FIRST DIVISION
[G.R. No. 231269. June 23, 2021.]
OFFICE OF THE OMBUDSMAN, petitioner,vs. LEO S. LATIDO, DOMINADOR C. MAUHAY III, DOROTEO P. ROSALES, ELVIRA L. LINGAO, ROLDAN L. LOPEZ and MARILYN B. MOLINO, respondents.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution datedJune 23, 2021which reads as follows:
"G.R. No. 231269 (Office of the Ombudsman, Petitioner, v. Leo S. Latido, Dominador C. Mauhay III, Doroteo P. Rosales, Elvira L. Lingao, Roldan L. Lopez and Marilyn B. Molino, Respondents.) — This is a Petition for Review on Certiorari1 (Petition) under Rule 45 of the Rules of Court assailing the Decision 2 of the Court of Appeals (CA) dated 08 November 2016 and Resolution 3 dated 29 March 2017 in CA G.R. SP No. 142114. The case stemmed from a complaint against Leo S. Latido (Latido), City Administrator and Bids and Awards Committee (BAC) Chairman, Dominador C. Mauhay III (Mauhay), Doroteo P. Rosales (Rosales), Elvira L. Lingao (Lingao), Roldan L. Lopez (Lopez), and Marilyn B. Molino (Molino) (respondents, collectively) for the irregular procurement of a generator set by the City Government of Lipa.
Antecedents
A complaint dated 13 February 2013 was filed by Raymund de Leon (complainant) charging Meynardo A. Sabili (Sabili), Mayor of Lipa City, Batangas; and the chairman and members of the Lipa City Bids and Awards Committee (BAC), namely, Latido, City Administrator and BAC Chairman; Mauhay, Rosales, Lingao, Lopez, and Molino; Virgilio I. Macasaet, Jr. (Virgilio), the mayor's Chief of Staff; and Judy M. Macasaet (Judy). Officer-in-Charge of the City Accounting Office, for violation of Section 3 (e) and (g) 4 of Republic Act No. (RA) 3019 5 and Article 171 of the Revised Penal Code (RPC); 6 and for Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service.
The complaint alleged that respondents conspired to conceal the anomalous purchase of one (1) unit of "reconditioned" 375 kVA Cummins 600 GS, USA V.T. 12 generator set for Php2,995,800.00 from JTA Builders. At the outset, complainant claimed that JTA Builders was not qualified to supply generator sets, as its business is construction, design and planning only. Respondents purportedly caused the issuance of a mayor's permit to JTA Builders, making it appear that the latter was engaged in the business of general merchandising. 7
Later on, complainant executed an Affidavit of Desistance dated 22 August 2013, moving for the withdrawal of his complaint. He claimed that he had no knowledge of the allegations therein and was merely coerced by one Danny Tobias to sign certain documents which he did not have the opportunity to read and examine. 8
By virtue of the said desistance, respondents moved for the dismissal of the complaint. 9
Ruling of the Ombudsman
In a Joint Resolution 10 dated 10 March 2015, the Ombudsman (petitioner) dismissed the criminal charges against all the respondents for lack of probable cause. Also, the administrative charges against Sabili, Virgilio and Judy were dismissed for lack of merit. CAIHTE
However, the petitioner found respondent members of the BAC, Latido, Mauhay, Rosales, Lingao, Lopez and Molino, liable for Simple Misconduct. The Ombudsman found that during the bidding, JTA Builders' first sealed envelope did not contain the bidder's bond or security. As such, the BAC should have marked the envelope "failed," and JTA Builders should have been automatically disqualified from the bidding process. However, since the element of corruption or the flagrant disregard of established rules were not established, respondent BAC members could not be held guilty of Grave Misconduct. Thus, the dispositive portion of the Ombudsman Joint Resolution, states:
WHEREFORE, premises considered, the criminal charges for violation of Sections 3 (e) and (g) of [RA] 3019 and Article 171 of the RPC against Meynardo A. Sabili, Virgilio Macasaet, Jr., Judy M. Macasaet, Leo S. Latido, Dominador C. Mauhay III, Doroteo P. Rosales, Elvira L. Lingao, Roldan L. Lopez and Marilyn B. Molino are hereby DISMISSED for lack of probable cause.
