Lawyers urge SC to void NAIA concession as illegal, unconstitutional

A second petition was filed asking the Supreme Court (SC) to declare illegal and unconstitutional the February 2024 award to the New NAIA Infra Corporation (NNIC) of the concession agreement to rehabilitate and operate the Ninoy Aquino International Airport (NAIA).

To recall, the bidding to rehabilitate and operate NAIA was held on 27 Dec. 2023 and awarded to the NNIC in February 2024, with the MOA signing done in March 2024.

The new SC petition was filed by lawyer Rico V. Domingo, former president of the Philippine Bar Association (PBA) and Ateneo Law School professor, and Ceasar G. Oracion, former dean of the Saint Louis University School of Law and past president of the Integrated Bar of the Philippines – Baguio-Benguet Chapter.

Respondents in the petition were the Department of Transportation (DOTr), Manila International Airport Authority (MIAA), the Pre-Qualification, Bids and Awards Committee (PBAC) for the NAIA PPP Project, members of the Cabinet, the PPP Governing Board, and the NNIC.

On 7 April, the first petition against the concession agreement was filed by lawyers Joel R. Butuyan and Roger R. Rayel of the Center for International Law (CENTERLAW), former undersecretary of the Department of Environment and Natural Resources (DENR) Antonio Gabriel M. La Viña, and law deans Ma. Soledad Deriquito-Mawis and Jose Mari Benjamin Francisco U. Tirol.

Both petitions asked the SC to issue a temporary restraining order (TRO) that could immediately stop the implementation of the agreement.

Domingo and Oracion, in a summary of their 202-page petition including annexes, told the SC that “the Concession Agreement was made pursuant to the BOT Law (Build-Operate-and-Transfer) even as the applicable law was the PPP (Public-Private Partnership) Code which took effect on 23 Dec. 2023.”

The petitioners said that despite advice by their statutory counsel, the Office of the Solicitor General (OSG) and the Office of the General Corporate Counsel (OGCC), that the PPP Code was applicable to the procurement of the NAIA PPP Project, respondents DOTr, MIAA, and PBAC still continued to implement the process pursuant to the repealed BOT Law and accepted bids on 27 December 2023.

Also, they said that “Respondents DOTr, MIAA, and PBAC’s Invitation to Bid and the Bid Documents such as the Instructions to Bidders and draft Concession Agreement which expressly referred only to the BOT Law and the BOT Law IRR as the legal framework for the bidding process, had all become outmoded, obsolete and useless on 23 December 2023 when the PPP Code took effect and expressly repealed the BOT Law.”

They said: “Even assuming for the sake of argument that the BOT Law still applied to the NAIA PPP Project Bidding Process and there was no need to restructure the process on account of the effectivity of the PPP Code, respondents DOTr, MIAA, and PBAC nevertheless still miserably failed to comply with several mandatory provisions of the BOT Law IRR.”

They also expressed their laments on “the utter failure of respondents to observe relevant mandatory laws in bidding out the NAIA PPP Project.”