Id.; Bayan v. Zamora, G.R. No. 138570, October 10, 2000; 342 SCRA 449, 478.
11
Rollo, G.R. No. 155547, p.12.
12
Article VI, Section 29 (1).
13
G.R. No. 39842, March 28, 1934, 59 Phil 823.
14
G.R. No. 29627, December 19, 1989; 180 SCRA 254, 260-261.
15
G. R. No. 113375, May 5, 1994.
16
Id.
17
Id. citing Tan vs. Macapagal, 43 SCRA 677, 680 [1972].
18
Association of Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian
Reform, G. R. No. 78742, July 14, 1989; 175 SCRA 343, 364-365 [1989].
19
Santiago v. Vasquez, G.R. Nos. 99289-90, January 27, 1993; 217 SCRA 633, 652.
20
G.R. No. 136154, February 7, 2001; 351 SCRA 373, 381.
21
G.R. No. 135362, December 13, 1999; 320 SCRA 610.
22
Del Monte Corporation-USA v. Court of Appeals, G.R. No. 136154, February 7, 2001;
351 SCRA 373, 382.
23
Rollo, G.R. No.155001, pp. 2487-2488.
24
Section 5, R.A. No. 7718.
25
At the United States Dollar-Philippine Peso exchange rate of US$1:P26.239 quoted by
the Bangko Sentral ng Pilipinas at that time.
26
Rollo, G.R. No.155001, pp. 2471-2474.
27
Id. at 2475-2477. Derived from the figures on the authorized capital stock and the
shares of stock that are subscribed and paid-up.
28
Id. at 2478-2484.

29
Member Amount of
Maximum Equity
Security Bank P528,525,656.55
PAGS 26,735,700.00
Paircargo 3,123,515.00
TOTAL P558,384,871.55

30
Republic of the Philippines vs. Hon. Ignacio C. Capulong, G.R. No. 93359, July 12,
1991; 199 SCRA 134, 146-147. Emphasis supplied.
31
Danville Maritime, Inc. v. Commission on Audit, G.R. No. 85285, July 28, 1989, 175
SCRA 701, 713. Citations omitted.
32
A. Cobacha & D. Lucenario, Law on Public Bidding and Government Contracts 13
(1960).
33
Diamond v. City of Mankato, et al., 93 N.W. 912.
34
G.R. No. L-5439, December 29, 1954; 96 Phil 368.
35
Id. at 375.
36
Section 6.03, draft Concession Agreement.
37
Sections 1.33 and 6.03(b), 1997 Concession Agreement.
38
Sections 1.27 and 6.06, 1997 Concession Agreement.
39
Emphasis supplied.
40
Emphasis supplied.
41
Referred to as "Passenger Service Fee" under the draft Concession Agreement.
42
Section 6.05 Interim Adjustment

(a) Concessionaire may apply for and, if warranted, may be granted an interim
adjustment of the fees and charges constituting Public Utility Revenues upon the
occurrence of extraordinary events resulting from any of the following:

a depreciation since the last adjustment by at least fifteen percent (15%) of the
value of the Philippine Peso relative to the US Dollar using the exchange rates
published by the Philippine Dealing System as reference;
 an increase since the last adjustment by at least fifteen percent (15%) in the Metro
Manila Consumer Price Index based on National Census and Statistics Office
publications;

an increase since the last adjustment in MERALCO power rates billing by at least
fifteen percent (15%);

an increase since the last adjustment in the 180-day Treasury Bill interest rates by
at least thirty (30%).