As regards the administrative aspect of the case, respondent BAC chairman and members Leo C. Latido, Dominador C. Mauhay III, Doroteo P. Rosales, Elvira L. Lingao, Roldan L. Lopez, and Marilyn B. Molino are found liable for SIMPLE MISCONDUCT. In consonance with Rule 10, Section 46 D (2) of the Revised Penal Rules on Administrative Cases in the Civil Service (RRACCS) in relation to Section 49 of the same Rule, and Section 10, Rule III of the Administrative Order (AO) No. 07, as amended, they are hereby meted the penalty of SUSPENSION from the service for THREE MONTHS (3) without pay. In the event the penalty can no longer be enforced due to retirement or severance for any reason from the service, the same shall be converted into a FINE in the amount equivalent to respondents' salary for three (3) months, payable to the Office of the Ombudsman, and may be deducted from their accrued leave credits or any receivable from their office.
The administrative charges against respondents Meynardo A. Sabili, Virgilio I. Macasaet, Jr. and Judy M. Macasaet are hereby DISMISSED for lack of merit.
SO RESOLVED.11
Petitioner subsequently denied respondents' motion for partial reconsideration in its Order dated 28 June 2015.
Aggrieved, respondents filed a petition for review before the CA. Petitioner countered with a motion to intervene, 12 which the CA denied in its Resolutions dated 22 April 2016 13 and 08 September 2016. 14
Ruling of the Court of Appeals
As mentioned, the CA reversed the Ombudsman's finding holding respondents liable for Simple Misconduct, to wit:
WHEREFORE, premises considered, the instant Petition for Review is hereby GRANTED. The assailed March 10, 2015 Joint Resolution and June 28, 2015 Order of the Office of the Ombudsman are REVERSED and SET ASIDE. Consequently, the Complaint-Affidavit is DISMISSED.
SO ORDERED. 15
The appellate court ruled that the Minutes of the Bidding, per se, do not prove that respondents, as Chairperson and members of the BAC, allowed JTA Builders to participate in the bidding despite the lack of bid security in its first sealed envelope of bidding documents. While the minutes of a meeting are reflective of what transpired, it may also fail to record everything that occurred. Hence, the minutes of the meeting should be reconciled with the Joint Affidavit of Nonita P. Cabrera (Cabrera) and Emilio M. Garcia, Jr. (Garcia) along with the Checklist of Eligibility Requirements for Bidders. 16
The CA likewise denied petitioner's motion for intervention and reconsideration of its Decision 17 in its Resolution 18 dated 29 March 2017.
Hence, the instant Petition.
Issues
Petitioner raises the following grounds in support of its Petition:
I. THE [CA] GRAVELY ERRED WHEN IT DENIED PETITIONER'S MOTION TO INTERVENE AND FOR RECONSIDERATION
II. THE [CA] GRAVELY ERRED WHEN IT REVERSED AND SET ASIDE THE FACTUAL FINDINGS OF PETITIONER, THEREBY ABSOLVING RESPONDENTS OF ANY LIABILITY 19
Ruling of the Court
The Petition is denied.
The Ombudsman's legal
The Ombudsman's right to intervene in cases where its administrative rulings are in question is already settled in jurisprudence. In the recent case of Office of the Ombudsman v. Vitriolo(Vitriolo), 20 the Court emphasized:
The Court has already clarified in Ombudsman v. Bongais (Bongais) that the Ombudsman has legal standing to intervene on appeal in administrative cases resolved by it. Even if not impleaded as a party in the proceedings, it has legal interest to intervene and defend its ruling in administrative cases before the CA, which interest proceeds from its duty to act as a champion of the people and to preserve the integrity of public service.
