EN BANC
G.R. No. 218461, September 14, 2021
ILDEFONSO T. PATDU, JR., Petitioner, v. COMMISSION ON AUDIT, Respondent.
D E C I S I O N
LOPEZ, J.:
Before the Court is a Petition for Certiorari1 filed under Rule 64, in relation to Rule 65, of the Rules of Court assailing the December 13, 2010 Decision2 and the April 6, 2015 Resolution3 of respondent Commission on Audit (COA).
The above notwithstanding, nothing in these implementing rules and regulations shall negate any existing and future commitments with respect to the bidding, award and execution of contracts financed partly or wholly with funds from international financial institutions, as well as from bilateral and other similar sources.26chanRoblesvirtualLawlibraryThe DOTC then stated that the above exempting clause excluded foreign-assisted projects from P.D. No. 1594 and its IRR. Hence, the September 17, 1991 COA Resolution, which lays down the rule on the reasonableness of the project cost of a contract pursuant to P.D. No. 1594 and its IRR, is not applicable.27
WHEREFORE, premises considered, the herein appeal is DENIED. Accordingly, LAO-N Decision No. 2005-039 and LAO-N Resolution No. 2005-039A denying the request to lift ND No. 98-004-102 (DOTC) (96) are hereby AFFIRMED. Likewise, the 5th Indorsement dated July 19, 2001 of the Director of then NGAO II lifting ND No. 97-011-102 (DOTC) (95) is hereby SET ASIDE. The decision of the DOTC Department Auditor disallowing the project cost difference/excess is hereby REINSTATED.37chanRoblesvirtualLawlibraryIn the said Decision, the COA-CP found that the parties themselves voluntarily agreed on the applicability of P.D. No. 1594. Volume 1 of the Bid and Contract Documents which provides that "[t]he provisions of Presidential Decree No. 1594, and its implementing rules and regulations, and other relevant laws and employer regulations shall apply to this bidding and any contract based thereon."38 The NGAO II Director therefore erroneously lifted ND No. 97-011-102 (DOTC) (95) dated June 18, 1997.
ISSUES I.
Whether the decision of the NGAO II Director to lift and set aside ND No. 97-011-102 (DOTC) (95) dated June 18, 1997 had attained finality, and hence, had become immutable and unalterableII.
Whether ND No. 97-011-102 (DOTC) (95) dated June 18, 1997 and ND No. 98-004-102 (DOTC) (96) should be lifted and set asideIII.
Whether the petitioner should be held liable for the audit disallowance arising from Variation Order Nos. 5, 7 and 8
Finality of Lifting of a COA Notice of Disallowance by the COA Director |
[t]he doctrine of immutability of judgments applies as much to decisions of agencies exercising quasi-judicial powers as they do to judicial decisions. Jurisprudence is categorical: 'the principle of conclusiveness of prior adjudications is not confined in its operation to the judgments of what are ordinarily known as courts, but extends to all bodies upon which judicial powers had been conferred.'Moreover, the related doctrine of res judicata, which bars a subsequent action when a former identical action has already lapsed into finality, equally applies to decisions rendered by quasi-judicial bodies.47
SECTION 6. Power of Director on Appeal. - The Director may reverse, modify, alter, or affirm the decision or ruling of the Auditor. However, should the Director render a decision reversing, modifying or altering the decision or ruling of the Auditor, the Director shall, within ten (10) days, certify the case and elevate the entire record to the Commission Proper for review and approval.Based on this provision, it is only in cases where the NGAO II Director reverses, modifies, or alters the decision or ruling of the Auditor that the decision should be elevated to the COA-CP for automatic review. Conversely, when the NGAO II Director affirms or sustains the ruling of the Auditor, further elevation and review are unnecessary. Thus, as pointed out by Senior Associate Justice Estela Perlas-Bernabe (Justice Perlas-Bernabe) during the deliberations of this case, the affirmance, when not anymore appealed by an aggrieved party in accordance with the COA rules, will simply lapse into finality. The reason for the automatic review provision is palpable: the COA-CP is tasked to resolve the seeming conflict between the Auditor's and the Director's rulings to arrive at a proper conclusion on an audit case. However, if no conflict exists, then there is no need for the COA-CP to automatically review the matter since both the Auditor and Director are already in agreement.
