THIRD DIVISION
|
COL.
ARTURO C. FERRER (RET.), Petitioner, - versus - HON. OFFICE OF THE
OMBUDSMAN, ROMEO G. DAVID, Former Administrator, JOEMARI D. GEROCHI,
Administrator, National Food Authority (NFA), FRANCISCO G. CORDOBA, JR.,
chairman, PBAC, MARCELINO B. AGANA IV, EVANGELINE V. ANAGO, BENJAMIN D.
JAVIER, and CELIA Z. TAN, Members, PBAC, Respondents. |
G.R.
No. 129036
Present: YNARES-SANTIAGO, J.,
Chairperson, AUSTRIA-MARTINEZ, CHICO-NAZARIO, NACHURA, and REYES, JJ. Promulgated: August 6,
2008 |
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DECISION
NACHURA, J.:
Before
us is a petition for review on certiorari
under Rule 45 of the Rules of Court seeking the reversal and nullification of
the Evaluation Report[1] of
the Office of the Ombudsman thru then Graft Investigation Officer (GIO) I
Bienvenida A. Gruta, dated October 25, 1996, recommending the dismissal of the
complaint of petitioner in OMB-0-96-1986, entitled “Arturo Ferrer v. Romeo David, et al.,” and her Order[2]
dated February 11, 1997, denying with finality petitioner’s motion for
reconsideration.
On
Odin
Security Agency (Odin), owned by petitioner, retired Col. Arturo C. Ferrer
(Ferrer), opted to bid in NFA’s Area III.
Odin was disqualified during the accreditation or pre-qualification
stage, but Odin protested and the disqualification was later reconsidered.
On
Having
perceived a collusion between DASIA and Metroguard, not only because of their
identical bid price, but also for having respectively withdrawn their bid
proposals in an area or areas in favor of the other (Metroguard withdrew its
bid proposal in Area V in favor of DASIA, and DASIA also yielded its bid
proposals in Areas III and IV in favor of Metroguard), the other participating
bidders, including Odin, protested.
Respondent
David sought an opinion from the Office of the Government Corporate Counsel
(OGCC) regarding the alleged collusion between Metroguard and DASIA. In answer, the OGCC issued Opinion No. 324[3]
dated
Aggrieved
after the denial of its request for reconsideration, DASIA sought judicial
intervention by filing a complaint[6]
against respondents David and Francisco G. Cordoba, Jr. (Cordoba), as NFA
Administrator and PBAC Chairman, respectively, before the Regional Trial Court
(RTC) of Davao City for the “Declaration of Disqualification of Plaintiff in
the Public Bidding Illegal, with Prayer for Preliminary Injunction and for the
Immediate Issuance of Temporary Restraining Order.” Said case was docketed as Civil Case No. 23,
531-95.
After
trial, the RTC rendered its Decision[7] on
David
and
This
prompted petitioner to file on
The
Office of the Ombudsman dismissed outright the complaint for lack of merit based
on the Evaluation Report of GIO Gruta dated
Curiously, a phrase, “RELATED (TO) OMB-0-96-1552” is written on the first page of the original complaint-affidavit. A thorough comparative study of the instant complaint and that of OMB-0-96-1552 which is entitled “Eugenio M. Revita vs. Romeo G. David, et al., reveals the following observations:
1). the two cases have identical respondents;
2). they have identical issues as enumerated above;
3). the
complainants are different persons although both represent security agencies
which participated in the bidding conducted by NFA for security services last
4). a preliminary investigation was already completed on OMB-0-96-1552 and a resolution consisting of 13 pages dismissing the complaint was submitted for review.
The pertinent findings of Atty.
Roline M. Ginez-Jabalde in her Resolution dated
“In our appreciation of the facts involved in this case, we found out that respondent Acting NFA Administrator Gerochi and the Chairman as well as the members of the PBAC for Security Services cannot be faulted for awarding the security services to DASIA for Area III; Metroguard for Area IV; and ACD Security & Investigation Agency for Area V.
The issue on collusion between DASIA and Metroguard has been resolved by the Regional Trial Court Branch 17 of Davao City, thus any hindrance brought about by the opinion of OGCC about the issue of collusion had been put to rest. XXX” (page 10, 4th & 5th par.)