As it stands, therefore, the Ombudsman's legal standing to intervene in appeals from its rulings in administrative cases has been settled and is the prevailing rule, in accordance with the Court's pronouncement in Bongais, provided, that the Ombudsman moves for intervention before rendition of judgment, pursuant to Rule 19 of the Rules of Court, lest its motion be denied. DETACa
The rule requiring intervention before rendition of judgment, however, is not inflexible. Jurisprudence is replete with instances where intervention was allowed even beyond the period prescribed in the Rules of Court when demanded by the higher interest of justice; to afford indispensable parties, who have not been impleaded, the right to be heard; to avoid grave injustice and injury and to settle once and for all the substantive issues raised by the parties; or, because of the grave legal issues raised. Stated otherwise, the rule may be relaxed and intervention may be allowed subject to the court's discretion after consideration of the appropriate circumstances, for after all, Rule 19 of the Rules of Court is a rule of procedure whose object is to make the powers of the court fully and completely available for justice; its purpose is not to hinder or delay, but to facilitate and promote the administration of justice. (Emphasis and italics in the original)
Petitioner attempted to intervene three (3) times. First, when it filed a Motion to Intervene (With Attached Comment-in-Intervention), 21 which the CA denied in its Resolution dated 22 April 2016. 22Second, when it filed a Motion for Reconsideration, 23 imploring the CA to reconsider its earlier denial of its attempt to intervene. However, the CA again denied the same in its Resolution dated 08 September 2016. 24Third, when petitioner filed its Motion for Intervention and Reconsideration (To the Decision Promulgated on 08 November 2016). 25
In the case at bar, the CA should have allowed petitioner to participate in the appeal filed by respondents since it timely moved for intervention before the CA rendered its judgment. It should, however, be noted that after receiving the Resolution dated 08 September 2016, petitioner failed to avail of the remedies available before the Court. To recall, an order denying a motion for intervention is appealable. Where the lower court's denial of a motion for intervention amounts to a final order, an appeal is the proper remedy as when the denial leaves the intervenor without further resort to judicial relief. On the other hand, when the court's discretion to allow or disallow a motion to intervene is exercised in an arbitrary or capricious manner, said discretion is reviewable by certiorari. 26 Since petitioner did not exercise its option to appeal, the denial of its motion to intervene had already become final.
As discussed in Bongais and reiterated in Vitriolo, there are some instances when intervention is allowed even after rendition of the judgment. The case should, however, fall under the excepting circumstances enumerated in Bongais and Vitriolo. On that note, the Court is convinced that the relaxation of the rules is not warranted as the recognized exceptional instances are not present in this case. There is no "higher interest of justice" to be satisfied nor is there any grave injustice and injury to be settled. Most significantly, there is no grave legal issue raised in this appeal. On this score alone, the Petition may already be dismissed. However, in order to put the matter to rest, the Court hastens to discuss the substantive issues just the same.
Respondents'
Misconduct is the "intentional wrongdoing or deliberate violation of a rule of law or standard of behavior." To constitute an administrative offense, misconduct should relate to or be connected with the performance of the official functions and duties of a public officer. As distinguished from simple misconduct, grave misconduct requires the elements of corruption, clear intent to violate the law or flagrant disregard of an established rule. 27 Accordingly, simple misconduct has been defined as a transgression of some established rule of action or an unacceptable behavior that transgresses the established rules of conduct for public officers or any act deviating from the procedure laid down by the rules that warrants disciplinary action. 28
Petitioner's basis for insisting on the guilt of respondents for Simple Misconduct rests mainly on the Minutes dated 16 May 2011 taken during the conduct of the subject bidding and reads as follows:
The Chairman then proceeded with the opening of the envelope of the 2nd bidder which is JTA Builders. He requested the BAC Secretariat to check the validity and completeness of the submitted documents. After going through with the requirements, Ms. Cabrera reported that the documents are complete. Hearing the pronouncement of Ms. Cabrera the Chairman requested the Secretary to mark the envelope "passed."