When a final judgment is executory, it becomes immutable and unalterable. It may no longer be modified in any respect either by the court which rendered it or even by this Court. The doctrine is founded on considerations of public policy and sound practice that, at the risk of occasional errors, judgments must become final at some definite point in time.Hence, the COA-CP is precluded from issuing Decision No. 2010-133 dated December 13, 2010 and Resolution No. 2015-135 dated April 6, 2015, insofar as it reinstated and affirmed ND No. 97-011-102 (DOTC) (95) dated June 18, 1997.
There is no malice, bad faith or negligence in the issuance of Variation Order Nos. 5, 7 and 8 |
The COA only allowed a project cost of P300,498,905.87. Thus, the Excess Project Cost, as per COA's finding, is P53,951,954.13,53 computed as follows:chanroblesvirtualawlibrary
Original Project Cost P347,000,005Add: Cost on Variation Orders 7,450,855Total Project Cost P354,450,860
It must be pointed out that the excess on the cost of the Variation Orders is only a portion of the aforementioned Excess Project Cost. With specific reference to the Variation Orders, the COA found that these are excessive by an amount of P5,210,744.29,54 computed as follows:chanroblesvirtualawlibrary
Total Project Cost P354,450,860.00Ad: COA-Allowed Project Cost 300,498,905.87Excess Project Cost P53,951,954.13
The Variation Orders found to be in excess of the COA-allowed cost are as follows: (i) Variation Order No. 5, which sought to change the original design of the preparation/landing wharf; (ii) Variation Order No. 7, which sought to change the design of the pavement and landscaping, and construction of certain parts of the drainage/sewerage system, fresh water supply, and masonry works; and (iii) Variation Order No. 8, which sought to change the quantity and materials of parts of the drainage system, fresh water supply, wharf, and breakwater.55 The other Variation Orders were not raised in issue in this petition.
Cost on Variation Orders P7,450,855.00Less: COA-Allowed Cost on Variation Orders 2,240,110.71Excess Cost on Variation Orders P5,210,744.29
It can be gleaned from the above computation that the amounts of the variation orders reviewed by Mr. Patdu as Project Engineer were part of the total project cost, a portion of which was found excessive and disallowed in audit. Mr. Patdu failed to diligently review the variation orders which resulted in the overpricing of the project[.] However, his liability shall only be on the excess costs for the variation orders he reviewed, in the total amount of [P]5,210,744.29.56chanRoblesvirtualLawlibraryPetitioner explains that Variation Order Nos. 5, 7 and 8, which he reviewed as the Project Engineer of the project, were necessary and are reasonable.57
x x x those orders issued by the procuring entity to cover any increase/decrease in quantities, including the introduction of new work items that are not included in the original contract or reclassification of work items that are either due to change of plans, design or alignment to suit actual field conditions resulting in disparity between the preconstruction plans used for purposes of bidding and the 'as staked plans' or construction drawings prepared after a joint survey by the contractor and the Government after award of the contract, provided that the cumulative amount of the positive or additive Variation Order does not exceed ten percent (10%) of the original contract price.59chanRoblesvirtualLawlibraryIn short, variation orders are necessary adjustments to construction projects, and as long as they are within the general scope of the project and are compliant with the relevant audit and procurement rules, they are permissible.
6.46.1. Variation Order No. 5 Mobilization / Demobilization cost for dredging equipment was included in the aforementioned variation order because there is a new item of work, dredging, which is not included in the original contract and there is a need to bring in said equipment to the project site, hence the cost of mobilization/demobilization.Notably, these justifications were favorably considered by the Auditor when he recommended the lifting of (ND) No. 97-011-102 (DOTC) (95).61
6.46.2. Variation Order No. 7 - The original contract calls for the use of Concrete Asphalt for Roadway and Parking Area. Due to the absence of supply of concrete asphalt in the area, the Contractor in his desire not to delay the project, offered to use PCCP instead at the same cost as Concrete Asphalt. The said substitution resulted to an increase in the thickness of the pavement and a decrease in the thickness of the sub-base. This offsetting resulted to a cost difference of P10,902,431.33 in favour of the government.