On the issue of giving undue preference to ACD Security & Investigation Agency which was awarded a contract despite alleged lack of valid bid bond, Atty. Jabalde finds, to wit:
“x x x The bid of ACD was conditionally accepted as it was able to submit the original endorsement from the GSIS stating the effect that the original bid bond has been extended and the amount of coverage increased subject however to its submission of the original bid bond or a photocopy thereof on or before nine o’clock in the morning of the following day which it did.” (page 11, 2nd par.)
The undersigned concurs with the
above findings which have also settled the three issues raised in the instant
complaint.[10]
Petitioner moved to reconsider the
dismissal of his Complaint-Affidavit.[11] Respondents David,[12]
Joemari D. Gerochi (Gerochi),[13]
then Acting NFA Administrator,
In an Order dated
It is interesting to note that the grounds
enumerated by the movant do not contain any true issue on which may be based
reconsideration of the resolution in this case.
But for the sake of discussion, undersigned investigator chooses to
tackle the second and eight[h] grounds advanced by the movant.
Movant cited that there are different facts
and circumstances attending his complaint.
One of these facts being that Odin was initially predisqualified by the
NFA-PBAC. The reason for this is the
robbery incident at Fort Bonifacio Warehouse of NFA which involved Odin’s
security guards (Joint comments dated January 30, 1997). On motion for reconsideration, the new set of
PBAC members prequalified Odin to participate in the bidding for security
agencies scheduled last June 30, 1993.
Movant also mentioned that undersigned
investigator failed to make an inquiry about his charge for violation of
Section 4, R.A. 5487 as amended which is penalized by cancellation of license
to operate security agency.
Clearly, the Office of the Ombudsman has no
authority to investigate charges of violation of R.A. 5487, otherwise known as
Private Security Agency Law.
Relative to the assertion that undersigned
investigator abdicated her sworn duty to evaluate a complaint on its own merit,
it should be emphasized that the undersigned spent precious hours studying the
complaint and its attached documents before she arrived at the conclusion that
the case and Revita’s complaint have identical charges and issues arising from
the same bidding participated in by the complainants. Movant himself accepted the fact that the two
cases are similar having identical respondents, issues and charges. When there are no more legal or factual
issues to be resolved, there is no need to conduct preliminary investigation.[15]
Hence, this petition raising the
following issues –
6.1
Whether or not petitioner’s complaint (OMB-0-96-1986) may be dismissed
on the basis of a resolution in another complaint (OMB-0-96-1552) filed by
another complainant (Eugenio M. Revita).
6.2.
Whether or not the decision of the RTC-Davao, Br. 17, in Civil Case No.
23, 531 may be validly used as the basis by respondents for the award of the
contracts for security services in favor of Metroguard and DASIA,
notwithstanding the pendency of the appeal of the decision with the Court of
Appeals, and despite the opinion of the OGCC that Metroguard and DASIA must be
disqualified from the public bidding on the ground of collusion between them.
6.3
Whether or not the Office of the Ombudsman has no authority to
investigate charges of violation of Republic Act 5487, otherwise known as the
Private Security Agency Law, to determine the criminal liability of
respondents.[16]
The petition must fail.
First. Petitioner contends that in issuing the
questioned Evaluation Report, GIO Gruta failed to consider the merits of his
complaint but simply adopted the Resolution of GIO Ginez-Jabalde in
OMB-0-96-1552 which is tantamount to a violation of his right to due
process. We disagree.
Under Rule II, Section 2 of
Administrative Order No. 07 (Rules of Procedure of the Office of the
Ombudsman), the investigation officer, upon evaluation of the complaint, shall
recommend whether it may be:
a) dismissed outright for want of
palpable merit;
b) referred to respondent for
comment;
c) indorsed to the proper
government office or agency which has jurisdiction over the case;
d) forwarded to the appropriate
office or official for fact-finding investigation;
e) referred for administrative
adjudication; or
f)
subjected to a preliminary investigation.
