G.R. No. 193983

Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 193983 March 14, 2012

VICTORY M. FERNANDEZ, Petitioner,
vs.
OFFICE OF THE OMBUDSMAN, FORMER GOVERNOR OF THE PROVINCE OF AKLAN FLORENCIO T. MIRAFLORES, INCUMBENT GOVERNOR CARLITO MARQUEZ, and SECRETARY OF THE DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT RONALDO V. PUNO, Respondents.

D E C I S I O N

CARPIO, J.:

The Case

Before the Court is a petition1 for review on certiorari with application for the issuance of a temporary restraining order and writ of preliminary injunction assailing the Decision2 dated 9 July 2010 and Resolution3 dated 30 September 2010 of the Court of Appeals (CA) in CA-G.R. SP No. 112515.

The Facts

On 25 November 1994, the Province of Aklan, represented by then provincial governor Corazon L. Cabagnot (Gov. Cabagnot), entered into a contract with Jireh Construction and Supply (Jireh Construction), represented by Delia Legaspi. The contract pertained to the construction of the Alibagon-Baybay Bridge (Phase II) situated in Makato, Aklan for a total contract price of ₱933,335.90 (AB Bridge Project). The contract also provided for the completion of the AB Bridge Project within 90 calendar days or on 25 February 1995. On 28 November 1994, Jireh Construction started the AB Bridge Project.

On 15 February 1995, petitioner Victory M. Fernandez (Fernandez), in his capacity as Provincial Engineer of the Province of Aklan, endorsed4 to Gov. Cabagnot for her approval, a letter5 dated 14 February 1995 from Jireh Construction. Jireh Construction requested for a contract time extension of 30 calendar days to complete the AB Bridge Project since the original contract period did not take into account the work stoppage caused by tide variations of the river. Basically, work on the substructure of the bridge stops temporarily when high tide comes and operations only resume after the water recedes.

On 16 February 1995, Gov. Cabagnot approved6 the requested 30-day extension and directed Jireh Construction to exert utmost effort to complete the AB Bridge Project not later than the revised expiry date.

Meanwhile, the provincial government of Aklan launched four government infrastructure projects: (1) Alibagon-Baybay Bridge (Phase III); (2) Buruanga Fishing Port; (3) Irrigation Canal Access Road, Buruanga; and (4) Navitas Barangay Health Center, collectively known as the Four Projects.

Public bidding for the Four Projects was conducted sometime in the months of February and March 1995. Three contractors participated in the public bidding: (1) Jireh Construction, (2) Geovan Marketing, and (3) Interior Construction. After the submission and evaluation of the bids, the Pre-Qualification Bids and Awards Committee (PBAC) awarded the construction of the Four Projects to Jireh Construction, as the best qualified bidder with the bid most advantageous to the government. The details of the public bidding are as follows:

Name of Project Date of bidding Date of award Contract Cost (₱)
Alibagon-Baybay Bridge (Phase III) 24 February 1995 24 February 1995 975,151.38
Buruanga Fishing Port 28 February 1995 1 March 1995 965,420.49
Irrigation Canal Access Road, Buruanga 7 March 1995 8 March 1995 956,733.92
Navitas Barangay Health Center 15 March 1995 16 March 1995 294,469.45

After the 1995 local elections, respondent Governor Florencio T. Miraflores (Gov. Miraflores) replaced Gov. Cabagnot. Gov. Miraflores issued Memorandum No. 0047 dated 5 July 1995 addressed to Fernandez:

Having just assumed office as chief executive of the Province, it is imperative that the undersigned should take an inventory of the financial condition of the provincial government. This includes, among others, being oriented and apprised of the status of all infrastructure projects being implemented by the province through that department.

In view hereof, you are hereby directed to temporarily suspend the implementation of all infrastructure projects under your department’s supervision and control, until such time when their status shall have been appropriately assessed by the undersigned, and an order to resume work to such projects shall have been issued by this office.

For strict compliance.

The implementation of the AB Bridge Project and the Four Projects awarded to Jireh Construction was suspended as a result of the Memorandum issued by Gov. Miraflores.

