Suministrado v. De Jesus

FIRST DIVISION

[G.R. No. 242965. September 4, 2019.]

DELFIN C. SUMINISTRADO, NELSON JOSE VINCENT B. QUERIJERO, HIDELISA P. HERNANDEZ, EDNA K. MANANGHAYA, FIDEL REY P. NAYVE, JR., AND ALEXIS C. DEL ROSARIO, petitioners,vs. RAND EDOUARD R. DE JESUS, respondent.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, First Division, issued a Resolution datedSeptember 4, 2019which reads as follows:

"G.R. No. 242965(Delfin C. Suministrado, Nelson Jose Vincent B. Querijero, Hidelisa P. Hernandez, Edna K. Mananghaya, Fidel Rey P. Nayve, Jr., and Alexis C. Del Rosario v. Rand Edouard R. De Jesus). — This is a petition for review on certiorari1 under Rule 45 of the Rules of Court challenging the Decision 2 dated November 28, 2017 and the Resolution 3 dated October 12, 2018 of the Court of Appeals (CA) in CA-G.R. SP No. 148113.

This case originated from an administrative complaint filed by respondent before the Office of the Ombudsman (Ombudsman) for gross neglect of duty against the Bids and Awards Committee (BAC) of the University of the Philippines Los Baños (UPLB).

Between February and October 2013, the UPLB-BAC conducted biddings for various contracts. Rand Edouard R. De Jesus (respondent) alleged that the winning bidders were awarded the contracts despite their failure to submit their tax clearances, or that said tax clearances were no longer valid at the time of the award. He contended that procuring entities are mandated to require submission of valid tax return and tax clearances from the winning bidders but Delfin C. Suministrado, Nelson Jose Vincent B. Querijero, Hidelisa P. Hernandez, Edna K. Mananghaya, Fidel Rey P. Nayve, Jr., and Alexis C. Del Rosario, as then member of the UPLB-BAC, gave the aforementioned bidders unwarranted benefits through gross inexcusable neglect when they failed to require the submission of the said documents. 4

On the other hand, petitioners argued that due to the large volume of biddings conducted by the BAC and considering the frequency of their participation, bidders who have previously been determined to be eligible were no longer required to submit the same set of eligibility requirements for the succeeding biddings that they participated in; that this practice finds basis in Section 23.4 of the Implementing Rules and Regulations of Republic Act No. (RA) 9184; 5 that the submission of tax clearance by a bidder is not a precondition to his eligibility to bid but a condition for the award of the contract; and that the questioned bidders have, through their years of participation in UPLB biddings submitted tax clearances. 6

On May 26, 2015, the Ombudsman dismissed the complaint for gross neglect of duty, and instead found petitioners guilty of simple neglect of duty. 7

On September 14, 2016, the Ombudsman issued an Order denying petitioners' motion for reconsideration. 8

Aggrieved, petitioners filed a petition for review 9 under Rule 43 of the Rules of Court before the CA seeking to reverse and set aside the Ombudsman's Decision 10 and Order. 11

On November 28, 2017, the CA denied the appeal. Instead, it found that petitioners were guilty of the grave offense of gross neglect of duty, and meted the penalty of dismissal from service with the accessory penalties of cancelation of eligibility, forfeiture of retirement benefits, perpetual disqualification from public office and bar from taking civil service examinations. 12

Petitioners moved for reconsideration of the CA Decision but the same was denied on October 12, 2018. 13

Hence, petitioners filed the petition, and argued that the CA erred in finding that they acted with gross negligence in the exercise of their duties as members of the UPLB-BAC considering that: (1) petitioners properly referred the eligibility screening, evaluation of bids, and post-qualification of bids to the BAC Secretariat (BAC-SEC) and the Technical Working Group (TWG); (2) petitioners reasonably and in good faith relied on the findings of the BAC-SEC and the TWG; (3) during the times material to this case, the submission of tax clearances by a prospective bidder was not a prerequisite for eligibility; (4) petitioners' acts as members of the UPLB-BAC did not endanger or threaten the public welfare; and (5) the penalty of dismissal with forfeiture of benefits and perpetual disqualification is violative not only of petitioners' constitutional right to security of tenure, but also of the recognized principle of equity. 14 They likewise alleged that respondent was motivated by bad faith in filing the complaint against them. 15

Despite receiving on March 26, 2019 Our Resolution 16 dated January 28, 2019, which directed respondent to file his comment on the petitions, no comment was filed. Thus, We deem respondent to have waived his right to file his comment.

We grant the petition and dismiss the administrative complaint against petitioners.

Gross neglect of duty or gross negligence has been defined as negligence characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with a conscious indifference to consequences, insofar as other persons may be affected. In cases involving public officials, there is gross negligence when a breach of duty is flagrant and palpable. 17 On the other hand, simple neglect of duty means the failure of an employee or official to give proper attention to a task expected of him or her, signifying a disregard of a duty resulting from carelessness or indifference. 18

Petitioners cannot be held liable for gross neglect of duty as their actions were not proven to be willful and intentional. There is no evidence showing that they committed flagrant and palpable acts.

Neither are petitioners liable for simple neglect of duty.

We have ruled in earlier cases when a public official may be held liable for simple neglect of duty in cases involving public biddings.