6.46.3. Variation Order No. 7E - Construction of Deepwell, the cost of deepwell for Variation Order No. 3 cannot be adopted because they vary in depth. Deepwell for V.O. #3 is 42 meters deep, while for V.O. #7E, it is 75 meters deep.
6.46.4. Variation Order No. 8 - The discrepancy between the quantity take-off and the B0Q resulted to an overestimate of quantities in V.O. No. 8, however, this [sic] quantities were rectified in the Final Quantification.60chanRoblesvirtualLawlibrary
Accordingly, we hereby adopt the proposed guidelines on return of disallowed amounts in cases involving unlawful/irregular government contracts submitted by herein Justice Perlas-Bernabe, to wit:Herein, as pointed by Justice Perlas-Bernabe, during the deliberations of this case, apart from the statement that "[petitioner] failed to diligently review VO Nos. 5, 7, and 8 which resulted in the overpricing of the project as computed by the [COA-STFFP]," there was nothing in COA's ruling that specifies any acts or omissions of petitioner amounting to bad faith, malice, or gross negligence relative to his participation on the project.68 Indeed, in Daplas v. Department of Finance,69 We ruled that "[a]n act done in good faith, which constitutes only an error of judgment and for no ulterior motives and/or purposes [x x x] is merely Simple Negligence." Accordingly, the lack of specific factual determination on the petitioner's bad faith, malice, or gross negligence is fatal to the COA's finding of his civil liability.
1. If a Notice of Disallowance is set aside by the Court, no return shall be required from any of the persons held liable therein.
2. If a Notice of Disallowance is upheld, the rules on return are as follows:chanroblesvirtualawlibrarya. Approving and certifying officers who acted in good faith, in the regular performance of official functions, and with the diligence of a good father of the family are not civilly liable to return consistent with Section 38 of the Administrative Code of 1987.
b. Pursuant to Section 43 of the Administrative Code of 1987, approving and certifying officers who are clearly shown to have acted with bad faith, malice, or gross negligence, are solidarily liable together with the recipients for the return of the disallowed amount.
c. The civil liability for the disallowed amount may be reduced by the amounts due to the recipient based on the application of the principle of quantum meruit on a case to case basis.
d. These rules are without prejudice to the application of the more specific provisions of law, COA rules and regulations, and accounting principles depending on the nature of the government contract involved.67chanRoblesvirtualLawlibrary
Endnotes:
1Rollo, pp. 3-24.
2 Penned by Chairman Reynaldo A. Villar, with Commissioners Juanito G. Espino, Jr. and Evelyn R. San Buenaventura, concurring; id. at 28-35.
3Id. at 36-43.
4Id. at 5.
5Id.
6Id.
7Id.
8Id.
9Id.
10Id.
11Id. at 66-69.
12Id.
13Id. at 5.
14Id. at 7.
15Id. at 5.
16Id. at 6.
17Id. at 41.
18Id. at 70.
19 See Section 7(6), Chapter 3, Subtitle B, Title I, Book V, Administrative Code of 1987.
20Id.
21Id. at 83-97.
22Id. at 97-100.
23Id.
24Id.
25Id. at 88.
26 Second paragraph, clause 1, Section VI of the IRR of P.D. No. 1594.
27Supra.
28Rollo, p. 7.
29Id.
30Id. at 90-91.
31Id. at 92-94.
32Id. at 95-96.
33Id.
34Id. at 99-100.
35Id. at 28-34.
36Id. at 34.
37Id.
38Id. at 32.
39Id. at 44-61.
40Id. at 36-43.
41Id. at 10-15.
42Id.
43Id.
44Id. at 8-13.
