Developer
eligibility and also the technical and financial aspects of its unsolicited proposal.
The Department of Transportation and Communications (DOTC) was also informed by the CIAC board about the negotiations with Philco Aero and the firm was said to have the superior offer based on a comparative presentation of submitted proposals.
“It was already awarded to us, and then there was a Swiss challenge and a Malaysian company challenged it and then nothing happened. They wrote to DOTC and said that the Penson & Co. proposal is much more superior than the Kuwaiti or the Malaysian proposal. But they chose not to act on it anymore,” Penson claimed.
He said Philco Aero met with the JVSC three times and complied with all the requirements, after which they asked for further negotiations in February 2011.
Change in government
“The board released a resolution saying proceed with PhilCo Aero for the project. And then nothing happened because the new president came,” Penson said referring to the 2010 election of President Benigno Aquino 3rd.
Penson said the new CIAC board recommended the termination of negotiations with Philco Aero for two reasons: the need for a new masterplan and location change, and a government decision that the project be conducted on a solicited bases or via official development assistance (ODA). This prompted Philco Aero to write a letter demanding the resumption of negotiations to newly appointed CIAC Chairman Nestor Mangio, claiming that that CIAC could not legally drop the proposal.
Citing joint venture guidelines issued by the National Economic and Development Authority (NEDA), Philco Aero said parties were only given 30 days to complete negotiations and that six months had already lapsed since talks had begun.
It said a Certificate of Successful Negotiations should have been issued to Philco Aero.
“To change the rules and plans midway would be, to say the least, unfair if not illegal,” the firm claimed.
In reply, however, CIAC confirmed that its board had ordered the termination of talks due to a new land use policy for the airport and an Aquino government policy that public biddings would have to be conducted for publicprivate partnership projects.
Philco Aero filed a motion for reconsideration before the CIAC board in August 2011, saying the termination was done in bad faith and violated Philco Aero’s rights and privileges as guaranteed by NEDA guidelines and the Build- Operate-Transfer law.
Renewed interest
The Clark International Airport expansion project is now being implemented by the Department of Transportation (DoTR) and the Bases Conversion and Development Authority (BCDA) under the Duterte government’s “Build Build Build” program.
With other developers setting their sights on bagging the deal, Penson said his firm would have to seek a TRO to stop the government from awarding it to a rival or financing it through official development assistance.
“Inasmuch as both DoTr and CIAC-past and current-- chose to ignore our motion for reconsideration duly received by them, we have conferred with our counsels and deduced that should they clearly proceed with the bid process we have to protest,” he said.
Penson said Philco Aero had also requested the office of Transportation Secretary Arthur Tugade to review the shelved project but failed to get any response.
Once the TRO has been granted, Penson said Philco Aero expected to resume negotiations for the project.
“We wait for their next move. We know government … will try to simply brush us aside. This is brazen bad faith. Official arrogance should have no place in this current dispensation,” he said.
The delays, he claimed, have cost Philco Areo almost a billion pesos.
“We have to keep selling our own shares to keep us going, because we still see hope that the projects have been awarded and we should do the project. We have invested too much in trying to
Rejection recommended
For its part, the BCDA said its subsidiary, CIAC, had never given “original proponent status” to Philco Aero.
“Its unsolicited proposal to develop the Clark Terminal 2 project submitted in December 2009 was only subjected to detailed negotiations that resulted in the recommendation in January 2011 to reject the proposal,” it said in a statement forwarded to
“CIAC found drastic changes in the original terms and conditions of the submitted proposal of Philco Aero Inc. that are not acceptable and not responsive to the overall objectives of CIAC in pursuing the proposed joint venture project, among others,” the agency added.
The BCDA said the project’s nature had changed since 2009 and there was already a new masterplan for Clark.
The agency added that Tugade and BCDA President Vince Dizon both said that Penson was free to file for a restraining order.
“However, they noted that he should be ready to fight the entire government because there is no stopping the development of Clark International Airport,” it pointed out.