EN BANC
[ G.R. No. 266713, July 30, 2024 ]
GEORGE P. CABREROS AND BARMEL B. ZUMEL, PETITIONERS, VS. COMMISSION ON AUDIT, RESPONDENT.
[G.R. No. 270183 [FORMERLY UDK 17816]]
JESSIE MARIO B. DOSADO, PETITIONER, VS. COMMISSION ON AUDIT, HON. MARIA CARMEN DELOS SANTOS, HON. JEANNELYN V. DULAY, AND STATE AUDITOR JAIME V. SERRANO, RESPONDENTS.
CONCURRING & DISSENTING OPINION
SINGH, J.:
I concur in the Resolution's finding that the Commission on Audit (COA) did not commit grave abuse of discretion when it disallowed the payment of PHP 5,103,000.00 because the transaction was entered into through shopping instead of public bidding.1
However, I dissent as to the Resolution's finding that petitioners Lieutenant Colonel (Lt. Col) George P. Cabreros and Lt. Col. Barmel B. Zumel must be excused from liability.2
As narrated in the Resolution, the COA disallowed the payments for six purchase orders (POs) for Combat Clothing and Individual Equipment (CCIE) by the Philippine Army of the Armed Forces of the Philippines (AFP), amounting to a total of PHP 5,103,000.00.3 The COA noted that the items were procured without public bidding, as the Philippine Army resorted to "shopping" as the mode of procuring the CCIE. According to the COA, this constitutes splitting of contracts since the six POs were issued on the same date, by the same requisitioning office, and in favor of the same supplier.4 The persons held liable for the disallowance were the Philippine Army Bids, Negotiations and Acceptance Committee (BNAC) Members, the Secretary of the BNAC, the recommending and approving officers, and the payee.5
Meanwhile, the Office of the Deputy Ombudsman for the Military and Other Law Enforcement Offices Fact-Finding Investigation Bureau (FIB MOLEO), instituted criminal and administrative cases against the involved public officers from the Philippine Army, including the petitioners in this case, for allegedly acting in conspiracy to defraud the government.6
The COA Regional Director-National Government Sector Cluster B (COA-NGS) dismissed the appeal filed by the petitioners for lack of merit. On appeal to the COA Proper, the petition for review filed by the petitioners was dismissed for being filed out of time. The COA Proper ruled that the Decision of the COA-NGS had become final and executory.7
In the interim, the Sandiganbayan acquitted all accused public officers, including the petitioners due to the prosecution's failure to establish the elements of "corrupt intent, dishonest design, or some unethical interest" to commit violation of Section 3(e) of Republic Act No. 3019. According to the Sandiganbayan, there was no proof that the accused public officers profited from the purchase of the CCIE items.8
As for their administrative liabilities, the Office of the Ombudsman found the accused public officers, including the petitioners, guilty of Grave Misconduct. On appeal, the Court of Appeals (CA) dismissed the administrative case against Lt. Col Jessie Mario B. Dosado. As for Lt. Col. George P. Cabreros, the CA downgraded his administrative liability from Grave Misconduct to Simple Misconduct because the CA found no bad faith on his part. On the other hand, the appeal of Lt. Col. Barmel B. Zumel before the CA is still pending.9
Subsequently, Lt. Col. Cabreros and Lt. Col. Zumel, both BNAC Members, and Lt. Col. Dosado, BNAC Secretary, filed the present Petitions before the Court.10
The Resolution states that the COA did not commit grave abuse of discretion when it disallowed the payment of PHP 5,103,000.00 due to splitting of government contracts. However, the draft Resolution excused the petitioners from solidary liability to return the disallowed amount.
The Resolution justified its findings that Lt. Col. Cabreros and Lt. Col. Zumel should be excused from liability based on the ruling of the Sandiganbayan that there was no "corrupt intent, dishonest design, or some unethical interest" on the part of Lt. Col. Cabreros and Lt. Col. Zumel. Furthermore, the Resolution also noted that the CA found lack of bad faith on the part of Lt. Col. Cabreros. The Resolution likewise holds that although Lt. Col. Zumel's appeal is still pending before the CA, the Decision in favor of Lt. Col. Cabreros may be equally applied to him as they are both BNAC Members.
While I agree with the Resolution that Lt.(awÞhi( Col. Dosado may be excused from solidary liability to return the disallowed amount, as he was merely performing ministerial functions as member of the BNAC Secretariat, I disagree that Lt. Col. Cabreros and Lt. Col. Zumel should be excused as well.
It bears noting that the Sandiganbayan dismissed the criminal cases against the petitioners not because of a finding of good faith, but because of a finding of lack of sufficient evidence that the accused public officers profited from the purchase of the CCIE items.11 Further, a curs.ory reading of the Decision of the CA would show that the CA did not categorically declare that Lt. Col. Cabreros was in good faith. In fact, the CA noted that the BNAC committed an irregularity when it still decided to adopt shopping as the mode of procurement for the CCIE items despite the presence of circumstances which should have cautioned them against implementing the procurement through shopping, instead of public bidding.12
The BNAC of the Philippine Army is the equivalent to the Bids and Award Committee (BAC) under Republic Act No. 9184. As mandated by the said law, the BAC shall ensure that the procuring entity abides by the standards set forth by the procurement law. In proper cases, the BAC shall also recommend to the Head of the Procuring Entity the use of Alternative Methods of Procurement. Section 12 of the Implementing Rules and Regulations (IRR) of Republic Act No. 9184 reads:
SECTION 12. Functions of the BAC.
