THIRD DIVISION
G.R. No. 229256, November 22, 2017
MARIETTA MAGLAYA DE GUZMAN, Petitioner, v. THE OFFICE OF THE OMBUDSMAN AND BESTFORMS, INCORPORATED, Respondents.
D E C I S I O N
VELASCO JR., J.:
WHEREFORE, premises considered, respondents Felipe Pagaran Evardone, Marietta Maglaya De Guzman, Evelyn Ramos Perlado, Miguel Doyungan Arcadio, Vicente Monteros Lago, Jr. and Recto Salmo Tomas, Jr., are hereby found GUILTY of the administrative offense of GRAVE MISCONDUCT and ordered DISMISSED from the service with forfeiture of all benefits, except accrued leave credits, and with prejudice to reemployment in the Government or any subdivision, instrumentality or agency thereof, including government-owned or controlled corporations.The Ombudsman based its judgment on the failure of the NPO-BAC to observe the procedures laid down in Republic Act No. (RA) 9184, otherwise known as the "Government Procurement Reform Act," for the Limited Source Biddings that it conducted on June 13 and 14, 2006, and in entering into a Negotiated Procurement with RFI.
Pursuant to Section 7, Administrative Order No. 17 of the Office of the Ombudsman and the Ombudsman Memorandum Circular No. 01, Series of 2006, the Honorable Press Secretary is hereby directed to implement, this Decision and to submit promptly a Compliance Report within five (5) days from receipt indicating the OMB case number, to this Office, thru the Central Records Division, 2nd Floor, Office of the Ombudsman Building, Agham Road, Diliman, Quezon City.
SO ORDERED.12
WHEREFORE, premises considered, the instant Petition is DENIED. The decision of the Office of the Ombudsman in OMB Case No. OMB-C-A-06-0427-H finding petitioner Maricitta Maglaya De Guzman guilty of grave misconduct is AFFIRMED.Citing the Revised Implementing Rules and Regulations of RA 9184 that took effect on September 2, 2009 (Revised IRR), the appellate court noted that the procedures for competitive bidding laid down in the law should likewise be observed in Limited Source Bidding, specifically in Section 13 thereof. Echoing the Ombudsman's observation, the CA held that the NPO-BAC failed to invite the COA or its representatives, as well as observers from a duly recognized private group in a sector or discipline relevant to the procurement. In addition, the CA ruled that the NPO-BAC failed to sufficiently justify why it resorted to Negotiated Procurement with RFI instead of competitive public bidding.
SO ORDERED.14
In the main, De Guzman argues that the NPO-BAC complied with all the requirements of the law when it resorted to alternative modes of procurement in the questioned procurements. In support, De Guzman cites Memorandum Order No. 38,16 issued by then Executive Secretary Ronaldo B. Zamora on November 19, 1998, which prescribes the guidelines in contracting the services of private security printers for the printing of accountable forms with money value and other specialized accountable forms which the NPO has no capability to undertake. In accordance with the directive of memorandum Order No. 8, the NPO conducts annual accreditation of private security printers to ensure the security of government forms with money value.17 Considering the necessity of prior accreditation o£ private security printers, as well as the fact that government accountable forms are not ordinary printing materials, the NPO utilizes limited-source bidding18 in the procurement of printing services.I.
Whether or not the [CA] violated the Constitution when it retroactively applied a rule that was non-existent at the time [De Guzman] committed the acts or omissions complained of.II.
Whether or not the [CA] seriously erred in finding that [De Guzman] and her co-respondents committed grave misconduct when they failed to strictly observe the two-failed bidding rule in negotiated procurement under RA 9184 for the award of the second set of LTO accountable forms.III.
Whether or not the [CA] gravely erred in sustaining the assailed Decision of the Office of the Ombudsman finding [De Guzman] guilty of grave misconduct.IV.
