THIRD DIVISION
G.R. Nos. 194763-64, July 20, 2016
WILFRED GACUS YAMSON, ASSISTANT GENERAL MANAGER A, REY CAÑETE CHAVEZ, DEPARTMENT MANAGER C, ARNOLD DOMINGO NAVALES, DEPARTMENT MANAGER C, ROSINDO JAPAY ALMONTE, DIVISION MANAGER C, ALFONSO EDEN LAID, ASSISTANT GENERAL MANAGER A, AND WILLIAM V. GUILLEN, DEPARTMENT MANAGER C, (ALL OF) DAVAO CITY WATER DISTRICT, BAJADA, DAVAO CITY, Petitioners, v. DANILO C. CASTRO AND GEORGE F. INVENTOR, Respondents.
D E C I S I O N
REYES, J.:
This is a petition for review on certiorari1 under Rule 45 of the Rules of Court assailing the Decision2 dated December 6, 2010 rendered by the Court of Appeals (CA) in the consolidated cases docketed as CA-G.R. SP No. 105868 and CA-G.R. SP No. 105869. The assailed CA decision affirmed the Decisions of the Office of the Ombudsman of Mindanao (Ombudsman) in OMB-M-A-05-104-C3 and OMB-M-A-05-093-C4 dated October 26, 2007 and November 28, 2007, respectively, and provided for the following dispositive portion:ChanRoblesVirtualawlibrary
WHEREFORE, the petitions for review are DISMISSED. The assailed Decisions dated October 26, 2007 and November 28, 2007 of the Office of the Ombudsman of Mindanao, in OMB-M-A-05-104-C and OMB-M-A-05-093-C, are AFFIRMED.
SO ORDERED.5chanroblesvirtuallawlibrary
AMG, however, requested that the project be implemented in July 1998 due to the unavailability of its equipment at the time of the invitation. DMI, for its part, sent its "regrets" as its drilling rigs are not available for immediate use.13chanrobleslaw
Project Hydrock AMG VES 15 P2,807,100.00 P3,080,000.00 VES 21 P2,349,180.00 P2,596,900.00
14. That the awarding of the said contract is riddled with irregularities and anomalies from its inception up to the actual execution of the same;Meanwhile, the Affidavit-Complaint filed on January 26, 2005 in OMB-M-C-05-0054-A contained essentially the same allegations as that filed in OMB-M-C-05-0051-A, albeit it referred to the VES 15 Project.24chanrobleslaw
15. That for one, the Resolution No. 05-97 of the [PBAC-B] x x x is a systemic violation of the P.D. No. 1594 as amended. x x x
x x x x
16. That the act of the PBAC-B in passing Resolution No. 06-97 x x x is in flagrant violation of the requirement of P.D. 1594, IB-10.4.2, which requires that there must be two failure of bidding before negotiated contract may be entered into;
17. That the urgency, importance and necessity of the drilling, which was then cited by the PBAC-B as a reason in resorting to negotiated contract and in not observing the rules in case of failure of bidding as provided by P.D. 1594 were merely interposed by the members of the PBAC-B x x x to mislead the Board of the DCWD into approving the said project, because up to this date VES No. 15, which was simultaneously drilled with VES 21 remained to be unused;
18. That x x x, in fact the entire bidding process was just a mere farce to put a color of legitimacy to an otherwise illegal drilling of VES 21;
x x x x
20. That as borne out by the Project Inspector's Daily Report dated December 29, 1997, x x x the [Hydrock] had actually started drilling VES 21 as early as December 29, 1997. x x x;
x x x x
22. That undeniably, during the time (December 29, 1997) [Hydrock] started the drilling of VES 21, its contract was then still in the stage of negotiation. Parenthetically, we can conclude that the project has already been pre-awarded by the members of the PBAC-B, x x x;
23. That it is quite obvious that there exists a complicity among the members of the [PBAC-B] x x x;
x x x x
25. That per Project Inspector's Daily Report, the drilling of VES 21 has already been completed on February 24, 1998. x x x;
26. That despite its completion on February 24, 1998, [Hydrock] submitted on March 10, 1998, a request for Change Order, requesting for the increase of the contract cost by Php 64,745.00, x x x;
27. The above mentioned request for change order was absurd, because how can the cost of VES #21 be changed when the same has already been completed;
x x x x
30. That, however, despite of the knowledge of the Department Manager of the SIA, [Navales], of the anomalies surrounding the transactions concerning the drilling of VES 21, he even defended the same and prepared a report, which in effect affirms the said anomalies and much worse recommended for the approval of the said Change Order No. 1. x x x;
x x x x
32. That to justify the said Change Order, the project was made to appear, through the conspiracy x x x, to have been completed on July 2, 1998, but the final billing was submitted only by the contractor [Hydrock] on October 1998;
