G.R. No. 157838

EN BANC

G.R. No. 157838 (Candelario L. Verzosa, Jr., in his former capacity as Executive Director of the Cooperative Development Authority v. Guillermo N. Carague, in his official capacity as Chairman of the Commission on Audit, Raul C. Flores, Celso D. Gangan, Sofronio B. Ursal and Commission on Audit)

Promulgated:

February 7, 2012

x-----------------------------------------------------------------------------------------x

D I S S E N T I N G O P I N I O N

VELASCO, JR., J.:

The Court, by its Decision dated March 8, 2011, affirmed and upheld the Commission on Audit (COA) Decision Nos. 98-424[1] and 2003-061[2] dated October 21, 1998 and March 18, 2003, respectively. Said COA Decisions, in turn, affirmed Notice of Disallowance No. 93-0016-101[3] dated November 17, 1993, which disallowed in audit the amount of Eight Hundred Eighty-One Thousand Eight Hundred Nineteen Pesos (PhP 881,819), representing the purported overprice in the purchase by the Cooperative Development Authority (CDA) of a total of forty-six (46) units of computer equipment and peripherals in the total amount of Two Million Two Hundred Eighty-Five Thousand Two Hundred Seventy-Nine Pesos (PhP 2,285,279) from Tetra Corporation (Tetra).

The facts of the case, as stated in this Courts Decision dated March 8, 2011, are as follows:

On two separate occasions in December 1992, the [CDA] purchased from Tetra Corporation (Tetra) a total of forty-six (46) units of computer equipment and peripherals in the total amount of P2,285,279.00. Tetra was chosen from among three qualified bidders (Tetra, Microcircuits and Columbia). In the technical evaluation of the units to be supplied by the qualified bidders, CDA engaged the services of the Development Academy of the Philippines-Technical Evaluation Committee (DAP-TEC). The bidding was conducted in accordance with the Approved Guidelines and Procedures of Public Bidding for Information Technology (IT) Resources and Memorandum Order No. 237 issued by the Office of the President. Petitioner who was then the Executive Director of the CDA approved the purchase.

On May 18, 1993, the Resident Auditor sought the assistance of the Technical Services Office (TSO), COA in the determination of the reasonableness of the prices of the purchased computers. In its reply-letter dated October 18, 1993, the TSO found that the purchased computers were overpriced/excessive by a total of P881,819.00. It was noted that (1) no volume discount was given by the supplier, considering the number of units sold; (2) as early as 1992, there were so much supply of computers in the market so that the prices of computers were relatively low already; and (3) when CDA first offered to buy computers, of the three qualified bidders, Microcircuits offered the lowest bid of P1,123,315.00 while Tetra offered the highest bid of P1,269,630.00. The Resident Auditor issued Notice of Disallowance No. 93-0016-101 dated November 17, 1993, for the amount of P881,819.00.

In a letter dated May 13, 1994, CDA Chairman Edna E. Aberilla appealed for reconsideration of the disallowance to COA Chairman Celso D. Gangan, submitting the following justifications:

[1.] The basis of comparison (Genesis vs. Trigem computers and ferro-resonant type UPS vs. ordinary UPS) is erroneous, as it is like comparing apples to oranges. x x x Genesis, a non-branded computer, is incomparable to Trigem, a branded computer in the same manner as the MAGTEK-UPS, a ferro-resonant type of UPS, should not be compared with APC-1000W, ADMATE 1000W and PK 1000W, which are all ordinary types of UPS.

x x x It would have been more appropriate, therefore, to compare the acquired computer equipment and peripherals with the same models of other branded computers.

[2.] The technical specifications and other added features were given due weight. x x x [T]he criteria for determining the winning bidder is as follows:

Cost/price 50%

Technical Specifications 30%

Support Services 20%

[3.] The same technical specifications and special features explained the advantages of the acquired computer equipment and peripherals with those that are being compared with. With regards to our branded computer, the advantages include the following:

[a.] Original and Licensed Copy of its Disk Operating System specifically MS-DOS Ver 5.0.

