Republic of the Philippines SANDIGANBAYAN Quezon City
THIRD DIVISION
PEOPLE OF THE PHILIPPINES Plaintiff, CRIM. CASES NOS.: SB-l 7 -CRM-0452 and 0453 -versus- For: violations of Sec 3 (e) RA No. 3019, as amended ALBERTO BACAYLAN ACAIN, OSCAR ANINO BENLOT, LUCIA MUGOT ALMENE, ISIDRO NAMOCOT GERVACIO, ELIZABETH ABUT PAGALAN, SERGIO AGAGARING JACALAN, JR., RICARDO MENDOZA, JR., MA. LOURDES MENDOZA. Accused. x------x Present:
CABOTAJE-TANG, A.M., P.J./ Chairperson FERNANDEZ, B.R., J. and MORENO, R.B., J.
Promulgated on:
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DECISION
FERNANDEZ, B. R., J.
Accused Alberto Bacaylan Acain; Oscar Anino Benlot; Lucia Mugot Almene; Isidro Namocot Gervacio; Elizabeth Abut Pagalan; Sergio Agagaring Jacalan, Jr.; Ricardo
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Mendoza, Jr.; and, Ma. Lourdes Mendoza stand charged before this Court for two (2) counts of violation of Section 3 (e) of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, as described in the following Informations, to wit - -
Criminal Case No. SB-17 -CRM-04S2
That in June 2004, or sometime prior or subsequent thereto, in the Municipality of Libertad, Misamis Oriental, Philippines and within the jurisdiction of this Honorable Court, accused ALBERTO BACAYLAN ACAIN, a high ranking public officer being the Municipal Mayor of Libertad, Misamis Oriental, OSCAR ANINO BENLOT, Municipal Engineer/Chairman, Bids and Awards Committee; LUCIA MUGOT ALMENE, Municipal Treasurer/Member, Bids and Awards Committee; ISIDRO NAMOCOT GERVACIO, Municipal Civil Registrar/Member, Bids and Awards Committee; ELIZABETH ABUT PAGALAN, Municipal Budget Officer/Member, Bids and Awards Committee; SERGIO AGAGARING JACALAN, JR., Municipal Assessor/Member, Bids and Awards Committee, while in the discharge of their official functions and committing the offense in relation to their office, acting with manifest partiality, evident bad faith or gross inexcusable negligence, conspiring with each other and with private persons, RICARDO MENDOZA, JR., Proprietor, and MA. LOURDES MENDOZA, Representative of Green's International Enterprises, did then and there willfully unlawfully give unwarranted benefits, advantage or preference to Green's International Enterprises (GIE), by causing/ approving the procurement of 2,500 liters of Macro Micro Liquid Foliar Fertilizer worth Three Million Two Hundred Fifty Thousand Pesos (Php3,250,000.00) from said company by making it appear that there was a public bidding and resorting to direct contracting withou t observing the requirements under Republic Act No. 9184, failing to verify the documents submitted by the supplier, GIE, and resorting to brand specification thereby facilitating the release of the public fund to the damage and prejudice of the government in the aforestated amount. Decision 3 SB-17-CRM-04S2-S3
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CONTRARYTO LAW.
Criminal Case No. SB-17-CRM-0453
That in June 2004, or sometime prior or subsequent thereto, in the Municipality of Libertad, Misamis Oriental, Philippines and within the jurisdiction of this Honorable Court, accused ALBERTO BACAYLAN ACAIN, a high ranking public officer being the Municipal Mayor of Libertad, Misamis Oriental, OSCAR ANINO BENLOT, Municipal Engineer/Chairman, Bids and Awards Committee; LUCIA MUGOT ALMENE, Municipal Treasurer/Member, Bids and Awards Committee; ISIDRO NAMOCOT GERVACIO, Municipal Civil Registrar/Member, Bids and Awards Committee; ELIZABETH ABUT PAGALAN, Municipal Budget Officer/Member, Bids and Awards Committee; SERGIO AGAGARING JACALAN, JR., Municipal Assessor/Member, Bids and Awards Committee, while in the discharge of their official functions and committing the offense in relation to their office, acting with manifest partiality, evident bad faith or gross inexcusable negligence, conspiring with each other and with private persons, RICARDO MENDOZA, JR., Proprietor, and MA. LOURDES MENDOZA, Representative of Green's International Enterprises, did then and there willfully unlawfully give unwarranted benefits, advantage or preference to Green's International Enterprises (GIE), by causing/ approving the procurement of 1,166 liters of Macro Micro Liquid Foliar Fertilizer worth One Million Seven Hundred Forty Nine Thousand Pesos (Php1,749,000.00) from said company by making it appear that there was a public bidding and resorting to direct contracting without observing the requirements under Republic Act No. 9184, failing to verify the documents submitted by the supplier, GIE, and resorting to brand specification thereby facilitating the release of the public fund to the damage and prejudice of the government in the aforestated amount.
CONTRARYTO LAW. Decision 4 SB-17 -CRM-0452-53
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When arraigned, accused Acain (Order, May 8, 2017), accused Benlot, accused Gervacio, accused Pagalan and accused Jacalan, Jr. (Order, June 29,2017), assisted by their respective counsels, individually and separately entered not guilty pleas.
In the interim, accused Benlot, accused Pagalan and accused Jacalan, Jr., through their respective counsels, filed a Plea Bargaining Offer dated July 26, 201 7. When given time (Minutes, July 28, 2017; August 22, 2017), the prosecution filed its Opposition dated August 29, 201 7. Thereafter, this Court denied the Plea Bargain Offer for lack of merit (Resolution, November 3, 2017).
Although a Motion for Reconsideration dated November 29, 2017 was subsequently filed by the accused concerned, with the Opposition dated December 12, 2017 of the prosecution, the said Motion was likewise denied (Resolution, January 31,2018).
During pre-trial, the parties agreed to stipulate on the following facts (Pre-Trial Order, August 9, 2018):
A. Prosecution and Accused Oscar A. Benlot, Isidro N. Gervacio, Elizabeth A. Pagalan and Sergio A. Jacalan, Jr.
1. That accused Oscar A. Benlot, Isidro N. Gervacio, Elizabeth A. Pagalan and Sergio A. Jacalan, Jr. are the persons named and arraigned under the Information/ s docketed as SB-17 -CRM- 0452 and SB-1 7 -CRM-0453; 2. That in 2004, the following accused were public officers holding the following positions in the Municipal Government of Libertad, Province of Misamis Oriental:
Alberto B. Acain - Municipal Mayor Oscar A. Benlot - Municipal Engineer and General Services Officer-Designate Isidro N. Gervacio - Municipal Civil Registrar and BAC Member Elizabeth A. Pagalan - Municipal Budget Officer and BAC Member Sergio A. Jacalan, Jr. - Municipal Assessor and BAC Member }/)~ Decision 5 SB-17 -CRM-0452-53
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3. That in 2004, the Municipal Government of Libertad, Province of Misamis Oriental procured Macro Micro Liquid Foliar Fertilizer; 4. That Mr. Ricardo T. Mendoza is the proprietor of Green's International Enterprises; and, 5. That Ma. Lourdes Mendoza is the representative of Green's In ternational Enterprises.
B. Prosecution and Accused Alberto B. Acain
1. That accused Alberto B. Acain is the same person named and arraigned under the Informations / s docketed as 8B-l 7 -CRM 0452 and SB-17-CRM-04S3; 2. That in 2004, accused Alberto B. Acain was a public officer holding the position of Municipal Mayor in the Municipality of Libertad, Province of Misamis Oriental; 3. That in 2004, the Department of Agriculture transferred the total amount of Five Million Pesos (Php 5,000,000.00) to the Municipality of Libertad, Misamis Oriental for the purchase of farm inputs and farm implements; and, 4. That in 2004, the Municipal Government of Libertad, Province of Misamis Oriental procured Macro Micro Liquid Foliar Fertilizer.
Trial on the merits ensued.
The first prosecution witness was Atty. Ronald Allan D. Ramos. The parties agreed to stipulate on the following - - (1) The witness is currently the Graft Investigation and Prosecution Officer III of the Office of the Ombudsman (OMB); (2) That as Graft Investigation and Prosecution Officer III, among his duties, is that, he conducts the fact finding investigation, prepares reports and complaints, and performs other functions that may be assigned to him; and, (3) That sometime in 2011, he was designated as the Team Coordinator of the Task Force Abono, which led to the filing of the Complaint in this case.
Witness Atty. Ramos then identified and affirmed having executed a Complaint (Exh. "A") on November 28, 2011. He also identified the attachments (Exhs. "A-I" to "A-98") to the
I Decision 6 SB-17 -CRM-0452-53
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Complaint, and confirm the truthfulness as well as the veracity of the statements in the Complaint including its attachments.
When cross-examined, witness Atty. Ramos confirmed that the allegations of overpricing in his Complaint-Affidavit, particularly pars. 52-53, page 12 thereof, were based on the canvass conducted by the Commission on Audit (COA). However, he was unsure whether the OMB had findings on this. Witness Atty. Ramos also admitted that he has not read the subject two (2) Informations and confirmed that his findings in the Complaint-Affidavit are based on his evaluation of the official documents gathered by the OMB Field Investigation Office.
