FIRST DIVISION
VENANCIO R. NAVA, G.R.
No. 160211
Petitioner,
Present:
Panganiban, CJ, Chairperson,
- versus - YNARES-SANTIAGO,
AUSTRIA-MARTINEZ,
CALLEJO,
SR., and
CHICO-NAZARIO, JJ
The
Honorable Justices
RODOLFO G.
PALATTAO,
GREGORY S.
ONG, and
MA.
CRISTINA G. CORTEZ-
ESTRADA as
Members of the
Sandiganbayan’s
Fourth Division, and
the PEOPLE
OF THE
Respondents.
x -- -- -- -- -- -- -- -- -- -- -- -- --
-- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- x
PANGANIBAN, CJ:
A meticulous review of the records and
the evidence establishes the guilt of the accused beyond reasonable doubt. Clearly, the prosecution was able to prove
all the elements of the crime charged.
Hence, the conviction of petitioner is inevitable.
Before
us is a Petition for Certiorari[1]
under Rule 65 of the Rules of Court, assailing the
“WHEREFORE,
premises considered, judgment is hereby rendered convicting accused VENANCIO
NAVA Y RODRIGUEZ of the crime of violation of the Anti-Graft and Corrupt
Practices Act particularly Section 3(g) thereof, or entering on behalf of
government in any contract or transaction manifestly and grossly
disadvantageous to the same whether or not the pubic officer profited or will
profit thereby. In the absence of any aggravating or mitigating circumstances,
applying the Indeterminate Sentence Law, accused is hereby sentenced to suffer
the penalty of imprisonment of six (6) years, and one (1) day as minimum to
twelve (12) years and one (1) day as maximum and to suffer perpetual
disqualification from public office. Accused Nava is further ordered to pay the
government the amount of P380,013.60 which it suffered by way of damages
because of the unlawful act or omission committed by the herein accused
Venancio Nava.
“From the
narration of facts, there hardly appears any circumstance that would suggest
the existence of conspiracy among the other accused in the commission of the
crime.
“Thus in the
absence of conspiracy in the commission of the crime complained of and as the
herein other accused only acted upon the orders of accused Venancio Nava, in
the absence of any criminal intent on their part to violate the law, the acts
of the remaining accused are not considered corrupt practices committed in the
performance of their duties as public officers and consequently, accused AJATIL
JAIRAL Y PONGCA, ROSALINDA MERKA Y GUANZON & JOSEPH VENTURA Y ABAD are
hereby considered innocent of the crime charged and are hereby acquitted.”[3]
The
assailed Resolution dated
The Sandiganbayan narrated the facts of this case as
follows:
“The complaint involving the herein
accused was initiated by the COA, Region XI,
“In the Audit Report, the amount of P603,265.00
was shown to have been released to the DECS Division of Davao del Sur for
distribution to the newly nationalized high schools located within the region.
Through the initiative of accused Venancio Nava, a meeting was called among his
seven (7) schools division superintendents whom he persuaded to use the money
or allotment for the purchase of Science Laboratory Tools and Devices (SLTD).
In other words, instead of referring the allotment to the one hundred
fifty-five (155) heads of the nationalized high schools for the improvement of
their facilities, accused Nava succeeded in persuading his seven (7) schools
division superintendents to use the allotment for the purchase of science
education facilities for the calendar year 1990.
“In the purchase of the school
materials, the law provides that the same shall be done through a public
bidding pursuant to Circular No. 85-55, series of 1985. But in the instant
case, evidence shows that accused Nava persuaded his seven (7) schools division
superintendents to ignore the circular as allegedly time was of the essence in
making the purchases and if not done before the calendar year 1990, the funds
allotted will revert back to the general fund.
“In the hurried purchase of SLTD’s,
the provision on the conduct of a public bidding was not followed. Instead the
purchase was done through negotiation. Evidence shows that the items were
purchased from Joven’s Trading, a business establishment with principal address
at Tayug, Pangasinan; D’[I]mplacable Enterprise with principal business address
at 115 West Capitol Drive, Pasig, Metro Manila and from Evelyn Miranda of 1242
Oroqueta Street, Sta. Cruz, Manila. As disclosed by the audit report, the
prices of the [SLTDs] as purchased from the above-named sellers exceeded the
prevailing market price ranging from 56% to 1,175% based on the mathematical
computation done by the COA audit team. The report concluded that the government
lost P380,013.60. That the injury to the government as quantified was
the result of the non-observance by the accused of the COA rules on public
bidding and DECS Order No. 100 suspending the purchases of [SLTDs].”[4]
The
Commission on Audit (COA) Report recommended the filing of criminal and
administrative charges against the persons liable, including petitioner, before
the Office of the Ombudsman-Mindanao.