[b.] Original and Licensed Operating System Diskettes and its Manuals.

x x x x

[c.] Users Manual and Installation Guide x x x

[d.] Computers offered should run PROGRESS Application Development System as indicated in the Bid Document x x x because the developing system for the establishment of the agencys Management Information System (MIS) is based on PROGRESS Application Software.

[e.] Legal Bios/License Agreement for the particular brand of computers offered to CDA. x x x

With these features, the agency is assured that the computers were acquired through a legitimate process (not smuggled/pirated), thereby, upholding the agencys respect for Intellectual Property Law or P.D. No. 49.

With regard to the UPS, x x x it is a ferro-resonant type x x x [which has] advantages to ensure greater reliability and will enable users to operate without interruption.

[4.] [As declared in] COA Circular No. 85-55-A, the price is not necessarily excessive when the service/item is offered with warranty or special features which are relevant to the needs of the agency and are reflected in the offer or award. As will be seen from the criteria adopted by the agency, both the warranty and special features were considered and given corresponding weights in the computation for the support services offered by the bidder.[]

[5.] x x x [T]here is no overpricing because in the process of comparing apples vs. apples, the other buyers in effect procured their units at a higher price than those of the CDA. We x x x are still in the process of gathering additional data of other transactions to further support our stand. x x x

[6.] x x x The rapid changes due to research and development in Information Technology (I.T.) results in the significant reduction of prices of computer equipment. x x x [M]aking a comparison given two different periods (December 1992 vs. August 1993) may be invalid x x x.

[7.] The procedures of the public bidding as adopted by the [CDA] x x x demonstrate a very effective mechanism for avoiding any possible overpricing.

In compliance with the request of the Legal Office Director, the TSO submitted its comments on the justifications submitted by the CDA. On the non-comparability of Genesis and Trigem brands, it explained that the reference values were in accordance with the same specifications but exclusive of the branded information, since this was not stated in the P.O./Invoice, which was used as basis of the canvass. Since the said brands are both computers of the same general characteristics/attributes, the branded and non-branded labels propounded by the supplier is of scant consideration. As regards the UPS, it was pointed out that the enumerated advantages of the delivered items are the same advantages that can be generated from a UPS of the same specifications and standard features; in this case, the reference value pertains to a UPS with the same capacity, input, output, battery pack and back-up time, except for the brand. As to the period of purchase by the CDA, the TSO noted that based on its monitoring from October 1993 to May 1994, prices of Star and Epson printers and hard disk (120 MB Model St-3144A) either remained the same or even increased by 2% to 5%. It is therefore valid that the price of an item is the same from one period to another, and that an item may be available unless it is out of stock, or phased out, with or without a replacement. In this case, the reference value cannot be considered as the reduced price as a result of rapid changes due to research since the said reference value is the price for the same model already existing in December 1992 when the purchase was made and still available in August 1993, and not an equivalent nor replacement of a phased out model.

On the other hand, the Resident Auditor maintained her stand on the disallowance and submitted to Assistant Commissioner Raul C. Flores her replies to the CDAs justifications, as follows: (1) on the allegedly erroneous comparison between Genesis and Trigem brands, if this will be the basis, then their bidding will not be acceptable because in the Abstract of Bids, the comparison of prices was not based on similar brands, i.e., Tetra offered Trigem-Korean for P1,269,620, Microcircuits offered Arche-US brand for P1,123,315, and Columbia offered Acer-Taiwan brand for P1,476,600; what is important is that, the specifications and functions are similar; (2) the 2nd, 3rd and 4th justifications are of no moment as all the offers of the three qualified bidders were of similar technical specifications, features and warranty as contained in the Proposal Bid Form; (3) on the 5th justification -- the companies referred to procured only one unit each and of much higher grade; (4) on the 6th justification -- while the date of the canvass conducted by the TSO does not coincide with the date of purchase, there is no showing that foreign exchange rate changed during the latter part of 1992 which will significantly increase the prices of computers; and (5) on the 7th justification -- while the COA witnessed the public bidding, the post-evaluation was left to the Pre-qualifications, Bids and Awards Committee (PBAC). The National Government Audit Office I concurred with the opinion of the Resident Auditor that CDAs request may not be given due course.