45Id.
46 838 Phil. 840, 856 (2018).
47Brillantes v. Castro, 99 Phil. 497, 503 (1956).
48The Special Audit Team, Commission on Audit v. Court of Appeals and Government Service Insurance System, 709 Phil. 167, 183 (2013).
49Rollo, p. 93.
50 549 Phil. 112, 116 (2007).
51Rollo, p. 5.
52Id. at 41.
53Id.
54Id.
55Id. at 6.
56Id. at 41.
57Id. at 15-23.
58 Section III.CI.l.l, IRR of P.D. No. 1594.
59 Annex E (Contract Implementation Guidelines for the Procurement of Infrastructure Projects), 2016 Revised Implementing Rules and Regulations of the Government Procurement Reform Act.
60Rollo, p. 22 (citing the letter dated December 12, 1997).
61Id. at 43.
62 Section 38. Liability of Superior Officers. - (1) A public officer shall not be civilly liable for acts done in the performance of his official duties, unless there is a clear showing of bad faith, malice or gross
63 Section 43. Liability for Illegal Expenditures. - expenditure or obligation authorized or incurred in violation of the provisions of this Code or of the and special provisions contained in the annual General or other Appropriations Act shall be void. Every payment made in violation of said provisions shall be illegal and every official or employee authorizing or making such payment, or part therein, and every person receiving such payment shall be jointly and severally liable to the Government for the full amount so paid or received.
64 Executive Order No. entitled "Instituting the 'Administrative Code of 1987'" (August 3, 1988).
65See Madera v. Commission on Audit, G.R. No. 244128, September 8, 2020.
66 G.R. No. 242925, November 10, 2020.
67Id., emphases supplied.
68 Reflections, p. 11.
69 808 Phil. 763, 774 (2017).
70Rollo, p. 30.
PERLAS-BERNABE, J.:
ND No. 97-011-102 (DOTC) (95) dated June 18, 19975
PAYEE AMOUNT DISALLOWED PERSONS LIABLE FACT AND/OR REASONS FOR DISALLOWANCE EEI/JE Manalo
Construction Joint Venture P53,951,955.03 PBAC for the award of the contract.
1. Jose R. Valdecanas
- Chairman
2. Cesar T. Valbuena
- Member
3. Wilfredo M. Trinidad
- Member
4. Florencio T. Aricheta
- Member
5. The Consultant:
PCI/Basic which prepared the agency estimate.
6. Dir. Samuel C. Custodio
- Project Director
7. Ildefonso Patdu
- Project Manager.
Responsible for the review of variation orders.
8. EEI/JE Manalo
construction Joint Venture Excess amount after re-evaluation of PMO justification on the result of COA technical review of the contract for the construction of Davao Fishing Port.COA Decision No. 2010-133 dated December 13, 2010
WHEREFORE, premises considered, the herein appeal is DENIED. Accordingly, LAO-N Decision No. 2005-039 and LAO-N Resolution No. 2005-039A denying the request to lift ND No. 98-004-102 (DOTC) (96) are hereby AFFIRMED. Likewise, the 5th Indorsement dated July 19, 2001 of the Director of then NGAO II lifting ND No. 97-011-102 (DOTC) (95) is hereby SET ASIDE. The decision of the DOTC Department Auditor disallowing the project cost difference/excess is hereby REINSTATED.