Thereafter, the prosecution presented Marissa A. Santos. Initially, the parties agreed to stipulate on the following - - (1) That Marissa A. Santos is the Chief Administrative Officer (CAO)of the Central Records Division, Department of Budget and Management (DBM) at Malacanang; (2) That as Chief Administrative Officer, she has custody of official documents on the record filed at the Central Records Division, DBM; and (3) That relevant to these cases, she brought with her the reserved documents of the prosecution which were obtained from the record files of the Central Records Division of the DBM. Furthermore, the parties also stipulated that witness Santos brought photocopies of the official receiving copies of the same documents, in the custody of the Central Records Division of the DBM, which were faithful reproductions (Order, October 8,2018).
Witness Santos likewise identified and affirmed the contents of her sworn Judicial Affidavit dated September 20, 2018 and its attached documents (Exhs. "B" to "B-15"), as follows - -
Exhibit Document Description "B" Certified copy of the machine copy on file of SARO No. E-04-00164 dated February 3, 2004 "B-1" Certified copy of the machine copy on file of Advice of SARO Issued dated February 3, 2004 "B-l-a" to Certified copy of the machine copy on file of Advice of SARO Issued dated February 3, B-l-f' 2004 "B-2" Certified copy of the machine copy on file of Letter of Undersecretary Jocelyn 1. Bolante to Sec. Emilia T. Boncodin dated February 3,2004 "B-3" Certified copy of the machine copy on file of NCA-222447-1 in the amount of P291,200,000.00 dated February 3,2004 "B-4" Certified copy of the machine copy on file of Advice ofNCA Issued dated February 3,2004 "B-5" Certified true copy of NCA-222771-3 in the amount of P182,000,000.00 dated April 5, 2004 "B-6" Certified true CODV of Advice of NCA Issued P182,000,000.00 dated April S, 2004 "B-7" Certified true copy of NCA-222922-0 in the amount of P72,800,000.00 dated April 28, 2004 Decision 7 SB-1 7 -CRM-0452-53
"B-8" Certified true copy of Adviceof NCAIssued dated April 28, 2004 "B-9" Certified copy of the original copy on file of Letter of Undersecretary Jocelyn 1. Bolante to Sec. Emilia T. Boncodin dated April 21, 2004 "B-10" Certified true copy of NCA-222942-5in the amount of P36,400,000.00 dated Mav 4, 2004 "B-11" Certified true copy of Advice of NCAIssued dated May 4,2004 "B-12" Certified copy of the original copy on file of Letter of Undersecretary Jocelyn 1. Bolante to Sec. Emilia T. Boncodin dated April 28, 2004 "B-13" Certified copy of the original copy on file of Letter of Sec. Arthur Yap to Sec. Emilia T. Boncodin dated November 2, 2004 "B-14" Certified true copy of NCA-243838-0in the amount of P197 ,650,000.00 dated November 30,2004 "B-15" Certified true copy of Adviceof NCAIssued dated November 30, 2004 Thereafter the testimony of witness Santos was dispensed with (ibid.)
The next prosecution witness was Julieta B. Lansangan, Chief, Fertilizer Regulations Division (FRD)of the Fertilizer and Pesticides Authority (FPA).Testifying on direct testimony through her sworn Judicial Affidavit dated October 1, 2018, she briefly explained Presidential Decree No. 1144, the law that created the FPA and its mandate. She, likewise, stated the requirements for a person engaged in the business of exporting, importing, manufacturing, formulating, distributing, supplying, repacking, storing, commercially applying, selling, marketing, of any pesticides, fertilizer and other agricultural chemicals, to secure a license from the FPA. She specifically declared that her primary responsibility includes, among others, having custody over official records of the FPA-FRD, composed of lists of licensed fertilizer handlers and dealers, and registered fertilizer products.
In compliance with a subpoena from the Office of the Special Prosecutor (OSP) of the Office of the Ombudsman (OMB), she directed her staff (Marlo B. Deblois, Maribel M. Querijero and Maria Regina C. Lagance) to retrieve the requested documents pertaining to the registration or licensing as a fertilizer manufacturer, seller or dealer in the year 2004 of Green's International Enterprises (GIE).
As a result of her search, witness Lansangan testified that there are no records showing that GIE was either issued a FPA license or had registered any fertilizer with the FPA in the year 2004. To support her conclusion, witness Lansangan submitted instead the following certified true copies of FPA records, namely - - (1) List of Licensed Fertilizer Handlers as of December 31, 2004 (Exh. "R"), covering all handlers licensed by the FPA nationwide including Region 11; (2) List of Fully Registered Fertilizer as of December 2004 (Exh. "S"); (3) List of Provisionally Registered Fertilizer as of December 2004 (Exh. "T"); (4) List of Dealer jDealer-Repacker (Exh. "V");
I Decision 8 SB-17 -CRM-0452-53
------and, (5) Index Card with the heading Green's International Enterprises c/o Maria Lourdes T. Mendoza (Exh. "V").
Witness Lansangan further testified that the FPA maintains a set of index cards arranged according to the names of licensees. They manually record all the registration or licensing activities of a licensee, in chronological order. Relative to GIE, its index card indicates its first licensing or registration activity in 2010 and that there appears to be some erasures or alterations in the entries, not atributtable to witness Lansangan but to some other person/ s.
On cross-examination, witness Lansangan explained that the function of her Division includes the registration of handlers and retailers. Licensing involves companies that distribute fertilizer while registration pertains to the products registered for sale in the market. A license must first be secured before an individual or corporation may sell fertilizers. The registration and the licenses are released simultaneously, such that the product registration cannot be released without the license, and vice versa.
Witness Lansangan further elaborated that for applications for a license or permit for corporation, a SEC registration is required, while for individuals, a DTI registration, mayor's permit, financial statement and the fertilizers to be sold in the market are necessary. Also, for local manufacturers or distributors, an endorsement from their field officers is needed.
With regard to the requirements for registration of fertilizer, if it is a traditional fertilizer, a certificate of analysis is necessary. However, if the fertilizer is imported, a certificate of analysis from the supplier, a sample for confirmatory analysis, the sack containing the information and the material data sheet should be submitted. Should the fertilizer, either local or imported, is new in the market, a field efficacy trial and an experimentalist permit will be required.
Witness Lansangan further testified that the FPA license is valid for only one (1) year with a renewal thereafter. For product registration and the category intended, this is provisionally registered and is also valid for one (1) year. However, if the product has been granted full registration, its validity will be three (3) years. Decision 9 SB-17 -CRM-0452-53
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She also clarified that the FPA does not issue provisional license, only provisional registration for fertilizers. Although she is familiar with the chemical terms of the fertilizers (guaranteed analysis), she has not seen Macro Micro Liquid Foliar Fertilizer (Macro Micro fertilizer) or its chemicals or technical terms in their 2004 lists.
The next prosecution witness was Edwin G. Canios, a Commission of Audit (COA) auditor designated at the Department of Agriculture (DA), Regional Field Unit X, Cagayan de Oro City from 2002 to 2005.
As his direct testimony, witness Canios, through his sworn Judicial Affidavit dated September 17, 2018, testified that, as part of his regular audit of DA Region X accounts, he audited the procurement of fertilizers under SARO No. E-04- 00164, which included the procurement of fertilizers by the Municipality of Libertad (Libertad).
He then identified certified true copies of the disbursement vouchers and other supporting documents he reviewed during the audit conducted on the procurement of fertilizers by the Libertad. Based on these documents, specifically Purchase Request dated June 10, 2004 (Exh. "F- 2") and the Purchase Request dated December 21, 2004 (Exh. "G-l"), it was accused Benlot, who requested for the procurement of fertilizers while accused Acain (then the Municipal Mayor of Libertad) approved the same.
Witness Canios added that he found inconsistencies in the documents he reviewed, particularly, where the quantity of fertilizers inspected and accepted by Libertad did not match the quantity of fertilizers distributed to the farmer beneficiaries. Although his Office sent letter requests for confirmations of actual receipt to twenty percent (20%) of the farmer beneficiaries, none responded.
His findings and recommendations relating to the procurement by Libertad were embodied in pp. 3-6 of the Audit Observation Memorandum (AOM) No. ASI-02 dated September 28, 2005 (Exh. "H") while those regarding the pricing of fertilizers procured by Local Government Units (LGUs) and Non-Governmental Organizations (NGOs), were embodied in AOM No. ASI-06, AOM-DFNGO-02 and AOM• DFLGU-02, all dated November 15, 2005 (Exh. "I"), which were also applicable to the Municipality of Libertad. Decision 10 SB-17-CRM-04S2-S3
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He further stated that, based on his experience as an auditor and his knowledge of Republic Act No. 9184, the procurement of farm inputs like fertilizers should be done through competitive public bidding.
However, based on BAC Resolutions No. 02, series of 2004, dated June 11, 2004 (Exh. "0") and No. 03, series of 2004, dated December 22, 2004 (Exh. "P"), the Bids and Awards Committee (BAC) of Libertad recommended the alternative procurement mode of direct contracting. The justification indicated was that the fertilizer sought to be procured was distributed exclusively by GIE, per DTI Certification, and that there was no available substitute that can be obtained at more advantageous terms to the government. But, witness Canios found no DTI certificates from among the documents transmitted to them. Furthermore, although no specific fertilizer was mentioned in the BAC Resolutions, witness Canios noted that the Purchase Requests, Purchase Orders and Disbursement Vouchers he reviewed specifically mentioned Macro Micro Liquid Foliar Fertilizer as the fertilizer of choice
Witness Canios then identified certified true copies of Disbursement Voucher No. 100-2004-06-602 dated June 14, 2004 (Exh. "F"); Purchase Request dated June 10,2004 (Exh. "F- 2"); Purchase Order dated June 11, 2004 (Exh. "F-4"); Disbursement Voucher No. 100-2004-12-1292 dated December 28, 2004 (Exh. "G"); Purchase Request dated December 21,2004 (Exh. "G-1"); and, Purchase Order dated December 28, 2004 (Exh. "G-2"). These are certified true copies of copies authenticated by the auditor assigned to Libertad, since the copies were lost due to floods (Certifications dated January 20, 2016 (Exh. "W") and January 19, 2012 (Exh. "X") , respectively, and sourced from the originals. Witness Canios also identified and confirmed the contents of his sworn Statement (Exhs. "A-83" to "A-88") given before the Field Investigation Office of the Office of the Omudsman.