On 8 and 10 November 1995, the Commission on Audit (COA) conducted an audit and ocular inspection of Aklan’s pending government projects. The COA auditors found that Jireh Construction had abandoned the construction of the AB Bridge Project and the Four Projects. All five projects were incomplete and could not be used for their designated purpose at their current state of completion. The details8 are as follows:

Name of Project Number of Days to be Completed Date Started Expected Date of Completion Accomplishment as of Percentage of Completion
Alibagon-Baybay Bridge (Phase II) 90 11/28/94 02/25/95 12/19/94 22.89
Alibagon-Baybay Bridge (Phase III) 90 05/12/95 06/13/95 11/08/95 0
Buruanga Fishing Port 75 03/02/95 05/15/95 03/14/95 58.09
Irrigation Canal Access Road, Buruanga 90 03/10/95 06/07/95 04/25/95 81.70
Navitas Barangay Health Center 45 03/17/95 04/30/95 03/23/95 45.27

The Summary of Actual Accomplishment and Costing9 as of 30 June 1995 submitted and certified by Fernandez showed that the AB Bridge Project was already almost halfway completed with an accomplishment rating of 48.57%. However, the COA auditors found the AB Bridge Project to be only 22.89%10 completed based on the Statement of Time Elapsed and Percentage Accomplishment dated 20 December 1994. The auditors stated that about nine months after the AB Bridge Project was supposed to have been completed on 25 February 1995, the project: (1) had an unaccomplished portion of 77.11%, and (2) no further work was made after 19 December 1994. The auditors added that despite the unsatisfactory performance of Jireh Construction on the AB Bridge Project, the PBAC still recommended the awarding of the Four Projects to the same contractor.

Moreover, the COA auditors found that the provincial government did not take any action against Jireh Construction. The COA stated that the officers in charge of the AB Bridge Project and the Four Projects failed to: (1) make an inventory of the project accomplishments; (2) take over the construction and complete the unfinished portion to preserve the accomplishments already made; (3) forfeit the performance bonds; and (4) serve notices of rescission or termination of the contracts awarded to Jireh Construction.

At the time of the COA audit, the Province of Aklan had already paid ₱1,624,255.6111 to Jireh Construction for the five projects. The COA auditors recommended the filing of a case for neglect of duty against: (1) the PBAC officers who awarded the Four Projects to Jireh Construction despite their knowledge that Jireh Construction had already abandoned the construction of the AB Bridge Project; and (2) other responsible government officers who were remiss in their duties to report the matter of abandonment of all five projects and to take any action against Jireh Construction.

On 10 November 2003, Gov. Miraflores, in his capacity as then provincial governor of Aklan and relying on the findings of the COA auditors, filed with the Office of the Ombusman (Visayas) an administrative complaint12 for gross neglect of duty against Evan L. Timtiman (Timtiman), as Provincial Treasurer and regular member of the PBAC. In the Complaint, Gov. Miraflores stated that Timtiman’s acts: (1) of awarding the Four Projects to a contractor who had abandoned the AB Bridge Project; and (2) of participating in the payment of government funds amounting to ₱1,624,255.61 to the same contractor for the five projects, caused undue injury to the provincial government. Gov. Miraflores stated that such acts are punishable under Section 3(e) of Republic Act No. 3019 or the Anti-Graft and Corrupt and Practices Act.13

Aside from Timtiman, the Office of the Ombudsman impleaded in the criminal case14 six other persons working under the provincial government: (1) Liberato R. Ibadlit, PBAC member and former Vice-Governor; (2) Aniceto A. Fernandez, PBAC member and former Sangguniang Panlalawigan member; (3) Victory M. Fernandez, Provincial Engineer; (4) Felicisimo Y. Tanumtanum, Jr., Engineer IV; (5) Reynaldo B. Dionisio, Engineer II and Project Engineer handling the construction of the Buruanga Fishing Port and Irrigation Canal Access Road; and (6) Jose Amboboyong, Project Engineer handling the construction of the Alibagon-Baybay Bridge (Phases II and III).

The PBAC members as well as the other government officers were impleaded as respondents for (1) awarding the Four Projects to Jireh Construction despite their knowledge that Jireh Construction poorly performed and had abandoned the AB Bridge Project, and (2) not taking any action against Jireh Construction and not compelling it to continue and complete the projects.