33. That through the said final billings, it was made to appear that the drilling was still on progress on the dates between February 24 till July 2, 1998 and that certain percentage of the cost of contract is due to the contractor based on the accomplished work, when in truth and in fact the same had already been completed on February 24, 1998 x x x; the same is designed primarily to deceive the Board of Directors, the entire DCWD and the general public at large, x x x;
34. That [o]n January 27, 1999, a Certificate of Completion and Acceptance was issued supposedly by [Carbonquillo], but was signed by [Laid], who was then the Assistant General Manager for Administration, certifying to the effect that the Drilling of Production Well VES #21 has been physically completed on February 24, 1998 and that whatever withheld retentions be released, x x x;
35. That to a reasonable mind, the only conclusion that can be drawn in issuing the said Certificate of Completion x x x is that [Laid] was aware that the drilling of VES 21 has already been completed as early as February 24, 1998[.]23chanroblesvirtuallawlibrary
The petitioners' allegations and defenses in OMB-M-C-05-0054-A are likewise similar to the foregoing allegations and defenses in OMB-M-A-05-104-C.29chanrobleslaw14.e The recourse of PBAC-B to adopt limited source bidding is allowed by law. The law applicable is Executive Order No. 164 x x x[.]16. x x x Thus, considering that the time was of essence in the prosecution of the project, and considering that only Hydrock can timely respond and meet the needs of DCWD at that moment, we, Yamson, Chavez, Navales, and Guillen x x x declared a failure of bidding as there was only one bidder that qualified and recommended for negotiated contract to Hydrock. PBAC-B could have awarded the project to Hydrock being the only responsive evaluated bidder at the price the latter had offered. Yet, PBAC-B recommended a negotiated contract with Hydrock because it was more advantageous to DCWD as it could haggle more for a cheaper contract price through negotiation taking into account Section 5 (3) of Executive Order No. 164 x x x.
x x x x
14.f It may help that we let this Honorable Office know that there was a public outcry for water in the areas of Buhangin, Cabantian, Lanang, Sasa and Panacan during the time PBAC-B deliberated on whether to proceed with the usual advertisement in a newspaper or adopt a simplified bidding. x x x.
x x x x
x x x x
17. Thus, on December 16, 1997, PBAC-B passed Resolution No. 06-97, in which, it declared a failure of bidding and recommended for a negotiated contract with Hydrock. From December 16, 1997, our participation, x x x, as PBAC-B members in relation to the project (VES 21) officially ended, as it has in fact ended.x x x x21. The implementation of the change order for VES 21 happened before its completion on February 24, 1998. In fact, I, [Navales], had been straightforward and transparent on this matter in my communication to the Board, x x x[.]
19.a I, [Yamson], do hereby declare that I was personally instructed by [Carbonquillo] x x x to send personnel to the project site on December 29, 1997 for inspection purposes. As I understood things up, [Carbonquillo] again made a verbal notice to proceed to Hydrock as what he did earlier in Production Wells Nos. 30, 31 and 32. I asked [Carbonquillo] whether the award of the project was already approved by the Board but I was cut-off and told to do things as instructed - no more questions asked as he took full responsibility of the project. Thus, in my capacity as Assistant General Manager for Operations, I instructed [Chavez], x x x, to send his men to the project site on December 29, 1997 per instruction of [Carbonquillo].
19.b I[,] [Chavez], was instructed by [Yamson] to send ECD personnel to the project site on December 29, 1997 per instruction of [Carbonquillo]. With what I went through with [Carbonquillo] when I tried to suspend the sealing of Production Well No. 30 (please see subparagraphs 13.b and 13.b), I just complied the marching order and instructed [Almonte] to do the things per construction.
19.c I, [Almonte], in compliance with the instruction of [Chavez], had in turn instructed Jose David Colindres to proceed to the project site on December 29, 1997. Being an employee of DCWD, I am bound to protect the interest of the DCWD. At that time, it was not within my power to suspend the prosecution of the drilling project. Thus, the most that I can do was to verify, check and evaluate the drilling procedure undertaken by Hydrock. x x x.
x x x xx x x xx x x x
[21].e In fact, in a much earlier date, I, [Navales], has reported the matter to the Board and advised [Carbonquillo] to defer any payment thereon and secure first the approval of the Board, x x x.
