THIRD DIVISION
G.R. No. 236383, June 26, 2019
OFFICE OF THE OMBUDSMAN, PETITIONER, v. MARILYN H. CELIZ AND LUVISMINDA H. NARCISO, RESPONDENTS.
D E C I S I O N
REYES, A., JR., J.:
This is a petition for review on certiorari1 under Rule 45 of the Rules of Court, seeking to reverse and set aside the Court of Appeals' (CA) Decision2 dated September 15, 2017 and Resolution3 dated December 11, 2017 in CA-G.R. CEB-SP. No. 10438. The CA partially granted the appeal of respondents Marilyn H. Celiz (Marilyn) and Luvisminda H. Narciso (Luvisminda) from the Decision of the Office of the Ombudsman (OMB), which found them guilty of Grave Misconduct and imposed the penalty of dismissal from the service.
WHEREFORE, let the attached Information for Violation of Section 3(e) of RA No. 3019 be FILED against respondents Rolando M. Asis, Berna C. Coca, Luvisminda H. Narciso, Fernando S. Tuares, Danilo M. Peroy and Marilyn H. Celiz.Aggrieved by the decision of the OMB, the respondents moved for its reconsideration. However, the OMB found the motion unmeritorious in the Order30 dated March 21, 2016:
Respondents Rolando M. Asis, Berna C. Coca, Luvisminda H. Narciso, Fernando S. Tuares, Danilo M. Peroy and Marilyn H. Celiz are found GUILTY OF GRAVE MISCONDUCT and hereby meted the penalty of DISMISSAL from the service, which shall carry with it cancellation of eligibility, forfeiture of retirement benefits and the perpetual disqualification from re-employment in the government service.
In the event that the penalty of dismissal can no longer be imposed due to their separation from the service, it shall be converted into FINE amounting to respondents' salary for ONE (1) YEAR, payable to the Office of the Ombudsman, and may be deducted from their accrued leave credits or any receivable from their office. It is understood, however, that the accessory penalties of forfeiture of retirement benefits, cancellation of eligibility and perpetual disqualification to hold public office shall still be applied.
SO ORDERED.29 (Citation omitted)
WHEREFORE, respondents' Motion for Reconsideration is DENIED.Insofar as their administrative liability was concerned, the respondents filed a Petition for Review under Rule 43 of the Rules of Court before the CA. According to the respondents, they are mere subordinates with no power to question the decision of their superior officers to negotiate the procurement of the Asphalt Overlay Project. They also argued that their participation was limited to signing the BAC resolutions, and as such, there was no corrupt motive on their part.32
SO ORDERED.31
WHEREFORE, the Petition For Review under Rule 43 filed by petitioners Marilyn H. Celiz and Luvisminda H. Narciso is PARTIALLY GRANTED. The Office of the Ombudsman's 6 October 2015 Joint Resolution in OMB-V-C-14-0182 and OMB-V-A-14-0174 is MODIFIED. We find petitioners Marilyn H. Celiz and Luvisminda H. Narciso guilty of SIMPLE MISCONDUCT and are hereby meted the penalty of SUSPENSION for ONE (1) MONTH and ONE (1) DAY.The decision of the CA to hold the respondents liable for Simple Misconduct constrained the OMB to file a Motion for Partial Reconsideration. But in the CA's Resolution39 dated December 11, 2017, the OMB's motion was denied for failing to assert new matters that would warrant the reversal of the decision. The CA further ruled that the motion was filed late.40
Petitioners who have not retired shall be REINSTATED after serving their suspension. They shall be entitled to payment of backwages and all benefits from the time that they served the foregoing suspension up to the time of their actual reinstatement.