The incumbent Auditor is directed to inform the Management and the persons liable of the reinstated disallowance.6 (Underscoring supplied)
The doctrine of immutability of judgments applies in the instant case. |
It is a hornbook rule that once a judgment has become final and executory, it may no longer be modified in any respect, even if the modification is meant to correct an erroneous conclusion of fact or law, and regardless of whether the modification is attempted to be made by the court rendering it or by the highest court of the land, as what remains to be done is the purely ministerial enforcement or execution of the judgment. This is known as the doctrine of immutability of judgments. x x x.15chanRoblesvirtualLawlibraryNotably, the doctrine of immutability or finality of judgments is not a mere technical rule of procedure sourced solely from the Rules of Court, but is primarily a general principle borne from substantive considerations. Corollary to the well-enshrined policy that litigation must end at some point,16 it ensures a winning party's right to reap the benefits of the finality of a favorable judgment. As held in numerous cases on the subject:17chanrobleslawlibrary
In staying its own hand in disturbing final judgments, this Court emphasized that the immutability of final judgments is not a matter of mere technicality, "but of substance and merit." In Peña v. Government Service Insurance System:chanroblesvirtualawlibraryIn the instant case, the ponencia correctly holds that the doctrine of immutability of judgments is applicable to the decision of the NGAO Director.19 As the Court has categorically declared in past cases, the said doctrine equally applies to judgments rendered by quasi-judicial bodies.20 Verily, the interest of the winning party to reap the benefits of a judgment remains the same whether in the context of a judicial or an administrative proceeding.[I]t is axiomatic that final and executory judgments can no longer be attacked by any of the parties or be modified, directly or indirectly, even by the highest court of the land. Just as the losing party has the right to file an appeal within the prescribed period, so also the winning party has the correlative right to enjoy the finality of the resolution of the case.
x x x
The rule on finality of decisions, orders or resolutions of a judicial, quasi-judicial or administrative body is "not a question of technicality but of substance and merit," [as its] underlying consideration [is] ... protecti[ngl ... the winning party['s substantive rights] ... Nothing is more settled in law than that a decision that has acquired finality becomes immutable and unalterable and may no longer be modified in any respect even if the modification is meant to correct erroneous conclusions of fact or law and whether it will be made by the court that rendered it or by the highest court of the land.18 (Emphases and underscoring supplied)
The COA gravely abused its discretion in reinstating ND 95, which lifting should already be deemed final and immutable. |
Section 6. Power of Director on Appeal. - The Director may reverse, modify, alter, or affirm the decision or ruling of the Auditor. However, should the Director render a decision reversing, modifying or altering the decision or ruling of the Auditor, the Director shall, within ten (10) days, certify the case and elevate the entire record to the Commission Proper for review and approval.As may be gleaned from the above-cited provision, it is only in cases where the NGAO Director reverses, modifies, or alters the decision or ruling of the Auditor that the decision should be elevated to the COA Proper for automatic review. Conversely, when the NGAO Director affirms or sustains the ruling of the Auditor, further elevation and review are unnecessary. As such, the affirmance, when not anymore appealed by an aggrieved party in accordance with the COA rules, will simply lapse into finality. The reason for the automatic review provision is palpable: the COA Proper is tasked to resolve the seeming conflict between the Auditor and Director's rulings to arrive at a proper conclusion on an audit case. However, if no conflict exists, then there is no need for the COA Proper to automatically review the matter since both the Auditor and Director are already in agreement.
6.4. It must be recalled that the Auditor favorably considered Mr. Custodio's Motion for Reconsideration of ND No. 97-011-102 (DOTC) (95). Guided by Sec. 7, Rule IV, 1997 Revised Rules of Procedure of the COA, the Auditor elevated his decision lifting the audit disallowance to the Director, NGAO II, for automatic review. Through his 4th Indorsement, the Auditor recommended to the Director the lifting of the audit disallowance.Patdu, Jr.'s foregoing contention is consistent with what appears on record. As the records show, the contractor, i.e., EEI/JE Manalo Construction Joint Venture, wrote a Letter dated December 12, 1997 to the COA Auditor assailing the issuance of ND 95. As stated, the COA Auditor treated the letter as a request for reconsideration and eventually recommended the total lifting of the disallowance through a 4th Indorsement dated January 31, 2000. The NGAO Director, in turn, sustained in full this recommendation in a 5th Indorsement23 dated July 19, 2001, which reads in relevant part:chanroblesvirtualawlibrary
