Reyes v. Field Investigation Office II

FIRST DIVISION

[G.R. No. 248274. March 3, 2021.]

CORAZON C. REYES AND VILMA C. ABDON, petitioners, vs.FIELD INVESTIGATION OFFICE II, REPRESENTED BY ATTY. VIC T. ESCALANTE, respondent.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, First Division, issued a Resolution dated March 3, 2021which reads as follows:

"G.R. No. 248274 (Corazon C. Reyes and Vilma C. Abdon v. Field Investigation Office II, represented by Atty. Vic T. Escalante). — This is a Petition for Review on Certiorari1 under Rule 45 of the Rules of Court assailing the Decision 2 dated November 29, 2018 and the Resolution 3 dated July 12, 2019 of Court of Appeals (CA) in CA-G.R. SP No. 149679. The assailed Decision and Resolution affirmed with modification the Decision 4 dated June 30, 2016 and Order 5 dated January 9, 2017 of the Office of the Ombudsman in OMB Case No. L-A-15-0323 dismissing from the service petitioners Corazon C. Reyes (Reyes) and Vilma C. Abdon (Abdon).

As a rule, no question will be entertained on appeal unless it has been raised in the court below. Points of law, theories, issues and arguments not brought to the attention of the lower court need not be, and ordinarily will not be, considered by a reviewing court, as they cannot be raised for the first time at that late stage. Basic considerations of due process impel this rule. 6 The CA properly refused to entertain this issue — that the Commission on Audit (COA) and the Ombudsman committed procedural lapses which rendered the judgments against them void since it infringed on their constitutional right to due process — when it was raised for the first time on appeal under the basic rules of fair play, justice, and due process.

For the same reason, the petitioners' argument that the absence of: (a) protests; (b) objections; and (c) motions for reconsideration against the Bids and Awards Committee (BAC) equate to regularity in the performance will not be entertained. If only to put this issue to rest, We reiterated in the case of Dimayuga v. Office of the Ombudsman, 7 "that the Office of the Ombudsman may undertake an investigation on complaint or on its own initiative. Therefore, with or without the report from COA, the Ombudsman can conduct a preliminary investigation. This Court has declared that the findings in a COA report or the finality or lack of finality of such report is irrelevant to the investigation of the Office of the Ombudsman in its determination of probable cause." 8

In administrative proceedings, procedural due process has been recognized to include the following: (1) the right to actual or constructive notice of the institution of proceedings which may affect a respondent's legal rights; (2) a real opportunity to be heard personally or with the assistance of counsel, to present witnesses and evidence in one's favor, and to defend one's rights; (3) a tribunal vested with competent jurisdiction and so constituted as to afford a person charged administratively a reasonable guarantee of honesty as well as impartiality; and (4) a finding by said tribunal which is supported by substantial evidence submitted for consideration during the hearing or contained in the records or made known to the parties affected. 9

Reyes and Abdon were notified of the institution of the proceedings and the charges against them. They had an opportunity to be heard with the assistance of counsel, to present witnesses and evidence, and to defend their rights. The Ombudsman had jurisdiction to hear their case and it rendered a decision supported by substantial evidence — (i) the Department of Trade and Industry permit 10 to prove that Reyes and Lising are sisters; (ii) petitioners' consistent admissions that disclosure of relations and posting are not required in shopping as an alternative mode of procurement under Republic Act No. (R.A.) 9184 and its Implementing Rules and Regulations (IRR); and (iii) the lack of official documents proving compliance therewith. "In administrative cases, it is sufficient that 'there is reasonable ground to believe that the petitioner is guilty of the act or omission complained of, even if the evidence might not be overwhelming.'" 11 We reminded in Office of the Ombudsman v. Delos Reyes, Jr.12 "that only arbitrariness will warrant judicial intervention of the Office of the Ombudsman's findings." 13

As regards the procedural lapse that the CA allegedly committed — finding that petitioners are liable for gross neglect of duty since it was not expressly alleged in the administrative complaint — while it may be true that gross neglect of duty was not expressly stated in the complaint before the Ombudsman, such offense was still referred to when Rule 10, Section 46 (A) (2) of the RRACCS was cited therein:

Section 46. Classification of Offenses. — Administrative offenses with corresponding penalties are classified into grave, less grave or light, depending on their gravity or depravity and effects on the government service.