Petitioner was subsequently charged in
an Information[5] filed on
“That on or about the period between
November to December 1990, and for sometime prior or subsequent thereto, in
Digos, Davao Del Sur and/or Davao City, Philippines and within the jurisdiction
of this Honorable Court, the accused Venancio R. Nava (DECS-Region XI Director)
and Ajatil Jairal (Division Superintendent, DECS, Davao del Sur), both
high[-]ranking officials and Rosalinda Merka, and Teodora Indin (Administrative
Officer and Assistant Division Superintendent, respectively of DECS-Division of
Davao Del Sur), all low ranking officials, while in the discharge of their
respective official functions, committing the offense in relation to their
office and with grave abuse [of] authority, conniving and confederating with
one another, did then and there willfully, unlawfully and feloniously enter, on
behalf of the government, into transactions with D’Implacable Enterprise and
Joven’s Trading, respectively, represented by accused Antonio S. Tan and Evelyn
Miranda and Joseph Ventura for the purchase of Science Laboratory Tools and
Devices (SLTD) intended for use by the public high schools in the area
amounting to [P603,265.00], Philippine currency, without the requisite
public bidding and in violation of DECS Order No. 100, Series of 1990, which
transaction involved an overprice in the amount of P380,013.60 and thus,
is manifestly and grossly disadvantageous to the government.”[6]
Special Prosecution Officer II
Evelyn T. Lucero-Agcaoili recommended the dismissal of the foregoing
Information on the ground, among others, that there was no probable cause. She argued that only estimates were made to
show the discrepancy of prices instead of a comparative listing on an item to
item basis.[7] The recommendation was disapproved, however,
by then Ombudsman Aniano A. Desierto.
Ruling of the Sandiganbayan
After due trial, only petitioner was
convicted, while all the other accused were acquitted.[8]
Petitioner was found guilty of violating
Section 3(g) of the Anti-Graft and Corrupt Practices Act, or entering on behalf
of the government any contract or transaction manifestly and grossly
disadvantageous to the latter, whether or not the public officer profited or
would profit thereby.
The Sandiganbayan (SBN) said that, in
the purchase of the Science Laboratory Tools and Devices (SLTDs), petitioner
had not conducted a public bidding in accordance with COA Circular No.
85-55A. As a result, the prices of the
SLTDs, as purchased, exceeded the prevailing market price from 56 percent to
1,175 percent, based on the mathematical computations of the COA team.[9] In his defense, petitioner had argued that
the said COA Circular was merely directory, not mandatory. Further, the
purchases in question had been done in the interest of public service.[10]
The Sandiganbayan did not give
credence to the foregoing defenses raised by petitioner. On the contrary, it found the evidence
adduced by petitioner’s co-accused, Superintendent Ajatil Jairal, to be
“enlightening,” manifesting an intricate web of deceit spun by petitioner and
involving all the other superintendents in the process.[11]
The
graft court did not accept the claim of petitioner that he signed the checks
only after the other signatories had already signed them. The evidence showed that blank Philippine
National Bank (PNB) checks had been received by Nila E. Chavez, a clerk in the
regional office, for petitioner’s signature.
The
Sandiganbayan opined that the evidence amply supported Jairal’s testimony that
the questioned transactions had emanated from the regional office, as in fact,
all the documents pertinent to the transaction had already been prepared and
signed by petitioner when the meeting with the superintendents was called
sometime in August 1990.[12]
In that
meeting, the superintendents were given prepared documents like the Purchase
Orders and vouchers, together with the justification.[13] This circumstance prompted Jairal to conduct
his own canvass. The Sandiganbayan held that this act was suggestive of the
good faith of Jairal, thereby negating any claim of conspiracy with the other
co-accused and, in particular, petitioner.
In its
assailed Resolution, the SBN denied petitioner’s Motion for
Reconsideration. It held that the series
of acts culminating in the questioned transactions constituted violations of
Department of Education, Culture and Sports (DECS) Order No. 100; and COA
Circular No. 85-55A. Those acts, ruled
the SBN, sufficiently established that the contract or transaction entered into
was manifestly or grossly disadvantageous to the government.
Hence, this Petition.[14]
Petitioner
raises the following issues for our consideration:
“I. Whether
the public respondent committed grave abuse of discretion amounting to a lack
of or excess of jurisdiction in upholding the findings of the Special Audit
Team that irregularly conducted the audit beyond the authorized period and
which team falsified the Special Audit Report.
“II. Whether
the public respondent committed grave abuse of discretion amounting to a lack
of or excess of jurisdiction in upholding the findings in the special audit
report where the Special Audit Team egregiously failed to comply with the
minimum standards set by the Supreme Court and adopted by the Commission on
Audit in violation of petitioner’s right to due process, and which report
suppressed evidence favorable to the petitioner.
“III. Whether
the public respondent committed grave abuse of discretion amounting to a lack
of or excess of jurisdiction in upholding the findings in the Special Audit
Report considering that none of the allegedly overpriced items were canvassed
or purchased by the Special Audit Team such that there is no competent evidence
from which to determine that there was an overprice and that the transaction
was manifestly and grossly disadvantageous to the government.
“IV. Whether
the public respondent committed grave abuse of discretion amounting to a lack
of or excess of jurisdiction in finding that there was an overprice where none
of the prices of the questioned items exceeded the amount set by the Department
of Budget and Management.
“V. Whether
the public respondent committed grave abuse of discretion amounting to a lack
of or excess of jurisdiction in selectively considering the findings in the
decision in Administrative Case No. XI-91-088 and failing to consider the
findings thereon that petitioner was justified in undertaking a negotiated
purchase and that there was no overpricing.
“VI. Whether
the public respondent committed grave abuse of discretion amounting to a lack
of or excess of jurisdiction in selectively considering the findings of
XI-91-088 and failing to consider the findings thereon that petitioner was
justified in undertaking a negotiated purchase, there was no overpricing, and
that the purchases did not violate DECS Order No. 100.
