THIRD DIVISION
[ G.R. No. 254886, October 11, 2023 ]
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROBERT G. LALA, PUREZA A. FERNANDEZ, AGUSTINITO P. HERMOSO AND GERARDO S. SURLA, ACCUSED-APPELLANTS.
CONCURRING OPINION
INTING, J.:
I concur in the ponencia. Accused-appellants must be acquitted of violation of Section 3(e) of Republic Act No. (RA) 3019. I submit this opinion only for emphasis.
Briefly, the facts are as follows:
Roberto G. Lala (Lala), Pureza A. Fernandez (Fernandez), Agustinito P. Hermoso (Hermoso), and Gerardo S. Surla (Surla), (collectively, accused-appellants) were charged before the Sandiganbayan with violation of Section 3(e) of RA No. 3019. The charges stemmed from the alleged irregularities surrounding the negotiated procurement of the supply and installation of decorative lampposts and other street lighting facilities along several thoroughfares of Mandaue City and Lapu-Lapu City that were part of the ceremonial routes during the ASEAN Summit.
Three bidders were drawn from the registry of contractors of the Department of Public Works and Highways (DPWH) who were then asked to submit their bids. On August 14, 2006, and November 28, 2006, respectively, the Bids and Awards Committee conducted the opening of bids for Contract ID No. 06HO0008 and Contract ID No. 06HO0048.
For both contracts, GAMPIK was determined to be the lowest bidder. However, for Contract ID No. 06HO0048, DPWH Region 7 and GAMPIK entered into a Memorandum of Understanding (MOU) dated November 22, 2006, authorizing GAMPIK to immediately proceed with the project even before the public bidding on November 28, 2006. Thereafter, GAMPIK, represented by accused-appellant Surla, its Chairman of the Board, and DPWH Region 7 entered into several contracts for the supply and installation of lampposts and streetlights.
Subsequently, the Public Assistance and Corruption Prevention Office (PACPO) of the OMB-Visayas conducted a fact-finding investigation on the alleged anomalies in the procurement of the said lampposts and streetlights. After the preliminary investigation, the PACPO filed a complaint against accused-appellants, and later, recommended that the complaint be upgraded to a criminal case for violation of Section 3(e) of RA No. 3019.
Thus, two Informations were filed before the Sandiganbayan:
(i) Information in SB-08-CRM-0270, charging accused-appellants with violation of Section 3(e) of RA 3019 regarding the procurement for the supply and installation of street lighting facilities under Contract ID No. 06HO0008; and
(iii) Information in SB-12-CRM-0006, likewise charging accused-appellants with violation of Section 3(e) of RA No. 3019 but involving Contract ID No. 06GO0048.
In its Decision, the Sandiganbayan acquitted accused-appellants in Criminal Case No. SB-08-CRM-0270 (Contract ID No. 06HO0008) for failure of the prosecution to prove their guilt beyond reasonable doubt but convicted accused-appellants in Criminal Case No. SB-12-CRM-0006 (Contract ID No. 06HO0048).
The Sandiganbayan observed that with the execution of the MOU dated November 22, 2006, involving Contract ID No. 06HO0048, GAMPIK was already predetermined to be the winning bidder as early as November 22, 2006, before the actual bidding was held on November 28, 2006. The Sandiganbayan ruled that accused-appellants Lala, Fernandez, and Hermoso, (collectively, accused-officers) gave unwarranted preference to GAMPIK.
Further, the Sandiganbayan held that accused-officers acted with manifest partiality and gross inexcusable negligence for pre-determining GAMPIK to be the winning bidder.1aшphi1 With respect to Surla, the Sandiganbayan found that he conspired with accused-officers when he signed the MOU on behalf of GAMPIK.
Accused-appellants moved for reconsideration; however, the Sandiganbayan denied Surla's Partial Motion for Reconsideration, as well as accused-officers' Motion for Reconsideration.
Hence, the appeal.
Accused-appellants must be acquitted of violation of Section 3(e) of RA 3019.
"[I]t bears to reiterate that an accused has in his/her favor the presumption of innocence which the Bill of Rights guarantees. Unless his/her guilt is shown beyond reasonable doubt, he/she must be acquitted. This reasonable doubt standard is demanded by the due process clause of the Constitution, which protects the accused from conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the crime with which he is charged. The burden of proof is on the prosecution, and unless it discharges that burden the accused need not even offer evidence in his/her behalf, and he/she would be entitled to an acquittal."1
Guided by the foregoing principles, accused-appellants' conviction in Criminal Case No. SB-12-CRM-0006 must be set aside on the ground of reasonable doubt.