On October 21, 1998, respondent COA issued the assailed decision affirming the disallowance. It held that whether or not the product is branded is irrelevant in the determination of the reasonableness of the price since the brand was not stated in the Call for Bids nor in the Purchase Order. The bids of the three qualified bidders were based on similar technical specifications, features and warranty as contained in their proposals. It was also found that the performance of the competing computer equipment would not vary or change even if the attributes or characteristics of said computers cited by petitioner were to be factored in. The difference in brands, microprocessors, BIOSes, as well as casings will not affect the efficiency of the computers performance.

Further, COA declared that CDA should not have awarded the contract to Tetra but to the other competing bidders, whose bid is more advantageous to the government. It noted that Microcircuits offered the lowest bid of P1,123,315.00 for the US brand said to be more durable than the Korean brand supplied by Tetra. CDA also should have been entitled to volume discount considering the number of units it procured from Tetra. Lastly, COA emphasized that the requirements and specifications of the end-user are of prime consideration and the other added features of the equipment, if not specified or needed by the end-user, should not be taken into account in determining the purchase price. The conduct of public bidding should be made objectively with the end in view of purchasing quality equipment as needed at the least cost to the government. The price for the equipment delivered having been paid, when such equipment could be acquired at a lower cost, the disallowance of the price difference was justified. (Citations omitted.)

As mentioned above, the Court, in its Decision dated March 8, 2011, affirmed COAs disallowance and held petitioner Candelario L. Verzosa, Jr. personally liable.

In this recourse, petitioner, now deceased, through his son and legal counsel, prays that the Court reconsider its Decision, anchoring his arguments essentially on two (2) grounds: First, there is no finding of bad faith on his part as to render him personally liable for the disallowed amount.[4] Second, the Technical Services Office (TSO) canvass, coupled with the confirmatory telephone canvass, does not comply with the requirement of an actual canvass and/or price quotations from identified suppliers as a valid basis for outright disallowance, consistent with this Courts ruling in Arriola v. COA.[5]

The Office of the Solicitor General (OSG) urges reconsideration. In its Comment (Re: Petitioners Motion for Reconsideration dated April 8, 2011) dated September 12, 2011, the OSG avers that there might have been a misappreciation of the facts in the case at bar which rendered petitioner personally liable.[6] In support of petitioners cause, the OSG invites attention to the following: (1) petitioner had no actual participation in the purported offending transaction;[7] (2) a finding of liability despite the COAs failure to prove it with substantial evidence amounts to a violation of petitioners right to administrative due process; and (3) the presumption of regularity in the performance of duty.[8]

For their part, respondents maintain that: (1) the bad faith of petitioner is satisfactorily shown by his having prevailed upon the Development Academy of the Philippines-Technical Evaluation Committee (DAP-TEC) to modify the initial result of the technical evaluation of the bidders computer units;[9] (2) petitioners act of signing involves the exercise of discretion and is not a ministerial act;[10] (3) the TSO report, which was prepared by COA personnel having knowledge and expertise on computer equipment, supplied reliable data that firmed up the finding of overpricing;[11] and (4) even without considering the canvassed prices of COA, the overprice in the subject procurement by the CDA could still be sufficiently established based on the bid results.[12]

Essentially, the issues for Our resolution are: (1) whether the COA committed grave abuse of discretion amounting to lack or excess of jurisdiction in disallowing in audit the purported overprice in the purchase of the computer equipment and peripherals by the CDA; and (2) whether there is substantial evidence to hold petitioner personally liable for the disallowed amount.

The majority rules in favor of respondents. I am constrained to register my dissent.

Applicability of Arriola

In Arriola, this Court held that COAs disallowance was not sufficiently supported by evidence, as it was premised purely on undocumented claims. We also held that petitioners therein were not accorded due process for not having allowed access to source documents. As stated:

We agree that petitioners [Arriola, et al.] were indeed not given due process in this case.

We note that while NCA had provided receipts and invoices to show the acquisition costs of materials found by COA to be overpriced, COA merely referred to a cost comparison made by an engineer of COA-TSO, based on unit costs furnished by the Price Monitoring Division of the COA-TSO, (p. 124, Rollo).