The COA submitted the following documentary evidence: (1) certified true copy of SAO Report No. 95-45 dated 23 June 1997, the complete report on the results of the audit of the Province of Aklan; (2) copy of the Joint Affidavit of the COA Auditors who conducted the audit attesting to the audit findings embodied in SAO Report No. 95-45; and (3) certified true copies of disbursement vouchers for all five projects.

In a Decision dated 31 March 2006, the Office of the Ombudsman (Visayas) found Fernandez and his co-respondents administratively liable. The Ombudsman stated that the complaint was premised on the respondents’ act of awarding government projects to an incompetent contractor, who at the time of the bidding had an unsatisfactory performance on another project with the same local government and had abandoned such project. This act amounted to manifest partiality or gross inexcusable negligence, or both.

The Ombudsman also found that Fernandez was the one who presented documents to the PBAC showing that Jireh Construction did not have any abandoned project at the time of the bidding for the Four Projects. Thus, the Ombudsman held Fernandez equally liable with the members of the PBAC for gross neglect of duty. Further, the Ombudsman stated that Fernandez and his fellow engineers did not bring to the attention of the provincial governor that Jireh Construction had already abandoned the construction of the five projects. The Ombudsman added that they were duty-bound not only to implement the projects assigned to them but also to protect the interest of the government. The dispositive portion of the decision states:

WHEREFORE, premises considered, respondents ANICETO A. FERNANDEZ, LIBERATO R. IBADLIT and EVAN L. TIMTIMAN, PBAC members, VICTORY M. FERNANDEZ, Provincial Engineer, and JOSE AMBOBOYONG, Project Engineer (Construction of Alibagon-Baybay Bridge Phases II & III), all of the Provincial Government, Province of Aklan, are hereby found guilty of GROSS NEGLECT OF DUTY and meted the penalty of DISMISSAL FROM SERVICE with all the accessory penalties attached thereto.

Respondents FELICISIMO Y. TANUMTANUM, Engineer IV and REYNALDO B. DIONISIO, Project Engineer (Construction of Irrigation Canal Access Road and Construction of Buruanga Fishing Port), of the same office, are found guilty of SIMPLE NEGLECT OF DUTY and meted the penalty of ONE (1) MONTH SUSPENSION WITHOUT PAY.

Considering, however, that respondents LIBERATO R. IBADLIT, FELICISIMO Y. TANUMTANUM and JOSE AMBOBOYONG (deceased), as records reveal, are no longer connected with the government service, the penalty of Dismissal from Service shall be considered as already implemented. Respondent Ibadlit’s term as Vice-Governor of the Province of Aklan ended in the year 1995. Respondent Tanumtanum retired from the government service on September 30, 1995. While the orders/notices addressed to respondent Amboboyong were returned to this Office with a notation "Addressee Deceased." This notation was verified by Mr. Federico C. Peare, Jr., Postmaster, Kalibo, Aklan.

Let a copy of this Decision form part of the service record of the said respondents.

SO DECIDED.15

Fernandez, Timtiman and Dionisio filed a Motion for Reconsideration16 dated 4 October 2007 with the Office of the Ombudsman (Visayas). In an Order dated 11 August 2008, the Office of the Ombudsman denied the motion.

Fernandez filed a petition17 for review under Rule 43 with the Court of Appeals (CA).

In a Decision dated 9 July 2010, the CA found no reversible error by the Office of the Ombudsman in finding Fernandez guilty of gross neglect of duty. The dispositive portion states:

WHEREFORE, premises considered, the instant petition for review is hereby DENIED and ordered DISMISSED.

SO ORDERED.18

Fernandez filed a motion for reconsideration which the CA denied in a Resolution dated 30 September 2010.

Fernandez then filed a petition for review with this Court. In a Resolution19 dated 13 December 2010, we issued a temporary restraining order, effective immediately and continuing until further orders from this Court, enjoining respondents, their representatives or other persons acting on their behalf from proceeding with the execution of the Decision dated 31 March 2006 and Order dated 11 August 2008 of the Office of the Ombudsman (Visayas).

The Issue

The main issue is whether the CA committed a reversible error in affirming the decision of the Office of the Ombudsman in finding petitioner guilty of gross neglect of duty and dismissing him from service.

