G.R. No. 184785, July 09, 2014
RUBY P. LAGOC, Petitioner, v. MARIA ELENA MALAGA, OFFICE OF THE OMBUDSMAN AND THE OFFICE OF THE DEPUTY OMBUDSMAN (VISAYAS), Respondents.
G.R. NO. 184890
LIMUEL P. SALES, Petitioner, v. MARIA ELENA MALAGA, OFFICE OF THE OMBUDSMAN AND THE OFFICE OF THE DEPUTY OMBUDSMAN (VISAYAS), Respondents.
D E C I S I O N
VILLARAMA, JR., J.:
IB 3 - INVITATION TO PREQUALIFY/APPLY FOR ELIGIBILITY AND TO BID
- For locally funded contracts, contractors shall be invited to apply for eligibility and to bid through:
- …. for contracts to be bid costing P5,000,000 and below or for contracts authorized to be bid by the regional/district offices involving costs as may be delegated by the head of office/agency/corporation, the invitation to bid shall be advertised at least two (2) times within two (2) weeks in a newspaper of general local circulation in the region where the contract to be bid is located, which newspaper has been regularly published for at least six (6) months before the date of issue of the advertisement. During the same period that the advertisement is posted in the newspaper or for a longer period determined by the head of the office/agency/corporation concerned, the same advertisement shall be posted in the website of the office/agency/corporation concerned and at the place reserved for this purpose in the premises of the office/agency/corporation concerned. In addition to the foregoing, the invitation may also be advertised through other forms of media such as radio and television, provided that based on the agency’s short list of contractors or referral within the Philippine contractors accreditation board, there are at least four contractors indigenous to the region duly classified and registered to undertake such contracts. The advertisement may likewise be made in a newspaper of general nationwide circulation as defined in the foregoing when there is evident lack of interest to participate among the region-based contractors. (Emphasis supplied.)
…there is strong evidence that the requisite Invitations to Pre-qualify and to Bid were not actually published in violation of existing rules and regulation, specifically the Implementing Rules and Regulations of E.O. No. 302. Contrary to herein respondents’ assertions that such invitations were published in the March 5-11, 2001 and March 12-18, 2001 issues of The Visayan Tribune and the February 19 and 26, 2001 issues of The Visayas Examiner, the evidences on record tend to show otherwise. Not only that copies of said newspaper issues submitted in evidence by the complainant carried nothing about the said Invitation (Annexes “K”, “L”, “M” & “N”, Complaint, supra), copies of same newspaper issues submitted in evidence by the respondents betrayed efforts of manipulation to make it appear that said invitations were therein published, when in truth and in fact there really was no publication made (Annexes “A”, “B”, “C” & “D”, Counter-Affidavit of Limuel P. Sales, et al., supra).
The March 5-11, 2001 issue of The Visayan Tribune submitted in evidence by herein respondents Engineer III Limuel P. Sales and Administrative Officer III Elizabeth H. Gardose, which is stamped “certified xerox copy”, clearly shows that the subject Invitation to Bid was only added and superimposed the original news item entitled “Eminem, Robbie Williams win big British Pop Awards” (as shown by a copy of the same newspaper issue, page 4 thereof, submitted by the complainant), which apparently was purposely deleted. Unfortunately for the respondents, they failed to delete the continuation of that news item on page 5 thereof, which still carries the abbreviated sub-headline “Eminem, Robbie Williams…” , thus exposing the manipulation. With respect to the March 12-18, 2001 issue of The Visayan Tribune, there is good reason to believe the complainant’s allegation, not only because she has in her position [sic] an original copy of said newspaper issue which did not carry the subject Invitation to Bid but also because the copy presented by the respondents is only a “xerox” copy and, therefore, highly susceptible to manipulation.
Copies of the February 19 and 26, 2001 issues of The Visayas Examiner, on the other hand, which were presented in evidence by said respondents Limuel P. Sales and Elizabeth Gardose, appear to carry in their Special Issues the subject Invitation to Bid. This, however, is highly suspicious because said Special Issues could be easily inserted, with the help of the Publisher (who is in fact a co-respondent in the criminal aspect of this case), to make it appear that the aforementioned Invitation was published on the dates mentioned. That a similar invitation to bid of DPWH, Capiz Engineering District was published in the regular page, i.e. page 9, of the said newspaper issues added more weight to the suspicion.
It is, therefore, the belief of this Office that no such publication actually happened of the subject Invitation to Bid for the purchase of construction materials and lease of equipment, contrary to the claims of herein respondents.10
…Verily, if the copy of the March 5-11, 2001 issue of The Visayan Tribune relied upon by the petitioners is existing and that the Invitation to Bid advertised therein is an accommodated advertisement/notice which allegedly cannot be found in private respondent’s copy, what they could have done, granting that what they say is true, was to obtain their own copy of the same issues that the private respondent used as evidence against them and compare these to the original copy of the subsequent issues of the March 5-11, 2001, which they allegedly have in their possession. But they did not. Without the original copies of the supposed subsequently-circulated copies of the March 5-11 and March 12-18, 2001 issues of The Visayan Tribune there is no way to determine whether the appended certified xerox copies are indeed true and faithful reproductions of the originals allegedly in the custody of the petitioners. So how can the Court therefore consider and appreciate their supposed own original copies of the subsequent issues of the March 5-11, 2001 and March 12-18, 2001, if the same are not extant in the records?
