Miñao v. MINDANAO

HERNANDO, J.:

This petition for review on certiorari1 seeks to reverse and set aside the August 23, 2016 Decision2 and March 30, 2017 Resolution3 of the Court of Appeals (CA) in CA-G.R. SP No. 05743-MIN which affirmed the March 8, 2013 Decision4 and May 30, 2013 Order5 of the Office of the Deputy Ombudsman for Mindanao (OMB-Mindanao) in OMB-M-A-09-124-C, finding petitioner Arturo O. Miñao (petitioner) together with Manolito G. Abapo (Abapo), and Clemente A. Tabiliran (Tabiliran), administratively liable for Grave Misconduct, Gross Neglect of Duty, Serious Dishonesty, and Conduct Prejudicial to the Best Interest of Service, and imposing on them the penalty of dismissal from government service. The March 30, 2017 Resolution6 denied their motion for reconsideration. Factual Antecedents: The instant case stemmed from a letter-complaint7 dated October 14, 2005 from Aurelio Cadavedo (Cadavedo) pertaining to the alleged anomalous purchase of guardrails and guardrail posts worth P5,500,000.00 sometime in 2004 made by the 1st Engineering District of the Department of Public Works and Highways (DPWH) in Sta.

Isabel, Dipolog City.8 The audit team of the Commission on Audit Regional Office No. IX (COA-IX), which was duly constituted to investigate the letter-complaint of Cadavedo, submitted an audit investigation report (AIR) dated October 5, 2006.9 The AIR provided that the 1st Engineering District of the DPWH in Sta. Isabel, Dipolog City committed splitting of contracts in procuring guardrails and guardrail posts amounting to P5,500,000.00 under the Special Allotment Release Order (SARO) No. ROIX-2003-353,10 issued by the Department of Budget and Management (DBM) for the Dipolog-Oroquieta and Dipolog-Sindangan national roads (National Roads).11 In particular, the AIR alleged that the 1st Engineering of DPWH in Sta. Isabel, Dipolog City: (1) resorted to splitting of contracts by awarding 11 purchase orders worth P500,000.00 each to AUF Enterprises without public bidding; (2) purchased overpriced guardrails and guardrail posts from AUF Enterprises; and (3) left guardrails and guardrail posts at the project site resulting in wastage of government resources in the amount of P40,110.00.12 In their joint-counter affidavit,13 petitioner, who was then OIC District Engineer of the DPWH Zamboanga del Norte 1st District Engineering Office, Dipolog City, and his co-respondents,14 denied the aforesaid allegations.

They claimed that under the SARO, the main project was split into 11 projects, and that said projects, with an aggregate amount of P5,500,000.00, were already divided in the amount of P500,000.00 per project under the SARO.15 They further maintained that they could not have violated Republic Act No. (RA) 918416 or the Government Procurement Reform Act and its Implementing Rules and Regulation (IRR) in the procurement of the materials for the project, considering that RA 9184 took effect on October 8, 2003, whereas the SARO was issued only on December 16, 2003. Since RA 9184 took effect shortly before the issuance of the SARO, they insisted that the procurement of materials for the projects should be governed not by RA 9184 but by the old procurement law.17 Ruling of the Office of the Ombudsman - Mindanao: After evaluation of the allegations and defenses of Cadavedo, and petitioner and his co-respondents in the case before the OMB-Mindanao, Graft Investigation and Prosecution Officer II Samuel P. Naungayan, in his March 8, 2013 Decision in OMB-M-A-09-124-C, found petitioner, together with Abapo and Tabiliran, administratively liable for Grave Misconduct, Gross Neglect of Duty, Serious Dishonesty, and Conduct Prejudicial to the Best Interest of Service, and meted the penalty of dismissal from government service.

The dispositive portion of the said Decision states: Wherefore, this Office finds substantial evidence to hold respondents Arturo O. Miñao, Manolito G. Abapo, and Clemente A. Tabiliran liable for Grave Misconduct, Gross Neglect of Duty, Serious Dishonesty and Conduct Prejudicial to the Best Interest of the Service. On the other hand, this Office finds substantial evidence to hold respondent Marilyn S. Luna liable for Simple Misconduct. The administrative charges against Reseller R. Morallo, Sr. are DISMISSED because he was not able to answer them by reason of his death.