In fairness to petitioners, COA should have, with respect for instance to the submersible pump, produced a written price quotation specifically for 1 Unit Goulds Submersible Pump Model 25 EL 30432, 3 HP, 230 V., coupled to Franklin Submersible Electric Motor, 3 HP, 230 V. 3-phase, 60 Hz. 3450 RPM. The cost evaluation sheet, dated September 15, 1986, Item No. 12 (attached to the decision of Mr. Jose F. Mabanta, (Actg. Director, COA-TSO), merely refers to a Goulds submersible pump. x x x

x x x x

This is not, in the absence of the actual canvass sheets and/or price quotations from identified suppliers, a valid basis for outright disallowance of agency disbursements/cost estimates for government projects.

A more humane procedure, and totally conformable to the due process clause, is for the COA representative to allow the members of the Contracts Committee mandatory access to the COA source documents/canvass sheets. Besides, this gesture would have been in keeping with COAs own Audit Circular No. 85-55-A par. 2.6, that:

. . . As regards excessive expenditures, they shall be determined by place and origin of goods, volume or quantity of purchase, service warranties/quality, special features of units purchased and the like . . .

By having access to source documents, petitioners could then satisfy themselves that COA guidelines/rules on excessive expenditures had been observed. The transparency would also erase any suspicion that the rules had been utilized to terrorize and or work injustice, instead of ensuring a working partnership between COA and the government agency, for the conservation and protection of government funds, which is the main rationale for COA audit.

The second assigned error is tied in with the first.

We agree with petitioners that COAs disallowance was not sufficiently supported by evidence, as it was premised purely on undocumented claims, as in fact petitioners were denied access to the actual canvass sheets or price quotations from accredited suppliers. Circular No. 85-55-A of the Commission on Audit lays down the following standards for Excessive Expenditures:

3.3 EXCESSIVE EXPENDITURES.

Definition: The term excessive expenditures signifies unreasonable expense or expenses incurred at an immoderate quantity and exorbitant price. It also includes expenses which exceed what is usual or proper as well as expenses which are unreasonably high, and beyond just measure or amount. They also include expenses in excess of reasonable limits.

Standard for Excessive Expenditures

The term excessive expenditures pertains to the variables of Price and Quantity.

1. Price The price is excessive if it is more than the 10% allowable price variance between the price paid for the item bought and the price of the same item per canvass of the auditor.

Volume Discounts The price is deemed excessive if the discounts allowed in bulk purchases are not reflected in the price offered or in the award or in the purchase/payment document.

3. Factors to be Considered In determining whether or not the price is excessive, the following factors may be considered.

A Supply and demand forces in the market.

Ex. Where there is a supply shortage of a particular product, x x x prices of these products may vary within a day.

B Government Price Quotations

C Warranty of Products or Special Features.

The price is not necessarily excessive when the service/item is offered with warranty or special features which are relevant to the needs of the agency and are reflected in the offer or award.

D Brand of Products.

Products of recognized brand coming from countries known for producing such quality products are relatively expensive.

Ex. Solingen scissors x x x made in Germany are more expensive than scissors which do not carry such brand and are not made in Germany.

It was incumbent upon the COA to prove that the foregoing standards were met in its audit disallowance. The records do not show that such was done in this case.

On the third issue, absent due process and evidence to support COAs disallowance, COAs ruling on petitioners liability has no basis.[13] (Emphasis supplied.)

As correctly stated by the majority, the above-mentioned declaration in Arriola was reiterated in National Center for Mental Health Management v. COA, where the Court also ruled that price findings reflected in a report are not, in the absence of the actual canvass sheets and/or price quotations from identified suppliers, valid bases for outright disallowance of agency disbursements for government projects.[14]

Both Arriola and National Center for Mental Health Management paved the way for the formulation of COA Memorandum No. 97-012 dated March 31, 1997, which imposed more stringent requirements on the process of evidence-gathering to support any audit finding of overpricing. Said COA Memorandum required that the initial findings be supported by canvass sheets and/or price quotations indicating: (1) the identities/names of the suppliers or sellers; (2) the availability of stock sufficient in quantity to meet the requirements of the procuring agency; (3) the specifications of the items that should match those involved in the overpricing; and (4) the purchase/contract terms and conditions that should be the same as those of the questioned transaction.

