AEDC asserts right
December 10, 2006 | 12:00am
In a memorandum submitted to the Supreme Court, businessman Lucio Tan’s Asia’s Emerging Dragon Corp. (AEDC), through its lawyer Perfecto Yasay, raised interesting points in connection with its petition to order the government to recognize the company’s right as the original project proponent to operate the controversial NAIA Terminal 3.
AEDC asserts that the disqualification of Piatco as the only challenger to the original proposal and the nullification of all concession agreements and supplements after the High Court declared the contract between government and Piatco as void ab initio should restore AEDC as the rightful awardee under the build-operate-transfer scheme.
Cutting through the legal mambo jambo, what AEDC is simply saying is why should government insist on operating NAIA 3 when awarding it to the original proponent is the more logical and economical way of doing it. After all, nobody doubts the fact that the private sector does a better job at running a business than government. And the idea behind the BOT law is for government to get out of business, and for infrastructure to flourish through the efforts and resources of the private sector.
While the Supreme Court has already nullified the award to Piatco in a previous ruling (Agan case), the issue of who should be entitled to it has not been raised. But Yasay emphasizes that the exclusive right of AEDC to the award has been rendered incontrovertible by the Agan decision and is securely founded upon the BOT Law and its implementing rules and regulations.
It will be recalled that a complete proposal was submitted by AEDC to the DOTC as the implementing arm of the government for the terminal project. The proposal was endorsed to the NEDA ICC which gave the green light.
Yasay notes that AEDC has invested almost P180 million in the preparation of the conceptual plans for the NAIA 3. The DOTC accepted the said proposal under the unsolicited mode of the BOT Law which virtually recognized AEDC as the original proponent and obligated DOTC to pursue the project and not to entertain other similar proposals until the period of the Swiss Challenge.
Upon issuance of the clearance, an MOU was signed between the AEDC and DOTC committing themselves to fast-track the formal award of the project and its implementation. The MOU, according to Yasay, is a perfected contract between government and AEDC, which has the force of law between the parties and must be complied with in good faith.
During the Swiss challenge stage, only Paircargo consortium submitted a proposal but the firm (Piatco’s predecessor) failed to meet the requirements because its technical and financial proposals could not be validly considered for evaluation and should have been returned unopened.
Under Section 4-A of the BOT Law and Section 10.1 of the IRR, AEDC as the original proponent was already automatically entitled to the award of the project. But despite objections from the AEDC, DOTC’s Pre-qualification, Bids and Awards Committee (PBAC) "unlawfully" pre-qualified Paircargo and the latter was eventually awarded the project upon the PBAC’s determination that its price offer was lower than AEDC’s original proposal.
Antonio Henson, former AEDC president, claims that then DOTC Secretary Pantaleon Alvarez who was the chairman of the PBAC technical committee introduced Paircargo’s Jeff Cheng to Henson in an effort to make Cheng part of AEDC, but the latter rejected the idea because it had enough financial resources.
It was Paircargo which would later challenge AEDC’s proposal and get the contract, which was later nullified by the Supreme Court.
In short, Yasay is now asserting that the Swiss challenge was manipulated in favor of Piatco and by granting AEDC’s petition for mandamus, the Supreme Court would be able to correct the government’s mistake and return to AEDC what belonged to it in the first place.
Former senator Loren Legarda has topped all the last three non-commissioned surveys by private polling firms pulse Asia and Social Weather Station (SWS), including surveys on who Filipinos would vote for if an election for senators is held now.
In the latest of the three surveys by Pulse Asia conducted from Oct. 21 to Nov. 8, Loren emerged No. 1 again, leaving by a mile incumbent public officials, and edging boxing champion Manny Pacquiao and billiards king Efren "Bata" Reyes.
In Pulse Asia’s "trustworthiness survey," Loren got a trust rating of 67 percent, followed by Pacquiao with 66 percent and Reyes with 65 percent. The majority of the 1,200 respondents ticked off the following qualities to describe Loren: "intelligence, helpfulness to others, kindness and public service untainted by any scandal," among others.
Rounding up the top 10 are Sen. Mar Roxas (64 percent), Sen. Ralph Recto (60 percent), former senator Vicente Sotto III (57 percent), Senate President Manny Villar (52 percent), Sen. Rodolfo Biazon (48 percent), Rep. Francis Escudero (47 percent), and Makati Mayor Jejomar Binay with 41 percent. Getting a dismal 21 percent trust rating was President Arroyo, who also received a 50 percent "small or no trust" rating in the survey.