6.5. On review, NGAO II Director Tobias P. Lozada sustained the decision of the Auditor to lift ND No. 97-011 102 (DOTC) (95). The pertinent portion of his decision contained in a 5th Indorsement dated July 19, 2001 reads:chanroblesvirtualawlibraryPremises considered, pursuant to the Revised CSE Manual, this Office sustains the DOTC Auditor's decision lifting the disallowance under ND No. 97-011-102 (DOTC) dated June 18, 1997 in the amount of [P]53,951,955.03.6.6. It can be readily seen from the Decision of the Director, NGAO II, that the latter did not reverse, modify or alter the decision or ruling of the Auditor. Of pertinence to the said decision of the Director is Section 6, Rule V, 1997 Revised Rules of Procedure of the COA, relating to Appeal front Auditor to Director. Sec. 6 of the Rules reads:chanroblesvirtualawlibrary6.7. From the foregoing provision, it is crystal clear that it is only when the Director reverses, modifies or alters the decision or ruling of the Auditor that the rule on automatic review by the Commission Proper sets in. If the Director affirms the decision or recommendation of the Auditor as in the present case, the rule on automatic review does not apply.RULE V
APPEAL FROM AUDITOR TO DIRECTOR
x x x
Section 6. Power of Director on Appeal. - The Director may reverse, modify, alter, or affirm the decision or ruling of the Auditor. However, should the Director render a decision reversing, modifying or altering the decision or ruling of the Auditor, the Director shall, within ten (10) days, certify the case and elevate the entire record to the Commission Proper for review and approval.
6.8. Considering that the Director affirmed the decision or ruling of the Auditor to lift ND No. 97-011-102 (DOTC) (95), the rule on automatic review provided under Section 6, Rule V of the 1997 Revised Rules of Procedure of the COA did not set in. Accordingly, Director Lozada was correct in not elevating the matter to the Commission Proper for Automatic Review.
6.9. It must be accentuated that decision of the NGAO II Director sustaining and affirming the decision of the Auditor to lift ND No. 97-011-102 (DOTC) (95) remained uncontested for almost 10 years. This being so, it has attained finality. Consequently, it became immutable and unalterable.22 (Emphases and underscoring supplied)
In a 4thIndorsement dated January 31, 2000, the DOTC Auditor recommended the total lifting of the disallowance amount to P53,951,955.03Based on the foregoing disposition, Patdu, Jr. correctly averred that the elevation of the NGAO ruling to the COA Proper was not required under Section 6, Rule V of the COA Rules. Hence, as the same was not anymore appealed, the NGAO Director's decision had lapsed into finality.
x x x
In accordance with the Revised Manual on CSB, the lifting of the ND's should be concurred in by the Director of the issuing Auditor.
x x x
Premises considered, pursuant to the Revised CSB Manual, this Office sustains DOTC Auditor's decision lifting the disallowance under ND No. 97-011-102 (DOTC) dated June 18, 1997 in the amount of P53,951,955.03.24 (Emphases supplied)
At any rate, Patdu, Jr.'s civil liability for the disallowance remains suspect based on prevailing jurisprudence. |
Accordingly, we hereby adopt the proposed guidelines on return of disallowed amounts in cases involving unlawful/irregular government contracts submitted by herein Justice Perlas-Bernabe, to wit:cralawlawlibraryIn holding Patdu, Jr. civilly liable for the disallowance, the COA Proper in this case advanced the following ratiocination:chanroblesvirtualawlibrary
- If a Notice of Disallowance is set aside by the Court, no return shall be required from any of the persons held liable therein.
If a Notice of Disallowance is upheld, the rules on return are as follows:
- Approving and certifying officers who acted in good faith, in the regular performance of official functions, and with the diligence of a good father of the family are not civilly liable to return consistent with Section 38 of the Administrative Code of 1987.
- Pursuant to Section 43 of the Administrative Code of 1987, approving and certifying officers who are clearly shown to have acted with bad faith, malice, or gross negligence, are solidarily liable together with the recipients for the return of the disallowed amount.
- The civil liability for the disallowed amount may be reduced by the amounts due to the recipient based on the application of the principle of quantum meruit on a case to case basis.