Therefore, the prerogative as to
whether or not a complaint may be given due course belongs exclusively to the
Office of the Ombudsman, through its assigned investigation officer, who in
this case was GIO Gruta. It is apparent
that GIO Gruta had carefully studied the complaint which, indeed, raised the
very same arguments as in OMB-0-96-1552 pertinent to the alleged collusion
between Metroguard and DASIA in the very same public bidding held by NFA on
June 21, 1994 and the purported unwarranted benefits given to these security
agencies by respondents when they were awarded the security service contracts
for the NFA areas of operations said agencies tendered their bids for. Concurring with the recommendation of GIO
Ginez-Jabalde in OMB-0-96-1552 to dismiss the complaint, similarly approved by
then Ombudsman Desierto, does not necessarily indicate that GIO Gruta did not
exercise her independent judgment in this case in concluding that the complaint
lodged by petitioner lacks merit. To
conduct a preliminary investigation when deemed unnecessary as the same issues being
raised had already been resolved would be superfluous.
As regards petitioner’s allegation of
denial of his right to due process, it should well be remembered that the
essence of due process in administrative proceedings is an opportunity to
explain one’s side or to seek reconsideration of the action or ruling
complained of. The requirements thereof
are satisfied when the parties are afforded a fair and reasonable chance to air
their side of the controversy at hand.
Deprivation of due process cannot be successfully invoked where a party
was given an opportunity to be heard on his motion for reconsideration.[17]
Second. Petitioner argues that the Office of the
Ombudsman was mistaken when it did not see the error on the part of the
Administrator and the PBAC of NFA in awarding to Metroguard and DASIA the
security service contracts on the basis of the Decision of the RTC, Branch 17,
Davao City despite the pendency of its appeal and despite the opinions of the
OGCC that there was collusion between the said security agencies. The argument does not persuade.
It bears mentioning that the Decision
of the RTC, Branch 17,
Relevant to the said ruling, the NFA,
in 1993, decided to conduct a public bidding for security services in its various
areas of operations upon the expiration of the then existing security service
contracts. The then incumbent security
agencies failed to pre-qualify so that they filed different cases with the RTCs
of Quezon City questioning their disqualification and prayed for the issuance
of temporary restraining orders (TROs).
The RTCs issued the TROs prayed for and later issued writs of
preliminary injunction preventing NFA from proceeding with the bidding. Notices were given to the incumbent security
agencies that their extended contracts would not be renewed beyond
Thus, with the directive of this
Court to proceed with the restrained public bidding for the security services
contracts and the declaration that the existing negotiated contracts were
illegal, together with the Decision of the RTC, Branch 17, Davao City that
there was no collusion between Metroguard and DASIA, which had not been
reversed by a higher court, David deemed it fit to award the contracts to
Metroguard and DASIA for the areas they bidded on, considering that their bids
were found by the PBAC as the most advantageous in order to protect the NFA
facilities.
Since the CA had not reversed and set
aside the decision of the RTC, Branch 17, Davao City at the time GIO Gruta
reviewed petitioner’s complaint for alleged violation of Section 3(e) and (g)
of R.A. No. 3019, the RTC Decision remained controlling. Thus, GIO Gruta was correct in dismissing the
charge for lack of merit.
Third. Petitioner posits that the Office of the
Ombudsman erred in ruling that it had no jurisdiction to investigate charges of
violation of R.A. No. 5487 (Private Security Agency Law) for purposes of
determining the probable criminal liability of respondents who were officials
of NFA. This is erroneous.
The jurisdiction of the Office of the
Ombudsman to investigate and prosecute criminal cases pertains to violations of
R.A. No. 3019, as amended, R.A. No. 1379,[18]
as amended, R.A. No. 6713,[19]
Title VII, Chapter II, Section 2 of the Revised Penal Code, and such other
offenses committed by public officers and employees in relation to office.[20]
On the other hand, in R.A. No. 5487, it
is the Philippine National Police (PNP) that exercises general supervision over
the operation of all private detective and watchman security guard agencies.[21] It has the exclusive authority to regulate
and to issue the required licenses to operate security and protective agencies.[22]
In this case, in the absence of a
declaration from the PNP that a violation of the said law was committed by
Metroguard and DASIA, the act of the NFA officials in awarding the security
service contracts to the said agencies after a showing that their bids were the
most advantageous to the government is presumed to be valid.
Verily, the Court has almost always
adopted, and quite aptly, a policy of non-interference in the exercise of the
Ombudsman’s constitutionally mandated powers.
