G.R. No. 209219, December 02, 2014
BASES CONVERSION AND DEVELOPMENT AUTHORITY (BCDA), Petitioner, v. COMMISSION ON AUDIT CHAIRPERSON MA. GRACIA M. PULIDO-TAN, COMMISSIONER HEIDI L. MENDOZA AND COMMISSIONER ROWENA V. GUANZON, THE COMMISSIONERS, COMMISSION ON AUDIT, Respondents.
D E C I S I O N
Clearly, the original CMS contract stipulates a period of seven (7) months [within] which the DSI will render its services, that is, five-month construction phase and two-month post construction phase. Therefore, all services rendered within the seven-month period, whether original or additional, are intended, covered or included in the scope of works in the original contract. It appears, however, that the DSI decided to utilize the services of subject [five (5)] personnel using a five-month period only, leaving the two-month post construction period unused. Since it was DSI that determined its manning requirements and for which BCDA fully concurred in, it is now estopped from justifying that the additional two (2) man-month requirements were beyond the scope of works of the original contract. Moreover, the excess one month services each of the Sanitary Engineer, Electrical Engineer, Administrative Assistant[/]Accountant, Utility man and Driver were obviously unnecessary considering that these positions, under the original manning schedule, were supposedly to expire simultaneously with the construction phase. Put differently, the DSI was given seven (7) months within which its key and support staff are to render services but opted not to consume the full contract term. Services can only be considered beyond the scope of works of the original contract when the same are rendered beyond the period stipulated in the original contract, in this case, beyond the seven-month period.21In affirming the disallowance, the ASB also declared applicable Section 8.1 of the National Economic Development Authority-Implementing Rules and Regulations (NEDA-IRR) governing increase of cost of consulting services. An increase in the cost of consulting services is allowed only when it is due to adjustment of rates, additional works or reasonable delays in project implementation.22
WHETHER OR NOT THE [COA] GRAVELY ABUSED ITS DISCRETION WHEN IT DECLARED THAT THE [P]117,760.00 DISBURSEMENTS MADE COVERING THE REMUNERATION PURSUANT TO THE EXTENSION OF THE CMS IS WITHOUT LEGAL BASIS.25
An act of a court or tribunal can only be considered as with grave abuse of discretion when such act is done in a “capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction.” The abuse of discretion must be so patent and gross as to amount to an “evasion of a positive duty or to a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility.” Furthermore, the use of a petition for certiorari is restricted only to “truly extraordinary cases wherein the act of the lower court or quasi-judicial body is wholly void.” From the foregoing definition, it is clear that the special civil action of certiorari under Rule 65 can only strike an act down for having been done with grave abuse of discretion if the petitioner could manifestly show that such act was patent and gross. x x x.27There appears to be no grave abuse of discretion by the COA in its disposition of BCDA’s appeal from the ASB decision. In its revised manning schedule28 following the one-month extension given to KCECI for project completion, DSI presented an extension of two man-months each for five employees identified as the Resident Sanitary Engineer, Resident Electrical Engineer, Administrative Assistant, Utility Man and Driver. The two man-month extension for these five personnel was clearly not in accord with Article II of the subject Supplemental Agreement, which contemplated a mere one man-month extension for DSI’s services as it provided:
The Court highlights the fact that the project was originally slated to be completed within seven months. Under the main CMS contract, DSI’s service as construction manager was to coincide with this period. Per its original plan, DSI intended to retain the five subject personnel’s services only until the end of the project’s construction phase in month five. They were then no longer needed during the project’s post-construction phase.
2.1 BCDA shall pay the CONSTRUCTION [MANAGER] the additional amount of Pesos: Five Hundred Sixty Thousand Three Hundred Twenty and 00/100 (P560,320.00) for the additional Services for a period of one (1) month, inclusive of reimbursable costs.29 (Underscoring ours and emphasis in the original)
This Commission also agrees with the ASB that the excess one (1) month services for each of the positions under contention were unnecessary considering that these positions, under the original manning schedule, were supposed to expire simultaneously with the construction phase. It must be emphasized that the main contract was extended only for a period of one (1) month. The services of the construction manager under the original contract were for seven (7) months consisting of five (5) months for the construction phase and two (2) months for the post construction phase. In the original contract, where the construction phase calls for a period of five (5) months, the contested positions were accorded less than five (5) months each. It is therefore not right that a one (1)-month extension of the main contract would require an additional two (2) months service for the positions in question.31BCDA’s argument that the disallowed five man-months were not part of the original scope of works fails to persuade. It offered no clear and sufficient explanation as to how and why the five members of the CMS team needed to extend working for two more months than originally intended, when the project itself was extended for only a month. Given such failure, the Court finds no cogent reason to disturb the COA’s finding that the services of the five personnel were not needed for the extra one month. Considering that BCDA and DSI’s supplemental agreement only provided for a one-month project extension, there was in truth no basis, factual or legal, for the disallowed amounts.