SO ORDERED.38
(a) when there has been a failure of public bidding for the second time;Here, the respondents argued before the OMB that the Asphalt Overlay Project must be negotiated because time was of the essence. The Dinagyang Festival was soon approaching, and the road used for its primary route needs major repairs.49 But invoking this circumstance does not automatically warrant the application of negotiated procurement; otherwise, it would be easy to dispense with competitive bidding. As aptly held by the CA,50 there must be an immediate and compelling need to justify negotiated procurement other than that provided by the respondents. The requirement of urgency is qualified under the law as "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."51 As such, it does not cover situations outside this qualification, which this Court explained in Office of the Ombudsman v. De Guzman,52 to wit:
(b) when there is 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 or loss of life or property, or to restore vital public services, infrastructure facilities and other public utilities;
(c) in take-over of contracts that were rescinded or terminated for cause and immediate action is necessary;
(d) where the contract is adjacent or contiguous to an on-going infrastructure project, the original contract of which was the result of a competitive bidding; or
(e) under other instances specified in the implementing rules and regulations of R.A. No. 9184.48
[Negotiated procurement under Republic Act No. 9184, Section 53(b) involves situations beyond the procuring entity's control. Thus, it speaks of "imminent danger . . . during a state of calamity . . . natural or man-made calamities [and] other causes where immediate action is necessary." Following the principle of ejusdem generis, where general terms are qualified by the particular terms they follow in the statute, the phrase "other causes" is construed to mean a situation similar to a calamity, whether natural or man-made, where inaction could result in the loss of life, destruction of properties or infrastructures, or loss of vital public services and utilities.53 (Citation omitted)Section 53(b), Article XVI of R.A. No. 9184 evidently does not contemplate a yearly occasion and the promotion of tourism to justify resort to negotiated procurement. Since the Dinagyang Festival is an annual event that has always been scheduled to take place in the middle of January, there was plenty of time for the preparation of the necessary infrastructure. Furthermore, aside from the promotion of tourism, there was no showing that the repairs were necessitated by a calamity, that there was imminent danger to life or property, or that there was a loss of vital public services and utilities. Evidently, the decision of the respondents and other DPWH Region VI officials to begin the repairs for the Iloilo Diversion Road with only two (2) months left before the Dinagyang Festival is not the urgent situation contemplated under Section 53(b), Article XVI of R.A. No. 9184.
The requirement of availability of funds before the execution of a government contract, however, has been modified by R.A. No. 9184. The said law presents a novel policy which requires, not only the sufficiency of funds at the time of the signing of the contract, but also upon the commencement of the procurement process. This progressive shift can be gleaned from several provisions of R.A. No. 9184, to wit:In this case, the BAC, of which the respondents were members, approved the direct negotiation of the contract to IBC on January 2, 2008.61 Eventually, on January 8, 2008, the BAC proceeded to recommend the award of the Asphalt Overlay Project to IBC in the amount of P54,308,803.44.62 By January 10, 2008, IBC started the implementation of the Asphalt Overlay Project.63Section 5. Definition of Terms. - x x xThe above-cited provisions of R.A. No. 9184 demonstrate that the law requires the availability of funds before the procuring entity commences the procurement of a government project. As early as the conception of the ABC, the procuring entity is mandated by law to ensure that its budget is within the GAA and/or continuing appropriation. In the procurement planning stage, the procuring entity is again reminded that all procurement must be within its approved budget. Also, even before the issuance of the invitation to bid, the law requires a pre-procurement conference to confirm the certification that the funds for the government project are indeed available.60 (Emphases Ours)
(a) Approved Budget for the Contract (ABC) - refers to the budget for the contract duly approved by the Head of the Procuring Entity, as provided for in the General Appropriations Act and/or continuing appropriations, in the National Government Agencies; the Corporate Budget for the contract approved by the governing Boards, pursuant to E.O.No.518, series of 1979, in the case of Government Financial Institutions and State Universities and Colleges; and the Budget for the contract approved by the respective Sanggunian, in the case of Local Government Units.
x x x x
Section 7. Procurement Planning and Budgeting Linkage[.] - All procurement should be within the approved budget of the Procuring Entity and should be meticulously and judiciously planned by the Procuring Entity concerned. Consistent with government fiscal discipline measures, only those considered crucial to the efficient discharge of governmental functions shall be included in the Annual Procurement Plan to be specified in the IRR.
Section 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.
The pre-procurement conference shall assess the readiness of the procurement in terms of confirming the certification of availability of funds, as well as reviewing all relevant documents and the draft Invitation to Bid, as well as consultants hired by the agency concerned and the representative of the [end-user].
Very truly yours, (SGD) WILFREDO V. LAPITAN Division Clerk of Court |
Endnotes:
1Rollo, pp. 20-36. 2 Penned by Associate Justice Germano Francisco D. Legaspi, with Associate Justices Pamela Ann Abella Maxino and Gabriel T. Robeniol concurring; id. at 55-74.
3 Id. at 76-77.
4 Id. at 117-124.
5 Id. at 89, 125.
6 Id. at 126.
7 Id. at 87.
8 Id. at 127-128.
9 Id. at 89, 129.
10 Id. at 130.
11 Id at 131.
12 Id. at 90, 132.
13 Id. at 101.
14 Id. at 102.
15 Id. at 103-104.
16 Id. at 92, 142.
17 Id. at 133.
18 Id. at 134.
19 Id. at 92, 135.
20 Id. at 136.
21 Id. at 137-141.
22 Id. at 90-91.
23 Id. at 87-94.
24 AN ACT PROVIDING FOR THE MODERNIZATION, STANDARDIZATION AND REGULATION OF THE PROCUREMENT ACTIVITIES OF THE GOVERNMENT AND FOR OTHER PURPOSES (Approved on January 10, 2003).
