FIRST DIVISION
[G.R. No. 218620. September 2, 2015.]
CARLOS C. MORENO, JR., petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution dated September 2, 2015 which reads as follows:
G.R. No. 218620 (Carlos C. Moreno, Jr., Petitioner, v. People of the Philippines, Respondent.). — The petitioner's urgent motion for an extension of thirty (30) days within which to file a petition for review on certiorari is GRANTED, counted from the expiration of the reglementary period; and the petitioner's manifestation that the copies of the motion for extension furnished to the Office of the Special Prosecutor and the Sandiganbayan were sent via registered mail instead of personal service and that the copies were served again by personal service on the Sandiganbayan and the Office of the Special Prosecutor is NOTED.
This is a petition for review on certiorari filed under Rule 45 of the Rules of Court, assailing the Decision 1 of the Sandiganbayan dated 23 February 2015, which found petitioner Carlos C. Moreno, Jr. (Moreno) guilty of violation of Section 3 (e) of Republic Act (R.A.) No. 3019, as amended, otherwise known as the "Anti-Graft and Corrupt Practices Act," for allegedly giving unwarranted benefit to Rodrigo S. Villanueva (Villanueva), President and General Manager of AM-Europharma Corporation (AM-Europharma), by awarding a government contract for the supply of medicines to the municipality of Janiuay, Iloilo, despite AM-Europharma's disqualification to bid due to the suspension of its accreditation by the Department of Health (DOH).
The facts as culled from the records are as follows:
In response to an Invitation to Bid by the Office of the Municipal Mayor of Janiuay, Iloilo, for the supply of medicines, three medical suppliers (AM-Europharma, Mallix Drug, and Phil. Pharmawealth) participated in the public bidding. However, due to the absence of the Provincial Auditor on the scheduled bidding on 12 January 2001, the bidding was postponed and rescheduled to 15 January 2001.
On 15 January 2001, despite the absence of the Provincial Auditor, the Committee on Awards, composed of Municipal Mayor of Janiuay Frankie H. Locsin (Mayor Locsin), Municipal Accountant Moreno, Municipal Budget Officer Ramon T. Tirador (Tirador), Municipal Treasurer Luzviminda P. Figueroa (Figueroa), and Representative of the Municipal Mayor Ricardo S. Minurtio (Minurtio), all public officers, awarded the contract to AM-Europharma. The following day, the medicines were delivered to the municipality of Janiuay.
During the post-audit, the Provincial Auditor of Iloilo issued a Notice of Suspension, requesting Mayor Locsin and Figueroa to justify the alleged failure of the municipality to: 1) notify the Office of the Provincial Auditor of the bidding; and 2) require the winning bidders to submit a performance bond equivalent to 10% of the purchase price. The Notice also required Mayor Locsin and Figueroa to explain why the contract was awarded to Villanueva, who is both the President and General Manager of AM-Europharma and the sole proprietor of Mallix Drug, and to submit some documents.
The Office of the Ombudsman filed an Information before the Sandiganbayan against Mayor Locsin, Moreno, Tirador, Figueroa, and Minurtio for violation of Section 3 (e) of R.A. No. 3019:
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:
xxx xxx xxx
(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.
The Information 2 reads: ETHIDa
That on or about January 15, 2001, and for sometime prior or subsequent thereto, in the Municipality of Janiuay, Province of Iloilo, Philippines, and within the jurisdiction of this Honorable Court, above-named accused Frankie H. Locsin, Carlos C. Moreno, Jr., Ramon T. Tirador, Luzviminda P. Figueroa[,] and Ricardo S. Minurtio, all public officers, being then the Municipal Mayor, Municipal Accountant, Municipal Budget Officer, Municipal Treasurer and Representative of the Municipal Mayor in the Committee on Awards, respectively, all of the Municipality of Janiuay, Iloilo, in such capacity and committing the offense in relation to and in the discharge of their official and administrative functions, conniving, confederating together and mutually helping with each other and with accused Rodrigo S. Villanueva, President and General Manager of AM-Europharma Corporation, a private individual, with deliberate intent, manifest partiality and evident bad faith, did then and there willfully, unlawfully and criminally award the contract for the purchase of medicines and in fact bought such medicines in the amount of THIRTEEN MILLION ONE HUNDRED NINETY-ONE THOUSAND TWO HUNDRED TWENTY-THREE (P13,191,223.00) PESOS, Philippine Currency, from AM-Europharma Corporation, notwithstanding the fact that on said date the accreditation of AM-Europharma Corporation was still suspended by the Department of Health (DOH)[;] hence[, it] should have been disqualified to participate in the bidding, that AM-Europharma Corporation is owned and controlled by said accused Rodrigo S. Villanueva, who at the same time is the sole proprietor of Mallix Drug Center, a supplier who was awarded the contract for the supply of medicines in the amount of ONE MILLION SEVEN HUNDRED FORTY-FOUR THOUSAND NINE HUNDRED TWENTY-SIX PESOS (PHP1,744,926.00) in the same public bidding, and that the public bidding was conducted without the presence of any provincial or municipal auditor or its (sic) duly authorized representative, thus accused public officers, in the course of the performance of their official/administrative functions, had given AM-Europharma Corporation/accused Rodrigo S. Villanueva unwarranted benefit, advantage or preference in the discharge of their official/administrative functions to the detriment and prejudice of the other companies and public service.