Hearing no objections, the Chairman stated he will proceed with the opening of the second envelope which contains the bid proposal. The Chairman open (sic) the sealed envelope of JTA Builders. Atty. Latido announced that the envelope contains the bid proposal and the bidders bond from Plaridel Insurance in the amount of [Php]149,790.00 he then requested the members to check and verify the authenticity of the documents. Finding the documents in order Mr. Rosales attested to the veracity and conformity of the documents and handed it back to the Chairman. No objections were raised thereto. The Chairman read the bid proposal of JTA Builders. 29
According to petitioner, respondents' conduct of the bidding resulted in an irregularity since the bid security was not enclosed in the first envelope but in the second envelope. As such, respondents should have taken note of the said flaw and sanctioned JTA Builders accordingly. Their failure to do so warrants their pronouncement of guilt for Simple Misconduct. aDSIHc
Petitioner is mistaken. Its conclusion is pure conjecture and speculative at best especially in light of the evidence submitted by respondents.
To recall, respondents submitted a Joint Affidavit 30 executed by Cabrera, the BAC Secretariat, and Garcia, a member of the BAC Technical Working Group (TWG) attesting that the first envelope of JTA Builders contained the bid security. They verified that the bid security is to be included in the first envelope of the prospective bidder in accordance with their "Instructions to Bidders as expressly stated in the Bidding Documents." Accordingly, it is also one of the items in their Checklist of Eligibility Requirements for Bidders enumerating all the necessary documents which must be contained in the first envelope. They also confirmed their presence during the conduct of bidding on 16 May 2011 wherein they, together with the BAC members, were able to verify the requirements submitted by JTA Builders as complete. They emphasized that the first envelope contained the bid security for which reason they affixed a check mark on the item corresponding to the said requirement in the checklist. 31
Respondents also submitted the Checklist of Eligibility Requirements for Bidders 32 referred to by Cabrera and Garcia in their Joint Affidavit. The checklist, which categorized the requirements needed in the first envelope as either eligibility documents or technical documents, listed the bid security as one (1) of the only two (2) requirements under technical documents making it hard to overlook when reviewing the requirements. A perusal of the said checklist, which was signed by Cabrera, Garcia and the members of the BAC, also shows that JTA Builders submitted a complete set of documents for its first bid envelope.
The importance of the Checklist of Eligibility Requirements for Bidders in evaluating the present case is further shown in Section 30.1 33 Rule IX of the Implementing Rules and Regulations of RA 9184, 34 as amended, or IRR-A, which requires the BAC to check the submitted documents in the first bid envelope against a "checklist of required documents to ascertain if they are all present in the first bid envelope." Notably, there is no proof that the Checklist of Eligibility Requirements for Bidders submitted by respondents was irregularly accomplished.
With the above evidence to support respondents' claim, petitioner's cause, which is primarily based only on the Minutes dated 16 May 2011, necessarily falls apart. It must be emphasized that the minutes of any meeting are simply the notes or written record of the meeting, which typically describes what transpired during the meeting, identify the attendees, and present the statements and related responses or resolutions of the issues discussed. Often, the minutes are terse and meant to record only the basic information, like the actions discussed and the decisions made. 35
Indeed, respondents enjoy the presumption of regularity in the performance of official duties, which is in aid to the effective and unhampered administration of government functions. Without such benefit, every official action could be negated with minimal effort from litigants, irrespective of merit or sufficiency of evidence to support such challenge. To this end, our body of jurisprudence has been consistent in requiring nothing short of clear and convincing evidence to the contrary to overthrow such presumption. The burden of proof to discharge such presumption lay with petitioner. 36 Clear and convincing evidence, as a standard of proof, is less than proof beyond reasonable doubt (for criminal cases) but greater than preponderance of evidence (for civil cases). The degree of believability should be higher than that of an ordinary civil case. 37 Hence, petitioner bears the burden to prove with a degree higher than merely preponderance of evidence that the presumption of regularity in the performance of respondents' official duties should be overturned.
It bears noting that in contrast to usual administrative cases 38 involving BAC members held administratively liable by the Court, the present case does not involve a resort to an alternative mode of procurement, a lack of eligibility requirement from a bidder or a lack of publication.
