THIRD DIVISION
[G.R.
No. 110871. July 2, 1998]
AMALIO L.
SARMIENTO, doing business under the name and style of A.L. SARMIENTO
CONSTRUCTION, petitioner, vs. COURT OF APPEALS (Ninth Division) and
METROPOLITAN WATERWORKS AND SEWERAGE SYSTEM (MWSS), respondents.
D E C I S I O N
KAPUNAN, J.:
In this petition for
review on certiorari, petitioner seeks the annulment of the decision of
the Court of Appeals (CA-G.R. Civil Case No. 31602) promulgated on 23 October
1992 and its resolution dated 30 June 1993 denying petitioner’s motion for
reconsideration.
The facts leading to the
present controversy are as follows:
On 15 December
1981, private respondent MWSS advertised for bidding by pre-qualified
contractors, Contract No. RS-4 which involved the:
1) Modification and improvement of its eleven
(11) existing pumping stations within Metro Manila;
2) Demolition and complete reconstruction of
the existing Cubao Booster Pumping Station;
3) Construction of a new Booster pumping
station at Novaliches and a 7 megalitre (ML) reinforced concrete reservoir, as
well as other accessories and services necessary and incidental to construct
and complete the work in accordance with the technical specification No. 1.1 of
the Contract Documents.
On 6 April 1982, MWSS
held the public bidding which petitioner won, his bid in the amount of P60,000,000.00
being the lowest. Included in said
amount was the price of P13,500,000.00 for the supply, delivery and
supervision of installation of new pump units ( prime cost items) for the project.
On 14 October 1982, MWSS
awarded petitioner the contract pursuant to Board Resolution No. 121-82 adopted
on 9 September 1982.
On 21 December 1982,
MWSS and petitioner executed the contract for the RS-4 project.
On 15 March 1983, MWSS
issued petitioner the Notice to Proceed, upon receipt of which petitioner
commenced construction of the project.
On 3 May 1983, MWSS
released P9,000,000.00 to petitioner as advance payment for
mobilization.
During the construction
period, petitioner furnished MWSS eight
(8) vehicles to be used in the RS-4 project and for which MWSS agreed to
compensate petitioner.
On 14 August 1984, due
to his tight financial situation brought about by rising inflation, petitioner
wrote MWSS requesting a joint termination of the contract.
On 16 July 1984,
pursuant to General Condition No. 62[1] of the bid documents providing force majeure as basis for joint
termination, MWSS and petitioner
approved the joint termination of said project.
On 28 September 1984,
MWSS informed petitioner that effective 1 October 1984, it would take over the
rehabilitation of the Cubao, Makati and Novaliches pumping stations.
On 14 February 1989, due
to MWSS’ refusal to pay petitioner its alleged indebtedness, the latter filed a
complaint for sum of money with the Regional Trial Court of Quezon City, to
collect from MWSS the following:
1). The amount of P13,735,095.18 as net
payable to plaintiff Sarmiento broken
down as follows:
a).
Exceeded quantities/
overrun for civil works
accomplished by plaintiff Sarmiento P
10,925.62
b).
For the use by MWSS of
plaintiff Sarmiento’s vehicles
101,849.65
c). For the loss by MWSS of
plaintiff Sarmiento’s
vehicles
180,000.00
d). For foreign currency
adjustment in the import of
materials and
equipment under SGC 10
of the contract documents 11,822,082.37
e). For the cost of exceeded
quantities in the materials
and equipment imported and
delivered by plaintiff
Sarmiento to MWSS 1,236,562.96
f). For the balance unspent in the
prime cost items 6,135,784.14
g). For price escalation on
plaintiff’s accomplishment
per Presidential Decree
No. 1594 192,000.00
___________
Total P 9,679,207.74
Less:
Partial Payment
made by MWSS to
plaintiff Sarmiento 1,854,303.19
___________
Gross Amount Payable
by MWSS to plaintiff
Sarmiento 17,824,904.55
Less: Balance on 15%
Advance Payment For
Mobilization Given by
MWSS 4,089,809.37
____________
Net payable of MWSS to
Plaintiff P13,735,095.18
2) The amount of P500,000.00 as
plaintiff’s loss on trade discount for prime cost pump units.
3) The amount of P1,000,000.00 by way of
attorney’s fees.
4) The cost of suit.[2]
The Commission on Audit
(COA) was impleaded as a nominal party. However, in an Order dated 29 June 1989, the trial court dismissed the
complaint against the COA.