“VII. Whether
the public respondent committed grave abuse of discretion amounting to a lack
of or excess of jurisdiction in failing to absolve the petitioner where
conspiracy was not proven and the suppliers who benefited from the alleged
overpricing were acquitted.
“VIII. Whether
the public respondent committed grave abuse of discretion amounting to a lack
of or excess of jurisdiction in admitting in evidence and giving probative
value to Exhibit ‘8’ the existence and contents of which are fictitious.
“IX. Whether
the public respondent committed grave abuse of discretion amounting to a lack
of or excess of jurisdiction in giving credence to the self-serving and
perjurious testimony of co-accused Ajatil Jairal that the questioned
transactions emanated from the regional office [in spite] of the documentary
evidence and the testimony of the accused supplier which prove that the
transaction emanated from the division office of Digos headed by co-accused
Ajatil Jairal.
“X. Whether
the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in
finding that the petitioner entered into a transaction that was manifestly and
grossly disadvantageous to the government where the evidence clearly
established that the questioned transactions were entered into by the division
office of Digos through co-accused Ajatil Jairal.
“XI. Whether
the public respondent committed grave abuse of discretion amounting to a lack
of or excess of jurisdiction in convicting the petitioner in the absence of
proof beyond reasonable doubt.”[15]
All
these issues basically refer to the question of whether the Sandiganbayan
committed reversible errors (not grave abuse of discretion) in finding
petitioner guilty beyond reasonable doubt of violation of Section 3(g),
Republic Act No. 3019.
The Petition has no merit.
Procedural Issue:
Propriety of Certiorari
At the outset,
it must be stressed that to contest the Sandiganbayan’s Decision and Resolution
on
Basic
is the principle that when Rule 45 is available, recourse under Rule 65 cannot
be allowed either as an add-on or as a substitute for appeal.[18] The special civil action for certiorari is
not and cannot be a substitute for an appeal, when the latter remedy is
available.[19]
This
Court has consistently ruled that a petition for certiorari under Rule 65 lies
only when there is no appeal or any other plain, speedy and adequate remedy in
the ordinary course of law.[20] A remedy is considered plain, speedy and adequate
if it will promptly relieve the petitioner from the injurious effects of the
judgment and the acts of the lower court or agency or as in this case, the
Sandiganbayan.[21] Since the assailed Decision and Resolution
were dispositions on the merits, and the Sandiganbayan had no remaining issue
to resolve, an appeal would have been the plain, speedy and adequate remedy for
petitioner.
To be
sure, the remedies of appeal and certiorari are mutually exclusive and not
alternative or successive.[22] For this procedural lapse, the Petition
should have been dismissed outright.
Nonetheless, inasmuch as it was filed within the 15-day period provided under
Rule 45, the Court treated it as a petition for review (not certiorari) under
Rule 45 in order to accord substantial justice to the parties. Thus, it was given due course and the Court
required the parties to file their Memoranda.
Main
Issue:
Sufficiency
of Evidence
Petitioner argues that the Sandiganbayan erred in convicting
him, because the pieces of evidence to support the charges were not
convincing. Specifically, he submits the
following detailed argumentation:
“1. the Special Audit Report was fraudulent,
incomplete, irregular, inaccurate, illicit and suppressed evidence in favor of
the Petitioner;
“2. there was no competent evidence to
determine the overprice as none of the samples secured by the audit team from
the Division of Davao del Sur were canvassed or purchased by the audit team;
“3. the allegedly overpriced items did not
exceed the amount set by the Department of Budget and Management;
“4. the decision in an administrative
investigation were selectively lifted out of context;
“5. the administrative findings that
Petitioner was justified in undertaking a negotiated purchase, that there was
no overpricing, and that the purchases did not violate DECS Order No. 100 were
disregarded;
“6. Exhibit ‘8’, the contents of which are
fictitious, was admitted in evidence and given probative value;
“7. The suppliers who benefited from the
transactions were acquitted, along with the other accused who directly
participated in the questioned transactions; and
“8. The self-serving and perjury-ridden
statements of co-accused Jairal were given credence despite documentary and testimonial
evidence to the contrary.” [23]
Petitioner further avers that
the findings of fact in the Decision dated
Validity
of Audit
The
principal evidence presented during trial was the COA Special Audit Report (COA
Report). The COA is the agency
specifically given the power, authority and duty to examine, audit and settle
all accounts pertaining to the revenue and receipts of, and expenditures or
uses of fund and property owned by or pertaining to the government.[26] It has the exclusive authority to define the
scope of its audit and examination and to establish the required techniques and
methods.[27]
Thus,
COA’s findings are accorded not only respect but also finality, when they are
not tainted with grave abuse of discretion.[28] Only upon a clear showing of grave abuse of
discretion may the courts set aside decisions of government agencies entrusted
with the regulation of activities coming under their special technical
knowledge and training.[29]
In this case, the SBN correctly accorded credence to the COA Report. As will be shown later, the Report can
withstand legal scrutiny.
