THIRD DIVISION
G.R. No. 211737, January 13, 2016
SERGIO R. OSMEÑA III, Petitioner, v. DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS SECRETARY JOSEPH EMILIOI A. ABAYA, MACTAN-CEBU INTERNATIONAL AIRPORT AUTHORITY (MCIAA), THE PRE-QUALIFICATION, BIDS AND AWARDS COMMITTEE (PBAC) FOR THE MACTAN-CEBU INTERNATIONAL AIRPORT PROJECT THROUGH ITS CHAIRMAN, UNDERSECRETARY JOSE PERPETUO M. LOTILLA, GMR INFRASTRUCTURE, LTD. AND MEGAWIDE CONSTRUCTION CORPORATION, Respondents.
G.R. NO. 214756
BUSINESS FOR PROGRESS MOVEMENT AS REPRESENTED BY MEDARDO C. DEACOSTA, JR., Petitioner, v. DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS, GMR-MEGAWIDE CEBU AIRPORT CORPORATION, Respondents.
D E C I S I O N
VILLARAMA, JR., J.:
Before us are the consolidated petitions for certiorari and injunction to restrain public respondents from awarding the Mactan-Cebu International Airport (MCIA) Project to private respondents GMR Infrastructure Limited (GMR) and Megawide Construction Corporation (MCC). Petitioners subsequently prayed for invalidation of the award after private respondents won the public bidding.
- AAA Airport Partners;
- Filinvest-CAI Consortium;
- First Philippine Airports;
- GMR Infrastructure & Megawide Consortium;
- MPIC-JGS Airport Consortium;
- Premier Airport Group; and
- San Miguel & Incheon Airport Consortium.
1 GMR-Megawide Consortium Php 14,404,570,002.00 2 Filinvest-Changi Airport Consortium Php 13,999,999,999.99 3 Premier Airport Group Php 12,500,088,888.88 4 MPIC-JGS Airport Holdings, Inc. Php 11,230,000.000.00 5 AAA Airport Partners Php 11,088,888,889.00 6 San Miguel & Incheon Airport Php 9,050,000,000.00 7 First Philippine Airports Php 4,700,000,000.007
WHEREAS, the GMR Infrastructure & Megawide Consortium, formed by Megawide Construction Corporation ("Megawide") and GMR Infrastructure Limited ("GMR") qualified under the Technical and Financial Qualification requirements, through the following entities:
Development Experience* Delhi International Airport (P) Limited (DIAL)
Affiliate of GMR Infrastructure Limited* GMR Hyderabad International Airport Limited (GHIAL)
Affiliate of GMR Infrastructure Limited Operation and Maintenance* Delhi International Airport (P) Limited (DIAL)
Affiliate of GMR Infrastructure Limited* GMR Hyderabad International Airport Limited (GHIAL)
Affiliate of GMR Infrastructure Limited Financial Qualification* Megawide Construction Corp.
Consortium Member
x x x x
WHEREAS, upon completion of verification of the information, representations and statements made in its Qualification Documents, Bid Letter, Technical Proposal and Financial Proposal and recommendation of the TWG [Technical Working Group] under its report dated 2 April 2014, (i) the PBAC has not found any deficiency in the Financial Proposal, (ii) nor has any misrepresentation been found in the information, representations and statements made by the GMR Infrastructure & Megawide Consortium in its Qualification Documents, Technical Proposal, Financial Proposal, and (iii) nor has the Consortium been found to have engaged in any Corrupt Practice, Fraud, Collusion, Coercion, Undesirable and Restrictive Practice, Conflict of Interest, or violated the Lock-up Rules. A copy of the TWG Report dated 2 April 2014 is attached as Annex "DD";
NOW THEREFORE, upon review and deliberation, pursuant to and in accordance with the provisions, constraints and limitations under the BOX Law, BOT Law IRR, and the rules under the ITPB and ITB, the PBAC hereby resolves to recommend to the Honorable Secretary of the DOTC and the Board of the MCIAA: (i) to designate GMR Infrastructure & Megawide Consortium as the Winning Bidder for the Project, and (ii) to consequently issue the Notice of Award to GMR Infrastructure & Megawide Consortium.9chanrobleslaw
I
THE PBAC ILLEGALLY QUALIFIED THE GMR-MEGAWIDE CONSORTIUM DESPITE ITS PATENT VIOLATION OF THE CONFLICT OF INTEREST RULE.chanRoblesvirtualLawlibraryII
THE PBAC ILLEGALLY REFUSED TO DISQUALIFY THE GMR-MEGAWIDE CONSORTIUM IN THE FACE OF UNREFUTED EVIDENCE OF GMR'S POOR FINANCIAL HEALTH AND TRACK RECORD IN ITS INTERNATIONAL AIRPORT OPERATIONS.chanRoblesvirtualLawlibraryIII
PUBLIC RESPONDENTS ILLEGALLY FAILED TO AND LATER REFUSED TO DISQUALIFY PRIVATE RESPONDENTS FOR VIOLATING THE CONFLICT OF INTEREST RULE AND THEIR OTHER INCAPACITIES EVEN IF IT WAS THEIR MINISTERIAL DUTY TO DO SO.chanRoblesvirtualLawlibraryIV
THE PUBLIC RESPONDENTS ILLEGALLY ACCORDED PRIVATE RESPONDENTS AN UNDUE ADVANTAGE AND/OR ACTED WITH UNDUE BIAS IN FAVOR OF PRIVATE RESPONDENTS.
Locus standi is defined as "a right of appearance in a court of justice on a given question." In private suits, standing is governed by the "real-parties-in interest rule" as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that "every action must be prosecuted or defended in the name of the real party in interest." Accordingly, the "real-party-in interest" is "the parly who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit." Succinctly put, the plaintiffs standing is based on his own right to the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a "public right" in assailing an allegedly illegal official action, does so as a representative of the general public.THE ACTING CHAIRMAN (SEN. OSMEÑA)He may be a person who is affected no differently from any other person. He could be suing as a "stranger," or in the category of a "citizen," or "taxpayer." In either case, he has to adequately show that he is entitled to seek judicial protection. In other words, he has to make out a sufficient interest in the vindication of the public order and the securing of relief as a "citizen" or "taxpayer."
Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public actions. The distinction was first laid down in Beauchamp v. Silk, where it was held that the plaintiff in a taxpayer's suit is in a different category from the plaintiff in a citizen's suit. In the former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is but the mere instrument of the public concern. As held by the New York Supreme Court in People ex rel Case v. Collins: "In matter of mere public right, however ... the people are the real parties.... It is at least the right, if not the duty, of every citizen to interfere and see that a public offence be properly pursued and punished, and that a public grievance be remedied." With respect to taxpayer's suits, Terr v. Jordan held that "the right of a citizen and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds to his injury cannot be denied."
However, to prevent just about any person from seeking judicial interference in any official policy or act with which he disagreed with, and thus hinders the activities of governmental agencies engaged in public service, the United State Supreme Court laid down the more stringent "direct injury" test in Ex Parte Levitt, later reaffirmed in Tileston v. Ullman. The same Court ruled that for a private individual to invoke the judicial power to determine the validity of an executive or legislative action, he must show that he has sustained a direct injury as a result of that action, and it is not sufficient that he has a general interest common to all members of the public.
This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera, it held that the person who impugns the validity of a statute must have "a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result." The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President of the Senate, Manila Race Horse Trainers' Association v. De la Fuente, Pascual v. Secretary of Public Works and Anti-Chinese League of the Philippines v. Felix.18 (Italics in the original; emphasis and underscoring supplied)
For a party to have locus standi, one must allege "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."
Because constitutional cases are often public actions in which the relief sought is likely to affect other persons, a preliminary question frequently arises as to this interest in the constitutional question raised.
When suing as a citizen, the person complaining must allege that he 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. When the issue concerns a public right, it is sufficient that the petitioner is a citizen and has an interest in the execution of the laws.
For a taxpayer, one is allowed to sue where there is an assertion that public funds are illegally disbursed or deflected to an illegal purpose, or that there is a wastage of public funds through the enforcement of an invalid or unconstitutional law. The Court retains discretion whether or not to allow a taxpayer's suit.
In the case of a legislator or member of Congress, an act of the Executive that injures the institution of Congress causes a derivative but nonetheless substantial injury that can be questioned by legislators. A member of the House of Representatives has standing to maintain inviolate the prerogatives, powers and privileges vested by the Constitution in his office.
An organization may be granted standing to assert the rights of its members, but the mere invocation by the Integrated Bar of the Philippines or any member of the legal profession of the duty to preserve the rule of law does not suffice to clothe it with standing.
x x x a direct invocation of the Supreme Court's jurisdiction is allowed only when there are special and important reasons therefor, clearly and especially set out in the petition. Reasons of practicality, dictated by an increasingly overcrowded docket and the need to prioritize in favor of matters within our exclusive jurisdiction, justify the existence of this rule otherwise known as the "principle of hierarchy of courts." More generally stated, the principle requires that recourse must first be made to the lower-ranked court exercising concurrent jurisdiction with a higher court.25 (Italics omitted; Emphasis supplied)
- The entity whose experience is being submitted in fulfillment of this requirement - whether the Prospective Bidder or a Consortium Member and any Affiliates of any of these entities, should submit a certificate from an Auditor, as per the format provided at Annex QD-11 to satisfactorily establish its claim.
- The entity, whose experience is being submitted in fulfillment of this requirement - whether the Prospective Bidder or a Consortium Member and any Affiliates of any of these entities must certify that they have no Unsatisfactory Performance Record as per the format provided at Annex QD-4A or Annex QD-4B.33 (Emphasis supplied)
xxx "Unsatisfactory Performance" means any of the following:
- within the last five (5) years prior to the Qualification Documents Submission Date -
- failure to satisfactorily perform any of its material obligations on any contract, as evidenced by an imposition of a judicial pronouncement or arbitration award;
- expulsion from any project or contract;
- termination or suspension of any of its projects or contracts due to breach of its obligations; or
- material violations of laws and/or regulations applicable to any of its projects or contracts x x x.35chanroblesvirtuallawlibrary
Pursuant to QD-4A of the ITPB, the relevant project or contract refers to any project or contract of the entity or entities whose experience is being used to meet any of the Technical Qualification Requirements which was commenced or in the process of implementation within the last five (5) years before the Qualification Documents Submission Date, and not just to the particular projects or contracts being submitted to meet such Technical Qualification Requirements. Based on the clear reading of the provisions under QD-4A, the performance record of GMR-Male is not relevant to the Project, considering its credentials were not used to satisfy any qualification requirement. The PBAC also appreciated that -
- Existence of Unsatisfactory Performance in relation to GMR-Male
- the information pertaining to the Male Airport Contract was disclosed by GMR during the Pre-qualification process, even if it was not a required submission; and
- in a letter dated 23 December 2013 addressed to the DOTC, through Undersecretary Rene K. Limcaoco, Isabel Chaterton of the International Finance Corporation ("IFC") Public-Private Partnership Advisory Services for South Asia said that "IFC has been consistently of the view that the sanctity of the Male airport concession agreement should be upheld and have noted publicly our strong belief that the process leading to the award of the concession for that project was conducted in an open and transparent manner and in accordance with international best practice. We understand the matter is now under arbitration which is the appropriate dispute resolution mechanism provided for in the concession agreement. We should also point out, that in June 2013, the Anti-Corruption Commission of the Maldives concluded that there was no corruption involved in the award and concession of the Male airport to GMR-MAHB." IFC is a member of the World Bank Group and the largest global development institution focused exclusively on the private sector in developing countries. A copy of IFC's letter dated 20 December 2013 is attached hereto as Annex "AA."
- Misrepresentation as to the Absence of Unsatisfactory Performance of DIAL
Based on the definition of unsatisfactory performance under the ITPB and ITB, absence of unsatisfactory performance must be evidenced by the imposition of a judicial pronouncement or arbitration award. The CAG Report is neither a judicial pronouncement nor an arbitration award. Therefore, based on the definition, the CAG Report is not sufficient basis for an adverse finding. On further evaluation of the documentary submissions and at the close of several discussions, it was determined that the CAG Report is primarily addressed to the relevant government agencies of India. The PBAC noted, among others, that the charging of development fee and outsourcing to service providers through a procurement process is allowed under the contract.
It has been reported as well that the Ministry of Civil Aviation has contested the findings under the CAG Report. Briefly, the Ministry has said that: (i) the charging of the development fee is authorized under the relevant law and known to all bidders prior to bid submission, (ii) there was no deviation from the Master Plan, particularly as regards the extent of permissible commercial development as follows:
"Ministry of Civil Aviation has gone through the report of the CAG on Indira Gandhi International Airport, Delhi as tabled in Parliament today and strongly refutes the loss figures and other allegations as made in the report.
