Mactan-Cebu airport rehabilitation a go

The Department of Transportation and Communications (DOTC) can now pursue the P14.4-billion rehabilitation and expansion of the Mactan-Cebu International Airport (MCIA).

This after the Supreme Court dismissed the bid to stop the awarding of the project to GMR Infrastructure (GMR) and Megawide Construction Corp. (MCC).

In a 39-page decision promulgated on Jan. 13 but made public on Friday, the high court’s third division through Associate Justice Martin Villarama, who retired on Jan. 16, said the separate petitions filed by Sen. Sergio Osmeña III and Business for Progress Movement (PBM) lacked merit.

The MCIA project, which began in 2012, was issued a resolution by the Pre-Qualification, Bids and Awards committee (PBAC) recommending GMR-Megawide Consortium the winning bidder on April 3, 2014. On the same day, Osmeña went to the Supreme Court and filed a petition to stop the project.

The following day, DOTC and Mactan-Cebu International Airport Authority (MCIAA) issued the notice of award to GMR-Megawide Consortium. On April 7, 2014, Osmeña filed a supplemental petition reiterating his prayer for injunctive reliefs and for the high court to further restrain the implementation of the notice of award and render judgment declaring the same as null and void.

Meanwhile, GMR and MCC submitted and complied with the post-award requirements, including payment of the P14.4-billion bid amount to MCIAA.

On April 22, 2014, the concession agreement was executed between DOTC and MCIAA, and GMR-Megawide Consortium. On Oct. 31 that year, another petition for injunction was filed, this time by BPM. The DOTC turned over to GMR-Megawide Consortium the operation and maintenance of the MCIA on Nov. 1, 2014.

In its ruling, the high court gave weight to PBAC’s interpretation of the conflict of interest provision requiring direct involvement or participation in the deliberations and decision-making related to the bidding for the MCIA project, saying it was fair, reasonable and practical.

“The issues regarding GMR’s Male Airport case and MCC’s financial capability have been fully ventilated during the post-qualification stage. Both GMR and MCC and the second highest bidder, Filinvest Development Corp. (FDC), argued their respective positions which were duly considered, including a detailed evaluation of their technical and financial qualification documents,” the high court said.

It found that the PBAC’s own inquiry did not yield any concrete evidence of GMR’s unsatisfactory performance, as defined in the instructions to prospective bidders (ITPB), and MCC’s poor financial health did not necessarily indicate preference for one bidder over the others, especially as the bidding in this case was conducted with transparency. The court also emphasized that the sworn certifications submitted by GMR and MCC “set out the required certification on facts which indicate compliance with the rules on conflict of interest.”

“It is well-settled in jurisprudence that the government is granted broad discretion in choosing who among the bidders can offer the most advantageous terms and courts will not interfere therewith or direct the committee on bids to do a particular act or to enjoin such act within its prerogatives, except when in the exercise of its authority, it gravely abuses or exceeds its jurisdiction, or otherwise commits injustice, unfairness, arbitrariness or fraudulent acts. We have recognized that the exercise of that discretion is a policy decision that necessitates prior inquiry, investigation, comparison, evaluation, and deliberation. This task can best be discharged by the concerned government agencies, not by the courts,” the high court said.

As to the financial capacity of GMR and MCC, the court held that PBAC sufficiently addressed the issue when it further evaluated the financial proposal of MCC prior to the execution of the final concession agreement. “Contrary to the claims of Osmeña, representatives from GMR have satisfactorily answered the issue raised on their financial capability for the MCIA project during the Senate hearing.”

The high court also underscored the petitioners’ failure to establish the existence of a clear and positive right that needs to be protected by injunctive relief. “There being no violation of any law, regulation or the bidding rules, nor any arbitrariness or unfairness committed by public respondents, the presumption of regularity of the bidding for the MCIA project must stand.”

The MCIA project consists of, among others, the construction of a new passenger terminal with all associated infrastructure facilities; construction of apron for new passenger terminal; and rehabilitation and expansion of the existing terminal; and installation of all required equipment and of the required information technology, and operation and maintenance of both passenger terminals during the concession period. RC