Initially, petitioner faults the audit
team for conducting the investigation beyond the twenty-one day period stated
in the COA Regional Office Assignment Order No. 91-174 dated
Petitioner
also imputes fraud to the audit team for making “it appear that the items
released by the Division Office of Davao Del Sur on
The discrepancy regarding the date when the samples were
taken and the date of the purchase of the same items for comparison was not
very material. The discrepancy per se did not constitute fraud in the
absence of ill motive. We agree with
respondents in their claim of clerical inadvertence. We accept their
explanation that the wrong date was written by the supplier concerned when the
items were bought for comparison.
Anyway, the logical sequence of events was clearly indicated in the COA
Report:
“1.5.1. Obtained samples of each
laboratory tools and devices purchased by the Division of Davao del Sur, Memorandum
Receipts covering all the samples were issued by the agency to the audit team
and are marked as Exhibits 1.2 and 3 of this Report.”
“1.5.2. Bought
and presented these samples to reputable business establishments in Davao City
like Mercury Drug Store, Berovan Marketing Incorporated and [A]llied Medical
Equipment and Supply Corporation (AMESCO) where these items are also available,
for price verification.
“1.5.3. Available items which were
exactly the same as the samples presented were purchased from AMESCO and
Berovan Marketing Incorporated, the business establishments which quoted the
lowest prices. Official receipts were issued by the AMESCO and Berovan
Marketing Incorporated which are hereto marked as Exhibits 4,5,6 and 7
respectively.”[32]
The
COA team then tabulated the results as follows:[33]
|
Item |
Purchased Unit Cost |
Recanvassed Price + 10% Allow. |
Difference |
% of Over-pricing |
Quantity Purchased |
Total Amount of Overpricing |
|
Flask
Brush made of Nylon |
|
|
|
1,175% |
400 |
|
|
Test
Tube Glass Pyrex (18x50 mm) |
22.36 |
14.30 |
8.06 |
56% |
350 |
2,821.00 |
|
Graduated
Cylinder Pyrex (100ml) |
713.00 |
159.50 |
553.50 |
347% |
324 |
179,334.00 |
|
Glass
Spirit Burner (alcohol lamp) |
163.50 |
38.50 |
125.00 |
325% |
144 |
18,000.00 |
|
Spring
Balance (12.5kg) |
551.00 |
93.50 |
457.50 |
489% |
102 |
46,665.00 |
|
Iron
Wire Gauge |
16.20 |
9.90 |
6.30 |
64% |
47 |
296.10 |
|
Bunsen
Burner |
701.00 |
90.75 |
610.25 |
672% |
150 |
91,537.50 |
Total P380,013.60
What is glaring is the discrepancy in
prices. The tabulated figures are supported
by Exhibits “E-1,” “E-2,” “E-3,” and “E-4,” the Official Receipts evidencing
the equipment purchased by the audit team for purposes of comparison with those
procured by petitioner.[34]
The authenticity of these Exhibits is not disputed by petitioner. As the SBN
stated in its Decision, the fact of overpricing -- as reflected in the
aforementioned exhibits -- was testified to or identified by Laura S. Soriano,
team leader of the audit team.[35]
It is hornbook doctrine that the findings of the trial court are accorded great
weight, since it was able to observe the demeanor of witnesses firsthand and up
close.[36]
In the absence of contrary evidence, these findings are conclusive on this
Court.
It
was therefore incumbent on petitioner to prove that the audit team or any of
its members thereof was so motivated by ill feelings against him that it came
up with a fraudulent report. Since he was not able to show any evidence to this
end, his contention as to the irregularity of the audit due to the discrepancy
of the dates involved must necessarily fail.
An
audit is conducted to determine whether the amounts allotted for certain
expenditures were spent wisely, in keeping with official guidelines and
regulations. It is not a witch hunt to terrorize
accountable public officials. The presumption is always that official duty has
been regularly performed[37]
-- both on the part of those involved with the expense allotment being audited
and on the part of the audit team -- unless there is evidence to the contrary.
Due
Process
Petitioner likewise invokes Arriola v. Commission on Audit[38]
to support his claim that his right to due process was violated. In that case,
this Court ruled that the disallowance made by the COA was not sufficiently
supported by evidence, as it was based on undocumented claims. Moreover, in Arriola, the documents that were used as
basis of the COA Decision were not shown to petitioners, despite their repeated
demands to see them. They were denied access to the actual canvass sheets or
price quotations from accredited suppliers.
As the present petitioner pointed out
in his Memorandum, the foregoing jurisprudence became the basis for the COA to
issue Memorandum Order No. 97-012 dated
“3.2 To firm up
the findings to a reliable degree of certainty, initial findings of overpricing
based on market price indicators mentioned in pa. 2.1 above have to be
supported with canvass sheet and/or price quotations indicating:
a) the identities
of the suppliers or sellers;
b) the
availability of stock sufficient in quantity to meet the requirements of the
procuring agency;
c) the
specifications of the items which should match those involved in the finding of
overpricing;
d) the
purchase/contract terms and conditions which should be the same as those of the
questioned transaction”
Petitioner’s reliance on Arriola is misplaced. First, that
Decision, more so, the COA Memorandum Order that was issued pursuant to the former,
was promulgated after the period when the audit in the present case was
conducted. Neither Arriola nor
the COA Memorandum Order can be given any retroactive effect.