In Office of the Ombudsman v. Miedes, Sr., 39 the Court held therein respondent, who was a member of the BAC, guilty of simple misconduct when the BAC purchased cellphones without public bidding and from a mere authorized distributor. Similarly, in Office ofthe Ombudsman v. De Sahagun, 40 the Court reinstated the order of petitioner holding therein respondent guilty of simple misconduct for failure to go through the required bidding. Meanwhile, in Yamson v. Castro, 41 therein petitioners were held guilty of simple neglect of duty and/or simple misconduct when the BAC members chose to undergo a negotiated contract instead of public bidding and signed the Certificate of Completion despite knowledge of irregularities in the project.
Conversely, public bidding was conducted in this case wherein the winning bid from JTA Builders, which was proven as qualified to participate in the conduct of bidding, garnered the lowest bid. The requirements and documents submitted by JTA Builders were also not lacking in any way. Ultimately, the goal of ensuring the public receives the best possible advantages through open competition was achieved. The principles of transparency, competitiveness, simplicity, and accountability were not lost as there was no occasion for corruption or abuse of discretion in awarding the subject government contracts. 42 No bias over JTA Builders was shown and respondents did not gain any benefit in procuring the generator from the said supplier. Even the complainant, who later on executed an Affidavit of Desistance, never presented any evidence on the alleged irregularity harped on by petitioner.
Ultimately, petitioner failed to show that respondents acted in an unacceptable behavior transgressing established rules of conduct of public officers or acted in deviation from a procedure warranting disciplinary action. Hence, the CA did not err in dismissing the complaint against respondents and absolving them from administrative liability. ETHIDa
WHEREFORE, the Petition is DENIED. The assailed Decision dated 08 November 2016 and the Resolution dated 29 March 2017 of the Court of Appeals in CA-G.R. SP No. 142114 are AFFIRMED.
SO ORDERED."
By authority of the Court:
(SGD.) LIBRADA C. BUENADivision Clerk of Court
By:
MARIA TERESA B. SIBULODeputy Division Clerk of Court
Footnotes
1. Rollo, pp. 12-33.
2. Id. at 40-54; penned by Associate Justice Agnes Reyes-Carpio and concurred in by Associate Justices Romeo F. Barza, and Franchito N. Diamante.
3. Id. at 18-21.
4. 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.
xxx xxx xxx
(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.
5. Entitled "Anti-Grant and Corrupt Practices Act," approved on 17 August 1960.
6. Art. 171. Falsification by public officer, employee or notary or ecclesiastic minister. — The penalty of prision mayor and a fine not to exceed [Php]5,000 shall be imposed upon any public officer, employee, or notary who, taking advantage of his official position, shall falsify a document by committing any of the following acts:
1. Counterfeiting or imitating any handwriting, signature or rubric;
2. Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate;
3. Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them;
4. Making untruthful statements in a narration of facts;
5. Altering true dates;
6. Making any alteration or intercalation in a genuine document which changes its meaning;
7. Issuing in an authenticated form a document purporting to be a copy of an original document when no such original exists, or including in such a copy a statement contrary to, or different from, that of the genuine original; or
8. Intercalating any instrument or note relative to the issuance thereof in a protocol, registry, or official book.
The same penalty shall be imposed upon any ecclesiastical minister who shall commit any of the offenses enumerated in the preceding paragraphs of this article, with respect to any record or document of such character that its falsification may affect the civil status of persons.
7. Rollo, p. 41.
8. Id. at 42.
9. Id. at 73.
10. Id. at 67-81.
11. Id. at 80-81.
12. Id. at 92-93.
13. Id. at 107-110.
14. Id. at 120-122.
15. Id. at 54.
16. Id. at 48-53.
17. Id. at 55-63.
18. Id. at 65-66.
19. Id. at 101.
20. G.R. No. 237582, 03 June 2019 [Per J. Perlas-Bernabe], citing Ombudsman v. Bongais, 836 Phil. 978 (2018), G.R. No. 226405, 23 July 2018 [Per J. Perlas-Bernabe].