Whether or not dismissal from service is too harsh a penalty for the purported infraction committed by [De Guzman].15
[A] competitive public bidding aims to protect the public interest by giving the public the best possible advantages thru open competition. Another self-evident purpose of public bidding is to avoid or preclude suspicion of favoritism and anomalies in the execution of public contracts.23Alternative methods of procurement, however, are allowed under RA 9184 which would enable dispensing with the requirement of open, public and competitive bidding24 but only in highly exceptional cases and under the conditions set forth in Article XVI thereof. These alternative modes of procurement include Limited Source Bidding and Negotiated Procurement:
SEC. 49. Limited Source Bidding. - Limited Source Bidding may be resorted to only in any of the following conditions:Corollary thereto, the IRR-A expounds on the definition of Limited Source Bidding and Negotiated Procurement in this wise:
(a) Procurement of highly specialized types of Goods and Consulting Services which are known to be obtainable only from a limited number of sources; or
(b) Procurement of major plant components where it is deemed advantageous to limit the bidding to known eligible bidders in order to maintain an optimum and uniform level of quality and performance of the plant as a whole.x x x x
SEC. 53. Negotiated Procurement. - Negotiated Procurement shall be allowed only in the following instances:
(a) In cases of two failed biddings, as provided in Section 35 hereof;
(b) In case of imminent danger to life or property during a state of calamity, or when time is of the essence arising from natural or man-made calamities or other causes where immediate action is necessary to prevent damage to or loss of life or property, or to restore vital public services, infrastructure facilities and other public utilities;
(c) Take-over of contracts, which have been rescinded or terminated for causes provided for in the contract and existing laws, where immediate action is necessary to prevent damage to or loss of life or property, or to restore vital public services, infrastructure facilities and other public utilities;
(d) Where the subject contract is adjacent or contiguous to an ongoing infrastructure project, as defined in the IRR: Provided, however, That the original contract is the result of a Competitive Bidding; the subject contract to be negotiated has similar or related scopes of work; it is within the contracting capacity of the contractor; the contractor uses the same prices or lower unit prices as in the original contract less mobilization cost; the amount involved does not exceed the amount of the ongoing project; and, the contractor has no negative slippage: Provided, further, That negotiations for the procurement are commenced before the expiry of the original contract. Whenever applicable, this principle shall also govern consultancy contracts, where the consultants have unique experience and expertise to deliver the required service; or,
(e) Subject to the guidelines specified in the IRR, purchases of Goods from another agency of the Government, such as the Procurement Service of the DBM, which is tasked with a centralized procurement of commonly used Goods for the government in accordance with Letters of Instruction No. 755 and Executive Order No. 359, series of 1989. (Emphasis supplied)
Section 49. Limited Source BiddingThe requirements of a pre-bid conference, written invitation to observers, and posting of the IAEB must still be followed in alternative modes of procurement
Limited Source Bidding, otherwise known as selective bidding, is a method of procurement of goods and consulting services that involves direct invitation to bid by the concerned procuring entity from a set of pre-selected suppliers or consultants with known experience and proven capability on the requirements of the particular contract. The pre-selected suppliers or consultants shall be those appearing in a list maintained by the relevant Government authority that has expertise in the type of procurement concerned, which list should have been submitted to, and maintained updated with, the GPPB. The BAC , of the concerned procuring entity shall directly send to the pre-selected bidders the invitation to bid, which shall already indicate the relevant information required to enable the bidders to prepare their bids as prescribed under the pertinent provisions of this IRR-A. Limited source bidding may be employed by concerned procuring entities under any of the following conditions:
a) Procurement of highly specialized type's of goods (e.g. sophisticated defense equipment, complex air navigation systems, coal) and consulting services where only a few suppliers or consultants are known to be available, such that resorting to the public bidding method will not likely result in any additional suppliers or consultants participating in the bidding; or x x x