Second
and
more important, the circumstances in Arriola
are different from those in the present case. In the earlier case, the COA merely referred
to a cost comparison made by the engineer of COA-Technical Services Office
(TSO), based on unit costs furnished by the Price Monitoring Division of the
COA-TSO. The COA even refused to show
the canvass sheets to the petitioners, explaining that the source document was
confidential.
In
the present case, the audit team examined several documents before they arrived
at their conclusion that the subject transactions were grossly disadvantageous
to the government. These documents were included in the Formal Offer of
Evidence submitted to the Sandiganbayan.[39]
Petitioner was likewise presented an opportunity to controvert the findings of
the audit team during the exit conference held at the end of the audit, but he
failed to do so.[40]
Further, the fact that only three
canvass sheets/price quotations were presented by the audit team does not
bolster petitioner’s claim that his right to due process was violated. To be
sure, there is no rule stating that all price canvass sheets must be
presented. It is enough that those that
are made the basis of comparison be submitted for scrutiny to the parties being
audited. Indubitably, these documents were properly submitted and testified to
by the principal prosecution witness, Laura Soriano. Moreover, petitioner had
ample opportunity to controvert them.
Public
Bidding
Petitioner oscillates between
denying that he was responsible for the procurement of the questioned SLTDs, on
the one hand; and, on the other, stating that the negotiated purchase was
justifiable under the circumstances.
On
his disavowal of responsibility for the questioned procurement, he claims that
the transactions emanated from the Division Office of Digos headed by Jairal.[41] However, in the administrative case[42]
filed against petitioner before the DECS, it was established that he “gave the
go signal”[43] that
prompted the division superintendents to procure the SLTDs through negotiated
purchase. This fact is not disputed by
petitioner, who quotes the same DECS Decision in stating that his “acts were
justifiable under the circumstances then obtaining at that time and for reasons
of efficient and prompt distribution of the SLTDs to the high schools.”[44]
In justifying the negotiated purchase
without public bidding, petitioner claims that “any delay in the enrichment of
the minds of the public high school students of Davao del Sur is detrimental
and antithetical to public service.”[45]
Although this reasoning is quite laudable, there was nothing presented to
substantiate it.
Executive
Order No. 301 states the general rule that no contract for public services or
for furnishing supplies, materials and equipment to the government or any of
its branches, agencies or instrumentalities may be renewed or entered into
without public bidding. The rule however, is not without exceptions. Specifically, negotiated contracts may be
entered into under any of the following circumstances:
“a. Whenever
the supplies are urgently needed to meet an emergency which may involve the
loss of, or danger to, life and/or property;
“b. Whenever
the supplies are to be used in connection with a project or activity which
cannot be delayed without causing detriment to the public service;
“c. Whenever
the materials are sold by an exclusive distributor or manufacturer who does not
have subdealers selling at lower prices and for which no suitable substitute
can be obtained elsewhere at more advantageous terms to the government;
“d. Whenever
the supplies under procurement have been unsuccessfully placed on bid for at
least two consecutive times, either due to lack of bidders or the offers
received in each instance were exorbitant or non-conforming to specifications;
“e. In
cases where it is apparent that the requisition of the needed supplies through
negotiated purchase is most advantageous to the government to be determined by
the Department Head concerned;
“f. Whenever
the purchase is made from an agency of the government.”[46]
National Center for Mental
Health v. Commission on Audit[47] upheld
the validity of the negotiated contracts for the renovation and the improvement
of the National Center for Mental Health.
In that case, petitioners were able to show that the long overdue need
to renovate the Center “made it compelling to fast track what had been felt to
be essential in providing due and proper treatment and care for the center’s
patients.”[48]
This
justification was likewise accepted in Baylon
v. Ombudsman[49]
in which we recognized that the purchases were made in response to an emergency
brought about by the shortage in the blood supply available to the public. The
shortage was a matter recognized and addressed by then Secretary of Health Juan
M. Flavier, who attested that “he directed the NKTI [National Kidney and
Transplant Institute] to do something about the situation and immediately
fast-track the implementation of the Voluntary Blood Donation Program of the
government in order to prevent further deaths owing to the lack of blood.”[50]
Unfortunately
for petitioner, there was no showing of any immediate and compelling
justification for dispensing with the requirement of public bidding. We cannot accept his unsubstantiated
reasoning that a public bidding would unnecessarily delay the purchase of the
SLTDs. Not only would he have to prove
that indeed there would be a delay but, more important, he would have to show
how a public bidding would be detrimental and antithetical to public service.
As the COA Report aptly states, the
law on public bidding is not an empty formality. It aims to secure the lowest
possible price and obtain the best bargain for the government. It is based on
the principle that under ordinary circumstances, fair competition in the market
tends to lower prices and eliminate favoritism.[51]
In
this case, the DECS Division Office of Davao del Sur failed to conduct public
bidding on the subject transactions. The procurement of laboratory tools and
devices was consummated with only the following documents to compensate for the
absence of a public bidding:
“1.13.a Price lists furnished by the Supply
Coordination Office
1.13.b. Price lists furnished by the Procurement
Services of the Department of Budget and Management
1.13.c. Price
lists of Esteem Enterprises”[52]
The COA Report states that the
Division Office merely relied on the above documents as basis for concluding
that the prices offered by D’Implacable Enterprises and Joven’s Trading were
reasonable. But as found by the COA, reliance on the foregoing supporting
documents was completely without merit on the following grounds:
“a. The
Supply Coordination Office was already dissolved or abolished at the time when
the transactions were consummated, thus, it is illogical for the management to
consider the price lists furnished by the Supply Coordination Office.
