Suit filed vs bidding of 1st airport PPP under PNoy

Posted at 08/22/2013 1:49 PM | Updated as of 08/22/2013 4:27 PM

MANILA (UPDATE) - A taxpayer urged the Mandaluyong City Regional Trial Court (RTC) on Thursday to stop the Department of Transportation and Communications (DOTC) from proceeding with its August 28 bidding for the multi-billion peso rehabilitation of the Mactan-Cebu International Airport (MCIA) -- the first airport project to be bid out under public-private partnership (PPP) during the term of President Benigno Aquino III.

In his petition for injunction, Danilo B. Cruz, a resident of Hagonoy, Bulacan, sought the immediate issuance of a temporary order and/or writ of preliminary injunction against the DOTC's Bids and Awards Committee (BAC) which has set the bidding for the P17.5-billion MCIA Passenger Terminal Building Project. 

Cruz said he filed the taxpayer's suit due to "some serious and glaring violations of the law" committed by the DOTC.

Cruz pointed out that the agency's Pre-Bid and Awards Committee (PBAC) had two one-on-one meetings, between June 21 and Aug. 1, with each of the seven bidders that have prequalified to bid for the project, namely: 

* AAA Airport Partners, led by the Ayala and Aboitiz groups and Houston Airport operator ADC&HAS; 

* Filinvest-CAI Consortium of the Gotianuns and Singapore's Changi Airport; 

* First Philippine Airports of the Lopez group and New Zealand's Infratil Asia Ltd airport operator; 

* GMR Infrastructure and Megawide Consortium, which includes India's Delhi Airport operator; 

* MPIC-JGS Airport Consortium, composed of the Pangilinan and Gokongwei companies, as well as France's Aeroports de Lyon; 

* SM-led Premier Airport Group, which includes Switzerland's Zurich Airport operators; and, 

* San Miguel-Incheon Airport Consortium, led by the SMC conglomerate and the operator of South Korea's Incheon Airport.

"[T]he first closed-door one-on-one meeting was scheduled right after the pre-bid conference on June 21, 2013, with each pre-qualified bidder given four hours to meet with the PBAC to the exclusion of the other bidders.

"Petitioner is perplexed with the very unusual and seemingly illegal manner of scheduling a series of one-on-one meetings with known bidders on separate occasions by no less than the PBAC," the petition read.

Though the schedules for these meetings were posted on the DOTC website, Cruz stressed that Republic Act (RA) No. 7118 (An Act Amending RA No. 6957, Authorizing the Financing, Construction, Operation and Maintenance of Infrastructure Projects by the Private Sector) and its Implementing Rules and Regulations (IRR) do not sanction one-on-one meetings with pre-qualified bidders.

"The decision to conduct a series of one-on-one meetings with each of the bidders directly defeats the purpose of a public bidding and destroys the integrity of a strong honest-to-goodness public competition... and thus effectively corrupts any integrity of the coming Aug. 28, 2013 bidding," the petition read.

THE END DOES NOT JUSTIFY THE MEANS

Cruz clarified that he is not against the rehabilitation and expansion of the MCIA and against capital infusion from the private sector, but that these "do not justify the liberal application of the rules on public bidding regardless of the amount involved."

Citing the Supreme Court ruling in C & C Commercial vs. Menor, and in Archbishop Fernando R. Capalla, et al. vs the Commission on Elections, Cruz said that the state should ensure the strict application of rules, guidelines, and regulations that govern public bidding.

"Petitioner (Cruz) is not unmindful of the importance of the above BOT (build-operate-and-transfer) now PPP project. However, the higher interest of transparency and public accountability concerning public funds amounting to billions of pesos, overrides that need at the moment," the petition read.

Cruz also pointed out that one-on-one meetings with pre-qualified bidders would make possible the "offer of some 'sweetener' to some members of the PBAC," which, again, puts a stain on the integrity of the bidding process.

"Such suspicion is precisely the reason why public biddings must always be open and thus avoid the suspicion of favoritism," the petition stressed.

In seeking the immediate issuance of a TRO and/or injunctive writ, Cruz said that this is to prevent any irreparable damage and injury to government coffers. His plea would be rendered moot and academic in the event that the DOTC is not restrained from proceeding with the Aug. 28 bidding schedule, he added.

The MCIA rehabilitation and expansion project under PPP will enable the private company that wins the bid to operate the airport for 20 years, after which the DOTC will have the option of operating the facility.

DOTC to review petition

Sought for comment, DOTC spokesperson Michael Arthur Sagcal said the agency has just received a copy of the petition. 

"We'll need time to review it. However, we have made sure that we have acted fully within the law and we will continue with the bidding process unless prohibited by the courts," he said.