In conformity with the ruling in Office of the Ombudsman vs. Uldarico P. Andutan Jr., that resignation prior to the filing of an administrative case divests the Ombudsman of its right to institute an administrative complaint, the administrative charges against Jovencio A. Hibaya and Dannie D. Carreon are DISMISSED because this case was filed on 10 March 2009 after they retired from office in September 2007 and 08 February 2009, respectively. On the other hand, the administrative charges against Blandina A. Pajaren, Ray S. Cadavedo and Wilfredo B. Senarillos are DISMISSED , for insufficiency of evidence. Pursuant to Section 10(b), Rule III of Administrative Order No. 07, dated 10 April 1990, otherwise known as the Rules of Procedure of the Office of the Ombudsman, as amended by Administrative Order No. 17, dated 07 September 2003, Arturo O. Miñao, Manolito G. Abapo, and Clemente A. Tabiliran are hereby DISMISSED from government service which shall carry with it the accessory penalties of cancellation of eligibility, forfeiture of retirement benefits, and perpetual disqualification for re-employment in the government service.

On the other hand, Marilyn S. Luna is hereby SUSPENDED from service for three (3) months without pay. x x x x SO DECIDED.18 The OMB-Mindanao observed that while the specific kind of project was not indicated in the SARO, the 11 abstracts of bids; 11 cost estimates; and 11 purchase orders indicate that there is only one kind of project for the National Roads. The OMB-Mindanao also observed that the abstracts of bids and purchase orders further show that the guardrails and accessories were all procured from one supplier, AUF Enterprises.

In this regard, the OMB-Mindanao found it absurd for petitioner and his co-respondents to purchase in 11 installments the same materials from the same supplier when the budget for the procurement of the materials for the whole project was readily made available under the SARO.19 Since the materials to be procured for the 11 projects are identical and can be supplied by a single supplier, the OMB-Mindanao concluded that there could only be one procurement contract/project. Consequently, it held that petitioner, together with Abapo and Tabiliran, resorted to the prohibited act of splitting government contracts as defined in RA 9184.20 The OMB-Mindanao also found that there was also failure to conduct public bidding under both the old and new procurement law.21 Findings of the COA-IX also show that the Concrete Posts and Machine Bolts delivered for the National Roads were substandard and overpriced since the materials used were substandard compared to the specifications in the purchase orders and approved plans.22 Petitioner, together with Abapo and Tabiliran, filed a motion for reconsideration, but the same was denied by the OMB-Mindanao in its May 30, 2013 Order.

Petitioner thus filed a petition for review23 under Rule 43 of the Rules of Court with prayer for preliminary injunction or temporary restraining order before the CA. Ruling of the Court of Appeals: On August 23, 2016, the CA rendered its Decision24, the dispositive portion of which reads: FOR THESE REASONS, the petition is denied for lack of merit. The assailed Decision dated 8 March 2013 and Order dated 30 May 2013 are AFFIRMED.

SO ORDERED.25 In ruling against petitioner, the CA heavily relied on the findings of the OMB-Mindanao in its March 8, 2013 Decision and May 30, 2013 Order.

The CA similarly observed that the intent behind the execution of 11 identical contracts involving the National Roads was to avoid the requirement of the law, particularly on public bidding as defined under Section 54.1 of the IRR of RA 9184. In this regard, the CA held: In the present case, the procurement in question was the purchase of Concrete Posts, Guardrails, machine bolts and nuts were intended to be used for the entire project. Even if the project was composed of eleven sub-sections, still it is evident that all eleven sub-sections involve the procurement of the same materials of the same specifications.

And so only one procurement contract is really needed for all subsections of the project, and it would be ridiculous and nonsensical for petitioner and his allies to enter into eleven identical contracts with one supplier - AUF Enterprises.26 Petitioner filed a Motion for Reconsideration,27 but the same was denied by the CA in its March 30, 2017 Resolution.28 Hence the instant petition. Issues Petitioner raised the following assignment of errors in his petition: 1. The Honorable Court of Appeals committed serious and reversible error in disregarding the actions taken by Petitioner's Office in the interpretation and implementation of SARO No. RO-IX 2003-353 from the Department of Budget & Management (DBM).

2. The Honorable Court of Appeals committed serious and reversible error in finding Petitioner administratively liable for Grave Misconduct, Gross Neglect of Duty, Serious Dishonesty and Conduct Prejudicial to the Best Interest of the Service for not applying the provisions of R.A. 9184 and its Implementing Rules and Regulations in the implementation of SARO No. RO-IX 2003-353.29 In compliance with this Court's Resolution30 dated June 28, 2017, the OMB-Mindanao filed its comment31 on the petition, to which petitioner filed a reply.32 In a Resolution33 dated October 5, 2020, this Court ordered the parties to submit their respective memoranda. In his memorandum,34 petitioner denied splitting or dividing a single procurement contract into 11 identical contracts to circumvent the requirements of public bidding under RA 9184.

