SPECIAL THIRD DIVISION
G.R. No. 236383, June 14, 2021
OFFICE OF THE OMBUDSMAN, Petitioner, v. MARILYN H. CELIZ AND LUVISMINDA H. NARCISO, Respondents.
R E S O L U T I O N
INTING, J.:
For the Court's resolution is a Motion for Reconsideration1 filed by Luvisminda H. Marciso (Luvisminda) and Marilyn H. Celiz (Marilyn) (collectively, respondents) seeking to set aside the Court Decision2 dated June 26, 2019, The assailed Decision found respondents guilty of Grave Misconduct and accordingly dismissed them from the government service with all the accessory penalties of cancellation of eligibility, forfeiture of leave credits, and retirement benefits, and disqualification for reemployment in the government service.3
The facts are as follows:
On November 20, 2007, Director Rolando M. Asis (Director Asis) of the Department of Public Works and Highways (DPWH) Region VI submitted to DPWH Secretary Hermogenes E. Ebdane, Jr. (Secretary Ebdane) the approved program of works and estimates for the proposed asphalt overlay project in Iloilo City. The estimated cost of the project is P54,500,000.00 allotted for repair of about 2.4 kilometers of the Iloilo-Jaro Diversion Road.
On November 23, 2007, former Iloilo City Mayor Jerry P. TreƱas requested Director Asis to immediately implement the project in time for the upcoming Dinagyang Festival. Thus, Director Asis made a request to Secretary Ebdane for clearance to implement the project through negotiated procurement. He justified that the project was urgent because it was the primary route for the Dinagyang Festival and there was a need to further promote tourism in the region. On November 29, 2007, Secretary Ebdane approved the request.4
At that time, Luvisminda was the Vice-Chairman of the DPWH Region VI Bids and Awards Committee (BAC), while Marilyn was one of the Provisional Members.5
On January 2, 2008, the BAC unanimously approved an unnumbered Resolution recommending the direct negotiation of the contract for the asphalt overlay project to International Builders' Corporation (IBC). Director Asis approved the Resolution. The BAC Chairman Berna C. Coca (BAC Chairman) sent an invitation to the President of IBC Helen Edith Lee Tan (IBC President) requesting them to submit a quotation for the project. Subsequently, IBC's bid offer was opened and negotiated at the DPW11 Regional Office.6 On January 8, 2008, the BAC unanimously approved another unnumbered Resolution endorsing the award of the project to IBC with an approved budget for the Contract (ABC) in the amount of P54,308,803.44.7
Thereafter, Director Asis informed IBC of the BAC recommendation with the caveat that the Notice to Proceed cannot be issued until the funds to cover the contract cost are released. In light of the unavailability of funds, Director Asis asked the IBC President if they are willing to take the risk of proceeding with the project pending the release of an appropriation. In response, the IBC President agreed and committed to immediately proceed with the implementation of the asphalt overlay project.8
On March 5, 2008, the Assistant Ombudsman for Visayas, Virginia Palanca-Santiago (Assistant Ombudsman) sent a letter to Zyril D. Arroyo, Regional Cluster Director of the Commission on Audit (COA) Region VI requesting the conduct of a special audit examination on the asphalt overlay project.9
In the Letter10 dated March 17, 2008, the BAC, including Luvisminda and Marilyn, explained to the Assistant Ombudsman that the asphalt overlay project was implemented through negotiated procurement because of its urgency and the immediate need to repair a national road in time for the Dinagyang Festival celebration from January 24 to 26, 2008. The BAC likewise reasoned that IBC's offer complied with the requirements of the project. Considering its previous performances, the asphalt overlay project was awarded to IBC.11
On May 13, 2008, Aurora S. Tingzon, Accountant IV of the DPWH Region VI, certified that there were no available funds, no Sub-Allotment Release Order (SARO), and no Sub-Allotment Advice (SAA) issued for the asphalt overlay project.12
On December 24, 2008, DPWH Undersecretary Bashir D. Rasuman. approved the SARO for the project, authorizing the expenditure of P53,595,000.00. Thereafter, an unnumbered BAC Resolution was issued on January 26, 2009, recommending the award of the contact to the IBC in the amount of P52,110,000.00, The BAC also resolved to pay the remaining balance to the IBC upon availability of funds.13
On January 28, 2009, the Notice of Award14 was issued to the IBC President. Soon after, the DPWH Region VI and the IBC executed a contract for the asphalt overlay project.15
Subsequently, the Office of the Ombudsman (Ombudsman) Region VI Field Investigation Office (FIO) filed their Complaint-Affidavit16 dated March 20, 2014 charging respondents and several officials and employees of the DPWH Region VI of violating Republic Act No. (RA) 918417 and RA 301918 and holding them liable for Grave Misconduct.19
In their joint counter-affidavit, respondents and several DPWH Region VI officials justified the conduct of negotiated procurement by reiterating the urgency of the project.20
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 CA held that respondents should be held liable for Simple Misconduct only because there was no evidence of corrupt motives on their part.
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.26
WHEREFORE, premises considered, the present petition is GRANTED. The Decision dated September 15, 2017 and the Resolution dated December 11, 2017 of the Court of Appeals in CA-G.R CEB-SP. No. 10438 are hereby REVERSED and SET ASIDE. A new judgment is entered finding respondents Marilyn H. Celiz and Luvisminda H. Narciso GUILTY of GRAVE MISCONDUCT. As such, they are DISMISSED from the government service with all the accessory penalties of cancellation of eligibility, forfeiture of leave credits and retirement benefits, and disqualification for re-employment in the government service.The Court held that respondents' defense of being mere subordinates is without merit. As BAC members, their functions are not merely ceremonial. They are tasked to safeguard the mandate of RA 9184 in order to ensure that the government and the public get the best possible goods, services, and infrastructure.31
SO ORDERED.30
Endnotes:
1Rollo, pp. 249-266.
2 Id. at 234-248; penned by Associate Justice Andres B. Reyes, Jr. (now a retired member of the Court) with Associate Justices Diosdado M. Peralta (now a retired Chief Justice of the Court), Marvic M.V. F. Leonen, Ramon Paul L. Hernando, and Henri Jean Paul B. Inting, concurring.
3Id. at 247.
4Id. at 235.
5Id.
6 Id.
7Id.
8 Id. at 236.
9Id.
10Id. at 103-104
11Id.
12Id.
13Id. at 237.
14Id. at 136.
15Id.
16Id. at 87-95.
17 Government Procurement Reform Act, approved on January 10, 2003.
18 Anti-Graft and Corrupt Practices Act, approved on August 17, 1960.
19Rollo, p. 94.
20Id. at 238,
21 Section 3(e) of Republic Act No. 3019 provides:
Section 3. x x x
x x x
(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.
22Rollo, p. 238.
23Id at 239.
24Id
25Id. at 55-74; penned by Associate Justice Germano Francisco D. Legaspi with Associate Justices Pamela Ann Abella Maxino and Gabriel Robeniol, concurring.
26Id. at 73.
27Id. at 76-77.
28Id. at 20-37.
29Id. at 234-248.
30Id. at 247.
31Id.
32Id. at 249-266
33 G.R. No. 237503 (Notice), June 20, 2018.
34Rollo, pp. 291-303.
35Id. at 247.
36 See Committee on Security and Safety, CA v. Dianco, et al., 777 Phil. 16 (2016).
37Rollo, p. 261.cralawredlibrary