Last Nov. 28, PNP-CIDG operatives swooped down on the Kayabe Cold Storage in Mexico, Pampanga. The morning raid yielded some 62,000 kilos of pork worth P12 million believed to have been smuggled from China. The meat was later certified by quarantine officials as part of four reefer vans loot that slipped from a Customs warehouse one Sunday morning.
The operatives took some time to "meet" with the owner of the cold storage – a certain Allan David, where the contraband was found. Initial report says a certain Ronald Polintan owns the shipment, but Kayabe supervisor Mar Cunanan believes this is just an assumed name. Also present during the four-hour meeting, according to our grapevine, is one Mr. G, a known personality in the meat trading industry. As to why Mr. G. is in the meeting with the operatives is a question he himself can only answer. Mr. G, according to our grapevine, happens to be connected with a popular meat processor based in the province.
The Philippine Association of Meat Processors Inc. (PAMPI) has urged Agriculture Secretary Arthur Yap to intervene to ensure that those involved in compromising the country’s livestock biosecurity are identified and punished to the full extent of the law. PAMPI likewise called upon its 35 member-companies not to buy this China-sourced pork meat believed to be part of the disappearing cargo as the group will not tolerate smuggling.
Unpaid dues. With AMA schools sprouting like mushrooms left and right, High Desert Stop Overs and High Desert Adventures could not believe it when the AMA Education System said it has no funds to pay around P1.2 million in unpaid waiting shed ad placements and banner ads. Lawyers for the two ad companies say that AMA signed a contract on Oct. 16, 2004 for 15 mini-billboards and 15 banners to be displaced along EDSA. Despite several demands, no payments were made up to now and according to a certain Ferdinand Sia, AVP for marketing of AMA, no funds are available for suppliers.
New kid on the block. The banking sector is losing a number of its greatest minds to the insurance industry. Former Central Bank Governor Jose Cuisia was first, steering PhilAm to its position of leadership in the life insurance industry. PNB’s miracle man Lorenzo Tan followed suit and brought Sun Life to within striking distance of its goal to becoming number one in pre-need, mutual funds and life insurance. Now we have another ex-Citibanker Andrew Alcid who now heads Philippine AXA Life, the joint venture partnership between Global AXA Group and the Metrobank Group. Only six months into the job, the company‚s new business as of Nov. 2006 has grown 66 percent over the same period last year. Monthly new business average production during the six months of his leadership has expanded by 105% over last year‚s monthly average. AXA grossed P1 billion in new business this year, the first time it ever achieved such a feat. Its year-to-date 2006 single premium business grew by a whopping 128 percent over its level in the comparative period of 2005. Philippine AXA under Alcid‚s leadership has become the 2nd best performing operation within AXA Asia Region in terms of growth in new business and premium income.
For comments, e-mail at [email protected]
AEDC asserts that the disqualification of Piatco as the only challenger to the original proposal and the nullification of all concession agreements and supplements after the High Court declared the contract between government and Piatco as void ab initio should restore AEDC as the rightful awardee under the build-operate-transfer scheme.
Cutting through the legal mambo jambo, what AEDC is simply saying is why should government insist on operating NAIA 3 when awarding it to the original proponent is the more logical and economical way of doing it. After all, nobody doubts the fact that the private sector does a better job at running a business than government. And the idea behind the BOT law is for government to get out of business, and for infrastructure to flourish through the efforts and resources of the private sector.
While the Supreme Court has already nullified the award to Piatco in a previous ruling (Agan case), the issue of who should be entitled to it has not been raised. But Yasay emphasizes that the exclusive right of AEDC to the award has been rendered incontrovertible by the Agan decision and is securely founded upon the BOT Law and its implementing rules and regulations.
It will be recalled that a complete proposal was submitted by AEDC to the DOTC as the implementing arm of the government for the terminal project. The proposal was endorsed to the NEDA ICC which gave the green light.
Yasay notes that AEDC has invested almost P180 million in the preparation of the conceptual plans for the NAIA 3. The DOTC accepted the said proposal under the unsolicited mode of the BOT Law which virtually recognized AEDC as the original proponent and obligated DOTC to pursue the project and not to entertain other similar proposals until the period of the Swiss Challenge.
