G.R. Nos. 214336-37 Concurring Opinion




G.R. No. 214336-37, February 15, 2022, ♦ Decision, Lopez, [J] ♦ Concurring Opinion, Caguioa, [J] [ G.R. Nos. 214336-37. February 15, 2022 ] QUIRINO M. LIBUNAO, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT. CONCURRING OPINION CAGUIOA, J.: Petitioner Quirino M. Libunao (Libunao), a former Regional Director of the Department of Interior and Local Government (DILG), was convicted in the Sandiganbayan for two (2) counts of violation of Section 3(e), Republic Act No. (RA) 3019 because of procurements in 1998 that did not go through public bidding. The ponencia denies Libunao's appeal, ultimately ruling that the Sandiganbayan correctly convicted Libunao as he was guilty of giving unwarranted benefits in favor of two suppliers. I agree. I offer this Opinion, however, to clarify that Libunao is guilty not because of the mere failure to conduct public bidding for the procurements involved, but rather, because the elements of Section 3(e) of RA 3019 are present in these cases. It must be emphasized that in criminal cases involving Section 3(e) of RA 3019 in relation to alleged irregularities in procurement committed by public officers, "findings of violations of procurement laws, rules and regulations, on their own, do not automatically lead to the conviction of the public officer under the said special penal law. It must be established beyond reasonable doubt that the essential elements of Section 3(e) of RA 3019 are present."1 Brief review of the facts The controversy arose from the Countrywide Development Fund (CDF), a form of "pork-barrel" fund, allocated to Constantino H. Navarro, Jr. (Navarro), then the representative of the First District of Surigao del Norte to the House of Representatives. For the years 1997 to 1998, Navarro's CDF was "used to purchase assorted medicines, shabu testing kits, araro (rice paddy plows), notebooks, ballpens and blackboard erasers."2 The DILG-CARAGA was one of the implementing agencies for Navarro's CDF, and Libunao was the Regional Director of DILG Region XL Libunao participated in two procurements involving Navarro's CDF: (1) Procurement of 45 boxes of assorted medicines from San Marino Laboratories Corporation (San Marino) in the amount of P2,000,000.00; and (2) Procurement of 1,200 sets of araro tools from Revelstone Sales International (Revelstone) in the amount of P900,000.00. It is undisputed that the procurements did not go through public bidding. The said fact was only discovered, however, upon post-audit made by the Commission on Audit (COA) on the utilization of Navarro's CDF. The COA also discovered an alleged overprice when they compared the suppliers' purchase price with the price of the same items obtained through personal canvass conducted in Surigao City and in Manila. The canvass was made with the use of a canvass or quotation forms with the listed items. The forms were given to suppliers for them to quote the prices of the items listed.3 Based on the result of COA's audit, Informations were eventually filed in the Sandiganbayan against Navarro, the Regional Directors of DILG-CARAGA, and the owners of the companies which were the suppliers for the projects covered by Navarro's CDF. The accusatory portions of the Informations where Libunao is one of the accused read: CRIMINAL CASE NO. 27803 [(Procurement of assorted medicines from San Marino)] That in the month of October 1998, or sometime prior or subsequent thereto, in Region XIII, Caraga, Philippines, and within the jurisdiction of this Honorable Court, accused CONSTANTINO H. NAVARRO, JR., QUIRINO M. LIBUNAO, and BENITO R. CATINDIG, both high ranking public officials, being then the Congressman of the 1st District of Surigao del Norte, the Regional Director of the Department of Interior and Local Government (DILG)-Caraga Region, and Assistant Secretary for Support Services & Regional Operations, DILG-Quezon City, respectively, all high ranking public officials, committing the offense in relation to their official duties and taking advantage of their official functions, conspiring and confederating with each other and with accused ILUMINADA C. TUBLE, President of San Marino Laboratories Corporation, a private enterprise, and mutually helping one another, with evident bad faith and manifest partiality (or at the very least, through gross inexcusable negligence), did then and there willfully, unlawfully, and criminally give unwarranted benefits, advantage and preference to San Marino Laboratories Corporation and cause undue injury to the Government, by entering into a contract, without conducting the required public bidding, with said San Marino Laboratories, for the purchase of forty five (45) boxes of assorted medicine in the amount of TWO MILLION PESOS (P2,000,000.00), which price was manifestly and grossly disadvantageous to the government considering that similar medicines available in the market, as canvassed by the Commission on Audit (COA), could have been purchased at only SEVEN HUNDRED SIXTY TWO THOUSAND TWO HUNDRED SIXTY TWO & 25/100 PESOS (P762,262.25), inclusive of 10% allowance, thereby resulting to an overprice in the total amount of ONE MILLION TWO HUNDRED THIRTY