23. With respect to the non-use of VES 15, the same is the result to the rotation of department managers of the DCWD following the dismissal of [Carbonquillo].
x x x x28chanroblesvirtuallawlibrary
WHEREFORE, premises considered, this Office finds substantial evidence to hold [the petitioners] administratively liable for Grave Misconduct pursuant to Rule IV, Section 52, par. A(3) of the Civil Service Resolution No. 99-1936.The Ombudsman did not accept the petitioners' explanation as regards the PBAC-B's resort to a "simplified bidding", finding that the circumstances of the project do not call for the application of the exception to the general rule on competitive public bidding, viz.: (1) the "public outcry" was not a natural calamity; (2) there was no prior failure of competitive public bidding; (3) there was no adjacent or continuous project being undertaken by Hydrock; and (4) the VES 21 Project was not a take-over project. Thus, the Ombudsman found the petitioners guilty of Grave Misconduct, ruling that: (1) the petitioners failed to conduct the required public bidding; (2) the project was implemented by Hydrock ahead of the contract award, with the knowledge and approval of Carbonquillo, and with the cooperation of the petitioners; (3) the petitioners' justification that Carbonquillo was responsible for the mobilization of Hydrock prior to contract award is self-serving considering that the petitioners hold managerial positions and should not follow orders blindly; and (4) the change order was allowed even before proper documentation was accomplished, among others.32chanrobleslaw
[Petitioners Laid, Chavez, Navales and Almonte] are hereby meted the penalty of DISMISSAL FROM SERVICE with the accessory penalties of cancellation of eligibility, forfeiture of retirement benefits and perpetual disqualification for reemployment in the government service.
[Petitioners Yamson and Guillen], who are no longer in the public service, are hereby meted the applicable aforementioned accessory penalties.
With respect to [Carbonquillo], the instant case is rendered moot by the penalty of dismissal from service imposed on him in case no. OMB-MIN-ADM-98-090.
Accordingly, Engr. Rodora N. Gamboa, General Manager of the [DCWD], is hereby requested to immediately implement the penalty of dismissal from service pursuant to this Office's Memorandum Circular Order No. 01, Series of 2006, forthwith advising this Office of her compliance therewith.
SO DECIDED.31chanroblesvirtuallawlibrary
WHEREFORE, premises considered, this Office finds substantial evidence to hold [petitioners YAMSON, CHAVEZ, LAID, ALMONTE AND NAVALES] administratively liable for Grave Misconduct pursuant to Rule IV, Section 52, par. A(3) of the Civil Service Resolution No. 99-1936.The Ombudsman's findings and conclusion on the petitioners' accountability under the VES 15 Project are similar to its discussion regarding the petitioners' liability under the VES 21 Project. Thus, it ruled that the VES 15 Project did not fall under the exceptions to competitive bidding in Presidential Decree (P.D.) No. 1594,35 and that the VES 15 Project was riddled with irregularities.36chanrobleslaw
[Petitioners CHAVEZ, LAID, ALMONTE and NAVALES] are hereby meted the penalty of DISMISSAL FROM SERVICE with the accessory penalties of cancellation of eligibility, forfeiture of retirement benefits and perpetual disqualification for reemployment in the government service.
[Petitioner YAMSON], who is no longer in the government service, is hereby meted the applicable aforementioned accessory penalties.
With respect to [CARBONQUILLO], the instant case is rendered moot by the penalty of dismissal from service imposed on him in case nos. OMB-MIN-98-275 and OMB-MIN-ADM-98-090.
Accordingly, Engr. Rodora N. Gamboa, General Manager of the [DCWD], is hereby requested to immediately implement the penalty of dismissal from service pursuant to this Office's Memorandum Circular Order No. 01, Series of 2006, forthwith advising this Office of her compliance therewith.