On cross-examination, witness Canios clarified that, in 2002-2005, he conducted a regular and special audits and examined the documents submitted by the DA to his Office, verified their regularity and performed audit on the assets, liabilities, revenue or expense account, including the liquidation report submitted by Libertad to the DA. His audit review included the documents regarding the transactions of )1J /L• ~ I Decision 11 SB-17-CRM-0452-53
------the DA, but the liquidation report submitted by Libertad was only authenticated by another auditor assigned to Libertad.
Witness Canios reiterated that they had no time to conduct an actual inspection, hence, they resorted instead to sending validation letters to twenty percent (20%) of the farmer beneficiaries using the approved sampling methodology (Pareto Principle). However, some letters were returned because the addressees cannot be located while the other registry receipts were lost due to the burning of the COA storage office in May 23, 2013.
He emphasized that AOM-ASI-02dated September 28, 2005 (Exh. "H")was based on a Liquidation Report on the first and second releases amounting to P900,000.00 and P3,250,000.00, respectively. The third and fourth releases were not yet submitted during that time. After he issued the said AOM and submitting the report, he was reassigned.
Relative to the undated Acceptance Report (Exh. "F-10"), witness Canios testified that the comment below his name stating "with inspection and validation:' were his notes.
Witness Canios stressed that purchase requests, purchase orders and disbursement vouchers should be signed by the requesting party and approved by the Head of the Procuring Entity (HOPE).However, the Purchase Request (Exhs. "F-2") on this particular transaction, was signed by accused Benlot, as the requesting party, and approved by accused Acain, as Mayor. However, The Purchase Order (Exhs. "F-4") was signed by the Municipal Accountant, as to the availability of funds, and approved by the Mayor.
He further noted a discrepancy between what was delivered to the LGU and those delivered to the farmer beneficiaries in the Acceptance and Inspection Report dated June 17, 2004 (Exh. "F-8") of Libertad. It appeared that Libertad received six hundred (600) 300 ml bottles and two thousand five hundred (2,500) 1 liter bottles but distributed 250ml, 500ml and 750ml. bottles of doubtful source.
When cross-examined by accused Benlot, Pagalan, Gervacio and Jacalan, Jr., witness Canios testified that he conducted a regular audit on the transaction covered by SARO No. E-04-00 164 and submitted both a regular annual report and a special audit report. In connection with the DA transaction he reviewed involving Libertad, he noted that, Decision 12 SB-17 -CRM-0452-53
------based only on the authenticated documents submitted to him, he was unsure whether the goods were delivered to Libertad in connection with the said SARO.
Relative to the procurement procedure, witness Canios opined that a competitive public bidding should have been used for the subject transactions instead of direct contracting. Admitting issuing the AOMdated September 28, 2005 (Exh. "H"),he was unaware if his recommendations were adopted because he was already reassigned by then.
On re-direct examination, witness Canios confirmed that the documents he reviewed during his audit were authenticated copies of original documents which were lost in a fire that occurred in May 23,2013.
The prosecution then presented witness Susana G. Yuzon, who testified on direct examination through her sworn Judicial Affidavit dated October 5, 2018.
Initially, the prosecution offered the following for stipulation - - (1) That Yuzon is currently the Audit Team Leader of the Commission on Audit, Region 10, Local Government Sector, Audit Team in the Province of Misamis Oriental; and, (2) As Audit Team Leader, Yuzon has custody of the vouchers, receipts, transaction documents, including all documents and notes, related to these cases.
Accused Benlot, Gervacio, Pagalan and Jacalan, Jr., through counsel, agreed to stipulate to both offers but only with respect to the custody of the said documents.
For his part, accused Acain, through counsel, agreed to stipulate on the first offer but not to the second. He likewise made a counter-stipulation - - that all the documents which witness Yuzon identified were only known to her because of the subpoena issued by the OSP and that the said witness had no participation in the same documents. This was agreed upon by the prosecution. Hence, accused Acain manifested that he will no longer conduct any cross-examination on witness Yuzon (Order, October 22,2018).
In her sworn Judicial Affidavit dated October 5, 2018, witness Yuzon testified that she is the Audit Team Leader of COA Region X, Local Government Sector Audit Group A - Team 7, covering the Municipalities of Libertad, Initao and Gitagum in the Province of Misamis Oriental since 2017. Her
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------duties included supervising the conduct of financial, compliance and value for money audits or any other special audit of the audited agency, prepare/review annual audit reports of the municipalities and barangays, and take custody of the vouchers, receipts, transaction documents, including all supporting documents pursuant to COA's constitutional mandate to keep general accounts of the Government and preserve the vouchers pertaining thereto. In addition, upon request, she certifies documents under her custody.
In connection with these cases, witness Yuzon stated that she was directed to submit and certify disbursement vouchers and all supporting documents by her Supervising Auditor, Adolfa A. Creayla, particularly Disbursement Voucher No. 100-2004-12-1292 dated December 28, 2004 (Exh. "G") and Disbursement Voucher No. 100-2004-06-602 dated June 14, 2004 (Exh. "F"), as directed by the OSP.
After locating the whereabouts of the originals of the requested documents, witness Yuzon authenticated the photocopies thereof and submitted the same to her supervisor. Witness Yuzon brought the documents relative to the disbursement of P5 million by the Municipality of Libertad (Libertad), Misamis Oriental, for the procurement of 3,666 liters of Macro Micro Liquid Foliar Fertilizer (Macro Micro fertilizer) from Green's International Enterprises (GIE), and identified them, as follows - -
Exhibit Document Description "F" Disbursement Voucher No. 100-2004-06-602 dated June 14,2004 "F-l" Allotment and Obligation Slip "F-2" Purchase Request dated June 10,2004 "F-4" Purchase Order dated June 11, 2004 "F-5" Delivery Cargo Receipt dated June 16,2004 "F-6" Waybill dated June 3, 2004 "F-7" Undated Sales Invoice No. 053 "F-8" Inspection and Acceptance Report dated June 1 7, 2004 "F-11" PostalBank Check No. 79989 dated June 17,2004 "F-12" Official Receipt No. 051 dated June 17, 2004 "Q" Disbursement Voucher No. 100-2004-12-1292 dated December 28,2004 "Q-I" Purchase Request dated December 21, 2004 "G-2" Purchase Order dated December 28, 2004 "G-3" Delivery Receipt No. 0101 dated December 27, 2004 "G-4" Sales Invoice No. 101 dated December 27,2004 "G-5" Inspection and Acceptance Report dated December 29, 2004 "G-7" Landbank Check No. 966831 dated December 29,2004 "G-8" Official Receipt No. 099 dated December 29, 2004 "G-9" Allotment and Obligation Slip dated December 28, 2004 "0" BAC Resolution No. 02 Series of 2004 dated June 11, 2004 "P" BAC Resolution No. 03 Series of 2004 dated December 22, 2004 "Y" Audit Notes dated March 15,2005 pertaining to DV No. 100-2004-06-602 "Y-l" No.4 of the audit notes which stated that "Bidding should have been conducted before resorting to Alternative Method of Procurement" "Z" Audit Notes dated March 15,2005 pertaining to DV No. 100-2004-12-1292 "Z-1" No.4 of the audit notes which stated that "Bidding should have been conducted before resorting to alternative method of 2rocurement" Decision 14 S8-17 -CRM-04S2-53
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The parties agreed to stipulate on the authenticity and genuineness of the documents brought by witness Yuzon. However, accused Acain, through counsel, specifically questioned the authenticity of Purchase Order dated June 11, 2004 (Exh. "F-4") and Disbursement Voucher No. 100-2004- 12-1292 dated December 28, 2004 (Exh. "G"), since the originals bear some erasures while in Official Receipt No. 099 dated December 29,2004 (Exh. "G-8"), the date in the original appears to have been altered.
Accused Acain, through counsel, further manifested that, although Audit Notes dated March 15, 2005 pertaining to DV. No. 100-2004-06-602 (Exh. "F") is signed, it does not reflect the name of the person who signed it. In the same way, accused Benlot, Gervacio, Pagalan and Jacalan, Jr., stipulated that they are genuine reproductions but not as to their authenticity for lack of proper identification by a witness.
On cross-examination, witness Yuzon confirmed that the vouchers of the transactions, including their supporting documents as well as the documents mentioned in her sworn Judicial Affidavit were found in her Office. But the documents mentioned in Question No.7 of her sworn Judicial Affidavit are not included in the list of documents because they were not turned over by her predecessor, Auditor Floramie Bautista.
The last prosecution witness was Wilfredo I. Picazo III, a Trade and Industry Development Specialist of the DTI since November 6, 1990, stationed at Program Management Team for Business Registration (PMT- BR). His direct testimony was made by way of his sworn Judicial Affidavit dated November 9,2018.