On 5 May 1989, MWSS filed its answer and set up the
following counter-claims:
a) Unpaid
balance of the
mobilization fund P4,089,809.37
b) Interest
on the unpaid
balance of the
mobilization fund 3,896,043.20
c) Interest
on the interest on
the unpaid balance of the
mobilization fund 3,178,530.82
d) Interest
on the loan availed
of by the defendant MWSS
from Asian Development
Bank for importation of
materials and
equipment 1,002,943.46
e) Interest
on the interest on
the loan availed of by
MWSS from ADB 456,019.13
f) Customs
charges advanced
by defendant 317,861.36
g) Interest
on the amount paid
for customs charges advanced
by defendant 86,812.89
h) Additional
3% mark-up for
the cost of the imported
equipment paid by defendant
MWSS but disallowed by the
Commission on
Audit 503,628.38
i) Amount
representing
liquidated damages 6,000,000.00
j) Amount
representing
exemplary damages 2,000,000.00
k) Amount
as and for attorney’s
fees equivalent to 10%
of the total
amount claimed 1,744,183.92[3]
On 28 February 1991, the
trial court rendered a decision in favor of petitioner, the dispositive portion
of which reads:
WHEREFORE,
premises considered, judgment is hereby (sic) ordering defendant MWSS to pay
plaintiff the net amount of P13,555,095.18 itemized as follows:
A. For
overrun in civil
works: 10,925.62
B. For
defendant’s use of
plaintiff’s
vehicles: 101,849.65
C. For
foreign currency
adjustment under
SGC 10: 11,822,082.37
D. For
costs of exceeded
quantities of imported
materials
and equipments: 1,236,562.96
E. For
the balance of the
bid price for prime
cost
items: 6,135,784.14
F. For
trade discount for
the
prime cost items: 500,000.00
Total
P 19,499,207.74
Less: partial payment
P1,854,303.19
17,644,904.56
Less: Bal. of 15% advance
payment: 4,089,809.37
Net payable to plaintiff: P 13,555,095.18
Defendant is likewise
ordered to pay plaintiff the sum of P1,000,000.00 as and by way of
attorney’s fees.
All other items (i.e.
value of carnapped vehicle) are hereby excluded. Defendant’s counterclaims are hereby DISMISSED.
Costs against defendant.
SO ORDERED.[4]
Aggrieved by the trial
court’s decision, MWSS sought redress from the Court of Appeals.
On 23 October 1992, the
Court of Appeals reversed the decision of the trial court:
WHEREFORE, the
decision appealed from is hereby REVERSED to the extent that the amounts
awarded to Amalio L. Sarmiento by the lower court are offset by MWSS’s
counterclaim which we have granted in the amount of P6,385,713.1
(excluding attorney’s fees) computed as follows:
Amounts
due MWSS
A. Unpaid
balance of advance
amount
for mobilization - - - - - - - - -- - P3,896,043.20
B. Interest
on A from June 18,
1983 to September 30,
1992
at 6% p.a. - - - - - - - - - - - - -
- P2,170,745.30
C. Customs
charges of imported
Butterfly
valves - - - - - - - - - - - - - - --- P 317,861.36
D. Interest
on C from April 23,
1987 and July 20, 1987,
respectively, to September 30,
1992 at 6% p.a. - - - - - -
----- - - - - - - P 103,018.79
T O T A L - - - - - - - - - - - - --- P6,487,758.50
Less
Amounts due A.L. Sarmiento
A. For
overrun in civil works
due A.L.
Sarmiento - - - - - - - - - P 195.78
B. Compensation
for use of
A.L. Sarmiento’s eight (8)
vehicles
- - - - - - - - - - - - - - - - - P
101,849.65
T O T A L P 102,045.43
NET AMOUNT DUE MWSS
P6,385,713.1
With attorney’s
fees of P638,571.31 added to the
above counterclaims, the total sum hereby adjudged in favor of MWSS amounts to P7,024,284.41.
The dismissal by
the trial court of MWSS’ counterclaim
for the 3% mark up for the cost of materials and equipment and its denial of A.L.
Sarmiento’s claim for the carnapped vehicle, are hereby SUSTAINED.
No costs.
SO
ORDERED.[5]
Not satisfied with the
decision of the Court of Appeals,
petitioner filed the present petition for review and raised the following
issues:
1. RESPONDENT COURT OF APPEALS MANIFESTLY
OVERLOOKED CERTAIN RELEVANT FACTS, GRAVELY MISAPPREHENDED THE FACTS OF THE CASE
AND GROSSLY MISAPPRECIATED THE EVIDENCE, AND THUS COMMITTED PATENT ERROR WHEN
IT REVERSED THE DECISION OF THE REGIONAL TRIAL COURT WHICH WAS SUPPORTED BY
SUFFICIENT, COMPETENT AND CONVINCING EVIDENCE, THE LAW AND JURISPRUDENCE.
2. RESPONDENT COURT OF APPEALS GRAVELY ERRED
IN AWARDING THE COUNTERCLAIMS OF THE RESPONDENT MWSS DESPITE THE ABSENCE OF
COMPETENT, CONVINCING AND SUBSTANTIAL EVIDENCE TO SUPPORT THE SAID FINDING.