The Ombudsman has the power to dismiss a complaint outright without
going through a preliminary investigation.
To insulate the Office of the Ombudsman from outside pressure and
improper influence, the Constitution, as well as R.A. No. 6770,[23]
saw fit to endow that office with a wide latitude of investigatory and
prosecutory powers, virtually free from legislative, executive, or judicial
intervention. If the Ombudsman, using
professional judgment, finds the case dismissible, the Court shall respect such
findings unless tainted with grave abuse of discretion. The Ombudsman has discretion to determine
whether a criminal case, given its attendant facts and circumstances, should be
filed or not. It is basically his
judgment call.[24]
This rule is also practical. The work of the courts will be seriously hampered
by innumerable petitions assailing the dismissal of investigatory proceedings
conducted by the Office of the Ombudsman in regard to the complaints filed
before it, in much the same manner that the courts would be swamped with
numerous cases if they are compelled to review the exercise of discretion on
the part of fiscals or prosecuting attorneys each time they decide to file an
information in court or dismiss a complaint.[25]
Grave abuse of discretion is an
evasion of a positive duty or a virtual refusal to perform a duty enjoined by
law or to act in contemplation of law as when the judgment rendered is not
based on law and evidence but on caprice, whim and despotism.[26] No such circumstance obtains in this case.
WHEREFORE, the
petition is DENIED for lack of
merit. Costs against petitioner.
SO ORDERED.
ANTONIO EDUARDO B. NACHURA
Associate
Justice
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate
Justice
Chairperson
|
MA. ALICIA
AUSTRIA-MARTINEZ Associate Justice |
MINITA V. CHICO-NAZARIO Associate Justice |
RUBEN T. REYES
Associate
Justice
A T T E S T A T I O N
I attest 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.
CONSUELO
YNARES-SANTIAGO
Associate
Justice
Chairperson,
Third Division
C E R T I F I C A T I O
N
Pursuant to Section 13, Article
VIII of the Constitution and the Division Chairperson's Attestation, I certify
that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court’s
Division.
REYNATO
S. PUNO
Chief
Justice
[1] Rollo, pp. 35-37.
[2]
[3]
[4]
[5]
[6]
[7]
[8] Section 3. Corrupt practices of public officers. – In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:
x x x x
(e) Causing any undue injury to any party, including
the Government, or giving any private party any unwarranted benefits, advantage
or preference in the discharge of his official administrative or judicial
functions through manifest partiality, evident bad faith or gross inexcusable
negligence. This provision shall apply
to officers and employees of offices or government corporations charged with
the grant of licenses or permits or other concessions.
[9] (g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby.
[10] Rollo, pp. 36-37.
[11]
[12]
[13]
[14]
[15]
[16]
[17] Ledesma
v. Court of Appeals, G.R. No. 166780, December 27, 2007, 541 SCRA 444,
452-453; Paat v. Court of Appeals, 334
Phil. 146, 156 (1997).
[18] An Act Declaring Forfeiture in Favor of the State Any Property Found to Have Been Unlawfully Acquired by any Public Officer or Employee and Providing for the Proceedings Therefor.
[19] Code of Conduct and Ethical Standards for Public Officials and Employees.
[20] Rule II, Section 1, Administrative Order No. 07.
[21] Section 11. Supervision of the Philippine Constabulary (now PNP). – Upon
approval of this Act, the Philippine Constabulary (now PNP) shall exercise
general supervision over the operation of all private detective and watchman or
security guard agencies.
[22] Section 6. License Necessary. – No person shall engage in the business of, or
act either as a private detective, or detective agency; and either engage in
the occupation, calling or employment of watchman or in the business of
watchman’s agency without first having obtained the necessary permit from the
Chief, Philippine Constabulary (now PNP) which permit as approved is
prerequisite in obtaining a license or license certificate x x x.
[23] The Ombudsman Act of 1989.
[24] Soriano
v. Marcelo, G.R. No. 163017,
[25] Albay
Accredited Constructors Association, Inc. v. Desierto, G.R. No. 133517,
[26] Feliciano
Galvante v. Hon. Orlando C. Casimiro,
et al., G.R. No. 162808,