In justifying that there was no violation of COA rules, the majority cited Nava v. Palattao,[15] where the Court held that neither Arriola nor COA Memorandum No. 97-012 can be given any retroactive effect. I respectfully except.

It is true that this Court in Nava held that neither Arriola nor the COA Memorandum that was issued pursuant to Arriola and National Center for Mental Health Management can be given any retroactive effect. The majority, however, failed to take into consideration that the very reason why Arriola was not applied in Nava is because both cases were cast under different circumstances. As this Court wrote in Nava:

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. 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.

Further, the fact that only three canvass sheets/price quotations were presented by the audit team does not bolster petitioners 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.[16] (Emphasis supplied.)

On the other hand, the circumstances in the instant case are similar to those in Arriola, where COA merely referred to a cost comparison made by an engineer of COA-TSO, based on unit costs furnished by the Price Monitoring Division of the COA-TSO. In the case at bar, COA merely based its findings on overpricing on the TSO canvass and a telephone canvass which was confirmatory of the TSO canvass. Evidently, the TSO canvass and the confirmatory telephone canvass do not comply with the requirement of an actual canvass and/or price quotations from identified suppliers as a valid basis for outright disallowance, following Arriola.

The majority, however, is bent on disregarding the foregoing Arriola holding on the basis of the pronouncement in Nava that it cannot be applied retroactively. It is worth noting, however, that in Buscaino v. COA,[17] a case involving an audit disallowance made in 1986, as in Arriola, the Courts ruling in Arriola was nonetheless applied retroactively therein. Specifically:

Going into the merits of the case, the Court finds that the [COA] acted with grave abuse of discretion in handing down its assailed decision. The various disbursements upon which petitioners liability is based have not been indubitably established as patently invalid or irregular and the disallowances ordered by COA were not substantiated by sufficient evidence on record.

To begin with, as regards the items disallowed on the ground of overpricing, petitioner was adjudged liable therefor because he was a member of the Canvass and Award Committee which was tasked to certify that the prices submitted were the lowest and which recommended the award to the supplier. The disallowances were made on the basis of respondents allegation or theory that the school and other office supplies may be bought from other suppliers at prices much lower than those of the supplier to whom the bid was awarded.

In order to find out how the COA reached such a conclusion, petitioner asked the COA to furnish him with the necessary information and/or documents that would indicate the large disparity in the prices such as the quotation of prices of every item re-canvassed by the resident auditor, reflecting the brand or quality of the items, the names and addresses of the suppliers where the items were re-canvassed and the date subject items were re-canvassed. Respondent COA, however, did not furnish the same x x x. Without the necessary information and/or documents, it baffles the Court how COA could have arrived at the conclusion that there were cases of overpricing. And without the needed information and/or documents, the petitioner was not afforded the opportunity to refute the disallowances, item by item, and to justify the legality of the purchases involved. As argued by the petitioner,

How can the undersigned (petitioner) determine the difference in prices and per cent increases between the then procurement officers canvassed prices and the then COA Auditors re-canvassed prices and possibly justify item by item the legality of the purchase when as you said no such document as you indicated above were turned-over to the undersigned (present PUP COA Auditor)? The purchase orders contain several items and it is important that those items which were allegedly overpriced should be identified.

The requirements of due process of law mandate that every accused or respondent be apprised of the nature and cause of the charge against him, and the evidence in support thereof be shown or made available to him so that he can meet the charge x x x. COAs failure to furnish or show to the petitioner the inculpatory documents or records of purchases and price levels constituted a denial of due process which is a valid defense against the accusation. Absent any evidence documentary or testimonial to prove the same, the charge of COA against the herein petitioner must fail for want of any leg to stand on.