- These rules are without prejudice to the application of the more specific provisions of law, COA rules and regulations, and accounting principles depending on the nature of the government contract involved. (Emphases and underscoring supplied)
Mr. Patdu was included among the persons liable under ND No. 97-011-102 (DOTC) (95) for reviewing the variation orders. Based on Decision No. 2010-133 dated December 13, 2010, the project cost was found to be excessive by [P]53,951,954.13, computed as follows:However, apart from the statement that "[petitioner] failed to diligently review [VO Nos. 5, 7, and 8] which resulted in the overpricing of the project as computed by the COA-[Special Task Force on Flagship Project (STFFP)]," the COA Proper's ruling was silent with respect to Patdu, Jr.'s bad faith, malice, or gross negligence relative to his participation in the project.
x x x
It can be gleaned from the above computation that the amounts of the variation orders reviewed by Mr. Patdu as Project Engineer were part of the total project cost, a portion of which was found excessive and disallowed in audit. Mr. Patdu failed to diligently review the variation orders which resulted in the overpricing of the project as computed by the COA-STTFP. However, his liability shall only be on the excess costs for the variation orders he reviewed, in the total amount of [P]5,210,744.29.33 (Emphases and underscoring supplied)
6.45. The construction of the project was already underway when petitioner reviewed the "variations orders". Significantly, these orders were recommended by the consultants during the construction stage as they were necessary in the implementation of the project.Evidently, his justifications pertain to technical adjustments/rectifications made during the course of the Project, which resulted in additional costs to the government. To note, the foregoing contentions were not rebutted by the COA in its Comment.
6.46. It must be recalled that in his letter dated December 12, 1997, Mr. Custodio presented the justifications on these Variation Orders, to wit:6.46.1. Variation Order No. 5 - Mobilization / Demobilization cost (or dredging equipment was included in the aforementioned variation order because there is a new item o( work, i.e., dredging, which is not included in the original contract and there is a need to bring in said equipment to the project site, hence the cost of mobilization/demobilization.6.47. Apparently, these justifications were favourably considered by the Auditor when he recommended the lifting of (ND) No. 97-011-102 (DOTC) (95) which included the audit disallowances on these variations orders.
6.46.2. Variation Order No. 7 - The original contract calls (or the use of Concrete Asphalt (or Roadway and Parking Area. Due to the absence of supply of concrete asphalt in the area, the Contractor in his desire not to delay the project, offered to use PCCP instead at the same cost as Concrete Asphalt. The said substitution resulted to an increase in the thickness of the pavement and a decrease in the thickness of the sub-base. This offsetting resulted to a cost difference of P10,902,431.33 in favour of the government.
6.46.3. Variation Order No. 7E - Construction of Deepwell, the cost of deepwell for Variation Order No. 3 can not be adopted because they vary in depth. Deepwell for V.O. #3 is 42 meters deep, while for V.O. #7E, it is 75 meters deep.
6.46.4. Variation Order No. 8 - The discrepancy between the quantity take-of( and the BOO resulted to an overestimate of quantities in V.O. No. 8, however, this quantities were rectified in the Final Quantification.
6.48. Significantly, the justifications were not refuted by the STFFP. There was nothing from the records to dispute the justification that Variation Order No. 5 included an item of work that was included in the original contract. Since this was a new item of work that requires the use of equipment, it is imperative to mobilize these equipment to the project site. Obviously, they will be demobilized after the completion of the variation order. There was also nothing to show that the equipment mobilized for the original contract included the same equipment used for the new item of work covered by Variation Order No. 5.