“b. The
indorsement letter made by the Procurement Services of the Department of Budget
and Management containing the price lists specifically mentions Griffin and
George brands, made in England. However, the management did not procure these
brands of [SLTDs].
“c. The
price lists furnished by the Esteem Enterprises does not deserve the scantest
consideration, since there is no law or regulation specifically mentioning that
the price lists of the Esteem Enterprises will be used as basis for buying
[SLTDs].”[53]
Granting arguendo that
petitioner did not have a hand in the procurement and that the transactions
emanated from the Division Office of Davao del Sur, we still find him liable as
the final approving authority. In fact,
Exhibit “B-2” -- Purchase Order No. 90-024, amounting to P231,012 and
dated December 17, 1990 -- was recommended by Jairal and approved by
petitioner.[54] This
exhibit was part of the evidence adduced in the Sandiganbayan to prove that the
purchase of the SLTDs was consummated and duly paid by the DECS without any
proof of public bidding.
Although
this Court has previously ruled[55] that all heads of offices have to rely
to a reasonable extent on their subordinates and on the good faith of those who
prepare bids, purchase supplies or enter into negotiations, it is not
unreasonable to expect petitioner to exercise the necessary diligence in making
sure at the very least, that the proper formalities in the questioned transaction
were observed -- that a public bidding was conducted. This step does not entail
delving into intricate details of product quality, complete delivery or fair
and accurate pricing.
Unlike
other minute requirements in government procurement, compliance or
non-compliance with the rules on public bidding is readily apparent; and the
approving authority can easily call the attention of the subordinates
concerned. To rule otherwise would be to render meaningless the accountability
of high-ranking public officials and to reduce their approving authority to
nothing more than a mere rubber stamp.
The process of approval is not a ministerial duty of approving
authorities to sign every document that comes across their desks, and then
point
to their subordinates as the parties responsible if something goes awry.
Suspension
of Purchases
Obviously
working against petitioner is DECS Order No. 100 dated September 3, 1990 which
states thus:
“In view of the
Government’s call for economy measures coupled with the deficiency in
allotments intended for the payment of salary standardization, retirement
benefits, bonus and other priority items, the procurement of reference and
supplementary materials, tools and devices equipment, furniture,
including land acquisition and land improvement shall be suspended for CY 1990.
However, the following items shall be exempted from the said suspension:
a)
textbooks
published by the Instructional Materials Corporation and its commercial
edition;
b)
elementary
school desks and tablet arm chairs[.]”
As
the COA Report succinctly states, the Administrative Order is explicit in its
provisions that tools and devices were among the items whose
procurement was suspended by the DECS for the year 1990.
Petitioner claims that
in the administrative case against him, there was no mention of a violation of
DECS Order No. 100.[56] He alleges that the purchases of SLTDs by the
division superintendents were entered into and perfected on July 1, 1990; that
is, more than two (2) months before the issuance of DECS Order No. 100. He also
alleged that the Sub-Allotment Advice (SAA) to the DECS Regional Office No. XI
in the amount of P9.36M -- out of which P603,265.00 was used for
the procurement of the questioned SLTDs -- had been released by the DECS
Central Office in August 1990, a month before the issuance of DECS Order No.
100.
The Court notes that these arguments
are mere assertions bereft of any proof.
There was no evidence presented to prove that the SAA was issued prior
to the effectivity of DECS Order No. 100. On the other hand, the COA Report
states that the DECS Division of Davao
del Sur received the following Letters of Advice of Allotments (LAA):[57]
“LAA
NO. AMOUNT DATE OF LAA
DO
CO471-774-90 P141,956.00
DO-CO471-797-90 P161,309.00
DO-CO471-1007-90 P300,000.00 December 14, 1990”
The foregoing LAAs were attached as
annexes[58] to
the COA Report and were presented during trial in the Sandiganbayan.[59]
Also, Schools Division Superintendent
Jairal had sent a letter to petitioner, requesting favorable consideration of a
forthcoming release of funding for the different barangay and municipal high
schools. The letter was dated October
16, 1990,[60] and was
made well within the effectivity of the DECS Order. In that letter, Jairal mentioned the receipt
by his office of DECS Order No. 100, albeit wrongly interpreting it as
suspending only the purchases of reference books, supplementary readers, and so
on, but allegedly silent on the purchase of laboratory supplies and materials.[61]
Finally,
the SLTDs were purchased within the covered period of DECS Order No. 100, as
evidenced by the following relevant
documents adduced by the COA audit team, among others:
1) Disbursement
Voucher dated November 27, 1990 for the payment of various laboratory supplies
and materials by DECS, Davao del Sur in the amount of P303,29.40[62]
2) Official
Receipt No. 455 dated January 7, 1991 amounting to P68,424.00 issued by Joven’s Trading[63]
3) Report of
Inspection dated November 26, 1990 signed by Jacinta Villareal and Felicisimo
Canoy[64]
4) Sales Invoice
No. 044 dated November 26, 1990 issued by Joven’s Trading in favor of DECS
amounting to P303,259.40[65]
5) Certificate of
Acceptance dated November 27, 1990 signed by Felicismo Canoy[66]
6) Purchase Order
No. 90-021 in favor of Joven’s Trading dated November 26, 1990 recommended for
approval by Ajatil Jairal[67]
7) Official
Receipt No. 92356 dated January 7, 1991 issued by D’Implacable Enterprises
amounting to P231,012.00[68]
8) Purchase Order
No. 90-024 dated December 17, 1990 recommended for approval by Ajatil Jairal
and approved Director Venancio Nava amounting to P231,012.00.”[69]
The
confluence of the foregoing circumstances indubitably establishes that
petitioner indeed wantonly disregarded regulations. Additionally, DECS Order No. 100 negates his
claim that the negotiated transaction -- done instead of a public bidding --
was justified. If that Order suspended
the acquisition of tools and devices, then there was all the more reason for
making purchases by public bidding.