The Court’s Ruling

The petition lacks merit.

Petitioner Fernandez insists that he was administratively charged for stating in the report he submitted to the PBAC that "Jireh Construction had no abandoned project" at the time of the bidding for the Four Projects. Petitioner states that he cannot be faulted for issuing such a statement since the bidding for the Four Projects occurred in the months of February and March 1995. At the time, the construction of the AB Bridge Project was still ongoing based on the request for extension by Jireh Construction and later approved by the provincial governor. Petitioner asserts that he was not in a position to say that Jireh Construction was not eligible to bid and to be awarded the Four Projects. Further, petitioner maintains that the COA auditors failed to consider that the provincial governor, in issuing Memorandum Order No. 004, ordered the temporary suspension of all infrastructure projects handled by the provincial government. As a result, the implementation of all projects including the AB Bridge Project and the Four Projects had to stop.

In the present case, Jireh Construction started work on the AB Bridge Project on 28 November 1994. The contract provided that the bridge should be completed within 90 calendar days or specifically on 25 February 1995. However, due to some unforeseen circumstances, Jireh Construction requested for an extension of 30 calendar days to complete the project. The provincial governor promptly approved the 30-day extension. At the time of the bidding for the Four Projects, held on 24 February, 28 February, 7 March and 15 March 1995, the completion period for the AB Bridge Project had not yet expired due to the 30-day extension. The 30-day extension meant that the construction of the bridge was supposed to have been completed on 27 March 1995, twelve days after the completion of all the bidding for the Four Projects.

However, petitioner based his premise that the construction of AB Bridge Project was ongoing during the bidding of the Four Projects on two grounds: (1) the request for 30-day extension by Jireh Construction, and (2) the approval of the extension by the governor. Petitioner did not submit any other evidence to show that the construction of the AB Bridge Project took place continuously and without interruption. It must be remembered that when the COA auditors inspected and audited the AB Bridge Project in November 1995, they found that only 22.89% of the bridge had been constructed based on the Statement of Time Elapsed and Percentage Accomplishment dated 20 December 1994. From 20 December 1994, the COA auditors found that no further work was made. Thus, regardless of the 30-day extension to complete the AB Bridge Project, it is clear that Jireh Construction abandoned the construction of the AB Bridge Project since 20 December 1994.

Petitioner, as the provincial engineer who oversees all the infrastructure projects of the province, has direct knowledge of the status of each project’s progress. Clearly, he was in a position to inform the PBAC that Jireh Construction not only had not met the required deadline of the completion of the AB Bridge Project but also had abandoned the project, with only 22.89% completion and not the 48.57% completion that petitioner had certified. Petitioner gave a false report to the PBAC when he attested that Jireh Construction had no abandoned project at the time of the bidding of the Four Projects. As correctly observed by the CA in its 9 July 2010 decision:

As provincial engineer, petitioner Fernandez could not have been unaware of the fact that no further work had been conducted at the Alibagon-Baybay Bridge Project (Phase II) after December 19, 1994. That no further work was conducted thereon after that date could only mean that the project was already deemed abandoned. Considering petitioner Fernandez’s claim that he had been regularly performing his assigned tasks by supervising the implementation of the project, he cannot feign ignorance about the fact that Jireh Construction had an ongoing abandoned project at the time of the conduct of the bidding of the four projects.

Even with the approved extension, petitioner’s unusual silence in not informing the PBAC about the fact that only 22.89% of the ongoing project of Jireh Construction was completed and that no further work was conducted therein after December 19, 1994 could amount to no other but gross negligence. With only 22.89% of the project completed as of March 1995, petitioner Fernandez, as provincial engineer, could not have been ignorant about the necessity of such information to the PBAC in evaluating the qualifications of Jireh Construction. Indeed, as found by respondent Office of the Ombudsman, petitioner Fernandez supplied documents to the PBAC which were relied upon by its members in evaluating the qualifications of Jireh Construction. In giving Jireh Construction a "clean bill," so to speak, petitioner Fernandez committed a flagrant and palpable omission which caused undue injury to the government.20

It is sufficiently evident that petitioner was grossly negligent in failing to give a complete and truthful report to the PBAC of Jireh Construction’s actual progress and abandonment of the AB Bridge Project, which could have been a crucial element in awarding the Four Projects to a qualified and capable contractor. Also, petitioner had been remiss in his duties to monitor slippages of Jireh Construction’s performance and to take the necessary steps to ensure minimal loss to the provincial government. Given the short time frame of 45 to 90 days for the completion of the projects, petitioner should have immediately reported the poor performance of Jireh Construction to the governor. Moreover, petitioner could have recommended the take over of the construction of the projects and the termination of the contracts to prevent further loss of funds to the province.