x x x x
SO DECIDED.34chanroblesvirtuallawlibrary
WHEREFORE, the petitions for review are DISMISSED. The assailed Decisions dated October 26, 2007 and November 28, 2007 of the [Ombudsman] in OMB-M-A-05-104-C and OMB-M-A-05-093-C, are AFFIRMED.The CA rejected the petitioners' argument that the filing of the separate complaints filed against them in the Ombudsman constituted forum shopping. According to the CA, the rule on forum shopping applies exclusively to judicial cases/proceedings and not to administrative cases, and as such, the filing of the identical complaints with the Ombudsman does not violate the rule.39chanrobleslaw
SO ORDERED.38chanroblesvirtuallawlibrary
(i) | the ruling in Office of the Ombudsman v. Rodriguez,41 which states that forum shopping applies exclusively to judicial cases, pertains only to administrative cases filed prior to the effectivity of Administrative Order (A.O.) No. 17 amending A.O. No. 07 of the Ombudsman. Under Section 3, Rule III of A.O. No. 07, as amended by A.O. No. 17, dated September 7, 2003, an administrative complaint must be accompanied by a certificate of non-forum shopping duly subscribed and sworn to by the complainant or his counsel. It is clear, therefore, that the Ombudsman itself has made the proscription against forum shopping, and the penalties therefor, applicable to administrative cases filed with it; and |
(ii) | the petitioners did not violate the provisions of P.D. No. 1594 which they were dismissed for grave misconduct.42 |
Sec. 3. How initiated. - An administrative case may be initiated by a written complaint under oath accompanied by affidavits of witnesses and other evidence in support of the charge. Such complaint shall be accompanied by a Certificate of Non-Forum Shopping duly subscribed and sworn to by the complainant or his counsel. An administrative proceeding may also be ordered by the Ombudsman or the respective Deputy Ombudsman on his initiative or on the basis of a complaint originally filed as a criminal action or a grievance complaint or request for assistance. (Emphasis ours)The respondents in this case attached a Certificate of Non-Forum Shopping to their separate Affidavit-Complaints,45 which amounts to an express admission on their part of the applicability of the rule in the administrative cases they filed against the petitioners. But compliance with the certification requirement is separate from, and independent of, the avoidance of forum shopping itself.46 Both constitute grounds for the dismissal of the case, in that non-compliance with the certification requirement constitutes sufficient cause for the dismissal without prejudice to the filing of the complaint or initiatory pleading upon motion and after hearing, while the violation of the prohibition is a ground for summary dismissal thereof and for direct contempt.47 The respondents' compliance, thus, does not exculpate them from violating the prohibition against forum shopping.
More importantly, the rights asserted and relief prayed for in these administrative cases are also identical. The Affidavit-Complaints in the two administrative cases contained similar allegations, to wit:54
OMB-M-C-05-0054-A(VES 15 Project) OMB-M-C-05-0051-A (VES 21 Project) 11. That by virtue of [Resolution No. 06-97] of the PBAC-B, the matter was endorsed by the general manager to the Board for approval and award, and as per Board Resolution No. 98-27 dated February 13, 1998, the Drilling of VES #21 x x x was awarded to [Hydrock] x x x; 13. That by virtue of [Resolution No. 06-97] of the PBAC-B, the matter was endorsed by the general manager to the Board for approval and award, and as per Board Resolution No. 98-27 dated February 13, 1998, the Drilling of VES #15 x x x was awarded to [Hydrock] x x x; 14. That the awarding of the said contract is riddled with irregularities and anomalies from its inception up to the actual execution of the same; 17. That similar to the awarding of VES #21, which was the subject of a similar complaint that we filed before this Honorable Office on January 12, 2005, the awarding of the contract for the drilling of VES #15 to [Hydrock], was also riddled with irregularities and anomalies from its inception up to the actual execution of the same; 16. That the act of the PBAC-B in passing Resolution No. 06-97 x x x which is in flagrant violation of the requirement of P.D. 1594, IB-10.4.2 x x x; 19. That the act of the PBAC-B in passing Resolution No. 06-97 x x x which is in flagrant violation of the requirement of P.D. 1594, IB-10.4.2 x x x; 18. That the sheer disregard of the PBAC-B of P.D. 1594 in railroading the bidding of the drilling project of VES 15 and 21 is not the only malevolent act committed by the members of the said committee, in fact the entire bidding process was just a mere farce to put a color of legitimacy to an otherwise illegal drilling of VES 21[.] 21. That the sheer disregard of the PBAC-B of P.D. 1594 in railroading the bidding of the drilling project of VES #15 was nothing compared to the fact that the said bidding process was just a mere farce[.]