Since the buying of tools and devices was specifically suspended,
petitioner cannot argue that the purchases were done in the interest of public
service.
Proof
of Guilt
To
sustain a conviction under Section 3(g) of Republic Act No. 3019, it must be
clearly proven that 1) the accused is a public officer; 2) the public officer
entered into a contract or transaction on behalf of the government; and 3) the
contract or transaction was grossly and manifestly disadvantageous to the
government.[70]
From
the foregoing, it is clear that the Sandiganbayan did not err in ruling that
the evidence presented warranted a verdict of conviction. Petitioner is a
public officer, who approved the transactions on behalf of the government,
which thereby suffered a substantial loss. The discrepancy between the prices
of the SLTDs purchased by the DECS and the samples purchased by the COA audit
team clearly established such undue injury.
Indeed, the discrepancy was grossly and manifestly disadvantageous to
the government.
We
must emphasize however, that the lack of a public bidding and the violation of
an administrative order do not by themselves satisfy the third element of
Republic Act No. 3019, Section 3(g); namely, that the contract or transaction
entered into was manifestly and grossly disadvantageous to the government, as
seems to be stated in the Resolution of the Sandiganbayan denying the Motion
for Reconsideration.[71]
Lack of public bidding alone does not result in a manifest and gross
disadvantage. Indeed, the absence of a public bidding may mean that the
government was not able to secure the lowest bargain in its favor and may open the
door to graft and corruption.
Nevertheless, the law requires that the disadvantage must be manifest
and gross. Penal laws are strictly construed against the government.[72]
If
the accused is to be sent to jail, it must be because there is solid evidence
to pin that person down, not because of the omission of a procedural matter
alone. Indeed, all the elements of a
violation of Section 3(g) of Republic Act No. 3019 should be established to
prove the culpability of the accused. In
this case, there is a clear showing that all the elements of the offense are
present. Thus, there can be no other
conclusion other than conviction.
We note, however, that petitioner was
sentenced to suffer the penalty of six (6) years and one (1) day as minimum to
twelve (12) years and one (1) day as maximum.
Under Section 9 of Republic Act 3019, petitioner should be punished with
imprisonment of not less than six (6) years and one (1) month nor more
than fifteen years. Thus, we adjust the
minimum penalty imposed on petitioner in accordance with the law.
WHEREFORE,
the Petition is DENIED. The assailed Decision and
Resolution are AFFIRMED,
with
the MODIFICATION that the minimum sentence
imposed shall be six (6) years and one (1) month, not six (6) years and one (1)
day. Costs against
petitioner.
SO
ORDERED.
ARTEMIO V. PANGANIBAN
Chief Justice
Chairperson, First Division
W E C O N C U R:
CONSUELO YNARES-
Associate Justice Associate Justice
ROMEO J. CALLEJO, SR.
MINITA V. CHICO-NAZARIO
Associate Justice Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I
certify that the conclusions in the above Decision were reached in consultation
before the case was assigned to the writer of the opinion of the Court’s
Division.
ARTEMIO V. PANGANIBAN
Chief
Justice
[1] Rollo, pp. 3-66.
[2] Id. at 68-88. Fourth
Division. Penned by Justice Rodolfo G.
Palattao and concurred in by Justices Gregory S. Ong (Division chair) and Ma.
Cristina G. Cortez-Estrada (member).
[3] Assailed Sandiganbayan Decision, pp. 19-20; rollo, pp. 86-87. (Emphases in the original)
[4] Id. at 9-11; id. at 76-78.
[5] The case was docketed as Criminal Case No. 23627.
[6] Information dated March 17, 1997, p. 1; rollo, p.
145.
[7] Order dated August 1, 1997; rollo, pp. 148-150.
[8] On May 27, 1998, the case against Teodora Indin
was dismissed upon Motion of the Ombudsman; in the Order dated December 4,
2000, the cases against Antonio S. Tan and Evelyn L. Miranda, the proprietor
and authorized representative of D’Implacable Enterprise, were ordered
dismissed for failure of the prosecution to establish the charge against them
by any admissible and reliable proof.
Ajatil Jairal, Rosalinda
Merka and Joseph Ventura were all acquitted by the Sandiganbayan.
[9] Assailed Sandiganbayan Decision, p. 11; rollo p. 78.
[10] Id. at 15; id.
at 82.
[11] Id. at 16; id. at 83.