Petitioners rely on the affidavit of the publishers of the subject newspapers to support their claim that the Invitation to Bid was indeed published. However, the said affidavits, particularly in the affidavit of the managing editor of The Visayan Tribune, no statement/admission was given about the existence of the supposed subsequently-circulated copies of the March 5-11, 2001 issues thereof. And while it is true, that the said affidavit, being notarized, enjoys the presumption of regularity, nevertheless, the same can be overturned by clear and convincing evidence, such as the original copy of the March 5-11, 2001 issue of The Visayan Tribune submitted by the private respondents, where it is shown that the Invitation to Bid was not at all published. In this respect, the petitioners’ reliance on the said affidavits does not in any way strengthen their claim of compliance with the mandatory requirement of publication of the Invitation to Bid.
From the foregoing, it [is] clear that the factual findings of the Office of the Ombudsman are substantiated by evidence, and thus, correctly concluded that the petitioners committed grave misconduct when they conducted the bid process of and awarded the subject contracts without compliance with the mandatory twin-publication requirement. “Strict observance of the rules, regulations, and guidelines of the bidding process is the only safeguard to a fair, honest and competitive public bidding.”12
Collusion implies a secret understanding whereby one party plays into another’s hands for fraudulent purposes. It may take place between and every contractor resulting in no competition, in which case, the government may declare a failure of bidding. Collusion may also ensue between contractors and the chairman and members of the PBAC to simulate or rig the bidding process, thus insuring the award to a favored bidder, to the prejudice of the government agency and public service. For such acts of the chairman and the members of the PBAC, they may be held administratively liable for conduct grossly prejudicial to the best interest of the government service. Collusion by and among the members of the PBAC and/or contractors submitting their bids may be determined from their collective acts or omissions before, during and after the bidding process. The complainants are burdened to prove such collusion by clear and convincing evidence because if so proved, the responsible officials may be dismissed from the government service or meted severe administrative sanctions for dishonesty and conduct prejudicial to the government service.14 (Emphasis and underscoring supplied.)
Violation of the provisions of the IRR of PD 1594 will subject the erring government official/employee to the sanctions provided under existing laws particularly Republic Acts 3019 (known as the “Anti-Graft and Corrupt Practices Act”) and 6713 (known as the “Code Of Conduct And Ethical Standards For Public Officials And Employees”), and the Civil Service Law, among others. x x x
Adding to the questionable nature of the supposed bidding for the purchase of materials and lease of equipment is the astonishing fact that the price bids submitted by IBC International Builders Corp. for the construction materials and equipment to be used in the subject two (2) skywalk/overpass projects, as per Abstracts of Bids (Annexes “T”, “U”, “Y” & “Z”, Complaint, supra), were exactly the same as the estimated costs of said materials and equipment per Programs of Work (Annexes “Q” & “V”, ibid.). This fact indubitably shows that the biddings were rigged in order to favor one contractor – IBC International Builders Corp. – as in fact, the contracts for the said purchase of materials and lease of equipment were awarded to said contractor as shown by the Purchase Orders issued to it (Annexes “R”, “S”, “W” & “X”, ibid.).
Evidences on record substantially show that a transgression of some established and definite rule of action in the matter of procurement of materials and equipment for the construction of the subject two (2) skywalk/overpass projects was committed, with the wrongful intention of awarding the contracts to the favored private supplier/contractor by rigging the biddings, which constitutes the administrative offense of Misconduct. This was made possible with the following respondents conspiring and acting together, namely: the OIC-District Engineer VICENTE M. TINGSON, JR.; the Chairman and Members of Bids and Awards Committee (BAC), namely: OIC Asst. District Engineer LIMUEL P. SALES, Engineer III RUBY P. LAGOC (Project Engineer) and Administrative Officer III ELIZABETH H. GARDOSE (Executive Officer for the acquisition of supplies and materials), in collaboration and cooperation with the favored private contractor and two (2) other supposed bidders and the newspaper publishers.