In Yamson v. Castro, 19 We held that failure to conduct a competitive bidding made members of the BAC liable for simple neglect of duty. Citing Office of the Ombudsman v. Tongson, 20 We held that the BAC failed to use reasonable diligence in the performance of officially-designated duties. In Office of the Deputy Ombudsman for the Military and Other Law Enforcement Offices v. Saligumba, 21 We held that a member of the Inspection and Acceptance Committee (IAC) is liable for simple neglect of duty when he failed to personally inspect the deliveries when an earlier report submitted to him already indicated deviations from the prescribed specifications. We held that therein respondent and other members of the IAC fell short of the reasonable diligence required of them, for failing to perform the task of inspecting the deliveries in accordance with the conditions of the procurement documents and rejecting said deliveries in case of deviation.

The circumstances in these earlier cases are not present in this case. Here, public biddings were conducted and petitioners had no reason to deviate from the findings of the BAC-SEC and TWG. There is no showing that they failed to exercise reasonable diligence in the performance of their functions as UPLB-BAC members.

As shown by the records, petitioners were assigned to the UPLB-BAC in addition to their full-time work and responsibilities as UPLB faculty and staff. Before they conduct public biddings during their weekly meetings, the bids were screened by the BAC-SEC and the TWG, which they created to assist in managing the procurement process, including the eligibility screening, evaluation of bids, and post qualification. 22 Notably, RA 9184 authorizes the BAC to create a Secretariat 23 and a TWG. 24 The Ombudsman, during the clarificatory hearing, found that post-qualification of the questioned contracts were not undertaken personally by petitioners but was done through the TWG. 25 During post-qualification, there was no finding and report from the TWG that the bidders were unable to submit their updated tax clearances.

Moreover, respondent owns Rand Charlie General Merchandise, a losing bidder, which was subsequently blacklisted by the UPLB-BAC for having no license to sell the product it claimed to be an authorized dealer of, as well as, attempting to supply UPLB a product not registered with the Fertilizer and Pesticide Authority. 26 From February to October 2013, when UPLB-BAC conducted biddings, respondent did not raise the lack of and/or deficiency of the tax clearances of the winning bidders. It was only on November 28, 2013, after receiving the UPLB-BAC's decision to blacklist his company, that respondent filed the administrative complaint before the Ombudsman. 27 Respondent's act of belatedly questioning the qualifications of the winning bidder indicates that the administrative complaint is a mere after-thought committed by a disgruntled bidder.

Taking together Our previous rulings and the circumstances attendant in this case, We hold that petitioners cannot be held liable for simple neglect of duty. Again, We emphasize that there was no showing that petitioners were aware or had reason to suspect that there were irregularities in the bidding or that the TWG made an error in the conduct of post-qualification. In the absence of these facts and circumstances, petitioners were justified in relying on the findings of the TWG and BAC-SEC. Certainly, in the absence of any fact indicating that the latter committed an irregularity or mistake, petitioners cannot be expected to repeat the process already undertaken by the TWG and BAC-SEC. To do otherwise would unnecessarily prolong and make the bidding process circuitous.

WHEREFORE, the petition is GRANTED. The assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 148113 are REVERSED and SET ASIDE. The administrative complaint filed against petitioners is DISMISSED.

SO ORDERED."

Very truly yours,

(SGD.) LIBRADA C. BUENADivision Clerk of Court

 

Footnotes

1.Rollo, pp. 24-82.

2.Id. at 89-99; penned by Associate Justice Stephen C. Cruz and concurred by Associate Justices Samuel H. Gaerlan and Nina G. Antonio-Valenzuela.

3.Id. at 100-101.

4.Id. at 91.

5. GOVERNMENT PROCUREMENT REFORM ACT.

6.Rollo, p. 91.

7.Id. at 129-130.

8.Id. at 134-136.

9.Id. at 328-369.

10.Id. at 124-133.

11.Id. at 134-136.

12.Id. at 99.

13.Id. at 100-101.

14.Id. at 48.

15.Id. at 49.

16.Id. at 397-398.

17.Civil Service Commission v. Rabang, G.R. No. 167763, March 14, 2008, 548 SCRA 541, 547.

18.Office of the Deputy Ombudsman for the Military and Other Law Enforcement Offices v. Saligumba, G.R. No. 223768, February 22, 2017, 818 SCRA 582, 602.

19. G.R. Nos. 194763-64, July 20, 2016, 797 SCRA 592, 630.

20. G.R. No. 169029, August 22, 2006, 499 SCRA 567, 593.

21.Office of the Deputy Ombudsman for the Military and Other Law Enforcement Offices v. Saligumba, supra note 18.

22.Rollo, p. 51.

23. Sec. 14. BAC Secretariat. — To assist the BAC in the conduct of its functions, the Head of the Procuring Entity shall create a Secretariat that will serve as the main support unit of the BAC. The Head of the Procuring Entity may also designate an existing organic office within the agency to serve as the Secretariat. (Emphasis supplied.)

24. Sec. 12. Functions of the BAC. — The BAC shall have the following functions: advertise and/or post the invitation to bid, conduct pre-procurement and pre-bid conferences, determine the eligibility of prospective bidders, receive bids, conduct the evaluation of bids, undertake post-qualification proceedings, recommend award of contracts to the Head of the Procuring Entity or his duly authorized representative: Provided, That in the event the Head of the Procuring Entity shall disapprove such recommendation, such disapproval shall be based only on valid, reasonable and justifiable grounds to be expressed in writing, copy furnished the BAC; recommend the imposition of sanctions in accordance with Article XXIII, and perform such other related functions as may be necessary, including the creation of a Technical Working Group from a pool of technical, financial and/or legal experts to assist in the procurement process.

xxx xxx xxx (Emphasis supplied.)

25.Rollo, p. 51.

26.Id. at 35-36.

27.Id. at 37.