3. THE RESPONDENT COURT OF APPEALS SERIOUSLY
ERRED IN AWARDING ATTORNEY’S FEES IN
FAVOR OF THE RESPONDENT MWSS
DESPITE THE FACT THAT SAID AWARD IS WITHOUT LEGAL, FACTUAL AND EQUITABLE
JUSTIFICATION ESPECIALLY CONSIDERING THAT
PETITIONER HAD NOT
ACTED IN BAD FAITH IN ASKING
FOR JOINT TERMINATION OF CONTRACT AND MORE IMPORTANTLY, THE TERMINATION OF THE
CONTRACT WAS DULY APPROVED BY THE RESPONDENT MWSS.[6]
Before going to the
merits, we shall first resolve the procedural issue raised by private
respondent.
MWSS contends that the
petition should be dismissed on the ground that it raises only questions of
fact. This contention lacks merit.
Although Section 2, Rule 45 of the Revised Rules of Court[7] provides that only questions of law may be raised on appeal, this rule is
not without exception. In the following instances, factual issues may be
resolved by this Court.
(1) x x
x the conclusion is a finding grounded
entirely on speculation, surmise and conjecture; (2) the inference made
is manifestly mistaken; (3) there is grave abuse of discretion; (4)
the judgment is based on a misapprehension
of facts; (5) the findings of fact are conflicting; (6) the Court of Appeals
went beyond the issues of the case and its findings are contrary to the
admissions of both appellant and appellees; (7) the findings of fact
of the Court of Appeals are contrary to those of the trial court; (8)
said findings of fact are conclusions without citation of specific
evidence on which they are based;
(9) the facts set forth in the
petition as well as in the petitioner’s main and reply briefs are not disputed
by the respondents; and (10)
the findings of fact of the Court of Appeals are premised on the
supposed absence of evidence and contradicted by the evidence on record.[8]
In this case, as
can readily be discerned, the findings
of fact of the trial court and
respondent appellate court are
at variance. We are, therefore,
compelled to review the evidence on record[9] in order
that justice may be served.
We shall resolve the
assigned errors separately.
For exceeded quantities
or overruns in civil works in the amount of
P 10,925.62.
Petitioner claims that
MWSS has not paid for the overruns or the quantities of work accomplished by
petitioner in excess of the bidded
quantity.[10] MWSS does not deny its liability for the
overruns but avers that the same has already been paid. Respondent court ruled in favor of private
respondent on the strength of the vouchers and receipts[11] presented as proof allegedly of such
payment.
We disagree. The vouchers and receipts referred to do not
contain specific indications of payment of the overruns. What is reflected in these vouchers are
merely the general payments for petitioner’s lump-sum accomplishments in the
project.[12]
Moreover, the testimony
of Mrs. Zaida L. Pulido, financial control officer of MWSS cannot be relied upon as it contains
serious discrepancies.
Mrs. Pulido testified
that for the overruns, private respondent has paid petitioner P10,729.84
thus leaving a balance of only P195.78.[13] She explained that she was able to identify
the particular vouchers representing payment for the overruns based on the
progress estimates where the overruns were allegedly indicated.[14] She referred particularly to progress
estimate No. 16[15] and specified therein all the works categorized
as overruns paid for by private respondent.
Upon closer scrutiny, however, we find that the total value or cost of
these alleged overruns[16] exceeds P10,729.84, the amount she
previously stated that MWSS paid for the overruns. It is even more than the amount being claimed by petitioner. Quoted hereunder are portions of Mrs. Pulido’s testimony:
x x x
Atty. Sunga:
Q You testified during the last hearing that the claim of the
plaintiff of exceeded quantity over ran is alreay paid is that correct?
A Yes, sir.
Q And that you testified that the items referring to over runs
being claimed by plaintiff are: Item K,
B, 3-B, which was paid in the amount of P2,945.00. Item K, B-4-A which was paid in the amount
of P2,097.83, item B, 11-B, which
was paid in the amount of P2858.54, item KB 11-G, which was paid in the
amount of P1,766.25 and item KG 10-A which was paid in the amount of P4,286.55
or for the total of 13,954.17 is that correct?
A Yes, sir.
Q But the claim of the plaintiff is only in the amount of P10,952.62
for exceeded quantity over ran in civil work are you aware of that?
A Yes, sir.
Q How come you paid P13,954.17?
Witness:
A We paid the
over runs based on the recommendation of the resident engineers.
x x x.[17]
From the foregoing, MWSS, thus, has not sufficiently proven that it
had paid petitioner’s claim for overruns.