SEVEN THOUSAND SEVEN HUNDRED FORTY & 75/100 PESOS (P1,237,740.75), to the damage and prejudice of the government in the aforesaid amount of overprice. CONTRARY TO LAW.4 CRIMINAL CASE NO. 27805 [(Procurement of araro tools from Revelstone)] That during the period from October 16, 1998 to December 10, 1998, or sometime prior or subsequent thereto, in Region XIII, Caraga, Philippines, and within the jurisdiction of this Honorable Court, accused CONSTANTINO H. NAVARRO, JR., QUIRINO M. LIBUNAO, and BENITO R. CATINDIG, both high ranking public officials, being then the Congressman of the 1st District of Surigao del Norte, the Regional Director of the Department of Interior and Local Government (DILG)-Caraga Region, and Assistant Secretary for Support Services & Regional Operations, DILG-Quezon City, respectively, all high ranking public officials, committing the offense in relation to their official duties and taking advantage of their official functions, conspiring and confederating with each other and with accused GERARDO A. ROSARIO and MARIO TOKONG, proprietor and representative, respectively, of Revelstone Sales International, a private enterprise, and mutually helping one another, with evident bad faith and manifest partiality (or at the very least, through gross inexcusable negligence), did then and there willfully, unlawfully, and criminally give unwarranted benefits, advantage and preference to Revelstone Sales International and cause undue injury to the Government, by entering into a contract, without conducting the required public bidding, with said Revelstone Sales International, for the purchase of one thousand two hundred (1,200) sets of araro tools in the amount of NINE HUNDRED THOUSAND PESOS (P900,000.00), which price was manifestly and grossly disadvantageous to the government considering that similar araro tools available in the market, as canvassed by the Commission on Audit (COA), could have been purchased at only SEVEN HUNDRED NINETY TWO THOUSAND PESOS (P792,000.00), inclusive of 10% allowance, thereby resulting to an overprice of in the total amount of ONE HUNDRED EIGHT THOUSAND PESOS (P108,000.00), to the damage and prejudice of the government in the aforesaid amount of overprice. CONTRARY TO LAW.5 Based on the evidence presented during the trial, the Sandiganbayan made the following factual findings: 1. The funds used to pay the purchases came from accused Navarro's CDF; 2. There was no public bidding conducted; 3. Accused Navarro certified the urgency of the purchases; 4. The subject purchases had available substitutes in the market; 5. The accused-suppliers were pre-selected by the office of accused Navarro before the actual procurement; 6. All RIV's were signed by accused Navarro; 7. The DILG-CARAGA undertook the procurement process, including the payments; 8. The DILG-CARAGA delivered the supplies to the office of accused Navarro; 9. Accused Derecho and Libunao did not deny their signatures on the documents; 10. Except for accused Rosario of Revelstone, all accused private individuals admitted to have received the payments.6 From these factual findings, the Sandiganbayan proceeded to convict Libunao (and Carlos T. Derecho [Derecho], another Regional Director of DILG-CARAGA who was also an accused in the other Informations) for violations of Section 3(e) of RA 3019 for their participation in the procurements which did not undergo public bidding. Particularly with Libunao, the Sandiganbayan found him guilty because he approved the Requisition and Issue Vouchers (RIVs) and Purchase Orders (POs) which were necessary for the procurement, and he certified in the Disbursement Vouchers (DVs) that the "expenses were necessary and lawful, and incurred under his direct supervision."7 The ponencia upholds both of Libunao's convictions. As already mentioned, I agree. In the recent ruling of the Court en banc in Martel v. People,8 the Court emphasized that in order to successfully prosecute the accused under Section 3 (e) of R.A. 3019 based on a violation of procurement laws, the prosecution cannot solely rely on the fact that a violation of procurement laws has been committed. The prosecution must prove beyond reasonable doubt that: (1) the violation of procurement laws caused undue injury to any party, including the government, or gave any private party unwarranted benefits, advantage or preference, and (2) the accused acted with evident bad faith, manifest partiality, or gross inexcusable negligence.9 The prosecution was able to prove the foregoing in both of the two cases. Elements of a violation of Section 3(e), RA 3019 To be found guilty of violating Section 3(e), RA 3019, the following elements must concur: (1) the offender is a public officer; (2) the act was done in the discharge of the public officer's official, administrative or judicial functions; (3) the act was done through manifest partiality, evident bad faith, or gross inexcusable negligence; and (4) the public officer caused any undue injury to any party, including the Government, or gave any unwarranted benefits, advantage or preference.10 The existence of the first two elements — that Libunao was a public officer and the acts in question were done in