"The calculation of presumptive gain from the commercial use of land at the Delhi Airport is totally erroneous and misleading as it simply adds the nominal value of the projected revenue, without taking the net present value. In fact the net present value of the figure quoted by CAG is Rs 13795 crores only. CAG has further failed to appreciate that 46% of this amount would be payable to AAI as revenue share.
"It is also pointed out that the levy of Development Fee is under Section 22 (A) of AAI Act, 1994 and was in the knowledge of all the bidders prior to the bidding process. Hence, contrary to what the CAG has said, the levy of Development Fee by DIAL was not a post contractual benefit provided to DIAL at the cost of passengers. Further, the levy of the Development Fee has been upheld by the Supreme Court, which has already examined and rejected all the issues now being raised by CAG in its report.
"On the issue of lease of Airport land, it is clarified that the land has not been given to DIAL on rental basis. RslOO is just a token amount for the purpose of the Conveyance Deed. The determining factor for grant of concession to the bidder was the Gross Revenue share quoted by the bidders. As a result, Airports Authority of India (AAI) now receives 45.99% share of Gross Revenues of DIAL and 26% of all Dividends. Benefit to AAI is likely to be more than Rs 3 lakh crores in this process during the entire Concession period. AAI has already got its revenue share of Rs.2936 crores in the last 6 years and likely to get Rs. 1770 crores in the year 2012-13 and Rs. 2287 crores in the year 2013-14. The AAI share of revenue from DIAL is further going to constantly rise every year in the balance concession period.
"It may also be noted that the right to use 5% of Airport land for commercial purpose was also defined in the bid and known to all bidders."
- Misrepresentation as to financial capacity of GMR Infrastructure & Megawide Consortium
Pursuant to the ITPB and ITB, to be financially qualified to bid for the Project, a bidder must meet the following Financial Qualification requirements: (a) (i) Net Worth of at least Php 2.0 billion, or its equivalent as of its latest audited financial statements, which must be for financial year ending not earlier than 31 December 2011, or (ii) a Set-Aside Deposit equivalent to the same amount, and (b) a letter testimonial from a domestic universal/commercial bank or an international bank with a subsidiary/branch in the Philippines or any international bank recognized by the BSP attesting that the Prospective Bidder and/or members of the Consortium are banking with them, and that they are in good financial standing and/or are qualified to obtain credit accommodations from such banks to finance the Project. These parameters for the determination of financial qualification requirements are consistent with Section 5.4(c) of the BOT Law IRR.
On further evaluation, the PBAC determined that, for purposes of meeting the Financial Qualification requirement, QD-8, with supporting information, was submitted by Megawide for the GMR Infrastructure & Megawide Consortium. Megawide's submission was previously determined to have fulfilled these requirements. Furthermore, in the course of completing the financial evaluation, the PBAC examined the Financial Proposal comprising the Bid Amount and the Final Draft Concession Agreement signed and executed by the Authorized Representative of the GMR Infrastructure & Megawide Consortium pursuant to the ITB, and the PBAC has not found any deficiency in the financial proposal.
- Long term commitment to Project
Filinvest-CAI Consortium also shared its observation that it doubts the long term commitment of GMR Infrastructure & Megawide Consortium to the Project in view of its reported intention to withdraw from the ISGIA. The PBAC noted this observation and resolved that the reported divestment from Istanbul Airport does not affect the evaluation of GMR Infrastructure & Megawide Consortium's qualification to undertake the Project under the terms of the Concession Agreement. Divestment or withdrawal by a Consortium Member from the Project is permitted, subject to the applicable Lock-up Rules under V-05 and V-06 of the ITPB, as well, as under the Concession Agreement. This is an important provision in the ITB, ITPB and Concession Agreement, validated in the course of the market sounding exercise undertaken for the Project and in keeping with the declared policy under the BOT Law to provide the most appropriate incentives to mobilize private resources for the purpose of financing the construction, operation and maintenance of infrastructure and development projects. Further, under Annex BL-1, GMR Infrastructure & Megawide Consortium has certified that it will undertake the project in accordance with the Concession Agreement, including the applicable Lock-up Rules, which undertaking was affirmed in a letter addressed to PBAC dated 20 December 2013.
There is no reason to doubt the commitment in view of the certificate of good standing from the Ministry of Defence of Turkey, which states that the operating company founded by Limak Holding, GMR Infrastructure Limited and MAHB has been operating the Istanbul Sabiha Gocken International Airport Terminal satisfactorily per the provisions of the Implementation Agreement executed in 2008 and that the transfer of the forty percent (40%) shares held by GMR and its affiliates to Malaysia Airports MSC Sdn Bhd has been duly approved by the Undersecretary for Defense Industries on 20 March 2014, consistent with the terms of the Implementation Agreement.The ITB, in Section 5.6(c) states in part:
- Violation of Conflict of Interest
Each Bidder may submit only one Bid Proposal. To ensure a level playing field and a competitive Bidding Process, Bidders (in the case of Consortia, each Consortium Members), including their Affiliates, must not have any Conflict of Interest. Without limiting the generality of what would constitute a Conflict of Interest, any of the following will be considered a Conflict of Interest:chanRoblesvirtualLawlibrary(This is similar to the Conflict of Interest provision appearing in the ITPB, Section V04-d.)xxx xxx xxx a member of the board of directors, partner, officer, employee or agent of a Bidder, any Consortium Member, or any of their Affiliates (of either the Didder or any of its Consortium Members), is also directly involved in any capacity related to the Bidding Process for the Project for another Bidder, any Consortium Member of any other Bidder, or any of their Affiliates (of either the Bidder or any of its Consortium Members), within a period of two (2) years prior to the publication of the Invitation to Pre-Qualify and Bid and one (1) year after award of the Project.
The same conflict of interest arises in case of professional advisors except when prior written disclosure was made to their client-Bidders, DOTC/MCIAA and the Public-Private Partnership Center, including the submission of a Conflict Management Plan for this purpose. A written consent or clearance to this effect shall likewise be secured from DOTC.xxx xxx xxx
Consequently, in Annex BL-1 of the ITB, or the Form of Bid Letter, a bidder is required to state under oath that it "including all of its Consortium Members, and all of the entities it has proposed to comply with the Qualification Requirements under the ITPB, have not at any time (i) engaged in any Corrupt Practice, Fraud, Collusion, Coercion, Undesirable Practice, or Restrictive Practice, (ii) have a Conflict of Interest (iii) violated the Lock-Up Rules or (iv) has Unsatisfactory Performance Record."