x x x x
Section 53. Negotiated Procurement
Negotiated Procurement is a method of procurement of goods, infrastructure projects and consulting services, whereby the procuring entity directly negotiates a contract with a technically, legally and financially capable supplier, contractor or consultant only in the following cases: x x x (Emphasis supplied)
SEC. 13. Observers. - To enhance the transparency of the process, the BAC shall, in all stages of the procurement process, invite, in addition to the representative of the Commission on Audit, at least two (2) observers to sit in its proceedings, one (1) from a duly recognized private group in a sector or discipline relevant to the procurement at hand, and the other from a non-government organization: Provided, however, That they do not have any direct or indirect interest in the contract to be bid out. The observers should be duly registered with the Securities and Exchange Commission and should meet the criteria, for observers as set forth in the IRR.On the other hand, Sections 20 and 22 of Article VII of RA 9184 mandate the BAC to hold a pre-procurement and pre-bid conference on each and every procurement, without making any qualifications nor exceptions as to which mode of procurement these requirements are applicable to:x x x
Section 13. Observers
13.1. To enhance the transparency of the process, the BAC shall, in all stages of the procurement process, invite, in addition to the representative of the COA, at least two (2) observers to sit in its proceedings:
1. At least one (1) shall come from a duly recognized private group in sector or discipline relevant to the procurement at hand, for example:
x x x
b) For goods
A specific relevant chamber-member of the Philippine Chamber of Commerce and Industry (PCCI).
2. The other observer shall come from a non-government organization (NGO).
SEC. 20. Pre-Procurement Conference. - Prior to the issuance of the Invitation to Bid, the BAC is mandated to hold a pre-procurement conference on each and every procurement, except those contracts below a certain level or amount specified in the IRR, in which case, the holding of the same is optional. x x xAs regards the publication and posting requirements, the IRR-A instructs that the advertisement or publication of the IAEB in a newspaper of general circulation may be dispensed with for alternative modes of procurement. The Rules, however, explicitly states that the IAEB shall still be posted at a conspicuous place in the premises of the procuring entity concerned:
SEC. 22. Pre-Bid Conference. - At least one re-bid conference shall be conducted for each procurement, unless otherwise provided in the IRR.25 Subject to the approval of the BAC, a pre-bid conference may also be conducted upon the written request of any prospective bidder.
The pre-bid conference(s) shall be held within a reasonable period before the deadline for receipt of bids to allow prospective bidders to adequately prepare their bids, which shall be specified in the IRR. (Emphasis and underscoring supplied)
Section 21. Advertising and Contents of the Invitation to Bid x x xThe NPO-BAC failed to comply with the procedural requirements for limited source bidding and negotiated procurement
21.2.4. For alternative methods of procurement as provided for in Rule XVI of this IRR-A, advertisement in a newspaper as required in this Section may be dispensed with: Provided, however, That posting shall be made in the website of the procuring entity concerned, if available, the G-EPS, and posted at any conspicuous place reserved for this purpose in the premises of the procuring entity concerned, as certified by the head of the BAC Secretariat of the procuring entity concerned, during the same period as above. (Emphasis supplied)
Section 54. Terms and Conditions for the use of Alternative MethodsThe records are bereft of any evidence showing compliance with the foregoing requirements.x x x
54.2. In addition to the specific terms, conditions, limitations and restrictions on the application of each of the alternative:methods specified in Sections 48 to 53 of this IRR-A, the following shall also apply: x x x
(e) For item (c) of Section 53 of the Act and this IRR-A, the contract may be negotiated starting with the second lowest calculated bidder for the project under consideration at the bidder's original bid price. If negotiation fails, then negotiation shall be done with the third lowest calculated bidder at his original price. If the negotiation fails again, a short list of at least three (3) eligible contractors shall be invited to submit their bids, and negotiation shall be made starting with the lowest bidder. Authority to negotiate contracts for projects under these exceptional cases shall be subject to prior approval by the heads of the procuring entities concerned, within their respective limits of approving authority.
