THIRD DIVISION
[G.R. Nos. 216623-24. September 16, 2020.]
JOSE A. JALDON AND BENJAMIN S. DIMAANO, petitioners,vs. OFFICE OF THE OMBUDSMAN, ET AL., respondents.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution datedSeptember 16, 2020, which reads as follows:
"G.R. Nos. 216623-24 (JOSE A. JALDON and BENJAMIN S. DIMAANO, petitioners v. OFFICE OF THE OMBUDSMAN, ET AL., respondents). — Before this Court is a petition for certiorari1 under Rule 65 of the Rules of Court filed on February 23, 2015 at the instance of Jose A. Jaldon and Benjamin S. Dimaano (petitioners) seeking the review of the Joint Resolution 2 dated August 11, 2014 and the Joint Order 3 dated November 28, 2014 in OMB-M-C-12-0262 and OMB-M-A-12-0246, whereby the Office of the Ombudsman (Ombudsman) dismissed the criminal complaint, as well as the administrative complaint filed by petitioners.
The Antecedents
On December 20, 2011, the bidding for the construction of a bridge connecting Logpond to Limaong Island, Zamboanga City (Bridge Project) was published. Bendimil Construction and Development Corporation (BCDC), in joint venture with Haidee Construction and Development Corporation (HAIDEE) participated therein and submitted a bid of P127,209,326.91. 4 Meanwhile, another bidder, Grace Construction Corporation (GRACE), submitted a bid of P132,282,730.70. After completion of the evaluation process, the Bids and Awards Committee (BAC) issued a Notice of Lowest Calculated Bid (LCB) in favor of BCDC-HAIDEE Joint Venture (JV). 5
Thereafter, the BAC and the Technical Working Group (TWG) conducted post-qualification of the JV. They found HAIDEE compliant with the requirements of Republic Act (R.A.) No. 9184, otherwise known as the Government Procurement Reform Act, and its implementing rules. Meanwhile, the BAC has discovered after verification that BCDC had an on-going project, the CCC Villa Hermosa Housing Project (CCC Project), which BCDC failed to disclose. Accordingly, BAC post-disqualified BCDC due to its non-disclosure of the CCC Project despite submitting the LCB. 6 Subsequent motions for reconsideration of BCDC were denied. 7
BAC, thereafter, informed JV that it awarded the Bridge Project to GRACE, the competing bidder who submitted a bid higher than JV — P132,282,730.70. 8
GRACE's bid was later on recomputed and adjusted to P130,624,899.92, or P1,657,840.78 lower than GRACE's original bid. 9
BCDC, on its own, likewise participated in the bidding for the Improvement of Farm to Market Road at Upper Latap, Limpapa, Zamboanga City Project (Road Project) by submitting a bid of P19,171,238.01. 10 A competing bidder Greyrock Construction (GREYROCK) submitted a bid for the Road Project in the amount of P19,439,227.93, or P321,989.92 more than BCDC's bidding price. 11
Again, BCDC had the LCB. However, after conducting the post-qualification investigation, BAC post-disqualified BCDC again for the same reason, that is, non-disclosure of the on-going CCC Project. 12 The Road Project was, thus, awarded to GREYROCK. 13
On February 23, 2015, petitioners filed a complaint-affidavit 14 with public respondent Ombudsman against private respondents Dr. Mario D. Ariola, Atty. Samuel A. Mariano, Engr. Luis Vicente L. Despalo, Engr. Rene M. Dela Cruz and Atty. Alexander Eric F. Elias, members of the BAC, and Engr. Raul T. Gadiano, Ms. Lorna T. Rebollos, Engr. Vicente F. Pascua, Engr. Franklin R. Lopez., Ms. Carol L. Del Socorro, Mr. Nicoflor B. Gellecania, Atty. Jesus Salvador A. Uro and Mr. Leonardo T. Mantujan (private respondents), all members of the TWG for violation of Section 3 (e) of R.A. No. 3109, otherwise known as the Anti-Graft and Corrupt Practices Act (OMB-M-C-12-0262) 15 and for Serious Dishonesty, Grave Misconduct or Gross Neglect of Duty; and violation of R.A. No. 9184 (OMB-M-A-12-0246). 16
Petitioners, suing as taxpayers, averred that private respondents committed a violation of R.A. No. 9184, when they failed to complete its post-qualification process on BCDC within seven days from the determination of the LCB as prescribed by Section 34.8, Rule X, Implementing Rules and Regulations (IRR) in relation to Section 34, Article X of R.A. No. 9184. 17 They argued that it took private respondents 62 days before post-disqualifying BCDC. Likewise, petitioners claim that private respondents completely disregarded the three-month maximum period for all procurement process mandated by Section 38.1 of the IRR when it took them 110 days to issue a notice of award. 18
Petitioners further posited that private respondents post-disqualified BCDC without valid legal ground, in violation of Section 34.3 (b) (ii) of the IRR. Petitioners explained that the alleged on-going project (CCC Project) has already been extinguished and terminated, hence, BCDC has no obligation to disclose the same. 19
After the filing of private respondents' joint counter-affidavit 20 and petitioners' cautionary reply-affidavit, the case was deemed submitted for decision.