Aside from enumerating his duties and functions, witness Picazo III added that, in compliance with a subpoena from the OSP, he found that GIE was not a DTI registered business based on the current and archived databases of the PMT-BR. Hence, he prepared a Certification dated October 11, 2018 (Exh. "AA") , stating this and that the DTI has no mandate to issue a certification of sole distributorship or exclusive dealership. This same Certification was then signed by DTI Assistant Secretary Pacheco.
When cross-examined by accused Acain, witness Picazo III reiterated that his Office does not issue certifications of
I Decision 15 SB-17-CRM-0452-53
------dealership and sole distributors of fertilizers but only business name informations.
He added, on further cross-examination by accused Benlot, Gervacio, Pagalan and Jacalan, Jr., that the DTI mainly registers business names before a local government unit can issue a permit.
Upon the Formal Offer of Documentary Evidence dated December 4, 2018 of the prosecution and with the Comments/Objections dated December 18, 2018 filed by accused Acain and the Comment dated January 7, 2019 of accused Benlot, accused Gervacio, accused Pagalan and accused Jacalan, this Court resolved to admit Exhs. "A" and series , "B" and series """F" "F-1" "F- 2" "F-4" to "F-8" " "F-11" "F-12" " "G" "G-l" to "G-5", "G-7" to "G-9"" "0" "P", "R", "s" , "T", "u" , rv: , "W"" "X" "Y" and "Y -1" , "Z" and "Z-l" , and" AA" to "AA-2"(Minutes, January 10, 2019).
Subsequently, the prosecution rested.
Meanwhile, accused Acain, through counsel, filed a Motion dated February 12, 2019, seeking leave to file demurrer to the evidence. With the Opposition of the prosecution dated February 18, 2019, this Court ruled to deny the said Motion for lack of merit (Minutes, February 19, 2019).
Although a Motion for Reconsideration dated March 28, 2019 was filed by accused Acain, after the prosecution filed its Opposition dated April 12, 2019, this Court denied the Motion (Minutes, April 22, 2019).
The presentation of defense evidence commenced.
Accused Acain called his first witness, Sharon M. Ballangan. In her sworn amended Judicial Affidavit dated June 6, 2019, constituting her direct testimony, witness Ballangan testified that she was the secretary of accused Acain from July 1, 2000 to October 31, 2005 (Exh. "6") mainly tasked to handle and record in a record book all incoming and outgoing documents for and from the Office of the Municipal Mayor.
She recalls that the Office of the Municipal Mayor had no participation in selecting GIE as the supplier of the Macro Micro fertilizer for the Municipality of Libertad, Misamis Decision 16 SB-17-CRM-04S2-53
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Oriental. Admitting that accused Acain was the HOPE, witness Ballangan testified that no document from the Office of the Mayor was sent to the BAC because she knew that it was not the function of the Office of the Mayor to initiate or interfere with the BAC. She added that, as secretary, she received disbursement vouchers showing the name of GIE for the signature of accused Acain. However, accused Acain signs them only after all the required signatures appeared thereon.
On cross-examination, witness Ballangan confirms that Questions 15 and 16, in her Judicial Affidavit, referred only to written communications from accused Acain with the BAC, but not those made verbally or through cellphones.
When confronted with specific documents, witness Ballangan responded in the following manner: (1) undated Acceptance Report (Exh. "F-I0; Exh. "4-Acain") - she does not recall this document but confirms the signature of accused Acain above his name; (2) Disbursement Voucher dated June 14, 2004 (Exh. "F") - she is familiar with this document and confirms the two signatures above the name of Mayor Acain to be that of accused Acain; (3) Allotment and Obligation Slip dated June 17, 2004 (Exh. "F-l") - she is familiar with this document and confirms that the handwritten name and signature in the box indicating "Requested by:" are those of accused Acain; (4) Purchase Order dated June 11, 2004 (Exh. "F-4") - she is familiar with this document and confirms that the signature on top of the handwritten name of Mayor Acain, located on the bottom right side of the document, is the signature of accused Acain; (5) Disbursement Voucher dated December 28, 2004 (Exh. "G") - she is familiar with this document and confirms the signatures above the typewritten name of accused Acain, on Boxes "A" and "D", to be that of accused Acain; (6) Purchase Order dated December 28, 2004 (Exh. "G-2") - she is familiar with the document and confirms the signature of accused Acain on the bottom right side above the typewritten name of Mayor Acain to be that of accused Acain; and, (7) Allotment and Obligation Slip dated December 28, 2004 (Exh. "G-9") - is familiar with the document and confirms the signature on top of the typewritten name of Mayor Acain to be that of accused Acain.
Witness Ballangan further testified that there are instances where documents forwarded to the Office of the Mayor do not contain prior signatories. She noted Disbursement Voucher dated December 28, 2004 (Exh. "G")
/J 1, / Decision 17 SB-1 7 -CRM -0452-53 showing five (5) individually labelled boxes as A, B, C, D and E, where accused Acain's signature appears in Box A and then Box D. Although unsure as to the exact time accused Acain signs, witness Ballangan maintains that accused Acain signs last. She further noted that accused Acain ensures that all prior signatures appear before he signs, otherwise, he (accused Acain) returns the document to the officer who has not signed. Witness Ballangan adds that accused Acain always examines the document and its attachments before signing the same.
The next witness for accused Acain was Leonildo M. Teodoso. In his sworn Judicial Affidavit dated June 6,2019, witness Teodoso, on direct testimony, testified that he is one of the administrative staff of accused Acain, assigned, among others, to deliver outgoing documents from the Office of the Mayor and sometimes receives incoming documents as well. After explaining their office procedure in receiving and delivering documents, he adds that these record books and documents may already be in the archives of their Office.
Witness Teodoso further testified that accused Acain had no participation in choosing GIE as the fertilizer supplier and its consequent award to said company. He recalled that there was no document delivered to the BAC from the Office of the Mayor. Although there were vouchers and checks showing the name of GIE, he only saw them after the transactions were already awarded by the BAC. Witness Teodoso also noticed that before accused Acain signs these vouchers and checks, he (accused Acain) verifies first if the other prior signatories have signed.
When cross-examined, witness Teodoso confirmed that GIE was the supplier of the Macro Micro fertilizer in June and December 2004 but he did not see the Contract itself. He also saw the Disbursement Vouchers dated June 14, 2004 (Exh. "F") and December 28, 2004 (Exh. "G")respectively, before he gave them to accused Acain and identified the signatures of accused Acain appearing thereon.
When queried by the Court, witness Teodoso substantially reiterated his earlier testimony.
The last witness for accused Acain was accused Alberto B. Acain himself. In his sworn Judicial Affidavit dated July 18, 2019 as his direct testimony, witness-accused Acain admitted being the Mayor of the Municipality of Libertad
~ I Decision 18 SB-17 -CRM-04S2-S3
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(Libertad), Misamis Oriental and served as the Head of the Procuring Entity (HOPE) of Libertad. Denying any criminal liability, witness-accused Acain maintains that he approved the Purchase Requests for the procurement of farm inputs pursuant to the provisions of the Memorandum of Agreement dated May 25, 2004 (Exh. "1-Acain"), signed by him and the Office of the Regional Office of the Department of Agriculture (DA) together with the Regional Director and Congressman Bacullo, for the purpose of implementing the Ginintuang Masaganang Ani Program of the DA.
He maintains that the same Purchase Orders conformed with the requirements provided for under Section 50 (c) of the Republic Act No. 9184 on direct contracting as an alternative method of procurement. This method of procurement was also recommended by the BAC of Libertad, as evidenced by BAC Resolution No. 2 dated June 11, 2004 (Exh. "0"; Exh. "2-Acain") and BAC Resolution No. 3 dated December 22, 2004 (Exh. "P"; Exh. "3-Acain"), relying on this and the regularity of the performance of their duties.
Witness-accused Acain added that these same BAC Resolutions indicated that GIE submitted a DTI Certification of Exclusivity, stating that it was the sole distributor and/or exclusive dealer of Macro Micro fertilizer. Hence, there was no reason for him not to rely on the BAC recommendation. He further testified that before he signed any document on the Ginintuang Masaganang Ani Program, he made sure that these documents were signed, approved and passed upon by the different departments/division concerned and that without their corresponding signatures, he would not sign and/ or approved them.
He then cited a Letter dated June 14, 2006 (Exh. "5- Acain") from Alicia D. Guiritan, the then State Auditor III, Audit Team Leader/Team V of the COA-Cagayan de Oro, confirming the propriety of the direct contracting mode, to wit - - Please be informed that no material deficiency was noted in the course of the audit) hence) this Office did not issue an Audit Observation Memorandum (A OM) and Audit Report considering that the procurement was made pursuant to Republic Act No. 9184 and the utilization and or liquidation thereof is supported with duly acknowledged distribution list of farmer beneficiaries (Exh. "5-A-Acain").
When cross-examined, witness-accused Acain knew that, in 2004, R. A. No. 9184 was the governing law in the Decision 19 8B-17 -CRM -0452-53
------procurement of goods and that, as a general rule, all procurements should be made through public bidding. He re• confirms that the purchase of the Macro Micro fertilizer was effected through direct contracting and that no public bidding was conducted. He adds that the Purchase Orders conformed with the requirements in Sec. 50 (c) ofR. A. No. 9184 and that he was fully aware that the recommendations of the BAC are subject to his approval or disapproval and not merely ministerial.
Witness-accused Acain further testified that he was also aware of the conditions before an item sought to be purchased can be sold by an exclusive distributor or manufacturer, namely: it does not have a sub-dealer selling at lower prices and that there are no suitable substitutes that can be obtained that is more advantageous to the government.