In the 1991 decision in the case of Virgilio C. Arriola and Julian Fernandez vs. Commission on Audit and Board of Liquidators, x x x which was reiterated in the case of National Center for Mental Health Management vs. Commission on Audit x x x, this Court succinctly held that mere allegations of overpricing are not,

. . . in the absence of the actual canvass sheets and/or price quotations from identified suppliers, a valid basis for outright disallowance of agency disbursements/cost estimates for government projects.

A more humane procedure, and totally conformable to the due process clause, is for the COA representative to allow the members of the Contracts Committee mandatory access to the COA source documents/canvass sheets. x x x

By having access to source documents, petitioners could then satisfy themselves that COA guidelines/rules on excessive expenditures had been observed. The transparency would also erase any suspicion that the rules had been utilized to terrorize and/or work injustice, instead of ensuring a working partnership between COA and the government agency, for the conservation and protection of government funds, which is the main rationale for COA audit.

xxx xxx xxx

It was incumbent upon the COA to prove that its standards were met in its audit disallowance. The records do not show that such was done in this case.

. . . absent due process and evidence to support COAs disallowance, COAs ruling on petitioners liability has no basis.

Indeed, without the evidence upon which the charge of overpricing is anchored, apart from being a denial of due process, it would not be possible to attach liability to petitioner.[18]

Why COA Memorandum Circular No. 97-012 cannot be applied to the instant case is understandable. It was not yet in existence at the time the disallowance was made. The ratio underpinning Arriola, however, is squarely in point. There is, thus, no rhyme or reason why, taking into account Buscaino, the findings in Arriola cannot be made to apply in the case at bar. To reiterate, Arriola stated:

As things stand, the COA failed to give mandatory access to the COA source documents/canvass sheets. Its findings on overpricing were based, without more, on the TSO canvass and a telephone canvass confirmatory of the TSO canvass. The steps COA thus took do not conform to the due process requirements. Likewise, this fails to satisfy petitioner that the COA guidelines on excessive expenditures had been observed. Concomitantly, it behooves upon the Court to apply its ruling in Arriola to the present case.

No valid comparison

By express constitutional provision, the COA is empowered to examine and audit the use of funds by an agency of the national government on a post-audit basis.[19] For this purpose, the Constitution has provided that the COA shall have exclusive authority, subject to the limitations in this Article, to define the scope of its audit and examination, establish the techniques and methods required therefor, and promulgate accounting and auditing rules, and regulations including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant or unconscionable expenditures, or uses of government funds and properties.[20]

On the other hand, the Administrative Code vests the Pre-qualification, Bids and Awards Committee (PBAC) the responsibility for the conduct of prequalification of contractors, biddings, evaluation of bids and recommending awards of contracts.

Between the COA, which can only perform post-audit functions, and the PBAC members of CDA, it is the latter that have the technical expertise to determine the offers that will best meet the needs and requirements of their office.[21] COA cannot, therefore, substitute or impose its own judgment on the PBAC members of CDA without any legal or factual basis. It can only audit purchases made; it cannot prescribe what should be purchased.

To uphold the COAs finding that brand was irrelevant in the determination of the reasonableness of the price at which CDA purchased the subject computers is to trod roughshod at the discretionary powers of the PBAC to set the criteria and approve the purchase of the equipment. It is settled jurisprudence that in assessing whether there was indeed an overpricing, a specific comparison with the same brand, features and specifications as those that were actually purchased should be made.[22]

Aside from the foregoing reasons, I differ with the view of the majority that COAs observation that the CDA should have been entitled to volume discount was valid. On the contrary, a perusal of COA Circular No. 85-55-A would show that there was neither any legal obligation on the part of Tetra to give a volume discount nor to demand for said discount on the part of CDA. Particularly:

2.Volume Discounts - The price is deemed excessive if the discounts allowed in bulk purchases are not reflected in the price offered or in the award or in the purchases/payment document.