8.1 Cost of Consulting ServicesArticle 3, Section 184.108.40.206 (j) of the main CMS agreement further provides:
No increase in cost shall be allowed beyond and above the contract amount indicated in the agreement for consulting services except for the following:
a. Adjustment in rates in accordance with Section 6.9 (Escalation);
b. Additional Works not covered under the scope of works contained in the consulting services agreement; and
c. Additional costs that may be incurred due to reasonable delays (greater than 15% of approved contract duration) in project implementation due to acts undeniably attributable to government and/or force majeure as determined by the Head of agency.
x x x x
DSI’s case did not fall under any of these exceptions under the NEDA-IRR and the main CMS agreement that could justify an increase in remuneration. The original contract between BCDA and DSI clearly limited the services that may be allowed via a supplemental agreement to be signed by the parties. The Court reiterates the BCDA’s failure to sufficiently establish that the subject five man-month extensions were not yet covered by the original scope of work. It was also not adequately explained why the services of the five employees became necessary during the post construction phase when under the original manning schedule, they were to serve only until the termination of the project’s construction phase.
j. In case additional or special Services as required other than those enumerated in the [Terms of Reference], or of those identified under Article 2 hereof, due to circumstances arising beyond the control of the CONSTRUCTION MANAGER and which could have not been reasonably foreseen or for any additional or extension of Services or modification as agreed between the Parties and resulting from BCDA’s specific requests which shall cause amendments to the Services, the CONSTRUCTION MANAGER and BCDA shall agree on the requisite additional remuneration under a separate supplemental agreement in accordance with existing laws.32 (Emphasis ours)
It is the general policy of the Court to sustain the decisions of administrative authorities, especially one which is constitutionally-created not only on the basis of the doctrine of separation of powers but also for their presumed expertise in the laws they are entrusted to enforce. Findings of administrative agencies are accorded not only respect but also finality when the decision and order are not tainted with unfairness or arbitrariness that would amount to grave abuse of discretion. It is only when the COA has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, that this Court entertains a petition questioning its rulings. x x x.34 (Citations omitted)WHEREFORE, the petition is DISMISSED.
1Rollo, pp. 3-22.
2 Issued by Commission on Audit Chairperson Ma. Gracia M. Pulido Tan and Commissioners Heidi L. Mendoza and Rowena V. Guanzon; id. at 24-29.
3 Id. at 39-55.
4 Id. at 95.
5 Id. at 41.
6 Id. at 24.
7 Id. at 98.
9 Id. at 32-35.
10 Id. at 33.
11 Id. at 25.
12 Id. at 96.
14 Id. at 140-141.
15 Id. at 9.
16 Id. at 141.
17 Id. at 142.
18 Id. at 30-31.
19 Id. at 96.
20 Id. at 95-100.
21 Id. at 98.
22 Id. at 99-100.
23 Id. at 24-29.
24 Id. at 28.
25 Id. at 14.
26Malayang Manggagawa ng Stayfast Phils., Inc. v. National Labor Relations Commission, G.R. No. 155306, August 28, 2013, 704 SCRA 24, 38; Dycoco v. Court of Appeals, G.R. No. 147257, July 31, 2013, 702 SCRA 566, 580; Balayan v. Acorda, 523 Phil. 305, 309 (2006).
27Malayang Manggagawa ng Stayfast Phils., Inc. v. National Labor Relations Commission, id. at 39, citing Yu v. Judge Reyes-Carpio, G.R. No. 189207, June 15, 2011, 652 SCRA 341, 348.
28Rollo, p. 9.
29 Id. at 34.
30 Id. at 27.
32 Id. at 43.
33 G.R. No. 193677, September 6, 2011, 656 SCRA 767.
34 Id. 777.