The elements of violation of Section 3(e) of RA No. 3019 are as follows: (i) that the accused must be a public officer discharging administrative, judicial, or official functions (or a private individual acting in conspiracy with such public officers); (ii) that he or she acted with manifest partiality, evident bad faith, or inexcusable negligence; and (iii) that his or her action caused any undue injury to any party, including the government, or gave any private party unwarranted benefits, advantage, or preference in the discharge of his or her functions.1aшphi12
With respect to the second element, case law explains that there are three distinct modes of commission of the offense:
There is "manifest partiality" when there is a clear, notorious or plain inclination or predilection to favor one side or person rather than another. "Evident bad faith" connotes not only bad judgment but also palpably and patently fraudulent and dishonest purpose to do moral obliquity or conscious wrongdoing for some perverse motive or ill will. It contemplates a state of mind affirmatively operating with furtive design or with some motive or sell-interest or ill will or for ulterior purposes. "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.3
A closer look at the instant case shows that the second element was not established beyond reasonable doubt.
In Martel v. People,4 which is also a case involving procurement, the Court held that violations of RA 3019 must be grounded on graft and corruption. "[T]he Court emphasizes the spirit that animates R.A. 3019. As its title implies, and as what can be gleaned from the deliberations of Congress, R.A. 3019 was crafted as an anti-graft and corruption measure. At the heart of the acts punishable under R.A. 3019 is corruption."5 The Court ruled that:
[I]n 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.6
Thus, an acquittal for a charge of violation of Section 3 (e) of RA No. 3019 is warranted when the alleged acts of the accused were not motivated by any evil scheme to profit, but by honest, albeit mistaken, belief that the manner of procurement adopted or executed was warranted.7
Guided by the foregoing, I strongly concur that the prosecution failed to prove beyond reasonable doubt that the complained acts were done with corrupt intent as to hold them liable under RA 3019.
As keenly observed by Associate Justice Alfredo Benjamin S. Caguioa in the course of the Court's deliberations:
It can be readily discerned from the facts that what animated accused-appellants to enter into the MOU ahead of the bidding was not a corrupt intent, but the pressure to ensure that the lamp post installation projects were completed for the ASEAN Summit. To be sure, the four (4) lamp post installation projects subject of Contract ID No. 06H00048 needed to be finished by December 2006, because the 12th ASEAN Summit was originally to be held in that month. The Aide Memoire from then Secretary Ebdane stating that the ASEAN Summit was to be held in Cebu was only forwarded to DPWH Region 7 sometime in July. Thus, on top of Contract ID No. 06H00048, DPWH Region 7 had to implement other infrastructure projects in relation to the Summit. However, it appears that even though December was fast approaching, a public bidding was just about to be held on November 28, 2006 for the award of Contract ID No. 06H00048. As mentioned by accused-appellant Hermosa, from November 28, 2006 there were only just around thirteen (13) days left to complete the project and the implementing unit was under a lot of pressure to finish the project. Thus, Hermosa revealed that fellow accused-appellant Fernandez requested GAMPIK if it could start with the project but the contractor was not willing to start without the written recommendation from BAC and a written contract. It was only then that Hermosa admitted that, as legal officer of DPWH Region 7, he was the one who came up with the idea of a MOU so that GAMPIK would be convinced to start the project, even if the funds were still forthcoming and even without the recommendation from BAC.
In addition, the DPWH also considered the fact that GAMPIK was already previously chosen for another contract, Contract ID No. 06HO0008. In the same Contract, executed on September 12, 2006, GAMPIK also supplied and installed street lighting facilities, consisting of 300 sets of decorative park lamp assembly, along Mandaue Causeway, City of Mandaue.
. . . .
In addition to all the above, and as succinctly found by the Sandiganbayan itself, accused-appellants did not illegally resort to negotiated procurement, and the contract price was not overpriced. And the irony in all of this is that the amount charged by GAMPIK for the installation of the lampposts was not only not proven to be overpriced, it was also proven that GAMPIK was never paid for its service.
Considering the foregoing observations, it cannot be said that the execution of the MOU between the DPWH Region 7 and GAMPIK, authorizing GAMPIK to immediately proceed with the project even before the conduct of the public bidding on November 28, 2006, was motivated by a corrupt intent to favor GAMPIK over the other bidders. Notably, for both contracts, GAMPIK was determined to be the lowest bidder. It could hardly be concluded that accused-appellants' actuations were tainted with graft and corruption.
While authorizing GAMPIK to proceed with the project even before the conduct of the public bidding is an irregularity, nonetheless, the prosecution failed to show that such act was spurred by a corrupt or ill motive as to rule that there was manifest partiality, or at the very least, gross inexcusable negligence. The facts in the case fail to show that "there is a clear, notorious or plain inclination or predilection to favor one side or person rather than another" or that there was "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."
As ruled by the Court en banc in Martel, "it is through the lens of the anti-graft and corruption law, and not the procurement laws, that the guilt of the accused for violation of Section 3 (e) of R.A. 3019 must be determined."
For these reasons, accused-appellants must indeed be acquitted.
Footnotes
1 Villarosa v. People, 875 Phil. 270, 305–306 (2020).
2 Cabrera v. People, G.R. Nos. 191611-14, April 6, 2022.
3 Id.
4 G.R. Nos. 224720-23 & 224765-68, February 2, 2021.
5 Id.
6 Id.
7 See Cabrera v. People, supra note 2.
The Lawphil Project - Arellano Law Foundation