He also insisted that there was proof that GIE was an exclusive dealer or manufacturer of the subject fertilizer because of his reliance on the information of the BAC members that GIE not only had a certification but also had no sub-dealers selling at lower prices. He further stated that he saw the certification submitted by GIE as a sole distributor and/ or exclusive dealer of the subject fertilizer, but could not confirm if it was issued by the DTI. He added that he merely read the said certification attached to BAC Resolution No.2 (Exh. "0"; Exh. "2-Acain") and thereafter approved the BAC recommendation to resort to direct contracting on the same day.
Relative to Purchase Request dated June 10,2004 (Exh. "F-2") and Purchase Request dated December 21, 2004 (Exh. "G-1"), witness-accused Acain confirms his signatures thereon as the requesting and approving officer. He also knew that Macro Micro fertilizer was a specification of the type of fertilizer to be purchased.
He also identified his signatures appearing on the Purchase Order dated June 11, 2004 (Exh. "F-4") and Purchase Order dated December 28,2004 (Exh. "G-2").
When cross-examined by the other accused, witness• accused Acain testified that, in the 2006 audit conducted by Alicia Guiritan, there was no finding of any irregularity in the subject two (2) transactions and that the Complaint against him was filed late.
I Decision 20 SB-17 -CRM -0452-53
On re-direct examination, witness-accused Acain reiterated that he requested the BAC to present the documents to support its recommendation for direct contracting. After the BAC presented a certification, he approved the recommendation, relying on the technical knowledge of the BAC members. He further stated that it is the duty of the BAC to determine the presence of the requirements or qualifications for the procurement of certain items for their Municipality and to ascertain whether the supplier of these items is an exclusive distributor thereof and whether there are sub-dealers of the same items.
Relative to Purchase Request dated June 10,2004 and December 21, 2004 (Exhs. "F-2" and "G-2", respectively), witness-accused Acain admitted signing them and approving the purchases. He further testified that when the funds from the DA were already allocated to Libertad, the Municipal Agriculturist, in a meeting with him, suggested for the purchase of a particular kind of fertilizer with a specific chemical content currently used by their farmers.
On re-cross examination, witness-accused Acain testified that the suggestion of the Municipal Agriculturist was no contained in any document.
When queried by the Court, witness-accused Acain testified that he complied with the requirements of the Memorandum of Agreement (MOA)dated May 25, 2004 (Exh. "l-Acain") to submit the corresponding program implementation procedure as basis for the implementation of the project/ activity prior to the release of funds. He also caused the implementation and completion of the project/ activity in conformity, in all respects, with the corresponding program implementation procedure, by purchasing and distributing the fertilizer to farmer benefiaries.
Witness-accused Acain claimed that Macro Micro fertilizer was not a brand but a specification of its size and content, as suggested by the Municipal Agriculturist and recommended by the BAC. Hence, the DTI Certification was no longer relevant.
For their part, accused Benlot, Gervacio, Pagalan and Jacalan, Jr., presented their first witness, accused Oscar A. Benlot himself. In his sworn Amended Judicial Affidavit dated August 3, 2019, constituting his direct testimony, Decision 21 8B-17 -CRM-04S2-S3
------witness-accused Benlot stated that - - He is the Municipal Engineer of the Municipality of Libertad from 1994 to 2016, and designated as the General Services Officer, Local Building Official, and Chairman of the Bids and Awards Committee (BAC) from 2004 to 2007 and 2010 to 2016. He claims that he and the other BAC members were not familiar with GIE in 2004 until it was involved in the June and December 2004 procurements of fertilizer.
Witness-accused Benlot narrated that when Purchase Request dated June 10, 2004 (Exh. "F-2"; Exh. "1-Benlot") was given to him by accused Acain, the latter instructed him to type their names and the date. After both witness-accused Benlot and accused Acain signed the said Purchase Request, the same document remained on top of the table of accused Acain. The next day, June 11, 2004, the already signed Purchase Request was personally given to him by accused Acain at the Municipal Engineering's Office. Thereafter, witness-accused Benlot immediately convened the BAC for a pre-procurement meeting (Exh. "2-Benlot").
After the pre-procurement meeting, the signed Invitations to Bid dated June 11,2004 (Exh. "3-Benlot"), were sent to accused Acain for his signature. However, accused Acain, instead, gave witness-accused Benlot Memorandum Order No. 04-046 dated June 11, 2004 (Exh. "4-Benlot), directing the Chairman and the members of the BAC to dispense with the public bidding and proceed to direct contracting. Attached to this Memorandum Order were a DTI Certificate of Registration, Business Permit and Certificate of Exclusivity and sole distributor of GIE. Witness-accused Benlot was also handed Resolution No.2, series of 2004, dated June 11, 2004 (Exh. "0") for the signature of the BAC members. Witness-accused Benlot then reconvened the BAC and presented the aforesaid Memorandum Order of accused Acain to them (Exh. "6-Benlot").
After the BAC members discussed and evaluated the documents with some serious anxiety and due to the fear of accused Acain, they, except accused Jacalan Jr. who was then abroad, signed the already prepared Resolution No.2. This Resolution was then forwarded to accused Acain. Although the documents were supposed to be returned to the BAC to commence the post-qualification process after the approval of accused Acain, they never did. Witness-accused Benlot later learned that the purchase of the fertilizer was completed. Decision 22 SB-17 -CRM-04S2-S3
Much of the foregoing sequence of events narrated by witness-accused Benlot (Exhs. "8-Benlot", "10- Benlot" and "12-Benlot") was substantially the same for Purchase Request dated December 21, 2004 (Exh. "G-1").
Witness-accused Benlot further testified that he was already cleared by the COA in its Letter dated June 14, 2006 (Exh. "5-Acain").
When cross-examined, witness-accused Benlot testified that, being a part of the BAC for nine (9) years, he was familiar with the provisions of the Government Procurement Reform Act (R. A. No. 9184) and its Implementing Rules and Regulations (IRR) as well as the responsibilities of the BAC. He was also aware that, as a rule, all government procurements should undergo competitive public bidding and it is the BAC that determines and recommends whether to resort to the alternative mode of procurement such as direct contracting.
Witness-accused Benlot substantially reiterated and re• confirmed his testimony on direct examination particularly on the Purchase Requests and admitted that he neither questioned the acts of accused Acain nor did the latter force him to act or sign.
He also added that, when the DTI Certificate of GIE was given to him by accused Acain, he (Benlot) no longer inquired from the DTI on its validity. Neither did he verify the other documents submitted by GIE nor whether GIE was indeed a registered fertilizer handler, dealer or seller.
Witness-accused Benlot further admitted that the BAC Resolutions indicated their recommendation to the HOPE for the procurement to be made through direct contracting. However, no document was submitted to show that GIE did not have a sub-dealer selling at lower prices and that no suitable substitute can be obtained at more advantageous terms to the government. Although the same Resolutions stated that GIE "submitted a certification from DT! to be a sole distributor and or exclusive dealer of mentioned fertilizer', no document was submitted to prove this.
He likewise admitted preparing and signing the Invitations to Bid on the same day he received the Purchase Requests from accused Acain. However, these did not contain
f / Decision 23 SB-17 -CRM-0452-53
------the approved budget for the contract and the source of funding.
Witness-accused Benlot learned that the procurement actually proceeded when the fertilizers eventually arrived. He even signed the Inspection and Acceptance Reports dated June 17, 2004 and December 29, 2004 (Exh. "F-8" and "G- 5", respectively).
He added that no post-qualification proceedings was conducted because the documents were not returned to the BAC and that the procurements were completed in six (6) day (June 11, 2004 procurement) and eight (8) days (December 28,2004 procurement), even if these were not urgent.
When cross-examined by accused Acain, witness• accused Benlot testified that he personally submitted the Invitations to Bid dated June 11, 2004 (Exh. "3") and December 22,2004 (Exh. "5") to accused Acain, but could not show proof of this.
He also re-confirmed the allegations he made in their Joint Counter-Affidavit dated July 30, 2012 (par. 6) - -
(a) That we) as Chairman and Members of the BAC of Libertad, Misamis Oriental) evaluated the papers submitted by Green's International Enterprises (GIE); that we considered the representation of GIE that it was the sole distributor of the product and recommended in good faith the procurement by direct contracting as provided in Section 50 of Republic Act 9184; and in their Joint Supplement Counter-Affidavit dated January 11,2016 (par. 11) - -
(b) In the aforesaid two (2) meetings) Mayor Alberto Acain also showed to us a Certificate of Sole and Exclusive Dealership of Green's International Enterprises and) thereafter) ordered you to sign the documents) namely: BAC Resolutions) Purchase Request and others) which were already prepared in his office.
He likewise re-confirmed that in the Minutes of BAC meetings (Exhs. "6" and "7") it was stated that the BAC recommended to the Municipal Mayor that the procurement Decision 24 SB-17-CRM-0452-53 be in accordance with Article XVI of the alternative methods of procurement as shown in par. 4 thereof.
Relative to Memorandum Orders Nos. 04-046 dated June 11, 2004 (Exh. "4-Benlot") and ABA 04-092 (Exh. "10- Benlot"), witness-accused Benlot identified the signatures of accused Acain thereon but did not see him sign them or knew who actually prepared them. He added that the copies he presented are his personal copies and believes them to be the only existing originals.
On re-direct examination, witness-accused Benlot substantially reiterated his testimony and added that they decided to obey accused Acain for fear of him. He likewise did not know that Macro Micro was a brand of fertilizer.