On October 14, 2014, the Office of the Deputy Ombudsman for Mindanao approved the assailed Joint Resolution 21 dated August 11, 2014 dismissing petitioners' complaint for lack of merit. Therein, public respondent Ombudsman ruled that private respondents did not give any unwarranted benefit to GRACE and GREYROCK. It explained that after the JV, in the Bridge Project, and BCDC, in the Road Project, were post-disqualified, GRACE and GREYROCK, respectively, being the second LCB were entitled to be awarded the projects considering that there were no problems discovered during the post-qualification process. In other words, the projects were awarded to them based on their respective eligibilities. 22
On the alleged delay, public respondent concluded that the delay in the completion of the post-qualification process was due to valid reason, that is, due to the discovery of the CCC Project, the BAC needed more time to scrutinize and evaluate the documents relevant thereto. Simply, the delay was justified. 23 Accordingly, the case was disposed in this wise:
WHEREFORE, the criminal complaint is dismissed. Likewise, the administrative complaint is dismissed.
SO ORDERED. 24
Aggrieved, petitioners moved for reconsideration. 25 It was however, denied per Joint Order 26 dated November 28, 2014.
Hence, the instant petition for certiorari27 interposing the following issues:
Issues
I.
Whether or not Respondents were bias or partial to GRACE and GREYROCK to the detriment of the Government of Zamboanga City by being lenient to them and overly technical and strict to the JV and BCDC;
II.
Whether or not the CCC Villa Hermosa housing project could be considered as an "ON-GOING" project and therefore should have been included by the JV or BCDC in its List of On-Going Projects; and
III.
Whether or not the BAC and TWG failed to observe the prescribed periods required under RA 9184. 28
The Court's Ruling
The petition is bereft of merit.
The issues, being interrelated, are discussed jointly.
Settled is the rule that this Court will not ordinarily interfere with the Ombudsman's exercise of his investigatory and prosecutory powers without good and compelling reasons to indicate otherwise. Said exercise of powers is based upon his constitutional mandate and the courts will not interfere in its exercise. The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman, but upon practicality as well. Otherwise, innumerable petitions seeking dismissal of investigatory proceedings conducted by the Ombudsman will grievously hamper the functions of the office and the courts, in much the same way that courts will be swamped if they had to review the exercise of discretion on the part of public prosecutors each time they decided to file an information or dismiss a complaint by a private complainant. 29
Nevertheless, the Ombudsman's discretion in determining the existence of probable cause is not absolute. However, it is incumbent upon petitioner to prove that such discretion was gravely abused in order to warrant the reversal of the Ombudsman's findings by this Court. 30
After considering the arguments of both parties and assiduously studying the records of this case, this Court holds and so rules that no grave abuse of discretion can be attributed to the Ombudsman when it dismissed petitioners' criminal complaint for lack of probable cause against private respondents.
Section 3 (e) of R.A. No. 3109 proscribes causing any undue injury to any party, including the Government, or giving up 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.
In the case at bench, after due investigation, private respondents discovered that BCDC is a part of an on-going project — CCC Villa Hermosa Housing Project, which BCDC should have disclosed during the bidding process. The findings of public respondent Ombudsman is worth quoting, thus:
x x x In the letter of Atty. Samuel A. Mariano, OIC-Assistant City Legal Officer, Office of the City Legal Officer, Zamboanga City, he explained to Mayor Celso L. Lobregat that "x x x Art. 1267 of the Civil Code does not automatically operate to terminate the TOR and the CCC Villa Hermosa Housing Project without a judicial pronouncement that indeed the obligation of Bendimil therein has become so difficult as to be manifestly beyond the contemplation of the parties. As such, the TOR was not ipso facto dissolved." In the letter of Mr. Rodrigo S. Pagolaisidro, HHR Officer V, HLMD, Office of the City Mayor, Zamboanga City, he told Mayor Lobregat that "There were never any updates nor communications from the developer whether he will continue with the site development or properly turn over the same to the city for appropriate action." Also, in the letter of respondent Arriola, he told Mr. Ramon Eduardo Ramon T. Dimaano, President, BENDIMIL Construction and Development Corporation, that "In the case of CCC Villa Hermosa Housing Project, there is nothing on record to indicate that the said project was ever completed or terminated for any other reason. Hence, the same must, by necessary implication, be on-going." This is iterated in the JOINT COUNTER-AFFIDAVIT of respondents by stating that "Other than these covenants, nothing else was executed by the parties to mutually rescind or terminate the agreement for the Housing Project." In other words, based on the opinion of the City Legal Officer and the HLMD, the Housing Project is an on-going project. JV was under obligation to disclose the Housing Project in the list it submitted to the BAC during the procurement process for the bridge and road projects. 31 (Citations omitted)
Despite full knowledge of the on-going project, BCDC deliberately omitted to disclose its existence, which is considered a form of misrepresentation proscribed by Section 23.7, Rule VIII of the Revised Implementing Rules and Regulations of R.A. No. 9184, viz.:
23.7. Notwithstanding the eligibility of a prospective bidder, the procuring entity concerned reserves the right to review the qualifications of the bidder at any stage of the procurement process if the procuring entity has reasonable grounds to believe that a misrepresentation has been made by the said prospective bidder, or that there has been a change in the prospective bidder's capability to undertake the project from the time it submitted its eligibility requirements. Should such review uncover any misrepresentation made in the eligibility requirements, statements or documents, or any changes in the situation of the prospective bidder which will affect the capability of the bidder to undertake the project so that it fails the eligibility criteria, the procuring entity shall consider the said prospective bidder as ineligible and shall disqualify it from obtaining an award or contract, in accordance with Rules XXI, XXII, and XXIII of this IRR. (Emphasis supplied)
Needless to state, the post-disqualification of the JV, in which BCDC is a partner, in the Bridge Project, and the post-disqualification of BCDC in the Road Project are warranted. BCDC's disqualification is indubitably in accordance with law.