The above-quoted provision simply states that if the discounts allowed in bulk purchases are not reflected in the price offered or in the award or in the purchases/payment document, then the price is deemed excessive. Without such allowed discounts, said provision does not have any bearing for purposes of ascertaining whether a price should be deemed excessive or not. Discernibly, no legal obligation was imposed for the giving or demanding of volume discount can be inferred therefrom. When the words and phrases in the statute are clear and unequivocal, the law is applied according to its express terms.^{^[23]} Verba legis non est recedendum, or from the words of a statute there should be no departure.^{^[24]}

When factual findings of administrative

agencies are not binding upon the Court

Administrative findings of fact are accorded great respect, and even finality when supported by substantial evidence. However, when it can be shown that administrative bodies grossly misappreciated evidence of such nature as to compel a contrary conclusion, this Court has not hesitated to reverse their factual findings.[25] As this Court held in Litonjua v. Court of Appeals:[26]

It is clear from the foregoing discussion that the factual findings of the SEC are not supported by substantial evidence. Hence, it is the exception, rather than the general rule that factual findings of administrative agencies are binding upon the courts, that should apply. The exceptions are well-stated in Datu Tagoranao Benito v. SEC:

Well-settled is the rule that the findings of facts of administrative bodies will not be interfered with by the courts in the absence of grave abuse of discretion on the part of said agencies, or unless the aforementioned findings are not supported by substantial evidence. (Gokongwei, Jr. vs. SEC, 97 SCRA 78.) In a long string of cases, the Supreme Court has consistently adhered to the rule that decisions of administrative officers are not to be disturbed by the courts except when the former have acted without or in excess of their jurisdiction or with grave abuse of discretion x x x. (Emphasis supplied; citations omitted.)

Yap v. COA is of the same tenor, to wit:

We have previously declared that it is the general policy of the Court to sustain the decisions of administrative authorities, especially one that was constitutionally created like herein respondent COA, not only on the basis of the doctrine of separation of powers, but also of their presumed expertise in the laws they are entrusted to enforce. It is, in fact, an oft-repeated rule that findings of administrative agencies are accorded not only respect but also finality when the decision and order are not tainted with unfairness or arbitrariness that would amount to grave abuse of discretion. Thus, only when the COA acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, may this Court entertain a petition for certiorari under Rule 65 of the Rules of Court.[27] (Emphasis supplied.)

In the case at bar, there is reason to set aside COAs decisions and the factual premises holding them together, for the said decisions are not supported by substantial evidence indicating petitioners responsibility for the disallowance. Substantial evidence means such amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.[28]

In upholding the finding by COA of the personal liability of petitioner for the overpricing of the computers procured by CDA, the majority found:

As pointed out in our Decision, records showed it was petitioner who ordered the reconstitution of the PBAC which nullified the previous bidding conducted in December 1991. He further secured the services of the DAP-TEC for technical evaluation and signed the agreement for the said technical assistance when it is already the duty of the PBAC Chairman. Notwithstanding petitioners claim that it was part of his duties as Executive Director to [sign] outgoing communications/letters except letters addressed to Heads of offices, Congressmen, Senators and to the Office of the President, the fact remains that the services of DAP-TEC for P15,000.00 fee were availed of at his instance. As it turned out, the DAP-TEC came out with two different technical evaluation reports, the second having been antedated but also signed by DAP-TEC Director Minerva Mecina who admitted it was her signature in both documents but claimed she was unaware that she had signed two different documents. The discrepancies in the two reports (in the first impartial result, Tetra got the lowest ranking but in the second result made after CDA ordered certain changes in the grading system, Tetra eventually won) [were] found by Auditor Rubico to be irregular and indicative of bad faith.

But as aptly observed by the OSG, there might have been a misappreciation of the facts of the case.[29] Evidently, the only bases for a finding of bad faith on the part of petitioner so as to render him personally liable are: (1) the reconstitution of the PBAC by petitioner; and (2) petitioners engagement of the services of the DAP-TEC. By themselves, there is nothing illegal from these actions. As mentioned above, the creation of the PBAC is even sanctioned by the Administrative Code, while the engagement of the services of the DAP-TEC, a third-party evaluator, by petitioner is even an indication that he wanted transparency and independence in the bidding process.[30]

No bad faith can also be imputed upon petitioner, because, contrary to the assertion of respondents, the records do not support any finding that he prevailed upon the DAP-TEC to modify the initial result of the technical evaluation of the computers by imposing an allegedly irrelevant grading system that was intended to favor one of the bidders. Assuming that there was, indeed, an alleged intent to alter the evaluation results of the bidding, no sufficient evidence can point to petitioners direct participation or involvement in the said charge. It cannot be overemphasized that no connection was established between petitioner and a certain Rey Evangelista, a member of the staff of the PBAC Chairperson, who was said to have gone to DAP-TEC to modify the initial result of the technical evaluation of the bidders computer units.