A. The following grave offenses shall be punishable by dismissal from the service:

1. Serious Dishonesty;

2. Gross Neglect of Duty;

3. Grave Misconduct; (Emphasis supplied)

More importantly, in Pia v. Gervacio, Jr.14 We alluded to Avenido v. Civil Service Commission15 where "[W]e emphasized that the designation of the offense or offenses with which a person is charged in an administrative case is not controlling, and one may be found guilty of another offense where the substance of the allegations and evidence presented sufficiently proves one's guilt. Citing the case of Dadubo v. Civil Service Commission, 16 We held in Avenido that the charge against the respondent in an administrative case need not be drafted with the precision of an information in a criminal prosecution. It is sufficient that he is apprised of the substance of the charge against him; what is controlling is the allegation of the acts complained of, not the designation of the offense." 17

Petitioners insist on their myopic view that R.A. 9184 and its 2003 IRR do not require: (1) posting of the Invitation to Apply for Eligibility and to Bid; and (2) disclosure of relations in shopping. However, as correctly pointed out by the CA, Section 21.2.4 of the 2003 IRR is explicit that alternative methods of procurement like shopping must comply with the posting requirement. The said section reads:

For alternative methods of procurement as provided for in Rule XVI of this IRR-A, advertisement in a newspaper as required in this Section may be dispensed with: Provided, however, That posting shall be made in the website of the procuring entity concerned, if available, the G-EPS, and posted at any conspicuous place reserved for this purpose in the premises of the procuring entity concerned, as certified by the head of the BAC Secretariat of the procuring entity concerned, during the same period as above.

In De Guzman v. Office of the Ombudsman, 18 We declared that the provisions on the alternative methods of procurement, "should be read in relation to other provisions of R.A. 9184 pertinent to the conduct of any procurement activity. These include: (1) the conduct of pre-procurement and pre-bid conferences; (2) the presence of observers throughout the whole bidding process; and (3) publication and/or posting of the Invitation to Apply for Eligibility and to Bid (IAEB), and other notices." 19 Similarly, in the present case, this includes the disclosure of relationship requirement under Section 47 of the 2003 IRR (Part-A) of R.A. 9184:

In addition to the proposed contents of the Invitation to Apply for Eligibility and to Bid as mentioned under Section 21 of this IRR-A, all bids shall be accompanied by a sworn affidavit of the bidder that it is not related to the head of the procuring entity by consanguinity or affinity up to the third civil degree. Failure to comply with the aforementioned provision shall be a ground for the automatic disqualification of the bid in consonance with Section 30 of this IRR-A. For this reason, relation to the head of the procuring entity within the third civil degree of consanguinity or affinity shall automatically disqualify the bidder from participating in the procurement of contracts of the procuring entity. On the part of the procuring entity, this provision shall also apply to any of its officers or employees having direct access to information that may substantially affect the result of the bidding, such as, but not limited to, the members of the BAC, the members of the TWG, the BAC Secretariat, the members of the PMO, and the designers of the project. On the part of the bidder, this provision shall apply to the following persons:

a) If the bidder is an individual or a sole proprietorship, to the bidder himself;

b) If the bidder is a partnership, to all its officers and members;

c) If the bidder is a corporation, to all its officers, directors, and controlling stockholders; and

d) If the bidder is a joint venture, the provisions of items (a), (b) or (c) of this Section shall correspondingly apply to each of the members of the said joint venture, as may be appropriate.

Clearly, this requirement applies not only to public bidding but to all types of procurement of contracts under R.A. 9184, consistent with the law's objective to establish a system of transparency in the procurement process. 20 RA No. 9184 allows the public monitoring of the procurement process with the end view of guaranteeing that these contracts are awarded pursuant to the provisions of the law and its implementing rules and regulations. 21

The CA found: (a) Reyes liable for grave misconduct, gross neglect of duty, and conduct prejudicial to the best interest of the service; and (b) Abdon guilty of simple misconduct, gross neglect of duty, and conduct prejudicial to the best interest of the service. 22

Misconduct is "a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by a public officer. It becomes grave if it involves any of the additional elements of corruption, such as willful intent to violate the law or to disregard established rules, which must be established by substantial evidence." 23 As an element of grave misconduct, corruption "consists in the act of an official or fiduciary person who unlawfully and wrongfully uses his station or character to procure some benefit for himself or for another person, contrary to duty and the rights of others." 24 "Moreover, like other grave offenses classified under the Civil Service laws, bad faith must attend the act complained of. Bad faith connotes a dishonest purpose or some moral obliquity and conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; it partakes of the nature of fraud." 25

We repeated in Yamson v. Castro26 that "to be disciplined for grave misconduct or any grave offense, the evidence should be competent and must be derived from direct knowledge. There must be evidence, independent of the petitioners' failure to comply with the rules, which will lead to the foregone conclusion that it was deliberate and was done precisely to procure some benefit for themselves or for another person." 27

In the present case, there is no evidence proving (1) that petitioners conspired or colluded with (a) Teresita Reyes Lising (Lising) — the proprietor of Tabing Daan Mart and Reyes' sister, (b) each other, (c) the invited suppliers; or (2) that they schemed to influence the shopping procurement process to favor Lising. Likewise, there is no evidence that petitioners benefited from the procurement. Absent any evidence establishing corruption, bad faith or complicity with Lising, the petitioners cannot be held liable for grave misconduct or any other grave offense classified under the Civil Service Law.