During the pre-qualification stage, a question was submitted seeking clarification on Section V04-d of the ITPB on Conflict of Interest. In its answer to the query under SBB No. 06-2013, the PBAC stated that "without limiting the discretion of the PBAC to determine what constitutes Conflict of Interest, direct involvement shall mean actual participation in the deliberations and decision-making for the bidding process of the Prospective Bidder that would give the director knowledge / information regarding the bid of such Prospective Bidder."
In June 2013, GMR Infrastructure & Megawide Consortium submitted the following query:PBAC to please confirm our understanding that a conflict of interest shall arise with respect to a director, partner, officer, advisor, employee, or agent if:
1. such director, partner, officer, advisor, employee, or agent of a Bidder (Bidder "A ") is directly involved in the Bidding Process for the Project; and
2. such director, partner, officer, advisor, employee, or agent is also directly involved in any capacity related to the Bidding Process for the Project for another Bidder ("Bidder B"), any Consortium Member of Bidder B, or any of their Affiliates.
Accordingly, a conflict of interest will arise only if such director, partner, officer, advisor, employee, or agent is directly involved in the Bidding Process for the Project with respect to both Bidders A and B.
PBAC to further confirm that for purposes of Section 5.6(c) of the Instructions to Bidders, "direct involvement" shall mean actual participation in the deliberations and decision-making for the bidding process of the Bidder that would give the director, officer, advisor, employee or agent knowledge or information regarding the bid of the Bidder, as previously clarified by the PBAC in SBB 6-2013, Query 4.
The Consortium, further suggested the following revision to the ITB:
A member of the board of directors, partner, officer, employee or agent of a Bidder, any Consortium Member, or any of their Affiliates (of either the Bidder or any of Consortium Members), who is directly involved in the Bidding Process for the Project with respect to a Bidder, is also directly involved in any capacity related to the Bidding Process for the Project for another Bidder, any Consortium Member of any other Bidder, or any of their Affiliates (of either the Bidder or any of its Consortium Members), within a period of two (2) years prior to the publication of the Invitation to Pre-Qualify and Bid and one (I) year after award of the Project.
The same conflict of interest arises in case of professional advisors except when prior written disclosure was made to their client-Bidders, DOTC/MCIAA, and the Public-Private Partnership Centre, including the submission of a Conjlict Management Plan for this purpose. A written consent or clearance to this effect shall likewise be secured from DOTC.
For purposes of this provision, direct involvement shall mean actual participation in the deliberations and decision-making for the bidding process of the Bidder that would give the director, officer, advisor, employee, or agent knowledge or information regarding the bid of the Bidder.
The PBAC, under SBB No. 11-2013 Query No. 5 released in August 2013, replied as follows:Please be guided that in cases of conflict of interest under ITB, Sec. 5.6(c), Bidders who may be affected are advised to comply with SBB02-2013, Amendments to the ITPB, No. 10, with respect to the compliance requirements for professional advisors. Thus, Bidder, is advised, so that there will be no conflict of interest, to make a prior written disclosure to the affected Bidders, DOTC, and the PPPC, and submit a Conjlict Management Plan. A written consent or clearance must be likewise secured from DOTC.Based on the relevant rule, there must be direct involvement or participation in the deliberations and decision-making as to the Bid Process of two or more bidders and that mere partnership or common directorship, or direct involvement in one bidder is not enough.
The rule under Section 5.6(c), as previously explained under SBB No. 06-2013 (Query No. 4), is that the existence of common partners, directors or officers between two Bidders is not of itself ground for a finding of Conflict of Interest. In SBB No. 07-2013 (Query No. 36), the PBAC reiterated that "[t]he position in the ITPB is reiterated. However, please note that Section V-04(d) shall only apply if the common director is directly involved in the bidding process for another Prospective Bidder. The PBAC provided guidance as to what would constitute direct involvement in our response to Query No. 4 in SBB No. 06-ANNEX A." There must be (1) common partner, director, officer, or employee and (2) direct involvement by such partner, director, officer, or employee, which consists of actual participation in the deliberations and decision-making for the Bidding Process of both Bidders affected, that would give the director knowledge or information regarding the bid of such Bidder.
The PBAC adopted and approved the Conflict of Interest provision in the ITPB(V04-d) and later in the ITB (5.6c) pursuant to its authority and function under the BOT Law IRR, Section 3.2, which states that the PBAC shall be responsible for all aspects of the pre-bidding and bidding process, including among others, the interpretation of the rules regarding the bidding. In adopting the ITPB and ITB provisions on conflict of interest, the PBAC was aware that in its implementation it would require direct involvement or actual participation in the deliberations and decision-making process as to the Bid for both affected bidders, for the following reasons.
- The clear expression of this intention in the use of the adverb "also," indicating similarity and further action of the same nature, in the qualifying phrase "is also directly involved," meaning that in requiring such action on the part of one bidder, the same action should have been taken in behalf of or in relation to another bidder.
- The PBAC also noted that this meaning has been carried in the language of the provision as used in several other PPP projects implemented prior to the Project and from which reference documents the provision was drawn. Significant in this regard is SBB No. 3, Response No. 4 to Metro Pacific Tollways Corporation (see attached), issued in September 2012 for the NAIA Expressway Project, where it is clear that for conflict of interest to arise there has to be actual participation for or in both bidders involved. The meaning of the provision as explained in the SBB No. 3 has been retained and carried in its use in the Project's ITB and ITPB. A copy of SBB No. 3 issued in September 2012 for the NAIA Expressway Project is attached hereto as Annex "BB."
That this is the proper interpretation is supported by the PBAC's application of the same principle in the treatment of professional advisers. The ITPB and ITB in stating that "the same conflict of interest arises in case of professional advisors" has been implemented by the PBAC by requiring the disclosure and clearance where the professional adviser is under "the same conflict of interest," meaning they are involved in that capacity for two or more bidders. A written consent, clearance and compliance with conflict management plan was required in the case of a professional adviser who was understood to have taken such a role for two bidders in the Project. Otherwise, if at least two bidders are not involved, the PBAC would not have required a conflict management plan for the simple reason that a conflict of interest, in that case, would not exist.