In Brucal v. Desierto,21 we held that gross negligence refers to 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 in so far as other persons may be affected. It is the omission of that care which even inattentive and thoughtless men never fail to take on their own property.22 In cases involving public officials, there is gross negligence when a breach of duty is flagrant and palpable.23

Petitioner further asserts that Memorandum No. 004 was the reason for the non-completion of the projects and not because of the abandonment of the projects by Jireh Construction.

Petitioner’s contention must fail.

Gov. Miraflores issued Memorandum No. 004 on 5 July 1995 or more than 3 months after the AB Bridge Project was supposed to have been completed on 27 March 1995, the extended completion date. The report submitted by the COA indicated the following expected dates of completion for the five projects:

Project Expected Date of Completion
Alibagon-Baybay Bridge (Phase II) 25 February 1995
Alibagon-Baybay Bridge (Phase III) 13 June 1995
Buruanga Fishing Port 15 May 1995
Irrigation Canal Access Road, Buruanga 7 June 1995
Navitas Barangay Health Center 30 April 1995

The AB Bridge Project and the Four Projects were supposed to be completed before July 1995.1âwphi1 Thus, even before the issuance of Memorandum Order No. 004, all five projects of Jireh Construction were still unfinished and in various stages of completion to the detriment of the Province of Aklan.

In sum, the decision of the Office of the Ombudsman, as affirmed by the CA, finding petitioner equally responsible with the members of PBAC for gross neglect of duty, is correct. Pursuant to Section 23,Rule XIV of the Omnibus Rules Implementing Book V of Executive Order No. 292 or the Administrative Code of 1987, gross negligence in the performance of duty is classified as a grave offense for which the penalty of dismissal is imposed. Section 9 of the said Rule likewise provides that the penalty of dismissal shall carry with it the cancellation of eligibility, forfeiture of leave credits and retirement benefits and disqualification from re-employment in government service.24

WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 9 July 2010 and Resolution dated 30 September 2010 of the Court of Appeals in CA-G.R. SP No. 112515. The temporary restraining order issued on 13 December 2010 is hereby lifted.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

ARTURO D. BRION
Associate Justice

JOSE PORTUGAL PEREZ
Associate Justice MARIA LOURDES P. A. SERENO
Associate Justice

BIENVENIDO L. REYES
Associate Justice

A T T E S T A T I O N

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONA
Chief Justice

Footnotes

1 Under Rule 45 of the 1997 Revised Rules of Civil Procedure.

2 Rollo, pp. 57-70. Penned by Justice Remedios A. Salazar-Fernando with Justices Celia C. Librea-Leagogo and Michael P. Elbinias, concurring.

3 Id. at 71-72.

4 Id. at 132.

5 Id. at 131.

6 Id. at 133.

7 Id. at 134.

8 CA rollo, p. 66.

9 Rollo, p. 137.

10 CA rollo, p. 66.

11 Rollo, p. 111.

12 CA rollo, pp. 75-77.

13 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:

x x x

(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.

14 Docketed as OMB-V-A-03-0676-K.

15 Rollo, pp. 123-124.

16 CA rollo, pp. 81-91.

17 Id. at 3-25.

18 Rollo, pp. 69-70.

19 Id. at 146.

20 Id. at 68-69.

21 501 Phil. 453, 465-466 (2005).

22 Id., citing De la Victoria v. Mongaya, 404 Phil. 609, 619-620 (2001).

23 Id., citing Quibal v. Sandiganbayan, 314 Phil. 66, 77 (1995).

24 Astillazo v. Jamlid, 342 Phil. 219, 237-238 (1997).

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