Moreover, both the complaints filed in these cases alleged a common cause of action, that is, the petitioners' alleged failure to conduct a public bidding on the drilling of two wells for the Cabantian Water Supply System Project, the alleged premature award of the contract to Hydrock and irregularities in the implementation of the projects. The only distinction is the location of the drilling project, with OMB-M-A-05-093-C involving the VES 21 Project located in Communal and OMB-M-A-05-104-C involving the VES 15 Project located in Cabantian. Notwithstanding the difference in location, it should be noted that there was only one procedure carried out by the PBAC-B in undertaking the negotiated procurement of the VES 15 and VES 21 Projects. Note, too, that the actions on these two projects were contained in the same resolutions - the PBAC-B's Resolution No. 05-97 approved on November 25, 1997 resolved to dispense with the advertisement requirement and opted to send letters to well drillers "for the proposed Well Drilling Projects in Communal and Cabantian;"55 the PBAC-B's Resolution No. 06-97 dated December 16, 1997 recommended the negotiated procurement of the VES 15 and VES 21 Projects to Hydrock;56 and pursuant to the PBAC-B's recommendation, the DCWD Board of Directors issued Resolution No. 98-27 dated February 13, 1998, awarding the VES 15 and VES 21 Projects to Hydrock.57 Clearly, the identity of these two cases is such that judgment in one administrative case would amount to res judicata in the other administrative case. As ruled by the Court in Lagoc v. Malaga,58 "[w]hile the questioned transactions involved two (2) different projects, there was present only a singular wrongful intent to award the contracts x x x. Hence, the respondents concerned may be held liable for only one administrative infraction."59chanrobleslaw
OMB-M-A-05-104-C (VES 15 Project) OMB-M-A-05-093-C (VES 21 Project) 1. That we have caused the filing of the Case now pending x x x OMB-M-C-05-0054-A, for Violation of Section 3(e)[,] R.A. 3019 1. That we have caused the filing of the Case now docketed x x x OMB-M-C-05-0051-A, for Violation of Section 3(e)[,] R.A. 3019; 2. That [since] no Administrative Case has as yet been filed concerning the said case, we hereby submit to this Honorable Office our intention to file Administrative Cases against the Respondents in the above-mentioned case; 2. That since no Administrative Case has as yet been filed, we hereby submit to this Honorable Office our intention to file Administrative Cases against the Respondents in the above-mentioned case; 3. That we are have attached [sic] herein our Affidavit-Complaint in the above-mentioned Criminal Case and forming part of this affidavit[.] 3. That we are hereby attaching our Affidavit-Complaint in the above-mentioned Criminal Case and forming part of this affidavit[.]
IB 10.6.2 - BY NEGOTIATED CONTRACTRecords show that there was no competitive public bidding undertaken to begin with. The pertinent provisions of PBAC-B's Resolution No. 06-97 dated December 16, 1997 state:ChanRoblesVirtualawlibrary
1. Negotiated contract may be entered into only where any of the following conditions exists and the implementing office/agency/corporation is not capable of undertaking the project by administration:
chanRoblesvirtualLawlibraryx x x x
In cases a [in times of emergencies arising from natural calamities] and b [failure to award the contract after two (2) public biddings for valid cause or causes], bidding may be undertaken through sealed canvass of at least three (3) qualified contractors. x x x Authority to negotiate contracts for projects under these exceptional cases shall be subject to prior approval by heads of agencies within their limits of approving authority.
x x x x (Emphasis ours)
WHEREAS, an urgent meeting was called by the PBAC-B to evaluate the letter proposal[s] of the well drillers, who were invited to participate in the bidding of the proposed well drilling project at Communal and Cabantian, [Davao] [C]ity.It is plain to see that what was undertaken at the very first instance was already a negotiated procurement of the VES 21 Project. As reported by Navales in his Audit Report dated March 26, 1998, there was no detailed engineering that was carried out for the project.84 Such detailed engineering design is a preliminary requirement before any bidding or award may be made.85 The petitioners also admit that there was no posting of the invitation to bid, which is necessary in a competitive public bidding.86 Instead, they directly sent out letter-invitations to "[accredited [w]ell [d]rillers as provided by Local Water Utilities Administration, and known and capable well drillers in the city"87 and it was from those who submitted their proposals that the PBAC-B eventually recommended Hydrock. These circumstances show that the procedure undertaken by the petitioners did not conform to the procedure provided in the IRR for competitive public bidding; hence, there was no failure of competitive bidding to speak of such that the PBAC-B may resort to a negotiated procurement.
x x x x
With the foregoing, a failure of competitive bidding is the result. Meanwhile, the urgency of the project is of extreme importance. This Committee is in fact aware of the street demonstration, and public outcry of the residents in the affected area. The Committee therefore decided to indorse the matter to the Head of Office for his disposal with a recommendation that [HYDROCK] be given due consideration taking into account its track record, efficiency of performance, and quoted price.83chanroblesvirtuallawlibrary
The Ombudsman, meanwhile, found that there was no competitive bidding conducted prior to the negotiated contract with Hydrock; the drilling for VES 21 Project was started by Hydrock even before they were informed by Carbonquillo to proceed; and the change order for the VES 21 Project was allowed even without proper documentation and came ahead of the awarding of the contract to Hydrock, among others.90chanrobleslaw
- The detailed engineering which is a basic requirement prior to bidding/awarding of any project was not carried out. x x x.
- There was no bidding conducted prior to the awarding of the projects. x x x.
- The project was awarded to the contractor by way of negotiation by the General Manager himself. x x x.
- The contractor started the project without an approved contract confirmed by the Board nor that there was an authority for the General Manager to sign the Contract. x x x.