In relation to the history of the conflict of interest provision, the PBAC also discussed that, due to the numerous interlocking directors prevalent among the Philippine conglomerates, an interpretation not requiring direct participation in both companies may possibly lead to the disqualification of a large number of bidders. The result would be extremely detrimental for the government, and surely this cannot be the purpose of the provision.
The purpose of specifying Section 5.6(c) as a form of Conflict of Interest is to prevent collusion among the bidders that may arise from the specific conflict of interest scenarios (as differentiated from Collusion as defined under the ITPB and ITB), which may prejudice or defeat competition in the Bidding Process. Particularly, Section 5.6(c) seeks to prevent a situation in which the common partner, director, or officer of two (or more) Bidders will have information and involvement in the preparation of the bids of both Bidders. By actual participation, the common partner, director, or officer can influence the bids of both bidders, which will not be achieved if a common director does not have direct involvement in both bids.
It is, therefore erroneous, to conclude that the PBAC has taken a different view solely on the basis of the response given under SBB No. 11-2013, Query No. 5. The PBAC responded only to the query with regard to professional advisers without taking action on the rest considering the lack of concrete factual scenario to support the qviery, apart from the fact that it is not necessary to adopt the proposed revision by the bidder under Query No. 5. The provision as it appears in the ITPB and ITB sufficiently conveys the meaning that for Conflict of Interest to arise under Section 5.6(c) of the ITB there must be direct involvement or participation in the deliberations and decision-making as to the Bid Process of two or more bidders. Mere partnership or common directorship, or direct involvement in only one bidder is not enough. It is worth recalling Section 6.1 of the BOT Law IRR, which states that the implementing agency concerned shall not assume any responsibility regarding erroneous interpretations or conclusions by the prospective bidder out of data furnished or indicated in the bidding documents.
Applying the foregoing interpretation, therefore, the sworn certifications submitted by GMR Infrastructure & Megawide Consortium set out the required certification on facts which indicate compliance with the rules on Conflict of Interest.
Upon further consideration of this issue, the PBAC noted that GMR Infrastructure & Megawide Consortium, in its comment on Filinvest-CA Consortium's letters dated 2 and 3 January, confirmed that Mr. Tansri Bashir Ahmad bin Abdul Majid ("Mr. Tansri Bashir Ahmad") is the Managing Director of MAHB, but not a member of the board of directors of GMR. While Mr. Tansri Bashir Ahmad sits on the board of DIAL, GHIAL, and GMR-Male, as well as ISGIA, GMR Infrastructure & Megawide Consortium, in its letter dated 6 January 2014, explained that "[a]side from using the Hyderabad and Delhi airports for meeting the technical requirements for the bid, DIAL, GHIAL, [GMR-Male] or ISGIA themselves were never involved in the bidding process and anything remotely connected with the bid was never discussed in the boards of these companies."
It is also worth noting that at the time the GMR Infrastructure & Megawide Consortium submitted its Qualification Documents on 22 April 2013, when it indicated that it is fulfilling the Qualification Requirements through Affiliates of GMR, namely DIAL and GHIAL, First Philippine Airport Consortium had as its members First Philippine Holdings Corporation and Infratil (of New Zealand). The First Philippine Airports Consortium requested the change in its consortium membership, with the replacement of Infratil by MAHB was approved only in September 2013, following the evaluation of the pre-qualification documents submitted by MAHB. In their respective Bid Letters (Annex BL-1), each of the GMR Infrastructure & Megawide Consortium and First Philippine Airport Consortium declared under oath the absence of Conflict of Interest. The PBAC further noted that the respective boards of DIAL and GHIAL authorized their respective Chief Financial Officers ("CFO") to sign and execute relevant documents on their behalf from a board meeting back in 2011 and 2012, way before the bid for the MCIA was published. The same CFOs signed on behalf of each of their boards for the use of their O&M experience as an affiliate of GMR.
The PBAC, in its meeting on 6 January 2013, resolved to require GMR Infrastructure & Megawide to submit within three (3) days a certification affirming under oath the absence of conflict of interest, specifically that neither MAHB nor Mr. Tansri Bashir Ahmad was directly involved in any capacity related to the Bidding Process for the Project for both GMR-Megawide Consortium and the Consortium of First Philippine Holdings Corporation and MAHB at the same time, or any of their respective Consortium members, or any of their respective Affiliates, through actual participation in the deliberations and decision-making for the Bidding Process of both GMR-Megawide Consortium and First Philippine Airports Consortium that would give MAHB or Mr. Tansri Bashir Ahmad knowledge / information regarding the bid of both GMR Infrastructure & Megawide Consortium and First Philippine Airports Consortium, within a period of two (2) years prior to the publication of the Invitation to Pre-Qualify and Bid. Through its letter dated 8 January 2013, GMR Infrastructure & Megawide Consortium submitted the requested certification.36chanrobleslaw
x x x It must be stressed, as held in the case of A.C. Esguerra & Sons v. Aytona, et al., (L-18751, 28 April 1962, 4 SCRA 1245), that in an "invitation to bid, there is a condition imposed upon the bidders to the effect that the bidding shall be subject to the right of the government to reject any and all bids subject to its discretion. In the case at bar, the government has made its choice and unless an unfairness or injustice is shown, the losing bidders have no cause to complain nor right to dispute that choice. This is a well-settled doctrine in this jurisdiction and elsewhere."
The discretion to accept or reject a bid and award contracts is vested in the Government agencies entrusted with that function. The discretion given to the authorities on this matter is of such wide latitude that the Courts will not interfere therewith, unless it is apparent that it is used as a shield to a fraudulent award (Jalandoni v. NARRA, 108 Phil. 486 [I960]), x x x The choice of who among the bidders is best qualified to perform this task should be left to the sound discretion of the proper Government authorities in the executive branch since they are in a better position than the Courts to make the determination owing to the experience and knowledge that they have acquired by virtue of their functions. The exercise of this discretion is a policy decision that necessitates prior inquiry, investigation, comparison, evaluation, and deliberation. This task can best be discharged by the Government agencies concerned, not by the Courts. The role of the Courts is to ascertain whether a branch or instrumentality of the Government has transgressed its constitutional boundaries. But the Courts will not interfere with executive or legislative discretion exercised within those boundaries. Otherwise, it strays into the realm of policy decision-making.