Upon arraignment, all the accused pleaded not guilty to the offense charged. Thereafter, trial on the merits ensued.
On 23 February 2015, the Sandiganbayan found all the accused guilty, sentencing them to suffer the indeterminate penalty of six (6) years and one (1) month as minimum to ten (10) years as maximum, and to suffer perpetual disqualification from public office. According to the Sandiganbayan, as there were irregularities in the conduct of the public bidding, the accused should have declared a failed bidding: (1) for violation of Section 95 of Commission on Audit (COA) Circular No. 92-386, 3 which requires that in case there is only one bidder, the Committee on Awards should declare a failed bidding; and (2) for violation of Section 60 4 of COA Circular No. 92-386, which requires the presence of the Provincial Auditor or his representative during a public bidding.
As borne by the records, Phil. Pharmawealth did not participate in the bidding. While there were two participants, AM-Europharma and Mallix Drug, only Mallix Drug was qualified because, at that time, AM-Europharma was unqualified because its supplier's accreditation was suspended by the DOH.
Hence, the present petition filed by one of the accused, Moreno. He argues that as a municipal accountant, it is not his duty to determine whether the winning bidder is pre-qualified or not. According to Moreno, the ascertainment of whether a bidder is pre-qualified or not is within the duty of the Pre-Qualification Committee, 5 in contrast to his function as a member of the Committee on Awards, which merely decides on the winning bids and questions of awards based on Section 364 of the Local Government Code. 6
Moreno also avers that as a municipal accountant, it is not within his duty to ascertain the qualification of the bidders. Moreno referred to the enumeration of the duties of a municipal accountant, as found in Section 474 (b) of the Local Government Code.
Our Ruling
We deny the petition.
All the elements of violation of Section 3 (e) of R.A. No. 3019 concur:
1. That the accused are public officers or private persons charged in conspiracy with them;
2. That said public officers committed the prohibited acts during the performance of their official duties or in relation to their public positions;
3. That they caused undue injury to any party, whether the Government or a private party;
4. That such injury was caused by giving unwarranted benefits, advantage or preference to such parties; and
5. That the public officers acted with manifest partiality, evident bad faith or gross inexcusable negligence. 7
In the case at bar, Moreno was a public officer charged with the duty to award the procurement contract on behalf of the municipality. However, despite the circumstances to declare a failed public bidding, Moreno awarded the contract, in manifest partiality, evident bad faith and gross inexcusable negligence, to an unqualified bidder, giving unwarranted benefits or preference to Villanueva, which caused injury to the municipality. cSEDTC
With regard to the defense's argument that it is not within the Committee on Awards' duty to ascertain whether the bidder is pre-qualified or not, the contention must fail. Assuming that he indeed has no such duty, Moreno, with manifest partiality, evident bad faith, and inexcusable negligence, failed to exercise prudence and did not further inquire into the matter, when he already knew of AM-Europharma's disqualification due to the expiration of its accreditation at the time of the bidding.
Nevertheless, Moreno failed to prove why the Committee on Awards still continued with the bidding, despite the absence of the Provincial Auditor, as required by law.
WHEREFORE, the Decision of the Sandiganbayan dated 23 February 2015 in Crim. Case No. SB-08-CRM-0381, finding petitioner Carlos C. Moreno, Jr. guilty beyond reasonable doubt of the offense punishable under Section 3 (e) of R.A. No. 3019, as amended, otherwise known as the "Anti-Graft and Corrupt Practices Act," and sentencing him to suffer the indeterminate penalty of six (6) years and one (1) month as minimum to ten (10) years as maximum, to suffer perpetual disqualification from public office, and to pay proportionately the cost, is AFFIRMED.
SO ORDERED."
Very truly yours,
(SGD.) EDGAR O. ARICHETADivision Clerk of Court
Footnotes
1. Penned by Associate Justice Rodolfo A. Ponferrada, with Associate Justices Efren N. De La Cruz and Rafael R. Lagos concurring; rollo, pp. 129-162.
2. Sandiganbayan Decision; id. at 129-130.
3. SEC. 95. — When Public Bidding Deemed a Failure. — For purposes of these rules and regulations, public bidding is deemed to have failed under any of the following circumstances:
a. when no or only one qualified bid is received on or before the scheduled date of the opening of the bids; or
b. when all the bids submitted are defective and/or non-complying bids or not responsive to the terms, conditions and specifications of the tender documents.
4. SEC. 60.Opening of Bids. — All bids submitted shall be opened at the time, date and place set in the call for bids by the Committee on Awards. Opening of bids shall only be made in the presence of the provincial, city or municipal auditor or his duly authorized representative who shall initial and secure copies of the bids. Bidders or their representatives may witness the proceedings.
5. The Local Prequalification, Bids and Awards Committee under Sec. 37, Chapter 5 of the Local Government Code for the prequalification of contractors, bidding, evaluation of bids, and the recommendation of awards concerning infrastructure projects.
6. The Committee on Awards under Sec. 364, Title VI of the Local Government Code, which committee decides the winning bids and questions of awards on procurement and disposal of property of the local government.
7. People v. Balao, et al., 655 Phil. 563, 572-573 (2011).