the discharge of his official functions — are not disputed. The disagreement lies in the existence of the third and fourth elements, particularly whether his act of signing the RIVs, POs, and DVs during the procurement process even as no public bidding was undertaken was (1) done in either evident bad faith, manifest partiality, or gross inexcusable negligence, and it (2) resulted in either causing the government undue injury or giving any private party unwarranted benefits. Third element: Evident bad faith, manifest partiality, or gross inexcusable negligence There is gross inexcusable negligence in this case. '"Gross inexcusable negligence' refers to negligence characterized by the want of even the slightest care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with conscious indifference to consequences insofar as other persons may be affected."11 "More than committing a breach of a legal duty, it is necessary that in committing the said breach, the public officer was inattentive, thoughtless, and careless."12 In this case, there is indeed gross inexcusable negligence because, as the ponencia points out, Libunao had been with the DILG for 39 years, and he himself admitted that he was aware of the requirement to conduct public bidding for procurements in the government. Moreover, the following ratiocinations of the Sandiganbayan deserve merit: It is unbelievable that he just blindly signed the [RIVs] and [POs] upon presentation and assurance of his staff that the documents were in order, such that he did not know that the method of procurement used was direct contracting and not public bidding. The [RIVs] and the [POs] were just one-page documents, and it was readily ascertainable on their face that the brands of the medicines were indicated as well as the suppliers. In fact, as a ranking official of the DILG and the deciding authority, the first thing he should have determined was the mode of procurement employed in the transactions. He did not have to dig into piles of records to realize that the purchase did not go through a public bidding. [While] it has been held that heads of offices have to rely to a reasonable extent on their subordinates and on the good faith of those who prepare bids, purchase supplies, or enter into negotiations, it is not unreasonable to expect [Libunao] to exercise the necessary diligence in making sure at the very least that the proper formalities in the questioned transaction were observed — that public bidding was conducted. This step does not entail delving into intricate details of product quality, complete delivery or fair and accurate pricing. Unlike other minute requirements in government procurement, compliance or non-compliance with the rules on public bidding is readily apparent, and the approving authority can easily call the attention of the subordinates concerned.13 Fourth element: Undue injury or unwarranted benefits There is "giving of unwarranted benefits" in these cases. To be clear, the law punishes the act of "giving [to] any private party any unwarranted benefits, advantage or preference in the discharge of his [or her] official administrative or judicial functions."14 While it was not Libunao but Navarro who gave Revelstone or San Marino the preferences it obtained as supplier, Libunao's gross negligence ultimately enabled the consummation of the transactions, thereby allowing the aforementioned companies to obtain the unwarranted benefits they received. To be clear, I maintain, as I had stressed in the case of Villarosa v. People,15 that the element of "unwarranted benefits" must be seen from the lens of graft and corruption. Thus: As its name implies, and as what can be gleaned from the deliberations of Congress, RA 3019 was crafted as an anti-graft and corruption measure. At the heart of the acts punishable under RA 3019 is corruption. As explained by one of the sponsors of the law, Senator Arturo M. Tolentino, "[w]hile we are trying to penalize, the main idea of the bill is graft and corrupt practices. x x x Well, the idea of graft is the one emphasized." Graft entails the acquisition of gain in dishonest ways. Hence, in saying that a public officer gave "unwarranted benefits, advantage or preference," it is not enough that the benefits, advantage, or preference was obtained in transgression of laws, rules and regulations. Such benefits must have been given by the public officer to the private party with corrupt intent, a dishonest design, or some unethical interest. This is in alignment with the spirit of RA 3019, which centers on the concept of graft.16 I recognize, however, that in cases of gross negligence — meaning, the crime was committed through culpa, not dolo — the courts cannot expect to be shown proof of "corrupt intent, a dishonest design, or some unethical interest."17 Thus, for cases where the crime was committed through the modality of gross negligence, it is enough that the actions, or inaction, of the accused resulted in ultimately causing undue injury or giving unwarranted benefits. It is well to clarify, however, that the negligence must be so gross — as the jurisprudential definition puts it, "with conscious indifference to consequences insofar