Moreover, the mere fact that petitioner signed the vouchers and other documents for the processing of the purchase after the winning bidder has been chosen does not per se constitute bad faith on his part. Notably, petitioners signature was given as final recommending/approving authority only after the entire bidding process was conducted. He cannot, therefore, be faulted for relying and depending, to a reasonable extent, on the integrity and performance of duty by the PBAC, as well as the Board of Administrators, which acted on the documents. By analogy, this Courts ruling in Arias v. Sandiganbayan[31] is instructive:

x x x 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. If a department secretary entertains important visitors, the auditor is not ordinarily expected to call the restaurant about the amount of the bill, question each guest whether he was present at the luncheon, inquire whether the correct amount of food was served, and otherwise personally look into the reimbursement vouchers accuracy, propriety, and sufficiency. There has to be some added reason why he should examine each voucher in such detail. Any executive head of even small government agencies or commissions can attest to the volume of papers that must be signed. There are hundreds of documents, letters, memoranda, vouchers, and supporting papers that routinely pass through his hands. The number in bigger offices or departments is even more appalling.

There should be other grounds than the mere signature or approval appearing on a voucher to sustain a conspiracy charge and conviction. (Emphasis supplied.)

Absent any clear showing that petitioner had a hand in the alleged intent to alter the evaluation results of the bidding, the presumption of regularity in the performance of duty should apply. Mere surmises and conjectures, absent any proof whatsoever, will not tilt the balance against this presumption.[32]

Accordingly, I vote to grant the motion for reconsideration, recall and set aside the March 8, 2011 Decision of this Court, and reverse and set aside COA Decision Nos. 98-424 and 2003-061 dated October 21, 1998 and March 18, 2003, respectively, and Notice of Disallowance No. 93-0016-101 dated November 17, 1993.

PRESBITERO J. VELASCO, JR.

Associate Justice

[5] G.R. No. 90364, September 30, 1991, 202 SCRA 147.

[13] Arriola v. COA, supra note 5, at 153-156.

[14] G.R. No. 114864, December 6, 1996, 265 SCRA 390, 400.

[15] G.R. No. 160211, August 28, 2006, 499 SCRA 745.

[17] G.R. No. 110798, July 20, 1999, 310 SCRA 635.

[19] Villanueva v. COA, G.R. No. 151987, March 18, 2005, 453 SCRA 782, 791.

[20] Id. at 791-792; citing Constitution, Art. IX(D), Sec. 2(2).

[23] Commissioner of Internal Revenue v. Central Luzon Drug Corp., G.R. No. 148512, June 26, 2006, 492 SCRA 575, 581.

[24] Philippine Amusement & Gaming Corp. v. Philippine Gaming Jurisdiction, Inc., G.R. No. 177333, April 24, 2009, 586 SCRA 658, 664-665.

[25] PAL, Inc. v. NLRC, G.R. No. 117038, September 25, 1997, 279 SCRA 445, 458.

[26] G.R. No. 120294, February 10, 1998, 286 SCRA 136.

[27] G.R. No. 158562, April 23, 2010, 619 SCRA 154, 174.

[28] Ventis Maritime Corp. v. CA, G.R. No. 160338, October 6, 2008, 567 SCRA 474, 480; citing Skippers United Pacific, Inc. v. Maguad, G.R. No. 166363, August 15, 2006, 498 SCRA 639.

[31] G.R. Nos. 81563 & 82512, December 19, 1989, 180 SCRA 309, 306.

[32] Flores v. Montemayor, G.R. No. 170146, August 25, 2010, 629 SCRA 178, 195.