Petitioner maintained that his office was primarily and merely tasked to implement the said projects indicated in the SARO, which supposedly already identified the 11 projects for the National Roads, including the allocated budget per project. As the OIC District Engineer of the DPWH Zamboanga del Norte 1st District Engineering Office, Dipolog City, petitioner insisted that he implemented the SARO in good faith consistent with the basic guidelines stated therein,35 and resorted to the use of the simplified bidding process under the Old Procurement Law.36 For its part, the OMB-Mindanao maintains that the CA did not err in issuing its August 23, 2016 Decision and March 30, 2017 Resolution finding petitioner guilty of disregarding the provisions of RA 9184 on public bidding involving procurement activities.37 The OMB-Mindanao further countered that petitioner's defense of good faith, i.e. , that he only acted in accordance with the guidelines stated in the SARO, is untenable since petitioner was duty-bound to ensure that the amounts provided therein shall be spent in accordance with the provisions of RA 9184.38 Moreover, petitioner's reason that he was unfamiliar with the bidding process under RA 9184 does not excuse him from complying with the provisions of the law.39 Our Ruling The petition lacks merit.

Well-settled is the rule that a petition for review under Rule 45 of the Rules of Court is limited only to questions of law. As the Court is not a trier of facts, it is not within its functions to analyze and weigh all over again evidence already passed upon in the proceedings below.40 While there are recognized exceptions to this rule,41 the Court observes that none of them are present in the instant case.

This notwithstanding, the Court shall discuss the issues raised by the petitioner in the instant petition. Petitioner is accused of violating RA 9184 when he resorted to splitting of government contracts, failed to conduct public bidding as required by law, and according to the COA, procured substandard and overpriced materials from AUF Enterprises. At the outset, petitioner does not question in his petition and memorandum the factual findings of the OMB-Mindanao and the COA as to his alleged procurement of substandard and overpriced materials from AUF Enterprises for the rehabilitation and improvement of the National Roads.

Hence, the Court affirms these findings following the salutary rule that factual findings of administrative bodies are accorded great respect by this Court.42 Notably, the alleged acts of petitioner - splitting of government contracts and failure to conduct public bidding as required by law - were committed pursuant to the SARO for the National Roads, which was issued by the DBM on December 16, 2003. Moreover, procurements by petitioner's office for the rehabilitation and improvement of the National Roads were initiated on July 12, 2004. As such, RA 9184, the governing law at that time, is controlling.

Having settled the issue of the governing law in the implementation of the SARO, we next determine whether the acts of petitioner constitute violations of current state of laws, particularly, RA 9184 and its IRR,43 which would warrant the administrative penalties meted against him by the OMB-Mindanao. Splitting of Government Contracts: On the matter of splitting of contracts, petitioner essentially claims that his office was not responsible in splitting the procurement project as indicated in the SARO and that it implemented the same in good faith. In this regard, petitioner relies on Annex "A"

attached to the SARO, which supposedly specifies the names of projects and their location, and the amounts respectively allotted to each project, as follows: Name of Project/Location Amount Zamboanga del Norte 2nd District Roads, Highways and Bridges P5,500,000.00 1 Rehab./Impv't of Dipolog-Oroquieta National Road 1,500,000.00 a Km 1829 + 427 - Km 1832 + 000, Dipolog City 500,000.00 b Km 1832+ 100 - Km 1835 + 000, Dipolog City 500,000.00 c Km 1835 + 427 - Km 1837 + 000, Dipolog City 500,000.00 2 Rehab./Impv't of Dipolog-Singan National Road P3,500,000.00 a Km 1840 + 000 - Km 1844 + 000, Dipolog City 500,000.00 b Km 1844 + 000 - Km 1848 + 000, Dipolog City 500,000.00 c Km 1848 + 000 - Km 1851 + 000, Dipolog City 500,000.00 d Km 1851 + 000 - Km 1857 + 000, Dipolog City 500,000.00 e Km 1857 + 000 - Km 1862 + 000, Dipolog City 500,000.00 f Km 1862 + 000 - Km 1867 + 000, Dipolog City 500,000.00 g Kin 1867 + 000 - Km 1872 + 000, Dipolog City 500,000.00 3 Rehab./Impv't of Dipolog-Sindagan National Road 500,000.00 a Km 1837 + 000 - Km 1872 + 000, Dipolog City 500,000.00