It is only upon a clear showing of grave abuse of discretion that the Courts will set aside the award of a contract made by a government entity. Grave abuse of discretion implies a capricious, arbitrary and whimsical exercise of power (Filinvest Credit Corp. v. Intermediate Appellate Court, No. 65935, 30 September 1988, 166 SCRA 155). The abuse of discretion must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform a duty enjoined by law, as to act at all in contemplation of law, where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility (Litton Mills, Inc. v. Galleon Trader, Inc., et al., L-40867, 26 July 1988, 163 SCRA 489).41 (Emphasis supplied)
GMR wins maldives airport case, seeks compensation
Anirban Chowdhury, ET Bureau Jun 20, 2014, 04.26AM 1ST
MUMBAI: GMR Infra on Thursday said it has won a more than 18-month long legal battle with the Maldives government which started after the government cancelled the company's contract to develop and operate the country's main airport.
According to GMR's filing on the National Stock Exchange, a Maldives' tribunal has judged the government's rejection of the contract "wrongful".
The tribunal has directed Maldives and the state-owned Maldives Airports Company (MACL) to pay $4 million legal damages to GMR within 42 days.
GMR has in addition, demanded a compensation of $ 1.4 billion for losses incurred in the last one year on its bid amount and investments in developing the airport.
Hassan Areef, a spokesman for the MACL didn't immediately respond to emailed queries.
The ruling and possible compensation will bring much-needed relief for GMR whose international airport projects have been facing trouble.
After winning its latest project the Phillipines Mactan-Cebu International airport last year, the company had faced trouble when a rival bidder raised issues of conflict of interest. GMR, however, subsequently bagged the project.
Last December, the company sold its 40% stake in its second Turkey's Istanbul Sabiha Gokcen International Airport for 220 million. The company had invested 90 million (7737 crore) in the airport but lost/123 crore on it in 2012-13.
On July 28, 2010, a joint venture between GMR Infra (77%) and Malaysia Airports (Labuan) Private Limited (23%) bagged a development and operations contract for Ibrahim Nasir International Airport a brownfield airport at Male. The venture had bid $511 million.
The new terminal development project was on track for an early 2014 commercial opening date before it had to be halted due to a 'Stop-Work' order by the Maldives aviation ministry in August, 2012, according to GMR's latest annual report.44chanroblesvirtuallawlibrary
GMR's Maldives airport concession pact was not void: Singapore-based tribunal
The tribunal has said that Maldives government and MACL should pay GMR $4 million as compensation within 42 days.
BY ANURADHA VERMA
GMR Infrastructure Limited's subsidiary GMR Male International Airport Ltd (GMIAL), whose contract for modernisation of Male international airport was unilaterally terminated by the Maldives government in 2012, has got relief as an international tribunal has declared its concession agreement for Maldives airport as valid.
In a filing to the stock exchanges, GMR Infrastructure said that the Singapore-based Rt Hon Hoffman's Tribunal declared that the concession agreement "was not void for any mistake of law or discharged by frustration".
"Government of Maldives and Maldives Airport Co. Ltd (MACL) are jointly and severally liable in damages to GMIAL for loss caused by wrongful repudiation of the agreement as per the concession agreement," GMR Infrastructure said.
After detailed proceedings lasting more than 18 months, the tribunal has said that Maldives government and MACL should pay GMR $4 million of compensation within 42 days.
GMIAL had signed a concession agreement with the government of Maldives and MACL for the $500 million modernisation and operation of Ibrahim Nasir International Airport in 2010.
However, the Maldives government terminated the contract and subsequently started off arbitration proceedings on November 29, 2012, seeking a declaration that the concession agreement was void ab initio. GMIAL had disputed this termination.
Shares of the GMR Infrastructure were trading at Rs 33.15, up 0.91 per cent on the BSE from their previous close, in a flat Mumbai market on Thursday. GMR Infrastructure runs airports in Hyderabad and New Delhi. (Edited by Joby Puthuparampil Johnson)45chanrobleslaw
THE ACTING CHAIRMAN (SEN. OSMEÑA). All right. Now, let's go to GMR so that they'll have a chance to explain.
You wanted to react to a certain point we raised earlier. You're Mr. Kapur?
MR. KAPUR. Yes, sir.
THE ACTING CHAIRMAN (SEN. OSMEÑA). Yes. Yes, please.
MR. KAPUR. I think there have been three points which were raised. One was about the financial.
And just to react to that point, as far as GMR is concerned, as I had mentioned in my last hearing also, the group is absolutely financially sound. It's rated BBB investment grade by the rating agencies. It has not departed to any lender. It has got letters of good standing from Asian Development Bank and Standard Chartered Bank which have been submitted at the time of our submission. That was primarily about the GMR Group. And, in fact, last time, I had also made a very detailed submission about its financials, its operating profits and its cash profits and the group is very much profitable. It has the ability to meet the finances required to complete this project.
Having said that, the prime criteria of financial capability was that of Megawide because they were the 60 percent partner as far as this project is concerned.
x x x x
THE ACTING CHAIRMAN (SEN. OSMEÑA).
x x x x
Your net losses increased -- surged to 10.7 billion rupees during the nine-month period ending December 31st 2013, is that correct?
x x x x
MR. KAPUR. ... Just give me a moment.
Our GMR's consolidated net loss for the 9-month period ending December of 2013 was about 4 billion Indian rupees.
THE ACTING CHAIRMAN (SEN. OSMEÑA). That's your net loss.
MR. KAPUR. Net loss. This is the net loss.
THE ACTING CHAIRMAN (SEN. OSMEÑA). Okay. And your EBITDA increased to 18 billion-
MR. KAPUR. Yeah. It is about 7 billion profit. There's a positive of 7 billion Indian rupees.
THE ACTING CHAIRMAN (SEN. OSMEÑA). No. I'm giving you more. I'm giving you 18 billion in EBITDA. That's Earnings Before Income Tax, Depreciation and Amortization.
MR. KAPUR. Ah, okay. That is 17 billion. Nine months is 17 billion—It's about 18.8 billion.
THE ACTING CHAIRMAN (SEN. OSMEÑA). Eighteen point eight billion. And your interest expenses jumped to 20.5 billion in that same period.
MR. KAPUR. That's right, that's right.
THE ACTING CHAIRMAN (SEN. OSMEÑA). So, therefore, you don't even have-generate enough cash, operating profit to cover your interest expense?
It's just a simple question. Twenty billion is more than 18 billion, right?
MR. KAPUR. Your Honor, I think one has to understand this is a consolidated balance sheet.