Foreign currency
adjustment in the import of materials and equipment under SGC-10 of the contract
documents
Petitioner insists that
it is entitled to compensation in the amount of P11,822,082.37 for the
loss resulting from the fluctuation of the value of the peso in relation to the
dollar under Supplemental General Condition No. 10 (SGC-10) which states that:
All payments to a
Philippine Contractor will be in Philippine pesos. The Contractor shall make his own arrangements through the
Central Bank of the Philippines to convert pesos into foreign currencies as
necesary for payment of foreign expenses incurred by him for this Contract. MWSS will support an application by a
Philippine Contractor for purchase of foreign currencies with pesos, to the
extent of the Foreign Currency requirements submitted with the Contractor’s bid
and accepted or modified for award of
Contract. To compensate a
Philippine Contractor for any devaluation or revaluation in the exchange rate
of the Peso during the construction, completion and Guarantee Period of the
Work, the equivalent in pesos of the foreign exchange requirements shall be
increased or decreased in the same proportion as the Current Value of each
foreign currency bears in relation to its Base Value. For this purpose the Base Value of a
foreign currency in relation to the Peso shall be the Philippine
National Bank’s official selling rate as established in IB-18 for determination
of bid prices in pesos and the Current Value of a foreign currency in relation
to the Peso shall be the Philippine National Bank’s official selling rate
prevailing on the last day of the period relating to a Payment Certificate. In the event that a currency is not covered
by the PNB’s official rates, the CO will determine and adopt a conversion rate.[18] (Underscoring ours.)
Petitioner’s contention
is without merit. Petitioner is
entitled to foreign currency adjustment only if he procured and used his own
dollars to purchase the needed materials from the foreign suppliers. In this case, however, said suppliers were
paid by MWSS itself through its loan
with the ADB under the latter’s Qualified Commitment Procedure.[19]
Although it is his duty
to furnish all materials, supplies and tools,[20] due to difficulties in procuring his own
dollars to import the required equipment,[21] petitioner agreed with MWSS to avail of the
latter’s standing credit with ADB.
The terms and conditions of this
agreement were embodied in the letter of MWSS to petitioner dated 29
February 1984, (which was duly accepted and signed by petitioner)[22] which in effect modified the original
contract between the parties.
Petitioner’s argument
that the aforementioned letter was actually a loan agreement between MWSS and
himself and that what ADB charged to MWSS’ account for paying the foreign
suppliers was in turn charged by the latter to him under the alleged loan
contract and therefore he, in effect, used his own pesos to purchase the
dollars to pay the said suppliers, is simply untenable. There is nothing in the aforesaid agreement
that indicates that it is a contract of loan.
It is more logical to consider the agreement as a modification of the
original contract (RS-4) between the two parties pursuant to Art. 15.01[23] of the same. Hence, under this new arrangement, MWSS in effect became the
importer of the materials and equipment since it paid for the same and
petitioner was relegated to the role of a conduit.
Unmeritorious, likewise,
is the claim of petitioner that the payments made to the foreign suppliers by
the ADB should be deemed as his own payment since he was the one who made all
the arrangements for the importation (opening the letters of credit, for instance). The records show that petitioner has been
separately and duly compensated for these arrangements with a 5% mark-up based on the cost of all
imported items.[24]
Further, when petitioner
opened the letters of credit for use in the importation of equipment, he
indubitably stated therein that said letters of credit were for his and MWSS’
account.[25]
Finally, since it was
its loan with ADB that was used to import the required materials, any and all
foreign currency exchange risks were naturally shouldered by MWSS. Petitioner, therefore, did not suffer and
could not have suffered any such loss that would justify compensation.
For cost of the excess
materials and equipment in the amount of P1,236,562.96
The foregoing discussion
also applies to petitioner’s claim for the cost of excess materials imported. Indeed, MWSS has no obligation to pay
petitioner’s claim because, as previously emphasized, all the imported
materials and equipment were paid for by MWSS through the loan it acquired from
ADB.
The primordial consideration
in resolving this issue is not who made the physical arrangements to import the
materials but who actually paid for the importation.
To grant petitioner’s
claim is to require MWSS to pay twice for the same imported items. This we cannot allow for it would be
tantamount to unjust enrichment on the part of petitioner.
For the balance of the
bid price for prime cost items in the amount of P13,500,000.00
Regarding this item, we
fully concur with the findings of the Court of Appeals, thus:
Re the fifth
assigned error: In his complaint
Sarmiento alleged that the P13,500,000.00 for prime cost items was part
of his bid price of P60,000,000.00; and that since the actual cost for
the prime cost items and their installation amounted only to P7,364,212.86,
he is therefore entitled to the difference between the said actual cost of P7,364,212.86
and the prime cost of P13,500,000.00 as the latter amount was part of
his bid price of P60,000,000.00.
Thus, the lower court awarded Sarmiento the difference which amounts to P6,135,784.14.
The lower court
erred. The explanation given by MWSS
regarding this P13,500,000.00 for prime cost items is clear and
substantiated by testimonial and documentary evidence (TSN, May 22, 1990, pp.