As things are, being the second lowest calculated bidders for the Bridge and Road Projects, GRACE and GREYROCK, respectively, are entitled to post-qualification process after BCDC's post-disqualification. Now, records show that after post-qualification process, GRACE and GREYROCK were found to possess all the qualifications for the projects. In other words, they passed all the criteria for the Bridge and Road Projects. Petitioners' allegations, therefore, that private respondents were partial to GRACE and GREYROCK and that they were the favored bidders have nothing to stand on. As the records clearly reflect, GRACE and GREYROCK were awarded the Bridge and Road Projects, respectively, based on their eligibilities.
From the foregoing, there is clearly nothing on record that will show that petitioners committed acts giving any party unwarranted benefits or preference through manifest partiality. The post-disqualification of BCDC from the Bridge and Road Projects, as well as the subsequent awarding of these projects to GRACE and GREYROCK have bases both in fact and in law. Private respondents, therefore, committed no violation of Section 3 (e) of R.A. No. 3109.
Finally, while there was indeed delay in the post-disqualification of BCDC from the projects and in the awarding of the projects to the qualified bidders, such delay was due to a justifiable reason. After discovering that BCDC is a party to the CCC Project, it took private respondents a while to make a thorough investigation and evaluation of the documents relating to the CCC project. Thereafter, they arrived at a conclusion that indeed this project was still on-going. This caused the delay, not only in BCDC's post-disqualification, but also in awarding the contracts to GRACE and GREYROCK after their respective post-qualification process. Private respondents, therefore, did not violate R.A. No. 9184.
All told, the Ombudsman did not act with grave abuse of discretion in dismissing the criminal complaint against private respondents. The finding of lack of probable cause by the Ombudsman is borne out by the insufficient evidence of petitioners, vis-a-vis, the evidence presented by private respondents. Being supported by substantial evidence, there is no basis for this Court to exercise its supervisory powers over the ruling of the Ombudsman. As long as substantial evidence supports the Ombudsman's ruling, that decision will not be overturned. 32
WHEREFORE, in view of the foregoing premises, the instant petition is DISMISSED for lack of merit. The assailed Joint Resolution dated August 11, 2014 and the Joint Order dated November 28, 2014 of the Office of the Ombudsman in OMB-M-C-12-0262 and OMB-M-A-12-0246, are AFFIRMED as to the dismissal of the criminal complaint in OMB-M-C-12-0262.
SO ORDERED."
By authority of the Court:
(SGD.) MISAEL DOMINGO C. BATTUNG IIIDivision Clerk of Court
Footnotes
1.Rollo, pp. 3-15.
2.Id. at 21-32.
3.Id. at 33-40.
4.Id. at 25.
5.Id. at 26.
6.Id. at 54.
7.Id. at 25-26.
8.Id. at 26.
9.Id. at 61.
10.Id. at 73.
11.Id. at 80.
12.Id. at 75.
13.Id.at 80.
14.Id. at 81-101.
15.Id. at 87.
16.Id. at 98.
17.Id. at 88-90.
18.Id.
19.Id. at 90-95.
20.Id. at 210-229.
21.Id. at 21-32.
22.Id. at 30-31.
23.Id. at 30.
24.Id. at 31.
25.Id. at 41-51.
26.Id. at 33-34.
27.Id. at 3-16.
28.Id. at 12.
29.Presidential Commission on Good Government v. Hon. Desierto, 553 Phil. 733, 742-743 (2007).
30.Antonino v. Ombudsman Desierto, et al., 595 Phil. 18, 39 (2008).
31.Id. at 28-29.
32.PCGG v. Hon. Desierto, 528 Phil. 549, 558 (2006).