Upon a re-cross examination, witness-accused Benlot testified that accused Acain allegedly threatened the BAC members by giving them the two (2) Memorandum Orders but maintains that he (Acain) did not force them to sign their Resolutions. Witness-accused Benlot also testified that accused Acain gave specific instructions only for these two (2) transactions but never for other procurements.
The next witness for accused Benlot, Gervacio, Pagalan and Jacalan, Jr. was accused Sergio A. Jacalan, Jr .. Testifying, on direct testimony, through his sworn Judicial Affidavit dated August 3,2019, witness-accused Jacalan Jr. stated that he was the Municipal Assessor of Libertad from October 1984 to March 30,2016 and was designated General Services Officer, Local Municipal Registrar and member of the BAC from 2004 to 2016.
Witness-accused Jacalan Jr. corroborated the testimony of co-accused Benlot and admits that he (Jacalan Jr.) was out of the country during the first procurement in June 2004. He maintains that there was inordinate delay in the filing of charges against them before this Court despite a letter from COA dated June 14, 2006 (Exh. "5-Acain") clearing the subject transactions.
When cross-examined, witness-accused Jacalan Jr. testified that he signed the Resolution for the June 2004 procurement upon his return from abroad, when ordered to do so and after merely glancing upon it. He recalled discussing and evaluating the procurement documents with some anxiety because accused Acain practically ordered the
I Decision 25 SB-17-CRM-0452-53
BACto dispense with the public bidding and proceed to direct contracting, although no specific supplier was mentioned. Witness-accused Jacalan Jr. further testified that it was the Office of the Mayor that drafted BAC Resolution No.3 and directed the BAC to sign it. Although witness-accused Jacalan Jr. did not place their reservations on record, the BAC nevertheless adopted the Resolutions without opposition. He likewise confirmed personally signing the Resolution for the December 2004 procurement.
On additional cross-examination by accused Acain, witness-accused Jacalan Jr. reiterated that he had no participation in the June 2004 procurement. However, for the December 2004 procurement, he testified that he never talked to accused Acain about it but was anxious during their BAC meeting because of the Memorandum Order directing the BAC to use the alternative mode of direct contracting.
Upon queries from the Court, witness-accused Jacalan Jr. testified that this was the first time that he felt anxious during a BAC meeting. Although there were objections from the BAC members, they still agreed to obey or follow the directive of accused Acain, their Mayor, despite knowledge of the rules on procurement provided for in R. A. No. 9184, including the prohibition of indicating a specific brand name.
The last defense witness for accused Benlot, Gervacio, Pagalan and Jacalan, Jr. was accused Elizabeth A. Pagalan. Her direct testimony was made through her sworn Judicial Affidavit dated August 3, 2019. She testified that she was the Municipal Budget Officer, among other positions, of Libertad from October 1992 to November 2015 and a BAC member from 2004 to 2015.
She substantially corroborated the testimonies of accused Jacalan Jr. and accused Benlot, including their claims of inordinate delay.
On cross-examination, witness-accused Pagalan substantially reiterated the testimony of co-accused Jacalan Jr.
When additional cross-examination was conducted by accused Acain, witness-accused Pagalan narrated that in the June 11, 2004 BAC meeting, co-accused Benlot showed them the Purchase Request dated June 10, 2004, Memorandum Order No. 04-046 dated June 11, 2004 as well as the DTI Decision 26 88-17 -CRM-0452-53
Certificate of Registration, Business Permit, Certificate of Exclusivity and Sole Distributor of GIE and BAC Resolution No.2, all coming from the Office of the Mayor.
While during the December 21, 2004 BAC meeting, accused Benlot also presented to the BAC members Memorandum Order No. ABA 04-093 dated December 22, 2004, the DTI Certificate of Registration, Business Permit, Certificate of Exclusivity and Sole Distributor of GIE and BAC Resolution No.3, series of 2004, all from the Office of the Mayor.
On re-direct testimony, witness-accused Pagalan testified that accused Acain, being the Mayor then, was the most powerful person in Libertad and no one can say no to him. She re-confirmed that accused Acain issued the Memorandum Orders directing them to conduct direct contracting despite the release of notices for public bidding. Likewise, neither a post-qualification was conducted nor a notice of award was issued. After the BAC forwarded their Resolu tions to the Office of the Mayor, these were never returned for evaluation.
Upon a re-cross examination, witness-accused Pagalan further admitted that the BAC members were aware of their responsibilities under R. A. No. 9184 of screening eligibility, evaluation of bids, post qualification as well as recommending the award of the contract. However, none was conducted because the Office of the Mayor no longer returned the procurement documents and that she did no longer inquired further.
Further re-cross examination was conducted by accused Acain where witness-accused Pagalan testified that she was forced to sign BAC Resolutions Nos. 2 and 3 because of the twin Memorandum Orders of accused Acain presented during the BAC meetings of June and December 2004.
When queried by the Court, witness-accused Pagalan substantially repeated her earlier testimony and reiterated her obedience to accused Acain although no personal threat came from the latter. She likewise admitted that she failed to do her duty as a BAC member because of her alleged fear of accused Acain and possibly losing her job.
Witness-accused Pagalan further testified that Macro Micro is not a brand of fertilizer but admits not being familiar Decision 27 SB-17-CRM-04S2-S3 with brand names of fertilizers. She also failed to create a technical working group and verify the documents submitted by the supplier. This failure was all because she could not say no to accused Acain.
She also noted the documents from the OMB showing that the fertilizer were already in transit for delivery to Libertad. Likewise, this was the first time that accused Acain issued memorandum orders for procurements and that these appeared to be compelling.
Upon the Formal Offer of Evidence dated October 17, 2019 of accused Benlot, Gervacio, Pagalan and Jacalan, Jr., and the Formal Offer of Documentary Evidence dated October 24, 2019 of accused Acain as well as the Consolidated Comments/Objections of the prosecution dated November 4, 2019, this Court resolved to admit - -
1) For Accused Oscar A. Benlot, Isidro N. Gervacio, Elizabeth A. Pagalan and Sergio A. Jacalan, Jr. - - Exhs. "l-Benlot" (Exh. "F-2"); "2- Benlot"; "5-Benlot" (Exh. "0"); "6-Benlot" (Exh. "G- 1")', "8-Benlot'", "9-Benlot'", "lO-Benlot'", "ll-Benlot (Exh. "P"); "12-Benlot"; "13-Benlot" (Exh. "5- Acain"); "14-Benlot" (Exh. "4-Acain"); and, "15- Benlot" (Exh. "F-6"). However, Exhs. "3" and "4" are excluded considering the absence in the records of the marked documents;
2) For Accused Alberto B. Acain - - Exhs. "1- Acain" (Exh. "C"); "2-Acain" (Exh. "0"); "3-Acain" (Exh. "P"); "5-Acain" and "5-a-Acain"; "6"; "8- Acain"; and, "lO-Acain". However, Exh. "9" is excluded considering the absence in the records of the marked document (Minutes, December 13,2019).
Although a Motion for Reconsideration dated February 4,2020 was filed by accused Acain, with the Opposition dated February 10, 2020 of the prosecution, the same Motion was denied (Order, February 24, 2020).
As could be culled from the documents and testimonies presented by the parties, the factual milieu is, as follows - -
c I / Decision 28 SB-17-CRM-0452-53
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On May 25, 2004, the Department of Agriculture (DA) Regional Office X, Municipality of Libertad (Libertad) and the 2nd Congressional District of Misamis Oriental, entered into a Memorandum of Agreement (Exh. "C"; Exh. "1-Acain"), where the then Congo Augusto H. Baculio identified the Municipality of Libertad, through accused Mayor Alberto B. Acain, as the municipality that will undertake and implement the administration-funded DA project under the General Appropriations Act. Libertad was allocated an amount of P5,000,000.00 for the purpose of funding the procurement of farm inputs by virtue of Special Allotment Release Order (SARO)No. E-04-00 164 dated February 3, 2004 (Exh. "B").
Thereafter, on June 10,2004, the Municipal Agriculture Office prepared a Purchase Request dated June 10, 2004 (Exh. "F-2"; Exh. "l-Benlot") for the procurement of 2,500 liters of Macro Micro Liquid Foliar Fertilizer (Macro Micro fertilizer). This Purchase Request was given by accused (Mayor) Acain to accused Benlot, who immediately convened the Bids and Awards Committee (BAC)for a pre-procurement meeting.
In the morning of June 11, 2004, a pre-procurement meeting was conducted by the BAC for the purpose of scheduling the opening of the bids (Exh. "2- Benlot"). Accordingly, Invitations to Bid were prepared on that day. However, accused (Mayor) Acain gave accused Benlot a Memorandum Order dated June 11, 2004 (Exh. "4-Benlot")' directing the BAC to dispense with the public bidding process and instead proceed to direct contracting.
Thus, in the afternoon of June 11,2004, accused Benlot re-convened the BAC for the purpose of discussing the Memorandum Order issued by accused (Mayor) Acain and the other documents related to the procurement of Macro Micro fertilizer (Exh. "6-Benlot"). Subsequently, the BAC unanimously approved Resolution No.2, series of2004, dated June 11,2004 (Exh. "0"; Exh. "5-Benlot"), recommending to accused (Mayor) Acain, then the Head of the Procuring Entity (HOPE), the said procurement in accordance with Article XVI - Alternative Methods of Procurement, Section 50 (c) - Direct Contracting of Republic Act No. 9184, otherwise known as the Government Procurement Reform Act. The BAC recommendation also stated that the named fertilizer is sold by an exclusive dealer or manufacturer and that there were no sub-dealers selling at lower prices and for which no Decision 29 8B-17 -CRM-0452-53
------suitable substitute can be obtained at a more advantageous terms of the Government
On the same day, Purchase Order No.1 dated June 11, 2004 (Exh. "F-4") for the purchase of 2,500 liters of Macro Micro fertilizer in the total amount of P3,250,000.00, was issued by accused (Mayor) Acain in favor of supplier Green's International Enterprises (GIE).
