CA reverses Ombudsman ruling on Tanjuatco
Published Oct 22, 2018 03:47 pm
By Rey Panaligan
The Court of Appeals (CA) has reversed the 2016 ruling of the Office of the Ombudsman as it cleared former Clark International Airport Corporation (CIAC) president Emigdio P. Tanjuatco III of simple misconduct in the P205.5-million contract for the supply of navigational landing system in 2015.
Court of Appeals
(Credits: KJ Rosales | Manila Bulletin file photo) In decision written by Associate Justice Ramon R. Garcia, the CA ruled there was no evidence to support the allegation that Tanjuatco committed simple misconduct that would warrant his three-month suspension without pay as ordered by the Ombudsman. “In fact, there appears to be no deliberate or conscious act on his part showing bad faith or intent to give undue advantage to Evercon Builders and Equipment Corporation (supplier of the navigational landing system) in order to personally profit from the transaction,” the CA said. It said the circumstances that led to the contract “negated the elements that would have qualified petitioner Tanjuatco's misconduct as simple misconduct.” “In fact, they support the view that there exists no such relevant evidence as a reasonable mind might accept as adequate to support the conclusion that petitioner had the clear intent to violate Section 5.7 of Department of Budget and Management (DBM) Circular No. 2010-9 or to flagrantly disregard it,” it added. On Aug. 5, 2015, a complaint for neglect of duty, grave misconduct, conduct prejudicial to the best interest of the service, and violation of the Anti-Graft and Corrupt Practices Act was filed against Tanjuatco, also then CIAC chief executive officer, by the Field Investigation Office of the Office of the Ombudsman. Several other CIAC officials and Mario Ong of Evercon were included in the complaint. But the CA decision covered only the petition filed by Tanjuatco. The complaint alleged that Tanjuatco and the other CIAC officials conspired in persuading and influencing the members of the CIAC’s bidding and awards committee (BAC) to rig the bidding process and to award the contract to Evercon. Among other things, the complaint claimed that the CIAC BAC classified the procurement as an infrastructure work instead of supply of good to disqualify Evercon’s competitors; that Evercon was prequalified despite its lack of experience or technical eligibility; and that on Dec. 18, 2013 the contract was awarded to Evercon despite the noncompletion of the postqualification process. It also claimed that on Dec. 1, 2014 Tanjuatco issued to Evercon a notice of award despite the lapse of more than one year from the date of the opening of the bid and absence of actual cash transfer for the procurement of the system; that on Dec. 10, 2014 Tanjuatco issued to Evercon a notice to proceed even before the actual execution of the contract agreement that was signed only on Jan. 12, 2015. In a resolution dated Aug. 31, 2016, the Office of the Ombudsman dismissed the graft complaint and the charges for grave misconduct, conduct prejudicial to the best interest of the service, and neglect of duty. But it found Tanjuatco and the other CIAC board members liable for simple misconduct and imposed on then the penalty of three-month suspension without pay with a ruling that they, particularly Tanjuatco, violated DBM Circular No. 2010-9 when they issued a notice of award and entered into a contract even before receipt of the actual cash transfer from the Department of Transportation and Communications (DOTC). Tanjuatco challenged the Ombudsman’s ruling before the CA. He told the CA he did not violate the anti-graft and the government procurement laws and the DBM circular. He said he assumed office as CIAC president and CEO only on Oct. 7, 2014 and the CIAC board resolution awarding the project to Evercon was done on Dec. 18, 2013. He pointed out that even the classification of the project as one for infrastructure and not for supply of goods was done prior to his assumption of office and that all his actions were in line with the provisions of the law on government procurement like the issuance of the notice of award to Evercon. Resolving Tanjuatco’s petition, the CA said: “We find the elements of misconduct, simple or grave, to be wanting. There is no substantial evidence to show the presence of the elements of corruption, clear intent to violate the law or flagrant disregard of established rule on the part of petitioner Tanjuatco.” It said “neither is there any showing that he is guilty of any intentional wrongdoing or a deliberate violation of a rule of law or standard of behavior, or that he wrongfully used his position to procure some benefit for himself or for another person or entity.” For alleged noncompliance with DBM Circular No. 2010-9 on the actual release of funds before the issuance of notice of award, the CA said: “Suffice it to state, however, that on Dec. 18, 2013, the DBM had already issued a Special Allotment Release Order (SARO) to the DOTC for the procurement project. The SARO was still in effect by virtue of Joint Resolution No. 01 of the Congress of the Philippines passed in December 2013 which extended the validity of the SARO until December 31, 2014.” It said that on Dec. 27, 2013, “the DOTC issued a Modified Obligation Budget Request (MOBR) in favor of the CIAC which showed the amount needed for the procurement of the subject navigational landing system and the availability of the allotment obligated for the same.” “The memorandum of agreement between the DOTC and the CIAC also showed the availability of the funds for the project which guarantees the funding thereof. Besides, petitioner Tanjuatco aptly explained that based on the provisions of the memorandum of agreement between the DOTC and the CIAC, the method of payment was on per progress billing considering the amount involved and pursuant to the provisions of Republic Act 9184 or the Government Procurement Reform Act,” it added. “Verily, petitioner Tanjuatco did not willfully violate Section 5.7 of DBM Circular No. 2010-9 dated Dec. 30, 2010 and that he did not flagrantly disregard existing rules. On the contrary, they evinced good faith taking into consideration that the intention and purpose behind DBM Circular 2010-9 is to fast-track the implementation of priority projects of the government and to ensure that the delay in the approval of the General Appropriations Act and receipt of the allotments issued by the DBM for the purpose would not deter the procuring agency from commencing its procurement activities,” it stressed.