8-9; TSN, May 24, 1990, p. 9; Exhs. C & 19-A). This amount was not bid in
by Sarmiento. If it appears in the
RS-4 Bid Form (Exh. C), corresponding to the description “Allow the Prime Cost
Sum for the Supply, Delivery and Supervision of Installation of New Pump Units
as Outlined in TS-15.6,” it is because MWSS typed the entries therein prior to
the bidding, and the form was distributed to all the prospective bidders. This amount was made part of the total bid
for budgetary purposes only so that MWSS would have a uniform basis in
comparing the bid amounts submitted later since during the bidding period there
was yet no exact specification upon which the bidders could base the amount of
their bid.
Under the section
“Prime Cost Items” in General Conditions Clause (GC-53) (should be GC-54),
the following stipulation appears:
‘Where
Prime Cost lump sums or unit prices are designated under particular items in
the Bid Form, they are intended to cover the purchase price of materials or
equipment where the exact details or quality of the materials or equipment is
not determined at the time of Contract Document preparation, but where the
Contractor is able to determine the cost of installation, the unit prices of
lump sum prices as bid by the Contractor shall include for the purchase of the
materials or equipment at the Prime Cost stated and all profit, overhead and
installation costs.
‘Subsequent
to execution of Contract, the Contractor shall, upon request of the CO, obtain at
least three (3) quotations for equipment or materials meeting the
Specifications, or such amplified Specifications as may be provided by the CO,
and shall submit them to the CO. The
CO will review the quotations and will instruct the Contractor to proceed with
purchase in accordance with the quotation selected by the CO.
‘The
unit prices or lump sums as bid, will be adjusted by deduction of the Prime
Cost stated and the addition of the actual net cost to the Contractor of the
materials or equipment. Actual net
cost shall allow for any trade discounts.
No adjustment will be made to the Contractor’s overhead, profit or
installation rates regardless of any difference between the Prime Cost stated
and the final actual net cost.’ (Exh.
19-A). (Underscoring Ours).
Thus, applying the
aforequoted provision, this amount of P13,500.00 shall be deducted from
Sarmiento’s bid price of P60,000,000.00, resulting in the difference of P46,500,000.00;
and, after such deduction, the actual net cost of the prime items which is P7,364,212.86
shall be added to said amount of P46,500,000.00. The result then is that Sarmiento’s actual
bid price was only P53,864,212.85 and not P60,000,000.00.
We rule therefore
that Sarmiento is not entitled to be paid the amount of P6,135,784.14
representing the unexpended portion of the provisional or budgeted amount of P13,500,000.00
for the prime cost items.[26]
Although the amount of P13,500,000.00
was included in petitioner’s total bid of P60,000,000.00, GC-54
specifically laid down the condition that the actual cost shall be deducted
from the prime cost stated in the bid
form. There is, therefore, no
basis for petitioner’s claim. To award
petitioner the balance of P6,135,784.14 would, likewise, be tantamount
to enriching him unjustly.
The amount of P500,000.00
as petitioner’s loss on trade discount for prime cost pump units.
Petitioner anchors his
claim for trade discount on the third paragraph of General Condition No. 54
which provides that:
PRIME COST ITEMS
xxx.
The unit prices or
lump sums as bid, will be adjusted by deduction of the Prime Cost stated and
the addition of the actual net cost to the Contractor of the materials or
equipment. Actual net cost shall
allow for any trade discounts. No adjustment
will be made to the Contractor’s overhead, profit or installation rates
regardless of any difference between the Prime Cost stated and the final actual
net cost. (Underscoring ours)
The Court of Appeals,
however, denied this claim and ruled in this wise:
However, GC 54 was
amended or supplemented by Supplemental General Conditions (SGC). The effect of such amendment or supplement
is provided for under SGC-1 thereof which reads in full as follows:
“General
The Supplemental
General Conditions amend or supplement the General Conditions. Both shall be read together, with the
Supplemental General Conditions prevailing where there is conflict. Clauses of the General Conditions not
specifically amended or supplemented shall remain in effect.” (Exh. 18).
Of the General
Conditions (GC), one was affected by the Supplemental General Conditions (SGC). Thus, SGC-21 provides:
“PRIME COST PROCUREMENT
OF NEW PUMP UNITS
This Clause supplements
GC-54.
The twenty-two (22) New
Pump Units, each consisting of a pump bed plate and associated electric motor,
will be procured on a Prime Cost basis.