The Sandiganbayan ruled: “The evidence
adduced by accused Superintendent Ajatil Jairal is very enlightening. It
supports the collective claim of all the other superintendents who were
unnecessarily dragged into the case because of the greed and evil mind of one
man in the person of accused Venancio Nava. It was indeed Nava who brought them
to this cruel situation. x x x.”
[12] Id. at 17; id. at 84.
[13] Id.
[14] This case was deemed submitted for decision on January 7,
2005, upon this Court’s receipt of petitioner’s Memorandum, signed by Atty.
Jose Armand C. Arevalo. Received on
December 7, 2004 was respondent’s Memorandum, signed by Special Prosecutor
Dennis M. Villa-Ignacio, Deputy Special Prosecutor Robert E. Kallos, acting
Director, ASAB-OSP Pilarita T. Lapitan and Special Prosecution Officer II
Cicero D. Jurado Jr.
[15] Petitioner’s Memorandum, pp. 6-8.
[16] Presidential Decree No. 1606 (1978), Sec. 7. “Revising Presidential Decree No. 1486 Creating a Special Court to be Known as ‘Sandiganbayan’ and for Other Purposes.”
[17] Republic Act No. 8249 (1997), Sec. 5. “An Act Further Defining the Jurisdiction of the Sandiganbayan, Amending for the Purpose Presidential Decree No. 1606, as Amended, Providing Funds Therefor, and for Other Purposes.”
[18] Pagoda Philippines, Inc. v. Universal Canning, Inc., GR No. 160966, October 11, 2005.
[19] Chua v. Santos, 440 SCRA 365, October
18, 2004.
[20] People v. Sandiganbayan, 449 SCRA 205, January 21, 2005; Rosete v. CA, 393 Phil. 593, August 29, 2000; Bernardo v. CA, 275 SCRA 413, July 14, 1997. See also Rules of Court, Rule 65, Sec. 1.
[21] Nautica Canning Corp. v. Yumul, GR No. 164588, October 19, 2005.
[22] People v. Sandiganbayan, supra note 20.
[23] Petitioner’s Memorandum, pp. 8-9.
[24] Rollo, pp. 287-305.
[25] Petitioner’s Memorandum p. 54.
[26] Constitution,
Art. IX-D, Sec. 2(1).
[27] Constitution,
Art. IX-D, Sec. 2(2).
[28] Cuerdo v. Commission on Audit, 166 SCRA 657, October
27, 1988.
[29] Villanueva v. Commission on Audit, 453 SCRA 782,
March 18, 2005; Olaguer v. Domingo,
359 SCRA 78, June 20, 2001.
[30] Respondent’s memorandum, p. 19; rollo, p. 446.
[31] Petitioner’s Memorandum, p. 15.
[32] COA Report, pp. 6-7; rollo, pp. 99-100.
[33] Id. at 8; id. at 101.
[34] Rollo, pp.
230-233.
[35] Assailed Sandiganbayan Decision, p. 12; rollo, p. 79.
[36] See People v.
Baao, 142 SCRA 476, July 7, 1986.
[37] See Remolona v.
Civil Service Commission, 362
SCRA 304, August 2, 2001.
[38] 202 SCRA 147, September 30, 1991.
[39] See Formal Offer of Evidence, referring to Exhibits
“A” – “E-7”; rollo, pp. 152-236.
[40] Respondent’s Memorandum, p. 24; rollo, p. 451.
[41] Petitioner’s Memorandum, pp. 72-82.
[42] DECS Administrative Case No. XI-91-088, October 21, 1996 (rollo,
pp. 287-305).
[43] Id. at 290.
[44] Petitioner’s Memorandum, p. 55.
[45] Id. at 57.
[46] Executive Order No. 301 (1987), Sec. 1.
[47] 265 SCRA 390, December 6, 1996.
[48] Id. at 404, per Vitug, J.
[49] 372 SCRA 437, December 14, 2001.
[50] Id. at 453, per Pardo, J.
[51] COA Report p. 10, rollo
p. 103.
[52] Id. at 10-11; id. at 103-104.
[53] Id. at 11-12; id. at 104-105.
[54] Formal Offer of Evidence, pp. 2-3; rollo, pp. 153-154.
[55] Arias v. Sandiganbayan, 180 SCRA 309, December 19,
1989.
[56] Petitioner’s Memorandum, p. 58.
[57] COA Report, p. 14; rollo,
p. 107.
[58] Rollo, pp. 162-164
and 221-224.
[59] Exhibits “A”, “A-1”, “A-2”; Formal Offer of Evidence, p. 1; rollo, p. 152.
[60] Rollo, p. 236.
[61]
[62] Exhibit “C”; rollo, p. 154.
[63] Exhibit “C-4”; id. at 155.
[64] Exhibit “C-5”; id.
[65] Exhibit “C-6”; id.
[66] Exhibit “C-7”; id.
[67] Exhibit “C-8”; id.
[68] Exhibit “B-3”; id. at 153.
[69] Exhibit “B2”; id.
[70] See Morales v.
People, 385 SCRA 259, July 26, 2002.
[71] Assailed Resolution dated September 29, 2003, p. 3; rollo, p. 142.
[72] Centeno v.
Villalon-Pornillos, 236 SCRA 197, September 1, 1994.