25 ANTI-GRAFT AND CORRUPT PRACTICES ACT (Approved on August 17, 1960).
26Rollo, pp. 91-94.
27 Id. at 44.
28 Rendered by Graft Investigation and Prosecution Officer I Gil Rose O. Corcino-Inovejas; id. at 42-48.
29 Id. at 46-47.
30 Id. at 49-53.
31 Id. at 52.
32 Id. at 62.
33 Id. at 55-74.
34 ORDAINING AND INSTITUTING A GOVERNMENT AUDITING CODE OF THE PHILIPPINES (Approved on June 11, 1978).
35Rollo, pp. 65-68.
36 Id. at 70.
37 Id. at 71-72.
38 Id. at 73.
39 Id. at 76-77.
40 Id. at 77.
41 Id. at 28-35
42 Id. at 27.
43 Office of the President, Memorandum Circular No. 28, October 15, 2017; Office of the President, Memorandum Circular No. 29, October 16, 2017.
44R.A. No. 9184, Article IV, Section 10.
45 Id. at Article XVI, Section 48.
46 Implementing Rules and Regulations Part A (IRR-A) of R.A. No. 9184, Rule XVI, Section 53 (Approved: September 18, 2003); see also Government Procurement Policy Board (GPPB) Manual of Procedures for the Procurement of Infrastructure Projects, Vol. 3, p. 73, <https://www.gppb.gov.ph/downloadables/forms/GPM%20-%20Vol.3.pdf> (last accessed May 28, 2019).
47 Id.
48R.A. No. 9184, Article XVI, Section 53; Under the IRR-A of R.A. No. 9184, Rule XVI, Section 53, the following instances likewise justify negotiated procurement:
(a) Procurement of infrastructure, consulting services and goods from another agency of the Government tasked with a centralized procurement of commonly used goods for the government;
(b) In cases of individual consultant hired to do work that is highly technical or proprietary, or primarily confidential or policy determining, where trust and confidence are the primary consideration for the hiring of the consultant;
(c) With the prior approval of the President, and when the procurement for use by the Armed Forces of the Philippines involves major defense equipment and/or defense-related consultancy services, when the expertise or capability required is not available locally, and the Secretary of National Defense has determined that the interests of the country shall be protected by negotiating directly with an agency or instrumentality of another country with which the Philippines has entered into a defense cooperation agreement or otherwise maintains diplomatic relations;
(d) Where the amount involved is Php50,000.00 and below, and the procurement does not result in splitting of contracts;
(e) Lease of privately owned real estate for official use; and
(f) When an appropriation law or ordinance earmarks an amount to be specifically contracted out to Non-Governmental Organizations.
49Rollo, p. 44.
50 Id. at 70.
51R.A. No. 9184, Article XVI, Section 53(b).
52 G.R. No. 197886, October 4, 2017, 841 SCRA 616.
53 Id. at 637-638.
54 Id. at 633-635.
55Also GPPB Manual of Procedures for the Procurement of Infrastructure Projects, Vol. 3, pp. 76-77, <https://www.gppb.gov.ph/downloadables/forms/GPM%20-%20Vol.3.pdf> (last accessed May 28, 2019).
56R.A. No. 9184, Article VII, Section 20; IRR-A of R.A. No. 9184, Rule VII, Section 20.2.
57 IRR-A of R.A. No. 9184, Rule VII, Section 20.1.
58 P.D. No. 1445, Sections 85-86.
59 759 Phil. 248 (2015).
60 Id. at 273-274.
61Rollo, pp. 127-128.
62 Id. at 130.
63 Id. at 43, 132.
64 Id. at 142.
65 Id. at 133.
66 Id. at 134.
67 Id. at 136-141.
68 Id. at 71-72.
69 Id. at 31-34.
70See Office of the Ombudsman-Visayas, et al. v. Castro, 759 Phil. 68, 75 (2015); and Atty. Valera v. Office of the Ombudsman, et al., 570 Phil. 368, 385 (2008), citing Bureau of Internal Revenue v. Organo, 468 Phil. 111, 118 (2004).
71Atty. Valera v. Office of the Ombudsman, et al., id., citing Civil Service Commission v. Ledesma, 508 Phil. 569, 580 (2005).
72Office of the Ombudsman v. De Guzman, supra note 52, at 641.
73 Civil Service Commission Revised Rules on Administrative Cases, Rule 10, Section 46(A)(3); See also the Resolution dated June 20, 2018 in G.R. No. 237503, entitled Office of the Ombudsman v. Asis; rollo, pp. 194-196.