THE ACTING CHAIRMAN (SEN. OSMEÑA). I'm just asking. I know it's a consolidated balance sheet, I know it's a mother company.
MR. KAPUR. So, I think what is really the element is that the GMR has the ability to implement this project whether it is credit rating because everybody has their own discretion to analyze what the profitability is and come to their own subjective judgment. But the subjective judgment has to be based upon a credible third party. And the credible third party in this case are the rating agencies who continuously rate any listed entity. And if found giving that information in public domain, other purpose of consumption of people who are going to deal with that entity. And the rating of GMR is something which is the most important and should be relied upon. Because if any point of time, GMR is potentially and financially distressed, it would impact the rating. And automatically, the rating agencies are going to come back and change the rating, and that has not happened. The rating agencies have maintained consistently the investment credit rating of GMR Group. And I would just like to reiterate that the GMR Group is not in financial distress. It is robust, it has got the ability to meet its long-term debt as well as the short-term debt.
THE ACTING CHAIRMAN (SEN. OSMEÑA). By borrowing some more.
MR. KAPUR. I think, sir, that is the-
THE ACTING CHAIRMAN (SEN. OSMEÑA). I'm not saying you're going belly up. What I am saying is that there are always warnings that those of us who understand the-how to read financial statements can always come to preliminary conclusions. We do ratios, we do analysis. And right here, this is very clear that you're spending more in interest than what you are earning. So, if things were to stand still today, you wouldn't be able to pay 2 billion in interest, 2 billion rupees interest.
That's all I'm saying. I'm not saying you're not going to pay it because you can always borrow some more tomorrow. But this is a situation that's been obtaining for some time. This is not just 2013. This happened in 2012, this happened in 2011. So, you've had operating losses for three years running.
MR. KAPUR. The EBITDA is before other income also. If you actually see the financial statement, there is another income also which is below the line after EBITDA. And that is also used to meet the interest and the payment liabilities.
THE ACTING CHAIRMAN (SEN. OSMEÑA). I understand what's below the line. Thank you for that. Anyway-
MR. KAPUR. And sir, I think can I also respond on the CAG report which you raised?
THE ACTING CHAIRMAN (SEN. OSMEÑA). On the...?
MR. KAPUR. The report of the Comptroller and Auditor General-Indian government audited.
THE ACTING CHAIRMAN (SEN. OSMEÑA). I think you responded to that already in the previous hearing.
MR. KAPUR. We have not responded. Last time we did not respond. It was not an issue raised last time.
THE ACTING CHAIRMAN (SEN. OSMEÑA). All right. Please respond to it.
MR. KAPUR. Let me explain the process of-
THE ACTING CHAIRMAN (SEN. OSMEÑA). You know, the whole point I'm trying to make is that there's always a response to any charge that's made. There are two sides in a question: There is the prosecutor; there is the defense. You can always come up with a defense. It will always sound very rational and very logical. But what I am questioning is that why the DOTC did not exercise the due diligence to pick up the Comptroller and Auditor General's Report with regard to the performance of GMR. That's all I am saying. Whether it's valid or not, whether you will dispute it or not, we expected you to dispute that, we expected you to have answers, and we have read your answers. But what I am saying is why didn't you know about it? Why didn't you take the effort to do more in-depth due diligence on whoever bidders came before you in order to protect the interest of the Filipino people. That's what I am saying. So, whether you can answer it or not is really beside the point. It's why did they not pick it up? And you can answer that, you can answer me why DOTC didn't pick it up?
MR. KAPUR. No, sir.
THE ACTING CHAIRMAN (SEN. OSMEÑA). So, I think you'll have to hold your comments first, Mr. Kapur, because we know what you're going to say, and we are not saying that they're not valid answers. My concern is why didn't they pick it up.
MR. KAPUR. Can I respond to that?
THE ACTING CHAIRMAN (SEN. OSMEÑA). I don't think you can answer that question why they didn't pick it up. That's the DOTC's question.
MR. KAPUR. No, sir. I just wanted to say something which is relevant for that purpose. He had submitted a letter which is dated 19 December from the government of India, Ministry of Civil Aviation to the DOTC and PBAC, which actually is that DIAL has been operating the airport from May 2006 satisfactorily as per the provisions of the UNDA, executed between DIAL and airport authority. Further, we have also been operating the Flyderabad Airport, and the airport also has been operating satisfactorily.
THE ACTING CHAIRMAN (SEN. OSMEÑA). Yes. That's a good side. Did you disclose it? Did you disclose the CAG findings to DOTC?
MR. KAPUR. That is for the letter of good standing from the government of India.
THE ACTING CHAIRMAN (SEN. OSMEÑA). And you disclosed that we were charged by the Comptroller and Auditor General of India with this, and this is our response. Did you disclose that you were charged?
MR. KAPUR. Sir, let me make a correction here, sir, may I request?
THE ACTING CHAIRMAN (SEN. OSMEÑA). No. Just answer the question. Yes or no. Did you disclose it?
MR. KAPUR. We were not charged by the CAG.
THE ACTING CHAIRMAN (SEN. OSMEÑA). Did you disclose the existence of the CAG report?
MR. KAPUR. No, we were not required to disclose.
THE ACTING CHAIRMAN (SEN. OSMEÑA). You're not required.
MR. KAPUR. The charge is not on us.47 (Emphasis supplied)
24.2.c Unless otherwise provided by any Relevant Rules and Procedure promulgated by MCIAA or by any Government Authority, the following procedure shall apply for every increase in the Passenger Service Charge, aircraft Parking Fees, and Tacking Fees, after the expiration of the first (1st) Contract Year: 24.2.c (1) The Concessionaire shall file with the MCIAA an application for such increase no later than six (6) months prior to the date that the relevant increase in the Passenger Service Charge, Aircraft Parking Fees, and Tacking Fees shall take effect. 24.2.c (2) The Concessionaire shall publish the application in a newspaper of general circulation at least two (2) weeks before the first hearing on the application. 24.2.c (3) MCIAA shall conduct a public hearing on the said application in accordance with any rule of procedure that it may promulgate. 24.2.c (4) The Concessionaire shall comply with all other requirements of Relevant Rules and Procedures that may be promulgated by MCIAA or any Government Authority for the increase of the Passenger Service Charge, Aircraft Parking Fees, and Tacking Fees. 24.2.c (5) The Grantors and the Concessionaire shall conduct the procedure for implementing the increase in Passenger Service Charge, Aircraft Parking Fees, and Tacking Fees in such a manner as to ensure that all Relevant Consents are secured promptly to enable the Concessionaire to implement a timely increase in Passenger Service Charge, Aircraft Parking Fees, and Tacking Fees in accordance with the parametric formula and at such times as contemplated in Annex 21-A (Parametric Formula for Passenger Service Charge) or Annex 21-B (Parametric Formula for Aircraft Parking Fee and Tacking Fee), as the case may be.51
Endnotes:
* Designated additional Member in lieu of Associate Justice Francis H. Jardeleza, per Raffle dated August 26, 2015.
