Naia concession agreement challenged before SC
Ninoy Aquino International Airport facade. Inquirer file photo.
MANILA, Philippines — A temporary restraining order, writ of preliminary injunction and status quo ante order were sought to declare as invalid and prohibit the further implementation of the NAIA PPP Project Concession Agreement.
The 182-page petition was made by Joel Butuyan and Roger Rayel of the Center for International Law (CENTERLAW), former Undersecretary of the Department of Environment and Natural Resources Antonio Gabriel La Viña, and law deans Attys. Ma. Soledad Deriquito-Mawis and Jose Mari Benjamin Francisco U. Tirol.
The petitioners argued that the agreement—which was awarded the fastest in Philippine history—did not comply with and was in violation of the provisions of the new PPP Code signed into law on December 5, 2023 and took effect before the bidding on December 23, 2023.
Petitioners said the bidding process was done under the Build-Operate-Transfer (BOT) Law, even if it was already repealed by the new PPP Code.
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“Respondents DOTr (Department of Transportation), MIAA (Manila International Airport Authority) and PBAC (Pre-Qualification, Bids and Awards Committee) continued and concluded the bidding process for the Project as if the BOT Law was still in place, the PPP Code did not exist, and without making any attempt or adjustment to comply with the new or updated provisions of the PPP Code, as was their legal responsibility,” the petition read.
Petitioners also argued that the bidding proceeded without the terms being clear about how the concessionaire will be compensated.
Fees, rentals, and charges collected by the MIAA from airport users were intended to fund the concessionaire’s compensation, but must undergo a ladderized rate-fixing approval process which includes public participation, which was bypassed, violating the constitutional right to due process.
The Revised Administrative Order No. 1 (RAO1) which governed these fees, rentals and charges were only approved in September 2024—a mere six months after the award of the project to NNIC and more than five months after the signing of the Concession Agreement.
The RAO1 was also passed without changes, despite objections from stakeholders, rendering the public hearing a mere formality.
But despite the absence of the compensation mechanism as of bidding date on December 27, 2023, NNIC managed to bag the contract by promising to pay MIAA 82 percent of the revenues on top of the P2 Billion annual payments and the P30 Billion performance bond for its 15 years contract.
“If the subject Concession Agreement is rendered valid … it will open the floodgates to an open and institutional connivance between the government and business conglomerates or other private entities to partner in operating public utilities, government monopolies, and government facilities which will disregard the mandate of the law to ‘protect the public interest’ and to shirk from the obligation to provide ‘affordable’ and ‘accessible’ public services,” the petition read.
Best rates
“It will free the government of its duty to ensure the ‘lowest rate,’ the best rates and just rates for users,” it added.
According to the petitioners, the DOTr and the MIAA have “completely abandoned their statutory obligations with regard to Naia,” leaving Filipinos and airport users to “contend” with an administrative rate regulation is in violation of the law and against public policy, but also “the all-important constitutional provisions on separation of powers, due process and equal protection of laws.
“We are here dealing with people’s hard-earned money, of which they are already being deprived every day without due process of law,” the petition read.
“Given the circumstances, the extreme urgency of and paramount necessity for a temporary restraining order, writ of preliminary injunction or status quo ante order issued by the Honorable Court cannot be overstated,” it added.
Meanwhile, respondents were listed as Cabinet of the Executive Department, represented by Executive Secretary Lucas Bersamin; DOTr; MIAA; PBAC; the PPP Governing Board and the NNIC.