xxx xxx xxx

43
Section 6.05, draft Concession Agreement.
44
Section 1.33, 1997 Concession Agreement.
45
Supra note 31.
46
Malaga v. Penachos, Jr., G.R No. 86695, September 3, 1992; 213 SCRA 516, 526.
47
A. Cobacha & D. Lucenario, Law on Public Bidding and Government Contracts 6-7
(1960).
48
Emphasis supplied.
49
Concession Agreement, Art. 4, Sec. 4.04 (b) and (c), Art. 1, Sec. 1.06, July 12, 1997.
50
Ibid.
51
Id. at Art. 4, Sec. 4.04 (c).
52
Record of the Senate Second Regular Session 1993-1994, vol. III, no. 42, p. 362.
53
Republic Act No. 7718, Secs. 2 and 4-A, Implementing Rules and Regulations, Rule
11, Secs. 11.1 and 11.3.
54
Emphasis and caption supplied.
55
Sec. 1.06, ARCA.
56
Republic Act No. 7718, as amended, Sec. 4-A, May 5, 1994; Implementing Rules and
Regulations, Rule 10, Sec. 10.1.
57
Implementing Rules and Regulations, Rule 10, Sec. 10.4.
58
North Negros Sugar Co., Inc. v. Hidalgo, G.R. No. 42334, October 31, 1936; Intestate
estate of the deceased Florentino San Gil. Josefa R. Oppus v. Bonifacio San Gil, G.R. No.
48115, October 12, 1942; San Diego v. Municipality of Naujan, G.R. No. L-9920,
February 29, 1960; Favis vs. Municipality of Sabañgan, G.R. No. L-26522, 27 February
1969; City of Manila vs. Tarlac Development Corporation, L-24557, L-24469 & L-
24481, 31 July 1968; In the matter of the Petition for Declaratory Judgment on Title to
Real Property (Quieting of Title) Pechueco Sons Company v. Provincial Board of
Antique, G.R. No. L-27038, January 30, 1970; Fornilda v. The Branch 164, Regional
Trial Court IVth Judicial Region, Pasig, G.R. No. L-72306, October 5, 1988; Laurel v.
Civil Service Commission, G.R. No. 71562, October 28, 1991; Davac v. Court of
Appeals, G.R. No. 106105, April 21, 1994.
59
Republic Act No. 7718, Sec. 1.
60
III Record of the Constitutional Commission, pp. 266-267 (1986).
61
Id.
62
Except for providing for the suspension of all payments due to the Government for the
duration of the takeover, Article V, Section 5.10(b) of the ARCA contains the same
provision. Emphasis and caption supplied.
63
Id.
64
Bataan Shipyard and Engineering Co., Inc. v. Presidential Commission on Good
Government, G.R. No. 75885, May 27, 1987 citing Freund, The Police Power (Chicago,
1904).
65
Genuino v. Court of Agrarian Relations, G.R. No. L-25035, February 26, 1968.
66
Black's Law Dictionary, 4th Ed., p. 1158.
67
36 Am Jur 480 citing Slaughter-House Cases, 16 Wall. (US) 36, 21 L ed 394.
68
Concession Agreement ("CA") dated July 12, 1997, Art. III, Sec. 3.02(a); Amended
and Restated Concession Agreement ("ARCA") dated November 26, 1998, Art. III, Sec.
3.02(a).
69
Ibid.
70
Id. at CA, Art. III, Sec. 3.02(b); ARCA, Art. III, Sec. 3.02(b).
71
The day immediately following the day on which the Certificate of Completion is
issued or deemed to be issued.
72
Id. at CA, Art. III, Sec. 3.01(a) and (b); ARCA, Art. III, Sec. 3.01 (a) and (b).
 73
Id. at CA, Art. III, Sec. 3.01(d) and (e); ARCA, Art. III, Sec. 3.01(d) and (e).
74
Executive Order No. 903, as amended, Sec. 4 (b) and (c).
75
Art. XII, Sec. 19, Philippine Constitution.
76
Republic Act No. 7718, Sec. 1.
77
Transcript of Oral Arguments, p. 157, December 10, 2002.
78
G.R. No. L-54958, September 2, 1983; 09 Phil. 400.
79
Executive Order No. 903, July 21, 1983, provides:

Section 5. Functions, Powers, and Duties. — The Authority shall have the
following functions, powers and duties:

xxx

(b) To control, supervise, construct, maintain, operate and provide such

facilities or services as shall be necessary for the efficient functioning of
the Airport;

(c) To promulgate rules and regulations governing the planning,

development, maintenance, operation and improvement of the Airport and
to control and/or supervise as may be necessary the construction of any
structure or the rendition of any service within the Airport;

VITUG, J.:
1
Article VIII, Section 5(1), 1987 Constitution.
2
Matuguina Integrated Products, Inc. vs. CA, 263 SCRA 490; Mafinco Trading
Corporation vs. Ople, 70 SCRA 139.
3
Mafinco Trading Corporation vs. Ople, supra.
4
Section 1, Rule 63, Rules of Court.
5
In re: Bermudez, 145 SCRA 160.
6
235 SCRA 630, 720.
7
298 SCRA 795.