Specifically, for this
Contract the following procedure will apply.
a) Immediately after contract award the
CO will be issued detailed specifications for the pump units to the Contractor.
b) The Contractor shall invite
quotations from a list of potential suppliers prepared by the CO. The CO may also at his discretion cause
invitations to Quote to be placed in various publications.
c) Quotations will be received by the Contractor
at a place and time to be mutually agreed upon and opened under the supervision
of the CO.
d) The CO will assume custody of the
original and one copy of the quotations and will analyze and advise the
Contractor of the selected supplier.
e) Subsequent to notification by the CO
of the selected supplier the Contractor shall assume responsibility of the
procurement of the pump units in exactly the same manner as for any other item
of equipment which he is supplying under this contract (including purchase,
submission of shop drawings, customs
clearance, transportation in the Philippines, storage, installation, etc.). There will be no direct contract between
the pump unit supplier and the Owner.
f) The actual net cost to the
Contractor will be the C.I.F. Manila value paid by him, plus the paid cost of
installation supervision which will be included as a separately priced item in
the quotation. Only this net cost
will be used in the adjustment of the original Price Cost Allowance.
g) The basis of payment (which will be
stated in the Invitation to Quote) by the Contractor to the pump unit supplier
will be by Letter of Credit for the full C.I.F. Manila value. All costs incurred by the Contractor to
open the Letter of Credit will be for the Contractor’s account and will not
form part of the net costs to the Contractor under the Prime Cost amount. The Letter of Credit will be subject to the
usual shipping documentation plus shop inspection and approval of shop tests. All inspection in the manufacturer’s shop
will be arranged and paid for separately by the CO. (Exhs. 17, 17-A & 17-B).
Under GC-54,
before it was supplemented by SGC-21, the original net cost used for
adjustment, i.e. the net cost to be added to the P60,000,000.00 bid
price after deducting the provisional or budget amount of P13,500,000.00
for the prime cost items, consisted of these amounts, namely: 1) trade discount, 2) profit, 3) overhead,
and 4) installation costs.
However, under
SGC-21, the net cost to be used for adjustment consisted only of the amounts
paid by Sarmiento on the following: 1)
C.I.F. Manila value of the pump units paid by Sarmiento, and 2) cost of installation supervision. There is no mention of profit and trade
discount. And only this statement
appears that is related to overhead:
“All costs incurred by the Contractor to open the Letter of Credit will
be for the Contractor’s account and will not form part of the net cost to the
Contractor under the Prime Cost amount.”
Clearly, there is
a conflict between G.C-54 and SGC-21 insofar as concerns what constitutes the
“actual net cost” for the purpose of
adjusting the P60,000,000.00 bid price.
In which case, as provided for by the aforequoted SGC-1, the provisions
in the Supplemental General Conditions shall prevail.
Thus, under the
subject contract RS-4, Sarmiento is not entitled to trade discount in the
procurement of the 22 pump units of the prime cost items.[27]
We disagree. There is no conflict between GC-54 and SGC-21. Paragraph (f) of SGC-21, which states that only the CIF
Manila value paid by petitioner shall be used in the adjustment of the original
price cost allowance (with the cost of installation supervision to be priced as
a separate item) refers specifically and solely to the procurement of the pump units. In other words, in going
through the process of, or following
the procedure for, the acquisition of the pump units, this is the only expense
that petitioner may include in his net cost.
SGC-21 supplements or is
an addition to GC-54. Nowhere in the
said provision (SGC-21) is it stated that the costs for overhead, installation,
profit and trade discount are no longer included in petitioner’s actual net
cost. The two provisions must be read
together and harmonized, otherwise, petitioner would be greatly disadvantaged. Hence, petitioner’s claim for trade discount
in the amount of P500,000.00 is
granted.
Price escalation in the
amount of P192,000.00
We grant this claim on
the basis of private respondent’s own admission, thus:
xxx
Q Aside from this price escalation that was already paid, how much
price escalation that has not yet been paid to the contractor, more or less?
A The approximate amount is P192,000.00.
Q That is not yet paid up to the present madam witness?
A Yes, sir.
Q And the contractor is entitled to that amount?
A Yes, sir.[28]
xxx.
MWSS’ Counterclaims
Regarding its
counterclaims, we rule that MWSS is entitled to the balance of the mobilization
fund it advanced to petitioner in the amount of P4,089,809.37.
Petitioner has clearly admitted this liability and only contends that
the amount has been set-off against his own claims against MWSS.
We delete the award
of interest on the unpaid balance of the mobilization fund
which is but fair since MWSS has also been remiss in its duty to settle its own
obligation with petitioner under 18.05[29] of the RS-4 contract.[30] Under the said provision, both
parties were required to settle their respective accountabilities upon
termination of said agreement.
MWSS is, likewise, entitled to P317,861.36
for customs paid, under paragraph (f)
of their modified agreement regarding petitioner’s availment of
respondent’s loan with ADB under the qualified commitment procedure for
importation of the required materials and equipment:
(f) All undertakings and expenses related to the
release of the goods from the customs gone up to delivery to the project site,
any loss, damage to shortshipment, misdelivery of the imported materials
including bad orders shall be for your (petitioner) sole account.[31]
We, however, delete the
award of interest on the aforementioned claim on the same principle as above
discussed.