21. Rollo, pp. 92-106.
22. Id. at 107-110.
23. Id. at 111-119.
24. Id. at 120-122.
25. Id. at 55-63.
26. See Union Bank of the Philippines v. Concepcion, 552 Phil. 730 (2007), G.R. No. 160727, 26 June 2007 [Per J. Garcia].
27. Agulto v. 168 Security, Inc., G.R. No. 221884, 25 November 2019 [Per J. Carandang], citing Daplas v. Department of Finance, 808 Phil. 763 (2017), G.R. No. 221153, 17 April 2017 [Per J. Perlas-Bernabe].
28. National Bureau of Investigation v. Najera, GR. No. 237522, 30 June 2020 [Per J. M. Lopez], citing Benong-Linde v. Lomantas, 833 Phil. 43 (2018), A.M. No. P-18-3842, 11 June 2018 [Per J. Del Castillo]; Bureau of Internal Revenue v. Organo, 468 Phil. 111 (2004), G.R. No. 149549, 26 February 2004 [Per J. Panganiban].
29. Rollo, pp. 30-31, 78, 104.
30. Id. at 154.
31. Id.
32. Id. at 153.
33. SECTION 30. Preliminary Examination of Bids. —
30.1. The BAC shall open the first bid envelopes (Technical Proposals) of eligible bidders in public to determine each bidder's compliance with the documents required to be submitted for the first component of the bid, as prescribed in this IRR-A. For this purpose, the BAC shall check the submitted documents of each bidder against a checklist of required documents to ascertain if they are all present in the first bid envelope, using a non-discretionary "pass/fail" criteria, as stated in the Invitation to Apply for Eligibility and to Bid and the Instructions to Bidders. If a bidder submits the required document, it shall be rated "passed" for that particular requirement. In this regard, failure to submit a requirement, or an incomplete or patently insufficient submission, shall be considered "failed" for the particular requirement concerned. In case one or more of the above required documents in the first envelope of a particular bid is missing, incomplete, or patently insufficient, the BAC shall rate the bid concerned as "failed" and immediately return to the bidder concerned its second bid envelope unopened. Otherwise, the BAC shall rate the said first bid envelope as "passed." (Emphasis ours)
34. Entitled "Implementing Rules and Regulations of Republic Act No. 9184, Otherwise Known as the Government Procurement Reform Act (As Amended), Amended IRR-RA 9184," approved on 03 August 2009. (Emphasis supplied)
35. Pentagon International Shipping Services, Inc. v. Court of Appeals, 762 Phil. 421 (2015), G.R. No. 169158, 01 July 2015 [Per J. Bersamin].
36. See Yap v. Lagtapon, 803 Phil. 652 (2017), G.R. No. 196347, 23 January 2017 [Per J. Caguioa], citing Office of the Ombudsman v. Manalastas, 791 Phil. 557 (2016), G.R. No. 208264, 27 July 2016 [Per J. Carpio].
37. Riguer v. Mateo, 811 Phil. 538 (2017), G.R. No. 222538, 21 June 2017 [Per J. Mendoza], citing Tankeh v. Development Bank of the Philippines, 720 Phil. 641, 675 (2013), G.R. No. 171428, 11 November 2013 [Per J. Leonen].
38. Jomadiao v. Arboleda, G.R. No. 230322, 19 February 2020 [Per CJ Peralta]; Office of the Ombudsman v. Celiz, G.R. No. 236383, 26 June 2019 [Per J. A.B. Reyes, Jr.]; Office of the Ombudsman v. Miedes, Sr., 570 Phil. 464 (2008) G.R. No. 176409, 27 February 2008 [Per J. Austria-Martinez].
39. 570 Phil. 464 (2008), G.R. No. 176409, 27 February 2008 [Per J. Austria-Martinez].
40. 584 Phil. 119 (2008), G.R. No. 167982, 13 August 2008 [Per J. Austria-Martinez].
41. Yamson v. Castro, 790 Phil. 667 (2016), G.R. Nos. 194763-64, 20 July 2016 [Per J. Reyes].
42. See Subic Bay Metropolitan Authority v. Commission on Audit, G.R. No. 230566, 22 January 2019 [Per J. Gesmundo].