[ G.R. No. 227467. August 03, 2021 ]
ATTY. JOAQUIN DELOS SANTOS, ENGR. EVELYN M. HATULAN AND CORNELIO V. TAMAYO, PETITIONERS, VS. COMMISSION ON AUDIT, RESPONDENT.
CONCURRING OPINION
CAGUIOA, J.:
I concur.
As aptly observed in the ponencia, a remand of the case to the Commission on Audit (COA) is proper and just despite the finality of the subject Notice of Disallowance (ND), on the following grounds: (a) the ND was an insufficient notice of the petitioners' liability (merely citing as it did a previous "suspension maturing into disallowance" without further details); (b) this case is similar to Elena A. Estalilla v. COA,1 where the Court noted the disparity between the disallowed amount and therein petitioner Elena Estalilla's salary, and the COA's denial of her request for access to documents relating to the disallowance, treating these as exceptions to the rule on immutability of judgments; and (c) the disallowance is not based on a supposed positive act of the petitioners which violated procurement rules, but on their failure to timely submit relevant documents to aid COA's audit.
The ponencia further notes that the documents requested by the COA and which petitioners were not able to submit —
x x x [r]elate to the preparatory, contract award and implementation stages of procurement, which properly pertain to the end-user or procuring entity. As the party requesting procurement, it establishes the technical specifications and standards for the supplies and services it wishes to avail, and ultimately, agrees and awards a contract to the contractor selected by the BAC. Nonetheless, this Court also acknowledges that petitioners are also members of the municipal government of Cabuyao who may shed light on the procurement process involving Golden Deer Enterprises and RDC Construction.2 (Emphasis supplied)
As regards the responsibilities of the Bids and Awards Committee (BAC), the ponencia also notes that:
The BAC is responsible for vetting and recommending the contractor to the procuring entity. x x x
x x x x
In Joson v. COA, this Court explained that the role of the BAC is (to] determine the eligibility of the prospective bidders based on their compliance with the eligibility requirements set forth in the Invitation to Bid and their submission of the legal, technical and financial documents required under Sec. 23.6, Rule VIII of the Implementing Rules and Regulations of R.A. No. 9184.
Indeed, under the IRR-A of R.A. No. 9184, the requirements for eligibility to bid, contract documents, and those pertaining to its implementation, fall within the responsibilities of the procuring entity[.] x x x3 (Emphasis supplied and citation omitted)
I submit that an investigation by the COA of petitioners herein who are members of the BAC is proper not merely because of their capability to "shed light" on the procurement process, but precisely because it is the BAC — among the offices within the procuring entity — which takes a central role in any procurement and would undoubtedly participate in the preparation and issuance of all procurement-related documents.
Section 5 of the 2003 Implementing Rules and Regulations Part A (IRR-A) of Republic Act (R.A.) No. 91844 defines the procuring entity and the head of the procuring entity as follows:
x x x x
m) Head of the Procuring Entity. Refers to: (i) the head of the agency or body, or his duly authorized official, for NGAs and the constitutional commissions or offices, and branches of government; (ii) the governing board or its duly authorized official, for GOCCs, GFIs and SUCs; or (iii) the local chief executive, for LGUs: Provided, however, That in an agency, department, or office where the procurement is decentralized, the Head of each decentralized unit shall be considered as the head of the procuring entity subject to the limitations and authority delegated by the head of the agency, department, or office.
x x x x
q) Procuring Entity. Refers to any branch, constitutional commission or office, agency, department, bureau, office, or instrumentality of the Government, including GOCC, GFI, SUC and LGU procuring Goods, Consulting Services and Infrastructure Projects.
In this case, the procuring entity is the Municipal Government of Cabuyao, Laguna.ℒαwρhi৷ The BAC, as part of the municipal government, is composed of representatives of the regular offices under the Office of the Local Chief Executive, designated as such by the local chief executive (in this case, the mayor).5 Within the framework of the municipal government, the BAC is in fact the office which is expected to maintain expertise in procurement laws and rules. As also noted in the ponencia, the BAC is "responsible for ensuring that the procuring entity abides by the standards set forth by [R.A. No. 9184 and this IRR-A x x x."6 Therefore, when the IRR-A of R.A. No. 9184 states that the "[b]idding [d]ocuments shall be prepared by the procuring entity following the standard forms and manuals prescribed by the [Government Procurement Policy Board],"7 it is the BAC that is expected to be primarily involved in said preparation.
In fact, the IRR-A gives the BAC the lead role in the conduct of procurement activities, citing the following among its duties: (a) advertising/posting the Invitation to Bid8 ( one of the documents requested by the auditor in this case); (b) issuance of the bidding documents to prospective bidders upon payment of the cost thereof;9 (c) issuance of Supplemental Bid Bulletins which may involve changes in the bidding documents;10 and even (d) declaring a failure of bidding and conducting a re-bidding.11
Furthermore, Section 14.1 of the 2003 IRR-A of R.A. No. 9184 tasks the BAC Secretariat, which is the main support unit of the BAC, with the following duties:
x x x x
5. Take custody of procurement documents and be responsible for the sale and distribution of bidding documents to interested bidders;
x x x x
10. Be the central channel of communications for the BAC with end users, PMOs, other units of the line agency, other government agencies, providers of goods, civil works and consulting services, and the general public.
Given the foregoing, I agree with the ponencia that, in keeping with the broader interests of justice, petitioners-members of the BAC should be allowed an opportunity to ventilate their defenses fully and argue the regularity of the subject procurements. Hence, the case should be remanded to the COA for disposition on the merits.
Footnotes
1 G.R. No. 217448, September 10, 2019.
2 Ponencia, p. 17.
3 Id. at 14-15.
4 The GOVERNMENT PROCUREMENT REFORM ACT, approved on January 10, 2003. Presumably applicable during the transactions subject of this case, since the disallowance was issued in 2007.
5 Section 11.2.2 of the 2003 IRR-A of R.A. No. 9184 states:
11.2.2. Local Government Units
The BAC shall be composed of one (1) representative each from the regular offices under the Office of the Local Chief Executive such as, but not limited to the following: Office of the Administrator, Budget Office, Legal Office, Engineering Office, General Services Offices. The end user office shall always be represented in the BAC. The Chairman of the BAC shall be at least a third ranking permanent official of the procuring entity. The members of the BAC shall be personnel occupying plantilla positions of the procuring entity concerned.
The local chief executive shall designate the members of the BAC. The members shall elect among themselves who shall act as the Chairman and Vice-Chairman.
Subsequent iterations of the IRR in 2009 and 2016 retain essentially the same language as the above.
6 Ponencia, p. 15, citing Section 12.2 of the 2003 IRR-A of R.A. No. 9184.
7 2003 IRR-A of R.A. No. 9184, Section 17.1.
8 Id., Section 12.1.
9 Id., Section 17.5.
10 Id., Section 22.5.1.
11 Id., Sections 35.1 and 35.2.
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