As to the award of
attorney’s fees, there is a contractual stipulation between petitioner and MWSS which
states that attorney’s fees shall
be awarded to the prevailing party.[32] In this case, however, no party actually
prevailed. Both petitioner and MWSS
have legitimate claims against each other and both have been remiss in their
respective obligations. The award of
attorney’s fees is, therefore, deleted.
WHEREFORE, the assailed decision is hereby MODIFIED as
follows:
Amounts due MWSS
A. Unpaid balance of advance
amount for modification P4,089,809.37
B. Customs charges on imported
butterfly valves 317,861.36
T O T A L 4,407,670.73
Amounts
due A.L. Sarmiento
A. For overruns in civil works P 10,925.62
B. Compensation for use of A.L.
Sarmiento’s eight (8) vehicles
101,849.65
C. Price adjustment/escalation
per PD 1594 192,000.00
D. Trade Discount 500,000.00
T O T A L P 804,775.27
Net Amount Due MWSS P3,602,895.46
SO ORDERED.
Narvasa, C.J.,
(Chairman), Romero, and Purisima, JJ., concur.
[1]
Rollo, pp. 113-114.
[2]
Id., at 16-17.
[3]
Id., at 18.
[4]
Id., at 64.
[5]
Id., at 81-82.
[6]
Id., at 30-31.
[7] SEC.
2. Contents of petition.--The
petition shall contain a concise statement of the matters involved, the
assignment of errors made in the court below, and the reasons relied on for the
allowance of the petition, and it should be accompanied with a true copy of the
judgment sought to be reviewed, together with twelve (12) copies of the record
on appeal, if any, and of the petitioner’s brief as filed in the Court of
Appeals. A verified statement of the
date when notice of judgment and denial of the motion for reconsideration, if
any, were received shall accompany the petition.
Only questions of law
may be raised in the petition and must distinctly set forth. If no record on appeal has been filed in the
Court of Appeals, the clerk of the Supreme Court, upon admission of the petition, shall demand from the Court of
Appeals the elevation of the whole record of the case. (Underscoring ours.)
[8]
Bautista v. Mangaldan Rural Bank, 230 SCRA
16 (1994); See also Geronimo v. CA, 224 SCRA 494 (1993).
[9]
Lee Eng Hong & Rosalinda Villacorta v. CA &
Benjamin D. Yu, G.R. No. 114145, 15 February 1995, citing Quality Tobacco Corp. v. IAC, 187 SCRA 210
(1992); Shauf v. CA, 191 SCRA 713 (1990); See also Somodio v. CA,
235 SCRA 307 (1994) & Cayabyab v.
IAC, 232 SCRA 1 (1994).
[10]
TSN, 8 November 1985, p. 7.
[11]
See Exhibits 30, 39-E, 39-H, 38-I, 39-J, 39-K, 39-L, 39-M, 39-N.
[12]
Ibid.
[13]
TSN, 21 June 1990, pp. 14-15.
[14]
TSN, 18 July 1990, p. 5.
[15]
Exhibit 41 and 41-A.
[16]
P13, 954.17.
[17]
TSN, 24 July 1990, pp. 22-23.
[18]
Rollo, pp. 111-112.
[19]
ADB Withdrawal Authorization and Loan Disbursement Vouchers; Exhibits 43-C, 44-C, 45-D, 45-E, 46-D, 47-C,
48-C, 49-C, 50-C, 51-L, 52-I, 52-J, 53-F,
53-G, 53-H, 53-I, 54-C, 55-C, 56-C, and 57-D. A qualified commitment is a commitment by a financing institution
which in this case is the ADB (Asian Dev’t. Bank), to pay or to finance the
importation of equipments for Contract RS-4.
The payment of which will be taken from the existing loan of the borrower
which in this case is the MWSS thru its loan from ADB, ADB Loan No. 3518. (TSN, 21 August 1990, p. 26.)
[20]
2.01 of Contract No. RS-4, Rollo, p. 92.
[21]
TSN, 23 January 1991, p. 10.
[22] Annex F of the petition; Rollo, pp.
108-110; Exhibit J, Original Records:
xxx.
This has reference to your request
for assistance in the importation of materials/equipment needed for the subject
contract.
Per discussions made between our
staff, ADB people and yourself, please be advised that payment to the suppliers
of imported materials/equipment shall be through the Qualified Commitment
Procedure of the Asian Development Bank instead of the Direct Payment scheme as
previously endorsed to you under our letter of 16 January 1984 subject to the
following terms and conditions:
a)
Assistance will apply only for the
procurement of materials/equipment that will be incorporated into or installed
in the works required in the project.
b) Any payment
made by ADB under this assistance shall bear an interest rate of 18% per annum
which will start as of the date MWSS loan account with ADB is debited
as reflected in
ADB advices of
withdrawals up to the time the contractor would have been
paid the progress
billing against the pay item
where the goods are installed until fully liquidated.
c) The
application of Price Escalation for the bid item where such imported
materials/equipment are to be incorporated shall be in accordance with Section
C 1-11 of the PD 1594
implementing rules and regulations as amended 17 June 1982.