- The Board Resolution approving the project dated February 13, 1998 is just a week-prior to the completion of the project - February 23, 1998. x x x.89
Respondents' failure to comply with P.D. No. 1594 cannot be trivialized and classified as a mere oversight. At the very least, it constitutes neglect of duty. It must be stressed that respondents were mandated to comply with P.D. No. 1594 to insure that the terms and conditions of the contract are clear and unambiguous and, thus, prevent damage and injury to the government, and the consequent prejudice to the beneficiaries of project like the commuters and other road users. x x x.101 (Emphasis ours)In this case, it has been established that there was no competitive bidding held in the first place and hence, there was no justification for the negotiated contract with Hydrock. Petitioners Yamson, Chavez, Navales and Guillen were obliged to faithfully comply with the rules on competitive public bidding, as mandated by P.D. No. 1594, which states: "[e]ach office/agency/corporation shall have in its head office or in its implementing offices a [BAC] which shall be responsible for the conduct of prequalification, bidding, evaluation of bids, and recommending award of contracts."102Consequently, they should only be liable for Simple Neglect of Duty.
21. The implementation of the change of order for VES 21 happened before its completion on February 24, 1998. In fact, I, [Navales], had been straightforward and transparent on this matter in my communication to the Board. This was embodied in the Report dated August 20, 1998 x x x, quoted as follows:ChanRoblesVirtualawlibraryIn Office of the Ombudsman v. Agustino,108 the Court held that a change order could only be performed by the contractor once it was confirmed and approved by the appropriate officials. Economic viability, and the DCWD's Board of Directors' and the Commission on Audit's acceptance of their explanation regarding the delayed documentation109 are not exculpatory reasons for non-compliance with P.D. No. 1594 and its IRR.110Navales, likewise, should therefore be individually held accountable for Simple Misconduct.x x x x
8. The implementation of this change order occurred on January 30, 1998 and [was] completed on February 19, 1998, presented as Annex "G".
9. Presentation of documents for the change order for Board approval was made only on June 22, 1998, presented as Annex "H".107 (Emphasis ours)
Having known of the completion of the physical works on 24 February 1998, [Laid] would have been aware of the irregularities attending the awarding of the VES 21 [P]roject contract to [Hydrock], its implementation and the issues attending the change order. Yet, [Laid] signed a Certificate of Completion without evident objection. This effectively released the withheld retention money to [Hydrock].111chanroblesvirtuallawlibraryThe Court, however, cannot find any substantiation in the records of this case that will justify the conclusion that Laid had prior knowledge of the irregularities attending the VES 21 Project. All Laid did was certify that the VES 21 Project has been completed on February 24, 1998. There is nothing on record that will show Laid's direct and active participation during the planning, procurement and implementation of the VES 21 Project such that he should be aware of its surrounding circumstances. There is also no showing that his official duties as Assistant General Manager for Administration involved active participation in the project or that his act in certifying the date of completion was tainted with corruption, clear intent to violate the law, or flagrant disregard of an established rule. If at all, Laid should be individually liable only for Simple Misconduct for his failure to exercise the necessary prudence to ensure that the completion of the VES 21 Project was above board.112chanrobleslaw
When applicable, the imposition of the penalty may be made in accordance with the manner provided herein below:There being no finding of conspiracy in this case, the petitioners' respective liabilities are individual in nature and the penalty to be imposed on them shall be as follows:
- The minimum of the penalty shall be imposed where only mitigating and no aggravating circumstances are present.
- The medium of the penalty shall be imposed where no mitigating and aggravating circumstances are present.
- The maximum of the penalty shall be imposed where only aggravating and no mitigating circumstances are present.
- Where aggravating and mitigating circumstances are present, paragraph (a) shall be applied where there are more mitigating circumstances present; paragraph (b) shall be applied when the circumstances equally offset each other; and paragraph (c) shall be applied when there are more aggravating circumstances. (Emphasis ours)
[I]f the exoneration of the employee is relative (as distinguished from complete exoneration), an inquiry into the factual premise of the offense charged and of the offense committed must be made. If the administrative offense found to have been actually committed is of lesser gravity than the offense charged, the employee cannot be considered exonerated if the factual premise for the imposition of the lesser penalty remains the same. The employee found guilty of a lesser offense may only be entitled to back salaries when the offense actually committed does not carry the penalty of more than one month suspension or dismissal.123 (Citation omitted)Unjustified suspension, on the other hand, meant that the employee's separation from service is not warranted under the circumstances because there was no cause for suspension or dismissal, e.g., where the employee did not commit the offense charged, punishable by suspension or dismissal (total exoneration); or the government employee is found guilty of another offense for an act different from that for which he was charged.124chanrobleslaw
Endnotes:
1Rollo, pp. 10-74.