The BAC shall have the following functions: (a) advertise and/or post the invitation to bid/request for expressions of interest; (b) conduct pre-procurement and pre-bid conferences; (c) determine the eligibility of prospective bidders; (d) receive and open bids; (e) conduct the evaluation of bids; (f) undertake post-qualification proceedings; (g) resolve requests for reconsideration; (h) recommend award of contracts to the HoPE or his duly authorized representative: (i) recommend the imposition of sanctions in accordance with Rule XXIII; (j) recommend to the HoPE the use of Alternative Methods of Procurement as provided in Rule XVI hereof; k) conduct any of the Alternative Methods of Procurement; l) conduct periodic assessment of the procurement processes and procedures to streamline procurement activities pursuant to Section 3(c) of this IRR; and m) perform such other related functions as may be necessary, including the creation of a Technical Working Group (TWG)[.]
In this case, the BNAC issued a Resolution that the CCIE items should be procured through "shopping" due to its urgency.13 As discussed in the Resolution, the IRR of Republic Act No. 9184 allows the conduct of shopping when there is an unforeseen contingency requiring immediate purchase, only if the amount does not exceed the thresholds for the conduct of shopping.14
However, in this case, the six procurement directives, totaling PHP 5,103,000.00, clearly exceeded the threshold amount for the conduct of shopping. Despite the similarities in the items to be procured and the fact that they exceeded the threshold for competitive bidding, the BNAC still recommended shopping. The COA correctly characterized this as splitting of government contracts, which is prohibited. Consequently, the BNAC grossly erred in recommending the conduct of shopping, instead of competitive bidding.
Even assuming that there was no finding of bad faith on the part of Lt. Col. Cabreros and Lt. Col. Zumel as BNAC Members, their clear disregard for the express requirements of Republic Act No. 9184 amounts to gross negligence.
Gross negligence has been so defined as 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.15
Further, by jurisprudence, the palpable disregard of laws, prevailing jurisprudence, and other applicable directives amount to gross negligence, which overturns the presumption of good faith and regularity in the performance of official functions enjoyed by public officers.16
Lt. Col. Cabreros and Lt. Col. Zumel, as BNAC Members, should have demonstrated a higher degree of diligence in carrying out their functions. Their roles extend beyond mere ceremonial duties, they have the obligation to ensure the proper conduct of public bidding, because it is the policy and medium adhered to in procurement of government contracts.17 Thus, the solidary liability to return the disallowed amount of Lt. Col. Cabreros and Lt. Col. Zumel, as BNAC Members must be upheld. However, applying the Court's pronouncement in Torreta v. COA,18 on the return of disallowed amounts in cases involving illegal or irregular government contracts, their liability may be reduced by the amounts due to the payees, based on the application of the principle of quantum meruit.
Based on the foregoing, I vote to PARTLY GRANT the Petitions. The Commission on Audit Proper Resolution No. 2017-043, dated August 18, 2017, and the Resolution, dated January 24, 2022, which upheld the disallowance of the payment of PHP 5,103,000.00 for the purchase of CCIE items, must be affirmed due to splitting of government contracts. Petitioner Lt. Col. Dosado should be exempt from solidary liability to return the disallowed amount, as he was merely carrying out ministerial duties as a member of the BNAC Secretariat. Conversely, petitioners Lt. Col. Cabreros and Lt. Col. Zumel cannot be excused from returning the disallowed amount, as they were grossly negligent in performing their duties as BNAC Members by allowing the resort to shopping, instead of conducting public bidding. However, their liability may be reduced by the amounts excused to be returned by the payees.
Footnotes
1 Resolution, pp. 12-14.
2 Id. at 14-20.
3 Id. at 1-2.
4 Id. at 3-4.
5 Id. at 4.
6 Id.
7 Id. at 5.
8 Id. at 6.
9 Id. at 7.
10 Id. at 8.
11 Id. at 6.
12 Rollo (G.R. No. 266713), pp. 120-122.
13 Resolution, p. 2.
14 Id. at 13.
15 Securities and Exchange Commission v. COA, G.R. No. 252198, April 27, 2021 [Per J. Lazaro-Javier, En Banc].
16 Estrella v. COA, G.R. No. 252079, September 14, 2021 [Per J.M. Lopez, En Banc].
17 Reyes v. Office of the Deputy Ombudsman for Luzon, G.R. No. 230704, March 15, 2023 [Per J. Gaerlan, Third Division].
18 889 Phil. 1119 (2020) [Per J. Gaerlan, En Banc].
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