6.49. As has been explained in the December 12, 1997 letter of Mr. Custodio, the contractor used Portland Cement Concrete Pavement instead of concrete asphalt because of the absence of supply of the latter in the area. It was not disputed either that indeed Portland Cement Concrete Pavement was used Roadway and Parking Area. Difference in thickness alone will not sustain the audit disallowance covered by Variation Order No. 7 simply because the use of Portland Cement Concrete Pavement on one hand, and the use of concrete asphalt on the other hand, involved different scope of work and different cost.34 (Emphases and underscoring supplied)
Negligence is the omission of the diligence which is required by the nature of the obligation and corresponds with the circumstances of the persons, of the time, and of the place. In the case of public officials, there is negligence when there is a breach of duty or failure to perform the obligation, and there is gross negligence when a breach of duty is flagrant and palpable. An act done in good faith, which constitutes only an error of judgment and for no ulterior motives and/or purposes, as in the present case, is merely Simple Negligence.35chanRoblesvirtualLawlibraryHence, considering the prevailing jurisprudential parameters on civil liability and taking into account Patdu, Jr.'s unrebutted defenses in his petition, the imposition of civil liability on the latter's part cannot be maintained.
Endnotes:
1Rollo, pp. 28-35. Signed by Chairman Reynaldo A. Villar and Commissioners Juanito G. Espino, Jr. and Evelyn R. San Buenaventura.
2 Id. at 36-43. Signed by Commissioners Heidi L. Mendoza and Jose A. Fabia.
3 "P53,951,954.02" in the dispositive portion of April 6, 2015 Resolution; id. at 42.
4 See id. at 40-42.
5 Id. at 70; emphasis supplied.
6 Id. at 34.
7 Id. at 42.
8 See id. at 31-34.
9 See id.
10 See id. at 10-15.
11 See Comment dated December 17, 2015; id. at 122-123.
12 See Association of Medical Clinics for Overseas Workers, Inc. v. GCC Approved Medical Centers Association, Inc., 802 Phil. 116 (2016).
13 Id. at 151-152.
14 See G.R. No. 211755, October 7, 2020.
15 Id., citing One Shipping Corporation v. Peñafiel, 751 Phil. 204, 210 (2015).
16 See Zarate v. Director of Lands, 39 Phil. 747, 749 (1919).
17 See Civil Service Commission v. Moralde, 838 Phil. 840 (2018); Torres v. Philippine Amusement and Gaming Corp., 677 Phil. 672 (2011); Fua, Jr. v. COA, 622 Phil. 368 (2009); and Peña v. Government Service Insurance System, 533 Phil. 670 (2006).
18Civil Service Commission v. Moralde, id. at 855, citing Peña v. Government Service Insurance System, id. at 683-690.
19Ponencia, p. 8.
20 See Civil Service Commission v. Moralde, supra at 856.
21 Approved January 1997.
22Rollo, pp. 11-12.
23 Id. at 92-94.
24 Id. at 93-94.
25 Dated December 17, 2015. Id. at 114-126.
26 See Basarte v. Commission on Elections, 551 Phil. 76, 84-85 (2007), citing Agbayani v. Commission on Elections, 264 Phil. 861, 868 (1990). See also Republic v. Sandiganbayan, 328 Phil. 210 (1996).
27Agbayani v. Commission on Elections, id.
28 Which reads:chanroblesvirtualawlibrarySection 38. Liability of Superior Officers. - (1) A public officer shall not be civilly liable for acts done in the performance of his official duties, unless there is a clear showing of bad faith, malice or gross negligence.29 Which reads:chanroblesvirtualawlibrary
x x x x (Emphases and underscoring supplied)Section 43. Liability for Illegal Expenditures. - Every expenditure or obligation authorized or incurred in violation of the provisions of this Code or of the general and special provisions contained in the annual General or other Appropriations Act shall be void. Every payment made in violation of said provisions shall be illegal and every official or employee authorizing or making such payment, or taking part therein, and every person receiving such payment shall be jointly and severally liable to the Government for the full amount so paid or received.30 Executive Order No. 292, entitled "Instituting the 'Administrative Code of 1987'" (August 3, 1988).
x x x x (Emphases and underscoring supplied)
31 See Madera v. COA, G.R. No. 244128, September 8, 2020.
32 See G.R. No. 242925, November 10, 2020.
33Rollo, p. 41.
34 Id. at 22-23.
35Daplas v. Department of Finance, 808 Phil. 763, 774 (2017).cralawredlibrary