2 Penned by Associate Justice Hakim S. Abdulwahid, with Associate Justices Ricardo R. Rosario and Samuel H. Gaerlan concurring; id. at 79-109.
3 Rendered by Graft Investigation and Prosecution Officer II Grace H. Morales; id. at 318-339.
4 Id. at 291-316.
5 Id. at 108.
6 No longer in public service, having retired on March 1, 2006 based on the records of this case; id. at 80, 292.
7 Petitioner Guillen is also no longer in public service, having resigned on July 3, 2006; id.
8 Id. at 129-131.
9 Id. at 143.
10 Id.
11 Id. at 132-133.
12 Id. at 134-136.
13 Id. at 138-139.
14 Id.
15 Id. at 139.
16 Id. at 140-142.
17 Id. at 145.
18 Id. at 148.
19 Id. at 215-221.
20 Also included as respondent in the affidavit-complaint was Carbonquillo, who earlier resigned from DCWD on February 11, 2000; id. at 292.
21 Id. at 222-228.
22 Id. at 229-229A, 230-231.
23 Id. at 216-219.
24 Id. at 222-228.
25cralawred Id. at 246-248.
26 Id. at 235-245.
27 Id. at 247.
28 Id. at 239-244.
29See Position Paper, rollo, pp. 262-265.
30 Id. at 291-317.
31 Id. at 315-316.
32 Id. at 311-314.
33 Id. at 318-340.
34 Id. at 338-339.
35 Prescribing Policies, Guidelines, Rules and Regulations for Government Infrastructure Contracts. Issued on June 11, 1978.
36Rollo, pp. 334-337.
37 Id. at 79-109.
38 Id. at 108.
39 Id. at 101.
40 Id. at 102-107.
41 639 Phil. 312 (2010).
42Rollo, pp. 26-27.
43 Supra note 41.
44Laxina, Sr. v. Office of the Ombudsman, 508 Phil. 527, 535 (2005).
45Rollo, pp. 229A and 231.
46Juaban, et al. v. Espina, et al., 572 Phil. 357, 373 (2008), citing Spouses Melo v. CA, 376 Phil. 204, 213 (1999).
47Office of the Ombudsman (Visayas) v. Court of Appeals, et al., 720 Phil. 466, 472 (2013), citing Abbott Laboratories, Phils., et al. v. Alcaraz, 714 Phil. 510, 530 (2013).
48Sps. Marasigan v. Chevron Philippines, Inc., et al., 681 Phil. 503, 515 (2012).
49Plaza v. Lustiva, G.R. No. 172909, March 5, 2014, 718 SCRA 19, 32.
50 Id. at 32-33.
51 Id. at 32.
52Sps. Marasigan v. Chevron Philippines, Inc., et al., supra note 48, at 516.
53Rollo, pp. 216-217,223-225. (Emphasis ours)
54 Id. at 229, 230.
55 Id. at 132-133.
56 Id. at 138-139.
57 Id. at 140-142.
58 G.R. No. 184785, July 9, 2014, 729 SCRA 421.
59 Id. at 437.
60Heirs of Marcelo Sotto v. Palicte, 726 Phil. 651, 663 (2014).
61See Chua, et al. v. Metropolitan Bank & Trust Company, et al., 613 Phil. 143, 158-159 (2009).
62 Section 4 of P.D. No. 1594 states that "[c]onstruction projects shall generally be undertaken by contract after competitive public bidding. Projects may be undertaken by administration or force account or by negotiated contract only in exceptional cases where time is of the essence, or where there is lack of qualified bidders or contractors, or where there is a conclusive evidence that greater economy and efficiency would be achieved through this arrangement, and in accordance with provision of laws and acts on the matter, x x x. See also DM. Consunji, Inc. v. Commission on Audit, 276 Phil. 595, 605 (1991).
63 As amended on May 24 and July 5, 2000.
64 IB 10.6.2 (1).
65 Providing Additional Guidelines in the Processing and Approval of Contracts of the National Government. Issued on May 5, 1987.
66 Sec. 5. Public Bidding of Contracts; Exceptions. As a general rule, contracts for infrastructure projects shall be awarded after open public bidding to bidders who submit the lowest responsive/evaluated bids. x x x The Award of such contracts through negotiation shall not be allowed by the Secretary or Governing Board of the Corporation concerned within the limits as stated in Section 1 hereof in the following cases:
chanRoblesvirtualLawlibrarya. In times of emergencies arising from natural calamities where immediate action is necessary to prevent imminent loss of life and/or property, in which case, direct negotiations or simplified bidding may be undertaken;b. Failure to award the contract after competitive public bidding for valid cause or causes, in which case, simplified bidding may be undertaken;c. Where the construction project covered by the contract is adjacent or contiguous to an on going projects and it could be economically prosecuted by the same contractor, in which case, direct negotiation may be undertaken with the said contractor at the same unit prices and contract conditions, less mobilization costs, provided, that he has no negative shippage and has demonstrated a satisfactory performance. Otherwise, the contract shall be awarded through public bidding.