Subsequently, Disbursement Voucher dated June 14, 2004 (Exh. "G"), in the amount of P3,096,363.64 was issued in favor of GIE as payment for the Macro Micro fertilizer procured.
On June 17, 2004, the purchased Macro Micro fertilizer was delivered to Libertad, received complete by accused Benlot and inspected "ok" as to quantity and specification by Illuminada N. Saburao, as shown in the Inspection and Acceptance Report dated June 17,2004 (Exh. "F-8").
Six months later or on December 21, 2004, another Purchase Request (Exh. "G-1")from the Municipal Agriculture Office for the procurement of 1,166 liters of Macro Micro fertilizer was issued, prompting accused Benlot to convene the BAC on December 22,2004, for the purpose of scheduling the opening of bid for the procurement (Exh. "8-Benlot"). As in the previous procurement, accused Benlot prepared the Invitations to Bid on the same day (Exh. "9-Benlot"). However, accused (Mayor) Acain gave anew accused Benlot another Memorandum Order No. ABA 04-092 dated December 22, 2004 (Exh. "10- Benlot"), directing the BAC to dispense with the public bidding process and proceed to direct contracting.
Thereafter, the BAC re-convened for the purpose of discussing the Memorandum Order issued by accused (Mayor) Acain and the other documents related to the procurement of Macro Micro fertilizer (Exh. "12-Benlot"). Similarly, the BAC unanimously approved Resolution No.3, series of 2004, dated December 22, 2004 (Exh. "P"; Exh. "11- Benlot"), recommending to accused (Mayor)Acain, the HOPE, that the procurement be conducted through direct contracting.
On December 28, 2004, an unnumbered Purchase Order dated December 28, 2004 (Exh. "G-2"), for the purchase of 1,166 liters of Macro Micro fertilizer in the Decision 30 8B-1 7 -CRM -0452-53 amount of P1,749,000.00 was issued by accused (Mayor) Acain also in favor of GIE.
Disbursement Voucher No. 100-2004-12-1292 dated December 28, 2004 (Exh. "Q"), in the amount of Pl,749,000.00 was subsequently issued in favor of GIE as payment for the Macro Micro fertilizer procured.
On December 29, 2004, the purchased Macro Micro fertilizer arrived in Libertad, received complete by accused Benlot and inspected "ok" as to quantity and specification by Robert L. Encornal, as shown in the Inspection and Acceptance Report dated December 29,2004 (Exh. "G-5").
We now rule.
At the onset, since this Court has not acquired jurisdiction over the person of accused Lucia Mugot Almene, Ricardo Mendoza and Ma. Lourdes Mendoza, as they remain at-large despite warrants for their arrest, they will be dealt with accordingly upon their arrest.
Hence, this Decision will only pertain to accused Alberto Bacaylan Acain; accused Oscar Anino Benlot; accused Isidro Namocot Gervacio; accused Elizabeth Abut Pagalan; and, accused Sergio Agagaring Jacalan, Jr ..
Section 3 (e) of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, provides - -
Section 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:
x x x
(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government Decision 31 SB-17 -CRM-04S2-S3
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corporations charged with the grant of licenses or permits or other concessions.
As could be culled from the aforementioned provision, the three (3) elements necessary to find the accused criminally liable are - - (1) that the accused must be a public officer discharging administrative, judicial or official functions; (2) that the accused must have acted with manifest partiality, evident bad faith or gross inexcusable negligence; and, (3) that his 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 functions (Consigna vs. People, G.R. No. 175750-51, April 2, 2014).
The first element is present.
All the accused admitted, during pre-trial, that in 2004, they were all public officers holding positions in the Municipal Government of Libertad, Province of Misamis Oriental, to wit - accused Alberto B. Acain (Municipal Mayor); accused Oscar A. Benlot (Municipal Engineer, General Services Officer-Designate and BAC Chairman); accused Isidro N. Gervacio (Municipal Civil Registrar and BAC Member); accused Elizabeth A. Pagalan (Municipal Budget Officer and BAC Member); and, accused Sergio A. Jacalan, Jr. (Municipal Assessor and BAC Member) (Pre-Trial Order, August 9,2018).
Relative to the second element, this Court is reminded of the case of Albert vs. Sandiganbayan (G.R. No. 164015, February 26,2009), where the Supreme Court explained the different modes in the commission of the crime, to wit - -
The second element provides the different modes by which the crime may be committed, that is, through "manifest partiality", "evident bad faith", or "gross inexcusable negligence". In Uriarte us. People, this Court explained that Section 3 (e) of RA 3019 may be committed either by dolo, as when the accused acted with evident bad faith or manifest partiality, or by culpa, as when the accused committed gross inexcusable negligence. 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 Decision 32 SB-l 7 -CRM -0452-53
fraudulent and dishonest purpose to do moral obliquity or conscious wrongdoing for some perverse motive or ill will. "Evident bad faith" contemplates a state of mind affirmatively operating with furtive design or with some motive or self-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.
Herein, the members of the Bids and Awards Committee (BAC) of Libertad, composed of accused Benlot, accused Gervacio, accused Pagalan and accused Jacalan, Jr., showed manifest partiality, evident bad faith and gross inexcusable negligence in the conduct of the procurement process when they approved Resolutions Nos. 2 and 3, recommending to accused (Mayor) Acain, the Head of the Procuring Entity (HOPE), to resort to direct contracting in procuring the Macro Micro fertilizer, instead of through competitive public bidding, as required by R. A. No. 9184, otherwise known as the Government Procurement Reform Act.
The accused, who are BAC members, made it appear, in their two (2) Resolutions, that GIE was the sole distributor and exclusive dealer of the Macro Micro fertilizer, when in fact, neither a Department of Trade and Industry (DTI) certification nor any valid document was presented to prove the same.
This was admitted by accused Benlot, Chairman of the BAC, during his cross-examination (pp. 34-35. TSN, August 28, 2019), as follows (bold ours) - -
PROS. REGIS: Q: Based on the Memorandum that was given to you by Mayor Acain, were there other documents?
WITNESS: A: Ah, no.
Q: There was none. Okay, thank you, Mr. Witness. So, kindly focus on you attention, Mr. f / Decision 33 SB-l 7 -CRM -0452 -53
Witness, to Resolution Nos. 02 and 03. That is Exhibit "F-2" for the prosecution. Do you have a copy, Mr. Witness? It is also attached here. Kindly focus your attention to the second paragraph, Mr. Witness. On the second paragraph, the second whereas of the Resolution actually in Resolution No. 02 as well as No. 03 is the same, Mr. Wtness, that it was stated therein that "Greens submitted a certification from DTI to be a sole distributor and or exclusive dealer of mentioned fertilizer". Do you confirm that? Can you see that, Mr. Witness, the second part? A: No.
Q: I mean do you confirm that there was such a statement in that Resolution which you signed? A: Ah, yes
Q: Yes, and, do you confirm, Mr. Witness, that what was given to you by Mayor Acain was a DTI Certificate of Registration and not a DTI Certification that Green's was a sole distributor and exclusive dealer of the fertilizer sought to be procured, correct? A: Yes.
Q: So, despite the absence of what has been stated as the DTI Certification, you still signed those Resolutions? A: Yes.
Q: And, you even certified the lower portion to the correctness of the foregoing Resolution, Mr. Witness? A: Yes.
Second, these same accused BAC members failed to verify whether the required conditions for a valid direct contracting under Section 50 (c) of R. A. No. 9184 were present, to wit - - That those sold by an exclusive dealer or manufacturer does not have sub-dealers selling at lower prices and for which no suitable substitute can be obtained at more advantageous terms to the government.
In fact, this was confirmed by prosecution witness Julieta B. Lansangan, Chief, Fertilizer Regulations Division, Decision 34 8B-1 7 -CRM -0452-53
Fertilizer and Pesticide Authority (FPA),in her testimony (pp. 7-15, TSN, October 15, 2018), that GIE was neither a registered fertilizer handler, dealer or seller with the FPA in the year 2004 nor that Macro Micro fertilizer was a fully registered or provisionally registered fertilizer in the year 2004 (bold ours), to wit - -
Atty. David: Q: Ms. Witness, you mentioned that the License must be secured first before an individual or a corporation may be able to sell fertilizers?
WITNESS: A: That is the rule in our Division, to have a license first. But we cannot release the license• there are two things, namely: the Registration and the Licenses are release simultaneously. The product registration cannot be released without the license; and the same thing the license cannot be released without then product registration.
Q: Madam Witness can you tell us the requirements for application of this license or permit for individuals or corporation? A: For the Licenses, it is a company; SEC is required; for individual businesses, DTI Registration. Aside from that, Mayor's Permit, Financial Statement, and the Fertilizers to be sold in the Market. Also for local manufacturers or distributors, the Endorsement of our Filed Officers as required.
Q: Madam Witness would you know if Green's International Enterprises completely or substantially complied with the requirements that you mentioned? A: For what year, Ma'am?
Q: For 2004 or earlier? A: Based on our records there was none.