At most, petitioners should be held separately responsible for their failure to strictly comply with the procurement procedure laid down in RA No. 9184 and its 2003 IRR. In Yamson, members of the PBAC-B were held individually accountable for Simple Neglect of Duty, or "the failure to give attention to a task, or the disregard of a duty due to carelessness or indifference," 28 when they failed to strictly comply with the procurement procedure laid down in Presidential Decree No. 1594 29 and its IRR. We declared therein that petitioners' (i) non-conformance with the procedure provided in the IRR for competitive public bidding; (ii) misdeclaration of a failure of competitive bidding; and (iii) subsequent resort to a negotiated procurement only amount to simple neglect of duty.

The BAC of the Municipality of Looc, Romblon Province, in Jomadiao v. Arboleda30 was likewise held liable for simple neglect of duty for failing to fully comply with the publication requirement prescribed by R.A. 9184. Though IAEB was published, the same was not done in "a newspaper of general nationwide circulation, or a newspaper that is published nationwide." In both Yamson and Jomadiao, We found no evidence of collusion between and among the BAC and the bidders to ensure or favor a particular bidder.

As in Jomadiao, We penalize petitioners with six months suspension 31 after taking into consideration that it was their first offense after several years in public service.

WHEREFORE, the petition is PARTLY GRANTED. The Decision dated November 29, 2018 and the Resolution dated July 12, 2019 of the Court of Appeals in CA-G.R. SP No. 149679 are MODIFIED in so far as petitioners Corazon C. Reyes and Vilma C. Abdon are found GUILTY of Simple Neglect of Duty and the penalty of six (6) months suspension is hereby imposed upon them.

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. 12-93.

2. Penned by Associate Justice Pablito A. Perez, with the concurrence of Associate Justices Mariflor P. Punzalan Castillo and Danton Q. Bueser; id. at 104-128.

3.Id. at 98-103.

4. Penned by Graft Investigation and Prosecution Officer II Maxlen C. Balanon; records, pp. 61-71.

5.Id. at 53-60.

6.Del Rosario v. Bonga, 402 Phil. 949 (2001).

7. 528 Phil. 42 (2006).

8.Id. at 49.

9.PEZA v. Pearl City Manufacturing Corporation, 623 Phil. 191 (2009).

10.Rollo, p. 53.

11.Office of the Ombudsman v. Delos Reyes, Jr., 745 Phil. 366, 382 (2014), citing Orbase v. Office of the Ombudsman, 623 Phil. 764 (2009).

12. 745 Phil. 366 (2014).

13.Id. at 380.

14. 710 Phil. 196 (2013).

15. 576 Phil. 654 (2008).

16. 295 Phil. 825 (1993).

17.Id.

18. 821 Phil. 681 (2017).

19.Id. at 994.

20. See Villafuerte v. Robredo, 749 Phil. 841 (2014).

21.Id.

22.Rollo, p. 127.

23.Encinas v. PO1 Agustin, Jr., 709 Phil. 236 (2013), citing Re: Complaint of Mrs. Salvador against Spouses Serafico, 629 Phil. 192 (2010).

24.Ampil v. Office of the Ombudsman, 715 Phil. 733 (2013).

25.Yamson v. Castro, 790 Phil. 667 (2016).

26.Id.

27.Id.

28.CSC v. Clave, 683 Phil. 527, 533 (2012).

29. Prescribing Policies, Guidelines, Rules and Regulations for Government Infrastructure Contracts.

30.Jomadiao v. Arboleda, G.R. No. 230322, February 19, 2020.

31. Section 46, Rule 10 of RRACCS provides:

Section 46. Classification of Offenses. — x x x

xxx xxx xxx

D. The following less grave offenses are punishable by suspension of one (1) month and one (1) day suspension to six (6) months for the first offense; and dismissal from the service for the second offense:

1. Simple Neglect of Duty;

xxx xxx xxx