d) All
importations should be consigned to MWSS.
e) You
shall be responsible and answerable to MWSS for the compliance of the imported
materials as to the required specifications or its approved equivalent. In case goods delivered are rejected for
the above reason, you shall be held solely accountable to your supplier.
f) All
undertakings and expenses related to the release of the goods from the customs
zone up to delivery to the project site, any loss, damage to shortshipment,
misdelivery of the imported materials including bad orders shall be for your
sole account.
g)
Inventory from time to time shall be undertaken by MWSS once the goods have
been accounted for by both parties and accepted by MWSS and any losses thereof
shall be an outright deduction from any billing submitted to us for processing
plus estimated cost of import duties and taxes.
h) You
shall insure with the Government Service Insurance System, expressly making the
MWSS the beneficiary thereof the materials/equipment to be imported against
marine and other perils of the sea, pilferages, misdelivery, shortmanship,
including the risk of war and revolution, from port of origin to destination at
project site, premium for the insurance shall be at your expense.
i) In the
availment of this assistance, the contractor shall be held responsible, and
hold MWSS free of any delay that may arise out of and in connection with this
assistance not due to the fault of MWSS, and it is expressly understood that
such delay shall not be ground or reason for extension of contract time.
j) This
assistance shall be subject to availability of loan proceeds.
Under the qualified commitment
procedure of the Asian Development Bank, hereunder are the detailed steps to
avail such:
a) You
shall submit a master list of materials/ equipment (which should be limited to
the requirement of the project and as per your foreign currency bid) to the
MWSS for evaluation and approval (the list of equipment/materials should
indicate the particular bid items where the goods are included, if not
specified in the offer at the time of the bidding).
b) MWSS
shall then evaluate and approve the Master list and thence transmit a copy of
the same to ADB, Ministry of Finance and Bureau of Customs.
c) You
shall prepare the application for commercial letter of credit with the PNB or
other banks approved by MWSS, making the MWSS as consignee of the items to be
imported.
d) You
shall submit to MWSS the signed application for letter of credit with complete
documentation for MWSS approval as to the terms and conditions of the letter of credit.
e) You
shall be responsible for all undertakings necessary from the time the
application is filed with and approved by the local commercial bank and the
Central Bank of the Philippines and other approving agencies having
jurisdiction over the same. All
commission, cable charges, confirmation fees, commitment fees and other bank
charges shall be borne solely by you.
f) Once
the letter of credit is opened, you shall furnish MWSS a copy of the letter of
credit for the latter’s use in applying for qualified commitment to ADB.
g) ADB
will process the MWSS application for qualified commitment and advise the
paying bank abroad of such commitment who, in turn, inform the supplier of the
opening of the letter of credit and receipt of the ADB commitment.
h) MWSS
shall advise ADB to release payment upon compliance with the following:
a) Receipt and acceptance of the goods by MWSS
at the designated delivery site.
b)
Submission by contractor of chattel mortgage on the accepted goods duly registered and executed in favor of MWSS.
If you are agreeable to the above
terms and conditions, please affix your signature hereunder and return this
letter to us.
Very truly yours,
(SGD.) ABER P. CANLAS
Acting General Manager
(SGD.) A.L. SARMIENTO CO.
March 12, 1984
[23] ARTICLE XV.
AGREEMENT MODIFICATION
“15.01 No modification,
alteration or waiver of any provision herein contained shall be binding on the parties hereto unless evidenced by a
written amendment signed by the General Manager, MWSS, and approved by the
approving authorities.”
[24]
TSN, 18 July 1990, pp. 9-10; Exhibit 29.
[25]
Exhibits 43-B, 44-B; 45-C; 46-C; 47-B; 48-B; 49-B; 50-B; 51-K; 52-H;
53-E; 54-B; 55-B; 56-B; TSN, 31 August 1990, pp. 19-22; TSN, 21 August 1990,
pp. 22-23.
[26]
Rollo, pp. 73-75.
[27]
Id., at 75-77.
[28]
TSN, 31 August 1990, pp. 8-9.
[29]
18.05 Within thirty (30) days after termination, cancellation or
rescission of this Contract, the parties shall settle their respective
accountabilities as of the date of termination, cancellation or rescission,
including the refund of any and all advances made plus legal interest from date
of receipt of the amount of (sic) amounts advanced.
[30]
Rollo, p. 342.
[31]
Supra, see note 22.
[32] ARTICLE XVII
REMEDY AND RELIEF
17.01 Any dispute or disagreement of any kind whatsoever arising from a
violation of any of the terms and conditions of this Contract shall be settled
through negotiation and/or court action as provided for under existing
laws. In any event, in case of court
action, the prevailing party shall be entitled to collect attorney’s fees
equivalent to ten (10%) percentum of the amount litigated.