1Rollo (G.R. No. 211737), Vol. 1, p. 786.
2 Id. at 54.
3Rollo (G.R. No. 211737), Vol. IV, pp. 2209-2212.
4Rollo (G.R. No. 211737), Vol. II, pp. 783-853.
5Rollo (G.R. No. 211737), Vol. III, pp. 1972-1976.
6 Page 3 of Consolidated Comment filed by DOTC and MCIAA, id. at 1897.
7 Id.
8Rollo (G.R. No. 211737), Vol. IV, pp. 2279-2300.
9 Id. at 2283, 2298-2299.
10 Id. at 2302-2304.
11 450 Phil. 744 (2003).
12 "MACTAN-Cebu airport upgrade set," posted on October 13, 2014, http://www.bworldonline.com/content.php?section=TopStory&title=mactan-cebu-airport-upgrade-set&id=96020> (visited last January 4, 2016).
13 Supra note 11, at 805.
14Tolentino v. Commission on Elections, 465 Phil. 385, 402 (2004), citing Joya v. Presidential Commission on Good Government, G.R. No. 96541, August 24, 1993, 225 SCRA 568, 576.
15 Id., citing Kilosbayan v. Morato, 316 Phil. 652 (1995) and Article VIII, Sections 1 and 5(2), 1987 CONSTITUTION.
16 Id., citing Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Commission on Elections, 352 Phil. 153, 168 (1998).
17 522 Phil. 705 (2006).
18 Id. at 755-757.
19 Province of North Colabato v. Government of Republic of the Phils. Peace Panel on Ancestral Domain (GRP), 589 Phil. 387, 486-487 (2008).
20De Castro v. Judicial and Bar Council, 629 Phil. 629, 678 (2010).
21David v. Macapagal-Arroyo, supra note 17, at 757; Francisco, Jr. v. The House of Representatives, 460 Phil. 830, 899 (2003), citing Kilosbayan, Inc. v. Morato, 320 Phil. 171 (1995). Chamber of Real Estate and Builders' Associations, Inc. (CREBA) v. Energy Regulatory Commission, 638 Phil. 542, 556-557 (2010), citing Senate of the Philippines v. Ermita, 522 Phil. 1,31 (2006); and Francisco, Jr. v. The House of Representatives, id., citing Kilosbayan, Incorporated v. Guingona, Jr., G.R. No. 113375, May 5, 1994, 232 SCRA 110.
23Province of North Cotabato v. Government of Republic of the Phils. Peace Panel on Ancestral Domain (GRP), supra note 19, at 488, citing Tatad v. Secretary of the Department of Energy, 346 Phil. 321, 359(1997).
24 Supra note 11, at 804.
25Bagabuyo v. Commission on Elections, 593 Phil. 678, 689 (2008).
26 495 Phil. 422, 433 (2005).
27Holy Spirit Homeowners Association, Inc. v. Defensor, 529 Phil. 573, 586 (2006).
28 "Mactan-Cebu International Airport, Philippines," (visited last January 4, 2016).
29 "Strengthening Public-Private Partnerships in the Philippines," Performance Overview, March 2012 (Asian Development Bank Project Document), (visited last January 4, 2016).
30Chavez v. Public Estates Authority, 433 Phil. 506, 522 (2002), citing Salonga v. Pano, No. L-59524, February 18, 1985, 134 SCRA 438; Gonzales v. Marcos, 160 Phil. 637 (1975); Aquino v. Enrile, 158- A Phil. 1 (1974); and De la Camara v. Enage, 148-B Phil. 502 (1971).
31 Revised BOT Law Implementing Rules and Regulations (2012), Sections 8.1,8.2, 11.1, 11.2 and 11.3.
32 Annexes "7" and "7-A," rollo (G.R. No. 211737), Vol. III, pp. 1496-1507.
33Rollo (G.R. No. 211737), Vol. II, p. 795.
34 Id. at 844, 846.
35 Id. at 824-828.
36Rollo (G.R. No. 211737), Vol. II, pp. 2289-2298.
37Public Estates Authority v. Bolinao Security and Investigation Service, Inc., 509 Phil. 157, 176 (2005), citing Republic v. Silerio, 338 Phil. 784, 793 (1997).
38 Id., citing National Power Corporation v. Court of Appeals, 339 Phil. 605, 635 (1997).
39 National Power Corporation v. Pinatubo Commercial, 630 Phil. 599, 608 (2010), citing Albay Accredited Constructors Association, Inc. v. Desierto, 516 Phil. 308, 322 (2006).
40 G.R. No. 101678, February 3, 1992, 205 SCRA 705.
41 Id. at 717-718.
42 Sec. V-09, ITPB, rollo (G.R. No. 211737), Vol. II, p. 812.
43National Power Corporation v. Philipp Brothers Oceanic, Inc., 421 Phil. 532, 546 (2001).
44 "GMR wins Maldives airport case, seeks compensation," (visited last January 4, 2016).
45"GMR's Maldives airport concession pact was not void: Singapore-based tribunal," (visited last January 4, 2016).
46 Success Stories Public-Private Partnerships, "Maldives: Male International Airport" (visited last January 4, 2016).
47Rollo (G.R. No. 211737), Vol. Ill, pp. 1792-1802.
48 Rule 3, Sec. 3.2, BOT Law Implementing Rules and Regulations.
49Rollo (G.R. No. 211737), Vol. IV, pp. 2416-2419 (Consolidated Reply dated November 25, 2015).
50 Sec.2(b), R.A. No. 7718.
51 Rollo (G.R. No. 214756), pp. 483-484.
52Philippine Ports Authority v. Court of Appeals, 323 Phil. 260, 291-292 (1996), citing Prado v. Veridiano II, G.R. No. 98118, December 6, 1991, 204 SCRA 654, 672.