PANGANIBAN, J.:
1
See Kilosbayan, Inc. v. Guingona Jr., 232 SCRA 110, May 5, 1994; and Basco v. Phil.
Amusements and Gaming Corporation, 197 SCRA 52, May 14, 1991.
2
COMELEC v. Quijano-Padilla, GR No. 151992, September 18, 2002.
3
Vide: ABS-CBN Broadcasting Corp. v. Commission on Elections, 323 SCRA 811,
January 28, 2000; likewise, COMELEC v. Quijano-Padilla, supra.
4
See Respondent PIATCO's Memorandum, pp. 25-26.
5
See public respondents' Memorandum, p. 24.
6
307 SCRA 394, 399, May 19, 1999, per Panganiban, J.
7
175 SCRA 264, July 11, 1989.
8
Supra, Paras, J.
9
As reiterated in Bayan (Bagong Alyansang Makabayan) v. Zamora, 342 SCRA 449,
480-481, October 10, 2000.
10
RA No. 6957 as amended by RA No. 7718.
11
Par. 3.6.1 on page 8 of the Bid Documents.
12
Initially the minimum equity was set at 20%, per Sec. 3.6.4 of the Bid Documents.
However, this was later clarified in Bid Bulletin No. 3(B)(6) to read 30% of Project Cost,
to bring the same in line with the draft concession agreement's Art. II Sec. 2.01(a), which
specifically set the project's debt-to-equity ratio at 70:30, thereby requiring a minimum
equity of 30% of project cost.
13
The consortium was composed of Paircargo, PAGS and Security Bank. Paircargo's
audited financial statements as of 1993 and 1994 showed a net worth of P2,783,592 and
P3,123,515 respectively. PAGS' audited financial statements as of 1995 showed a paid-
up capital of P5,000,000 and deposits on future subscriptions of P21,735,700, or an
aggregate of P26,735,700 of equity available to invest in the project. Security Bank's
audited statements for 1995 showed a net worth of P3,523,504,377. However, the bank's
entire net worth was not available for investment in the project since Sec. 21-B of the
General Banking Act provides inter alia that a commercial bank's equity investment in
any one enterprise, whether allied or non-allied, should not exceed 15% of the net worth
of the investing bank. This limitation is reiterated in Sec. 1381.1.a. of the Manual for
Banks and Other Financial Intermediaries. Thus, the maximum amount which Security
Bank could have legally invested in the project was only P528,525,656.55. And
consequently, the maximum amount of equity which the consortium could have put up
was only P558,384,871.55.
14
199 SCRA 134, July 12, 1991.
15
Malaga v. Penachos Jr., 213 SCRA 516, September 3, 1992.
16
Part of the bid process under the BOT Law is the right of the originator of an
unsolicited proposal to match a price challenge. Pursuant to Sec. 4-A, "in the event
another proponent submits a lower price proposal, the original proponent shall have the
right to match that price within thirty (30) working days."
17
Cf. Malaga v. Penachos, Jr., supra.
18
§11.2, 1994 IRR.
19
Public respondents' Memorandum, pp. 86-87; prepared jointly by the solicitor general,
the acting government corporate counsel, and their respective deputies and assistants.
20
Supra, note 14, per Medialdea, J.
21
§§3.01(d), 3.01(e), 3.02(a), 3.02(b) and 5.15 of the CA.
22
See §1.06 of the CA.
23
§3.02 of the CA.
24
§2.05 of the CA.
25
The parametric formula referred to in the CA applies only to the following so-called
public utility fees: aircraft parking and tacking fees, check-in counter fees and terminal
fees.
26
Fernandez, A Treatise on Government Contracts under Philippine Law, 2001 ed., p. 70.
27
96 Phil. 368, December 29, 1954.
28
Id., p. 375, per Paras, CJ.
29
63 SCRA 170, 177-178, March 21, 1975, per Antonio, J.
30
Cf . §1.06 of the ARCA vis-à-vis § 1.06 of the CA.
31
§4.04 and 8.01 of the ARCA vis-à-vis §8.04 of the CA.
32
As cf. Annex "G" of the ARCA vis-à-vis Annex "G" of the CA.
33
Cf . §8.04(d) of the ARCA vis-à-vis §9.01(d) of the CA.
34
Cf . §2.05 of the ARCA vis-à-vis §2.05 of the CA.
35
Cf . §5.08(a) of the ARCA vis-à-vis §5.08(a) of the CA.
36
Cf . § 6.03(a)(i) of the ARCA vis-à-vis §6.03(a) of the CA.
37
Cf . §8.01(b) and §12.09 of the ARCA vis-à-vis §8.04(b) and 12.09 of the CA.
38
Cf . §8.03(a)(i) of the ARCA vis-à-vis §8.06(a)(i) of the CA.
39
§2.05(g) of the ARCA.
40
§4.04(b) of the ARCA.
41
§6.03(c) of the ARCA vis-à-vis §6.03(c) of the CA.
42
Cf . §8.01(b) of the ARCA vis-à-vis § 8.04(b) of the CA.
43
§12.14 of the ARCA.
44
Cf. §§1.11(b) and 5.06 of the ARCA vis-à-vis §§1.11(b) and 5.06 of the CA.
45
§2 of the FS, amending §1.36 of the ARCA.
46
§3 of the FS, amending §2.05(d) of the ARCA.
47
Ibid.
48
§4 of the FS, adding §2.05(h) to ARCA.
49
§4 of the FS, adding §2.05(i) to ARCA.
50
§4 of the FS, adding §2.05(p) to ARCA.
51
Per §4 of the FS, adding §2.05(n) to ARCA.
52
Per §4 of the FS, adding §2.05(o) to ARCA.
53
Per §4 of the FS, adding §2.05(p) to ARCA.
54
Per §4 of the FS, adding §2.05(j) to ARCA.
55
§8 of the FS, amending §6.01(c) of the ARCA.
56
§9 of the FS, amending §6.02 of the ARCA.
57
§Sec. 21 of the SS.
58
Per §3.1 of the TS.
59
Vide §3.4 of the TS.
60
§4.2 of the TS.
61
Page 37.
62
§8.01 (a) of the ARCA.
63
Namely, the airports at the Subic Bay Freeport Special Economic Zone, the Clark
Special Economic Zone, and Laoag City.
64
Memorandum, pp. 5-7, of the petitioners-in-intervention.
65
§3.02 a): ". . . With regard to CSEZ, GRP shall ensure that, until such time as the
Development Facility Capacity shall have been consistently reached or exceeded for
three (3) consecutive years during the Concession Period, (i) Clark International Airport
shall not be operated beyond its design capacity of Eight Hundred Fifty Thousand
(850,000) passengers per annum and (ii) no new terminal facilities shall be operated
therein. "Development Facility Capacity" refers to the ten million (10,000,000) passenger
capacity per year of the Development Facility."
66
§3.02(a) of the ARCA and §3.02(a) of the CA.
67
§3.02(b) and (c) of the ARCA, and §3.02(b) of the CA.
68
§3.02(b) and (c) of the ARCA and §3.02(b) of the CA. Pertinent portions of §3.02(b) of
the ARCA are quoted hereinbelow:

"(b) On the In-Service Date, GRP shall cause the closure of the Ninoy Aquino
International Airport Passenger Terminals I and II as international passenger
terminals in order to allow Concessionaire, during the entire Concession Period,
to exclusively operate a commercial international passenger terminal within the
island of Luzon; provided that the aforesaid exclusive right to operate a
commercial international passenger terminal shall be without prejudice to the
international passenger terminal operations already existing on the date of this
Agreement in SBFSEZ, CSEZ and Laoag City (but subject to the limitation with
regard to CSEZ referred to in Section 3.02[a]). Neither shall GRP, DOTC or
MIAA use or permit the use of Terminals I and/or II under any arrangement or
scheme, for compensation or otherwise, with any party which would directly or
indirectly compete with Concessionaire in the latter's operation of and the
operations in the Terminal and Terminal Complex, including without limitation
the use of Terminals I and/or II for the handling of international traffic; provided
 that if Terminals I and/or II are operated as domestic passenger terminals, the
conduct of any activity therein which under the ordinary course of operating a
domestic passenger terminal is normally undertaken, shall not be considered to be
in direct or indirect competition with Concessionaire in its operation of the
Development Facility."
69
Sec. 3.01(d) of the ARCA and the CA reads as follows:

"(d) For the purpose of an orderly transition, MIAA shall not renew any expired
concession agreement relative to any service or operation currently being undertaken at
the Ninoy Aquino International Airport Passenger Terminal I, or extend any concession
agreement which may expire subsequent hereto, except to the extent that the continuation
of existing services and operations shall lapse on or before the In-Service Date. Nothing
herein shall be construed to prohibit MIAA from maintaining arrangements for the
uninterrupted provision of essential services at the Ninoy Aquino International Airport
Passenger Terminal I until the Terminal shall have commenced operations on the In-
Service Date, and thereafter, from making such arrangements as are necessary for the
utilization of NAIA Passenger Terminal I as a domestic passenger terminal or as a facility
other than an international passenger terminal.
70
Sec. 3.01(e) of the ARCA and the CA reads as follows:

"(e) GRP confirms that certain concession agreements relative to certain services
or operations currently being undertaken at the Ninoy Aquino International
Airport Passenger Terminal I have a validity period extending beyond the In-
Service Date. GRP, through DOTC/MIAA, confirms that these services and
operations shall not be carried over to the Terminal and that Concessionaire is
under no legal obligation to permit such carry-over except through a separate
agreement duly entered into with Concessionaire. In the event Concessionaire
becomes involved in any litigation initiated by any such concessionaire or
operator, GRP undertakes and hereby holds Concessionaire free and harmless on
a full indemnity basis from and against any loss and/or liability resulting from any
such litigation, including the cost of litigation and the reasonable fees paid or
payable to Concessionaire's counsel of choice, all such amounts being fully
deductible by way of an offset from any amount which Concessionaire is bound
to pay GRP under this Agreement."
71
PIATCO Comment, par. 9, on p. 6.
72
PIATCO letter dated October 14, 2002 addressed to the Board of Airline
Representatives, copy attached as Annex "OO-Service Providers".
73
Based on the PAGSGlobeground GIS as of July 2000, attached as Annex "LL-Service
Providers" to the Memorandum of petitioners-in-intervention.
74
Based on the Orbit GIS as of August 2000, attached as Annex "MM-Service Providers"
to the Memorandum of petitioners-in-intervention.
75
Based on the Friendship Holdings, Inc. GIS as of December 2001, attached as Annex
"NN-Service Providers" to the Memorandum of petitioners-in-intervention.
76
Per the Articles of Incorporation of PAGS, attached as Annex "Y-Service Providers" to
the petition-in-intervention.
77
Per the GIS of Piatco as of May 2000.
78
Per §5.15 of both the CA and the ARCA.
79
Copy of which was presented by Piatco to the Senate Blue Ribbon Committee during
committee hearings.
80
281 SCRA 330, November 5, 1997.
81
Id., pp. 355-358, per Puno, J.
82
89 SCRA 336, April 11, 1979.
83
Id., p. 376, per Antonio, J.
84
Please see footnote 70 supra.
85
§3.02(a) of the CA and §3.02(a) of the ARCA.
86
§3.02(b) of the CA and §3.02(b) and (c) of the ARCA.
87
Ibid.
88
§1, Art. III, Constitution.
89
197 SCRA 409, May 23, 1991, per Gutierrez Jr., J.
90
See Rubi v. Provincial Board of Mindoro, 39 Phil. 660, March 7, 1919.
91
Davao Stevedores Mutual Benefit Association v. Compañia Maritima, 90 Phil. 847,
February 29, 1952.
92
§29(1), Article VI, 1987 Constitution.
93
Commission on Elections v. Quijano-Padilla, GR No. 151992, September 18, 2002, p.
20, per Sandoval-Gutierrez, J.
94
§1.23 of the ARCA defines Incremental and Consequential Costs as "additional costs
properly documented and reasonably incurred by Concessionaire (including without
limitation additional overhead costs, cost of any catch-up program, demobilization, re-
mobilization, storage costs, termination penalties, increase in construction costs,
additional interest expense, costs, fees and other expenses and increase in the cost of
financing) in excess of a budgeted or contracted amount, occasioned by, among other
things, delay in the prosecution of Works by reason not attributable to Concessionaire or
a deviation from the Tender Design or any suspension or interference with the operation
of the Terminal Complex by reason not attributable to Concessionaire. . . ."
95
Memorandum of Agreement between the Manila International Airport Authority and
the Department of Public Works and Highways, p. 2.
96
When I asked this question, Atty. Jose A. Bernas replied that if Piatco is deemed a
builder in good faith then it may be entitled to some form of compensation under the
principle barring unjust enrichment. But if it is found to be a builder in bad faith then it
may not be entitled to compensation. (See TSN, December 10, 2002, pp. 58-71.) Faced
with the same question, Solicitor General Alfredo L. Benipayo responded that the facility
will not be torn down but taken over by government by virtue of police power or eminent
domain. (Id., pp. 94-99.) When asked the same question, Atty. Eduardo delos Angeles
explained that under the provision on Step in Rights, the senior lenders can designate a
qualified operator to operate the facility. (Id., pp. 225-226.) This solution, however,
assumes that this contractual provision is valid.
97
200 SCRA 704, August 16, 1991.
98
195 SCRA 730, April 8, 1991.
99
299 SCRA 199, November 25, 1998.