Endnotes:
* Designated Additional Member per Raffle dated November 20, 2017.
1Rollo, pp. 140-51. Penned by Associate Justice Jhosep Y. Lopez, with the concurrence of Associate Justices Ramon R. Garcia and Leoncia R. Dimagiba.
2 Id. at 63-64.
3 Id. at 41.
4 Id.
5 Id. at 13.
6 Id.
7 Id. at 108.
8 Id. at 41.
9 Id. at 184.
10 Id. at 40-41.
11 Id. at 174-194.
12 Id. at 193-194.
13 Id. at 185-186.
14 Id. at 50.
15 Id. at 16-17.
16 Id. at 80.
17 Id. at 18.
18 Id.
19 Id. at 21.
20 Id. at 204.
21 Id. at 29.
22 Section 10. Competitive Bidding. - All Procurement shall be done through Competitive Bidding, except as provided for in Article XVI of this Act.
23 G.R. No. 184785, July 9, 2014, 729 SCRA 421, 427, citing Danville Maritime, Inc. v. Commission on Audit, 256 Phil. 1092, 1103 (1989).
24Capalla v. Commission on Elections, G.R. No. 2011212, October 23, 2012, 684 SCRA 367, 389.
25 Section 22. Pre-bid Conference.
22.1. For contracts to be bid with an approved budget of one million pesos (P1,000,000.00) or more, the BAC shall convene at least one (1) pre-bid conference to clarify and/or explain any of the requirements, terms, conditions and specifications stipulated in the bidding documents. For contracts to be bid costing less than one million pesos (P1,000,000.00), pre-bid conferences may be conducted at the discretion of the BAC. Subject to the approval of the BAC, a pre-bid conference may also be conducted upon written request of any prospective bidder.
26Rollo, p. 57.
27 Id. at 204-205.
28 Id. at 28.
29Philippine Savings Bank v. Geronimo, G.R. No. 170241, April 19, 2010, 618 SCRA 368, 376, citing Spouses Pulido v. Court of Appeals, 321 Phil. 1064, 1069 (1995).
30 Section 5. Substantial evidence. - In cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.
31Office of the Ombudsman v. Mallari, G.R. No. 183161, December 3, 2014, 743 SCRA 587, 606.
32Office of the Ombudsman v. Castro, G.R. No. 172637, April 22, 2015, 757 SCRA 73, 83, citing Nacu v. Civil Service Commission, G.R. No. 187752, November 23, 2010, 635 SCRA 766.
33Gupilan-Aguilar v. Office of the Ombudsman, G.R. No. 197307, February 26, 2014, 717 SCRA 503, 532, citing Picardal v. Lladas, No. L-21309, December 29, 1967, 21 SCRA 1483.
34Office of the Ombudsman v. Mallari, supra note 31, at 609, citing Miro v. Mendoza Vda. de Erederos, G.R. Nos. l72532, 172544-45, November 20, 2013, 710 SCRA 371, 397-398.
35Office of the Ombudsman v. Agustino, G.R. No. 204171, April 15, 2015, 755 SCRA 568, 585, citing Seville v. Commission on Audit, G.R. No. 177657, November 20, 2012, 686 SCRA 28, 32.
36 Section 46. Classification of Offenses. - Administrative offenses with corresponding penalties are classified into grave, less grave or light, depending on their gravity or depravity and effects on the government service.
A. The following grave offenses shall be punishable by dismissal from the service:
1. Serious Dishonesty;
2. Gross Neglect of Duty;
3. Grave Misconduct; x x x
37Capalla v. Commission on Elections, G.R. No. 2011212, October 23, 2012, supra note 24, at 385, citing San Diego v. The Municipality of Naujan, Province of Mindoro, 107 Phil. 118 (1960) and Power Sector Assets and Liabilities Management Corporation v. Pozzolanic Philippines Incorporated, G.R. No. 183789, August 24, 2011, 656 SCRA 214, 232.