Upon issuance of the clearance, an MOU was signed between the AEDC and DOTC committing themselves to fast-track the formal award of the project and its implementation. The MOU, according to Yasay, is a perfected contract between government and AEDC, which has the force of law between the parties and must be complied with in good faith.
During the Swiss challenge stage, only Paircargo consortium submitted a proposal but the firm (Piatco’s predecessor) failed to meet the requirements because its technical and financial proposals could not be validly considered for evaluation and should have been returned unopened.
Under Section 4-A of the BOT Law and Section 10.1 of the IRR, AEDC as the original proponent was already automatically entitled to the award of the project. But despite objections from the AEDC, DOTC’s Pre-qualification, Bids and Awards Committee (PBAC) "unlawfully" pre-qualified Paircargo and the latter was eventually awarded the project upon the PBAC’s determination that its price offer was lower than AEDC’s original proposal.
Antonio Henson, former AEDC president, claims that then DOTC Secretary Pantaleon Alvarez who was the chairman of the PBAC technical committee introduced Paircargo’s Jeff Cheng to Henson in an effort to make Cheng part of AEDC, but the latter rejected the idea because it had enough financial resources.
It was Paircargo which would later challenge AEDC’s proposal and get the contract, which was later nullified by the Supreme Court.
In short, Yasay is now asserting that the Swiss challenge was manipulated in favor of Piatco and by granting AEDC’s petition for mandamus, the Supreme Court would be able to correct the government’s mistake and return to AEDC what belonged to it in the first place.
In the latest of the three surveys by Pulse Asia conducted from Oct. 21 to Nov. 8, Loren emerged No. 1 again, leaving by a mile incumbent public officials, and edging boxing champion Manny Pacquiao and billiards king Efren "Bata" Reyes.
In Pulse Asia’s "trustworthiness survey," Loren got a trust rating of 67 percent, followed by Pacquiao with 66 percent and Reyes with 65 percent. The majority of the 1,200 respondents ticked off the following qualities to describe Loren: "intelligence, helpfulness to others, kindness and public service untainted by any scandal," among others.
Rounding up the top 10 are Sen. Mar Roxas (64 percent), Sen. Ralph Recto (60 percent), former senator Vicente Sotto III (57 percent), Senate President Manny Villar (52 percent), Sen. Rodolfo Biazon (48 percent), Rep. Francis Escudero (47 percent), and Makati Mayor Jejomar Binay with 41 percent. Getting a dismal 21 percent trust rating was President Arroyo, who also received a 50 percent "small or no trust" rating in the survey.
The operatives took some time to "meet" with the owner of the cold storage – a certain Allan David, where the contraband was found. Initial report says a certain Ronald Polintan owns the shipment, but Kayabe supervisor Mar Cunanan believes this is just an assumed name. Also present during the four-hour meeting, according to our grapevine, is one Mr. G, a known personality in the meat trading industry. As to why Mr. G. is in the meeting with the operatives is a question he himself can only answer. Mr. G, according to our grapevine, happens to be connected with a popular meat processor based in the province.
The Philippine Association of Meat Processors Inc. (PAMPI) has urged Agriculture Secretary Arthur Yap to intervene to ensure that those involved in compromising the country’s livestock biosecurity are identified and punished to the full extent of the law. PAMPI likewise called upon its 35 member-companies not to buy this China-sourced pork meat believed to be part of the disappearing cargo as the group will not tolerate smuggling.
New kid on the block. The banking sector is losing a number of its greatest minds to the insurance industry. Former Central Bank Governor Jose Cuisia was first, steering PhilAm to its position of leadership in the life insurance industry. PNB’s miracle man Lorenzo Tan followed suit and brought Sun Life to within striking distance of its goal to becoming number one in pre-need, mutual funds and life insurance. Now we have another ex-Citibanker Andrew Alcid who now heads Philippine AXA Life, the joint venture partnership between Global AXA Group and the Metrobank Group. Only six months into the job, the company‚s new business as of Nov. 2006 has grown 66 percent over the same period last year. Monthly new business average production during the six months of his leadership has expanded by 105% over last year‚s monthly average. AXA grossed P1 billion in new business this year, the first time it ever achieved such a feat. Its year-to-date 2006 single premium business grew by a whopping 128 percent over its level in the comparative period of 2005. Philippine AXA under Alcid‚s leadership has become the 2nd best performing operation within AXA Asia Region in terms of growth in new business and premium income.
For comments, e-mail at [email protected]
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