The fact that the aforementioned Bids and Awards Committee (BAC) allowed the bids of IBC International Builders Corp. and declared it the winning bidder, and approved by said respondent OIC-District Engineer Tingson, despite the fact that the prices of materials and rents of equipments it quoted in its bids were obviously exact and the same as the estimated costs of materials and rents of equipments as per Programs of Work of the subject two skywalk/overpass projects, only shows that they really intended to rig the biddings and favor IBC to win the contracts. They could not have allowed it without the knowledge of, and an agreement with, Helen Edith L. Tan, who is IBC President, because the exactness of the IBC price quotations to the agency cost estimates are just too much of a coincidence. We do not believe that an IBC personnel, Juliana Praile, in-charge of preparing IBC’s bids, just accidentally came across the project’s Program of Work or the Approved/Calculated Estimate of the Agency and simply copied every unit price of the materials and the rental costs of the equipment stated therein to simplify her work. As already said, the exactness between the quotations and the estimates are just too palpable to escape notice from the Bids and Awards Committee, who would not have allowed it in the absence of an agreement with respondent Tan. In fact, said respondents Ruby P. Lagoc (Project Engineer and BAC Member), Limuel P. Sales (BAC Chairman) and Vicente M. Tingson, Jr. (OIC-District Engineer) were the ones who prepared, recommended for approval and approved, respectively, the subject projects’ Programs of Work and Agency Estimates (Annexes “Q” & “V”, Complaint, supra).
The two (2) other “losing” bidders, namely: VN Grande Co. and PKG Commercial, were willing participants in the fixed biddings for purposes of compliance with the required number of at least three (3) bidders to evade a failed bidding. Their cooperation is revealed by the fact that they were able to submit their supposed bids even in the absence of publication of the Invitation to Bid. Furthermore, the fact that they did not contest the bids of IBC in spite of the clearly questionable price and rent quotations it submitted only shows that the whole thing was pre-arranged.
Notwithstanding the contracts of publication entered into (Annexes “I” & “J”, Complaint, supra), the publishers of The Visayan Tribune and The Visayas Examiner did not publish the aforementioned Invitation to Bid. The only apparent reason for the non-publication was to prevent other legitimate and qualified contractors from participating in the biddings, and thus ensuring that the contracts for the supply of materials and lease of equipment to be used in the subject two skywalk/overpass projects would go to IBC International Builders Corp., the favored contractor. Their participation in this conspiracy of rigging the biddings has been clearly exposed by an apparent cover-up discussed above. As mentioned above, copies submitted in evidence by herein respondents of the newspaper issues purportedly carrying the Invitation to Bid show strong and clear signs of manipulation, which would only point to a cover-up for an intentional omission.
While the questioned transactions involved two (2) different projects, there was present only a singular wrongful intent to award the contracts for the said purchase of materials and lease of equipment to be used therefor to one favored contractor, IBC Int’l. Builders Corp. This singularity of intent can be deduced from the fact that the biddings/opening of bids for said purchase and lease were held on the same date (March 23, 2001), and all the Purchase Orders issued to IBC Int’l. Builders Corp. in connection thereto bear the same date (March 26, 2001). Hence, the respondents concerned may be held liable for only one administrative infraction.16
* Designated additional member per Special Order No. 1715 dated July 1, 2014.
1Rollo (G.R. No. 184785), pp. 18-29. Penned by Associate Justice Francisco P. Acosta and concurred in by Associate Justices Pampio A. Abarintos and Amy C. Lazaro-Javier.
2 Id. at 34-47.
3 Id. at 31-33. Penned by Associate Justice Francisco P. Acosta with Associate Justices Franchito N. Diamante and Amy C. Lazaro-Javier concurring.
4 CA rollo, pp. 31-39.
5 Id. at 41.
6 Id. at 42-44.
7Danville Maritime, Inc. v. Commission on Audit, 256 Phil. 1092, 1103 (1989).
8 “Prescribing Policies, Guidelines, Rules and Regulations for Government Infrastructure Contracts” issued on June 11, 1978.
9 DPWH Department Order No. 152-A, Series of 2000.
10Rollo (G.R. No. 184785), pp. 43-44.
11 Memorandum of Petitioner Limuel P. Sales, rollo (G.R. No. 184890), pp. 190-193.
12Rollo (G.R. No. 184785), pp. 24-25.
13 493 Phil. 140 (2005).
14 Id. at 160.
15 See Oani v. People, 494 Phil. 417, 433 (2005).
16Rollo, pp. 44-46.
17Gaas v. Mitmug, 576 Phil. 323, 331 (2008), citing Bedruz v. Office of the Ombudsman, 519 Phil. 426, 432 (2006).
18 Tolentino v. Loyola, G.R. No. 153809, July 27, 2011, 654 SCRA 420, 436, citing Francisco, Jr. v. Desierto, G.R. No. 154117, October 2, 2009, 602 SCRA 50, 125, further citing Morong Water District v. Office of the Deputy Ombudsman, 385 Phil. 45, 58 (2000).
19Civil Service Commission v. Ledesma, 508 Phil. 569, 579 (2005), citing Bureau of Internal Revenue v. Organo 468 Phil. 111, 118 (2004) and Castelo v. Florendo, 459 Phil. 581, 597-598 (2003).