as other persons may be affected"18 — that the negligence would rise to the level of willfulness to cause undue injury or give unwarranted benefits. Having said that, the alternative element of "causing undue injury to the government" is also present in this case, at least for the procurement of 45 boxes of assorted medicines from San Marino. In Cabrera v. People,19 the Court explained that an accused is said to have caused undue injury to the government or any party when the latter sustains actual loss or damage, which must exist as a fact and cannot be based on speculations or conjectures. The loss or damage need not be proven with actual certainty. However, there must be "some reasonable basis by which the court can measure it." Aside from this, the loss or damage must be substantial. It must be "more than necessary, excessive, improper or illegal."20 Based on the foregoing standards, the prosecution's evidence failed to establish the existence of undue injury in the procurement of 1,200 sets of araro tools from Revelstone but it was able to establish the same in the procurement of 45 boxes of assorted medicines from San Marino. For this, I note that the Sandiganbayan observed that "except for the x x x 45 boxes of medicines from San Marino, the allegation of overprice was not sufficiently established."21 The Sandiganbayan, citing jurisprudence on the matter, explained that "an allegation of overprice is not provable by plainly comparing apple to apple or orange to orange. The comparison must be between the same variety of apples or oranges, bought at or about the same period, within the same locality."22 The prosecution's evidence, however, failed to comply with the jurisprudential parameters to establish overprice.23 The Sandiganbayan also noted that even the auditor, who was a prosecution witness, "aired a reservation as to the conclusiveness of their findings of overprice."24 Thus, in the absence of any conclusive proof on overprice, there consists reasonable doubt on the existence of the element of undue injury. The foregoing, however, applies only to the procurement of araro tools from Revelstone. Overprice — and therefore, undue injury on the part of the government — was duly proven in the procurement of 45 boxes of assorted medicines from San Marino. The Sandiganbayan noticed that in these consolidated cases, there were two procurements from San Marino: (1) procurement of 97 boxes of medicines, where the signatory was Regional Director Derecho, where each box was priced at P20,628.96; and (2) procurement of 45 boxes of medicines, where Libunao was the signatory, where each box was priced at P44,445.00.25 The Sandiganbayan noted that in both procurements, the boxes contained the same set of medicines.26 The price difference in the two procurements was acknowledged and admitted by the President of San Marino herself, and the Sandiganbayan adjudged her civilly liable to return the overprice of P1,071,721.80.27 Given the foregoing proof on overprice, there is thus no doubt that the element of undue injury was present in the procurement of the 45 boxes of medicines from San Marino. Libunao should thus be convicted for violation of Section 3(e) of RA 3019 for this procurement because his gross inexcusable negligence caused undue injury to the government in the amount of P1,071,721.80. Conclusion In sum, I find that Libunao should be convicted on both counts of violating Section 3(e), RA 3019. He should be convicted in the charge involving the procurement of 45 boxes of medicines from San Marino, not simply because the procurement did not go through public bidding as required by law, but because it was attended by gross inexcusable negligence that caused undue injury to the government and gave unwarranted benefits to San Marino. In the same vein, Libunao should be convicted in the charge involving the procurement of the 1,200 sets of araro tools from Revelstone, not because the procurement did not go through public bidding, but because it was attended by gross inexcusable negligence that gave unwarranted benefits to Revelstone. Based on these premises, I vote to DISMISS the appeal and AFFIRM the conviction of petitioner Quirino M. Libunao for two (2) counts of violating Section 3(e), Republic Act No. 3019. Footnotes 1 Martel v. People, G.R. Nos. 224720-23 & 224765-68, February 2, 2021, accessed at . 2 Rollo, p. 87. 3 Id. at 71. 4 Id. at 65-65. 5 Id. at 66. 6 Id. at 102-103. 7 Id. at 109. 8 Supra note 1. 9 Id. 10 Sison v. People, 628 Phil. 573, 583 (2010). 11 Albert v. Sandiganbayan, G.R. No. 164015, February 26, 2009, 580 SCRA 279, 290. 12 Martel v. People, supra note 1. 13 Rollo, pp. 110-111. 14 RA 3019, Sec. 3(e). 15 G.R. Nos. 233155-63, June 23, 2020, accessed at . Italics and underscoring in the original. 16 Concurring Opinion of Associate Justice Alfredo Benjamin S. Caguioa in Villarosa v. People, G.R. Nos. 233155-63, June 23, 2020, accessed at . 17 Id. 18 Supra note 14. 19 Cabrera v. People, G.R. Nos. 191611-14, July 29, 2019, 910 SCRA 578. 20 Id. at 588. Emphasis supplied. 21 Rollo, p. 114. 22 Id. at 117. 23 Id. at 115. 24 Id. at 116. 25 Id. at 112. 26 Id. 27 Id. at 121 The Lawphil Project - Arellano Law Foundation