Court of Appeals(Credits: KJ Rosales | Manila Bulletin file photo) In decision written by Associate Justice Ramon R. Garcia, the CA ruled there was no evidence to support the allegation that Tanjuatco committed simple misconduct that would warrant his three-month suspension without pay as ordered by the Ombudsman. “In fact, there appears to be no deliberate or conscious act on his part showing bad faith or intent to give undue advantage to Evercon Builders and Equipment Corporation (supplier of the navigational landing system) in order to personally profit from the transaction,” the CA said. It said the circumstances that led to the contract “negated the elements that would have qualified petitioner Tanjuatco's misconduct as simple misconduct.” “In fact, they support the view that there exists no such relevant evidence as a reasonable mind might accept as adequate to support the conclusion that petitioner had the clear intent to violate Section 5.7 of Department of Budget and Management (DBM) Circular No. 2010-9 or to flagrantly disregard it,” it added. On Aug. 5, 2015, a complaint for neglect of duty, grave misconduct, conduct prejudicial to the best interest of the service, and violation of the Anti-Graft and Corrupt Practices Act was filed against Tanjuatco, also then CIAC chief executive officer, by the Field Investigation Office of the Office of the Ombudsman. Several other CIAC officials and Mario Ong of Evercon were included in the complaint. But the CA decision covered only the petition filed by Tanjuatco. The complaint alleged that Tanjuatco and the other CIAC officials conspired in persuading and influencing the members of the CIAC’s bidding and awards committee (BAC) to rig the bidding process and to award the contract to Evercon. Among other things, the complaint claimed that the CIAC BAC classified the procurement as an infrastructure work instead of supply of good to disqualify Evercon’s competitors; that Evercon was prequalified despite its lack of experience or technical eligibility; and that on Dec. 18, 2013 the contract was awarded to Evercon despite the noncompletion of the postqualification process. It also claimed that on Dec. 1, 2014 Tanjuatco issued to Evercon a notice of award despite the lapse of more than one year from the date of the opening of the bid and absence of actual cash transfer for the procurement of the system; that on Dec. 10, 2014 Tanjuatco issued to Evercon a notice to proceed even before the actual execution of the contract agreement that was signed only on Jan. 12, 2015. In a resolution dated Aug. 31, 2016, the Office of the Ombudsman dismissed the graft complaint and the charges for grave misconduct, conduct prejudicial to the best interest of the service, and neglect of duty. But it found Tanjuatco and the other CIAC board members liable for simple misconduct and imposed on then the penalty of three-month suspension without pay with a ruling that they, particularly Tanjuatco, violated DBM Circular No. 2010-9 when they issued a notice of award and entered into a contract even before receipt of the actual cash transfer from the Department of Transportation and Communications (DOTC). Tanjuatco challenged the Ombudsman’s ruling before the CA. He told the CA he did not violate the anti-graft and the government procurement laws and the DBM circular. He said he assumed office as CIAC president and CEO only on Oct. 7, 2014 and the CIAC board resolution awarding the project to Evercon was done on Dec. 18, 2013. He pointed out that even the classification of the project as one for infrastructure and not for supply of goods was done prior to his assumption of office and that all his actions were in line with the provisions of the law on government procurement like the issuance of the notice of award to Evercon. Resolving Tanjuatco’s petition, the CA said: “We find the elements of misconduct, simple or grave, to be wanting. There is no substantial evidence to show the presence of the elements of corruption, clear intent to violate the law or flagrant disregard of established rule on the part of petitioner Tanjuatco.” It said “neither is there any showing that he is guilty of any intentional wrongdoing or a deliberate violation of a rule of law or standard of behavior, or that he wrongfully used his position to procure some benefit for himself or for another person or entity.” For alleged noncompliance with DBM Circular No. 2010-9 on the actual release of funds before the issuance of notice of award, the CA said: “Suffice it to state, however, that on Dec. 18, 2013, the DBM had already issued a Special Allotment Release Order (SARO) to the DOTC for the procurement project. The SARO was still in effect by virtue of Joint Resolution No. 01 of the Congress of the Philippines passed in December 2013 which extended the validity of the SARO until December 31, 2014.” It said that on Dec. 27, 2013, “the DOTC issued a Modified Obligation Budget Request (MOBR) in favor of the CIAC which showed the amount needed for the procurement of the subject navigational landing system and the availability of the allotment obligated for the same.” “The memorandum of agreement between the DOTC and the CIAC also showed the availability of the funds for the project which guarantees the funding thereof. Besides, petitioner Tanjuatco aptly explained that based on the provisions of the memorandum of agreement between the DOTC and the CIAC, the method of payment was on per progress billing considering the amount involved and pursuant to the provisions of Republic Act 9184 or the Government Procurement Reform Act,” it added. “Verily, petitioner Tanjuatco did not willfully violate Section 5.7 of DBM Circular No. 2010-9 dated Dec. 30, 2010 and that he did not flagrantly disregard existing rules. On the contrary, they evinced good faith taking into consideration that the intention and purpose behind DBM Circular 2010-9 is to fast-track the implementation of priority projects of the government and to ensure that the delay in the approval of the General Appropriations Act and receipt of the allotments issued by the DBM for the purpose would not deter the procuring agency from commencing its procurement activities,” it stressed.