67Lagoc v. Malaga, supra note 58, at 427.
68Rollo, p. 240.
69 See CIVIL CODE OF THE PHILIPPINES, Article 1734.
70See rollo, pp. 127, 128.
71 Id. at 115.
72 Id. at 129-131.
73 Id. at 127, 128.
74 Id. at 239-241.
75 Since the procurement of the VES 21 Project happened in 1997-1998, the applicable rule is the IRR of P.D. No. 1594 prior to its amendment in 2000.
76 IRR, Section I. See also Albay Accredited Constructors Association, Inc. v. Ombudsman Desierto, 516 Phil. 308 (2006).
77 Section II, IB 3. See also Lagoc v. Malaga, supra note 58.
78 Section II, IB 7.
79 Id. at IB 8.
80 Id. at IB 10.2.
81 Id. at IB 10.4.
82 Id. at IB 10.6.1.
83 Id. at 138-139.
84 Resolution No. 05-97 stated: "That, in consideration with the Committee's experience as regards the poor participation of well drillers in bidding invitation for well drilling projects, it was agreed that popular advertisement through newspaper be dispensed with x x x." Id. at 132, 634-635.
85 IRR, Section I. 1.
86See rollo, p. 132.
87 Id.
88Lagoc v. Malaga, supra note 58, at 434.
89Rollo, pp. 634-635.
90 Id. at 310-314.
91Encinas v. PO1 Agustin, Jr., et al., 709 Phil. 236, 263 (2013), citing Re: Complaint of Mrs. Salvador against Spouses Serafico, 629 Phil. 192, 210 (2010).
92Ampil v. Office of the Ombudsman, et al., 715 Phil. 733, 769 (2013).
93Andrade v. CA, 423 Phil. 30, 43 (2001).
94Litonjua v. Justices Enriquez, Jr. and Abesamis, 482 Phil. 73, 101 (2004).
95Lagoc v. Malaga, supra note 58.
96 Under Section 17 of P.D. No. 198, all powers, privileges, and duties of local water districts are exercised and performed by and through its Board, although executive, administrative or ministerial power may be delegated and redelegated by the board to officers or agents designated for such purpose by the board. See also Engr. Feliciano v. Commission on Audit, 464 Phil. 439 (2004); Davao City Water District v. Civil Service Commission, 278 Phil. 605 (1991).
97See Resolution No. 98-27 dated February 13, 1998, rollo, pp. 140-142.
98 Id. at 130.
99Republic of the Philippines v. Canastillo, 551 Phil. 987, 996 (2007).
100 531 Phil. 164 (2006).
101 Id. at 185.
102 IRR, Section II, IB 2(1). See also Executive Order No. 292 (Revised Administrative Code of 1987), Book IV, Chapter 13, Section 64.
103Rollo, pp. 311-314.
104 Id. at 141-142, 145, 148.
105Miro v. Vda. de Erederos, et al., 721 Phil. 772, 796-797 (2013).
106Seville v. Commission on Audit, 699 Phil. 27, 32 (2012).
107Rollo, pp. 242-243.
108 G.R. No. 204171, April 15, 2015, 755 SCRA 568.
109See rollo, p. 212.
110 P.D. No. 1594, Section 9, and its IRR, Section III, CI 1.2.
111Rollo, p. 314.
112See Seville v. COA, supra note 106.
113 Memorandum Circular No. 19, Series of 1999, Rule IV, Section 52 (B)(1) and (2).
114See rollo, pp. 460A-461, 463-464, 466-467, 469-470.
115 Id. at 292.
116 Id.
117 365 Phil. 744 (1999).
118 Id. at 764.
119 Section 47, Book V of the Administrative Code of 1987 provides, among others, that in case the penalty is suspension or removal, the respondent shall be considered as having been under preventive suspension during the pendency of the appeal in the event he wins an appeal. See also Section 7, Rule III of the Rules of Procedure of the Ombudsman, as amended by A.O. No. 17 dated September 15, 2003. See also Villasenor v. Ombudsman, G.R. No. 202303, June 4, 2014, 725 SCRA 230, 238.
120Hon. Gloria v. CA, supra note 117, at 764.
121See Light Rail Transit Authority v. Salvana, 736 Phil. 123 (2014).
122 670 Phil. 638 (2011).
123 Id. at 659.
124 Id. at 661.