Q: Madam Witness how sure are you that there was no application or forms submitted by Green's International Enterprises to your office? A: Based on our records in the List of Auditors and also in the Dealer-Dealer Repacker
I Decision 35 SB-17 -CRM-0452-53
listing, there was no mentioned about Green's International in 2004. But they applied for a License in 2010.
x X X
Q: Madam Witness are there provisional licenses or permits issued before a company issued its final license or permit? A: We don't issue provisional license.
Q: How about provisional registration for fertilizers? A: Yes, Ma'am.
Q: Do you have a list for the provisional registered fertilizer? A: Yes, Ma'am.
Q: For what year? A: 2004.
Q: Do you have a list for years pnor to 2004? A: Yes, Ma'am.
Q: Have you examined those lists prior to 2004? A: I don't have a copy right now.
Q: Madam Witness, you mentioned in your Judicial Affidavit specifically Exhibits "H" and "I" and series, these are lists of fertilizers, correct? A: Yes Ma'am.
Q: Are you familiar with the technical or chemical terms of those fertilizers? A: Chemical terms, we call it guaranteed analysis.
Q: Madam Witness have you seen Macro Micro Foliar fertilizer in those lists? A: In what year, Ma'am.
Q: For 2004. A: There was none. I u Decision 36 SB-17 -CRM-0452-53
Q: Have you seen the chemical or technical term of fertilizer in those lists? A: There was none in 2004.
Moreover, the documents submitted by witness Lansangan, namely - - (1) List of Fertilizer Handlers as of December 31, 2004 (Exh. "R"); (2) List of Fully Registered Fertilizer as of December 2004 (Exh. "S"); (3) List of Provisionally Registered Fertilizer as of December 2004 (Exh. "T"); (4) List of Dealer-Dealer Repacker (Exh. "D"); and, (5) Index Card of Green's International Enterprises (Exh. "V") , clearly show that the company name/entity Green's International Enterprises and the product name Macro Micro Liquid Foliar Fertilizer do not appear in the FPA lists, hence, were not registered with the FPA during the time material to these cases.
Furthermore, from the FPA lists submitted by prosecution witness Lansangan, it can be gleaned that there are numerous dealers, sub-dealers and manufacturers who sell or manufacture liquid foliar fertilizer product in the Philippines especially within the region or near the Municipality of Libertad, Misamis Oriental, to choose from. Evidently, the conditions for direct contracting were not met because suitable substitutes existed.
Third, the entire procurement process for the fertilizer was hastily conducted by the BAC, even though there was no urgency in procuring the fertilizer. Also, the procurement of the fertilizers was concluded even without any validation of the relevant documents submitted or background checks or post-qualification of the supplier.
This was admitted by accused Oscar Benlot, BAC Chairman, during his cross-examination (pp. 30-31, TSN, August 28, 2019 and pp. 52-53, TSN, August 28, 2019), wherein he stated that - -
PROS. REGIS: Q: SO,when you received those documents, you did not inquire from the DTI if the Certificate of Registration submitted by Green's indeed is valid or existed at that time?
WITNESS/ ACCUSED: A: No.
I Decision 37 SB-17-CRM-04S2-S3
Q: No. So, were you aware that Green's International Enterprises was not actually a DTI registered business? A: No.
Q: So, you were not and, you did not also validate the Business Permit of Green's In ternational Enterprises? A: Yes.
Q: You did not validate and, you did not also verify the veracity of the Certificate of Exclusivity submitted by Green's to Mayor Acain? A: No.
Q: No. So, in fact, you did not bother to verify the existence of Green's International Enterprises? A: Yes.
Q: So, you did not verify and, were you aware, Mr. Witness, that Green's International Enterprises is located in Paranaque City and not in Misamis Oriental? A: Yes, because ---(Interrupted)
Q: That is "yes". Just answer "yes", Mr. Witness, and, neither did you verify from the Fertilizer and Pesticide Authority if Green's was a registered fertilizer handler, or dealer, or seller? A: No.
Q: So, you were aware, Mr. Witness, that Green's, that in 2004, Green's was not a registered fertilizer handler, dealer or seller? A: Pardon?
Q: Were you aware that Green's was not a registered fertilizer, handler, or dealer, or seller? A: No.
Q: So, in other words, when Mayor Acain gave you those documents, you just believe on those documents?
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f I Decision 38 SB-17-CRM-0452-53
A: Yes.
Q: And, would you agree with me, Mr. Witness, that it should have been the responsibility of the BAC of which you were a Chairman at that time to determine the eligibility of these bidders, Mr. Witness, or these suppliers? A: Yes.
x x x
Q: Okay. Thank you, Mr. Witness. So, my other point, Mr. Witness, is that, based on the documents that you earlier identified, it would appear that the date of the Purchase Request for the first procurement, Mr. Witness, was dated June 10,2004, correct? A: Yes.
Q: And, the, the date of the Resolution No. 02 dated June 11, 2004? A: Yes.
Q: And, then, the date of the Purchase Order was also on June 11, 2004, correct, which you signed? A: (No answer from the witness)
Q: I'm showing to the witness, Your Honor, the Purchase Order dated June 11, 2004. A: Yes.
Q: And, then, the date of delivery was on June 16, 2004? A: Yes.
Q: So, meaning, Mr. Witness, the first procurement of fertilizer in June 2004 was done only in six (6) days, correct? A: Yes.
Q: That's from June 10 to June 16. Also, in the second procurement, the date of the Purchase Request was December 21, 2004, correct? A: Yes, yes.
I l / Decision 39 SB-17 -CRM-04S2-S3
Q: And, then, the date of the Resolution No. 03 was December 22, 2004? A: Yes.
Q: And, the date of the Purchase Order was dated December 28, 2004? A: Yes.
Q: And, then, the date of the Inspection and Acceptance Report which you signed was on December 29, 2004? A: Yes.
Q: In other words, the procurement of the fertilizer for the second time was done only in eight (8) days. Do you agree with me? Eight (8) days that's from December 21 up to 29? A: Yes.
Q: And, would you agree with me, Mr. Witness, that there was actually no urgency in the procurement of this fertilizer? A: Yes.
Fourth, the Municipality of Libertad resorted to brand name specification in procuring the Macro Micro fertilizer, which is expressly prohibited under Section 18 of R. A. No. 9184, or the Government Procurement Reform Act, to wit - -
Section 18. Reference to Brand Names.• Specifications for the Procurement of Goods shall be based on relevant characteristics and/ or performance requirements. Reference to brand names shall not be allowed. (bold ours)
As can be gleaned from the foregoing prOVISIon,this proscription does not allow either exceptions or conditions.
It is a cardinal rule [in] statutory construction that where the law speaks in clear and categorical language, there is no room for interpretation or construction; there is only room for application.
With the aforementioned prohibition, procuring entities should augment its resources and develop its capabilities in drafting detailed technical specifications for its procurements
/ j Decision 40 SB-17 -CRM-04S2-S3 so as to acquire the type or nature of the product desired (NPM 020-2004 dated February 26, 2004, Government Procurement Policy Board).
Herein, it is evident that the Purchase Request dated June 10, 2004 (Exh. "F-2") was requested and approved by accused Acain while the Purchase Request dated December 21, 2004 (Exh. "G-l") was requested by accused Benlot and approved by accused Acain, particularly in the "item description", where it indicates the purchase of Macro Micro Liquid Foliar Fertilizer, as the brand name of the fertilizer product.
Lastly and more importantly, are the revelations and judicial admissions of the accused themselves, who are BAC members, on the irregularities in the procurement of the Macro Micro fertilizer conducted in June and December 2004. Although they insist that they were merely following the allegedly exacting dictates of the then Mayor, accused Acain.
Accused Benlot confirmed the foregoing in his testimony (pp. 25-28, TSN, August 28,2019), which reads - -
PROS. REGIS: Q: SO, you earlier mentioned in your direct testimony that Mayor Acain gave you Memorandum No. 04-046 dated June 11, 2004 and Memorandum Order No. ABA 04-092 dated December 11, 2004, which directed the BAC to dispense with the public bidding process and to immediately proceed to direct contracting in the procurement of fertilizer. Do you confirm that?
WITNESS/ ACCUSED: A: Yes.
Q: So, you also said that Mayor Acain gave you Resolution No. 02 Series of 2004 dated June 11, 2004; Resolution No. 03 Series of 2004 dated December 22,2004, which recommended to resort to direct contracting Do you confirm that? A: Yes.
Q: And, are you saying Mr. Witness, that those Resolutions that were given to you by Mayor Acain were prepared by Mayor Acain? A: Yes. Decision 41 SB-17 -CRM-04S2-S3
Q: And, is it not that it is the responsibility of the BAC as you have earlier said that to determine whether to conduct public bidding or to resort to alternative mode of procurement? A: (No answer from the witness.)
Q: Do you agree with me that it is the responsibility of the BAC to determine whether to resort to alternative mode of procurement which in this case you recommended direct contracting? A: Yes.
Q: In other words, it is the BAC that will recommend and not the Mayor or the HOPE in this case to resort to alternative mode of procurement. Do you agree with me? A: Yes.
Q: And the HOPE will only approve the recommendation of the BAC, correct? A: Yes.
Q: And, when you received the Memoranda which you identified earlier together with the Resolution, you did not bother to ask Mayor Acain why he made such directive where in fact it is the responsibility of the BAC to determine whether to resort to direct contracting? A: During that time --- (Interrupted)
Q: You just answer "yes" or "no". Did you ask Mayor Acain why he made such directive? Did you ask him? A: No.
Q: Thank you, Mr. Witness. And, you did not also inform him that the procurement of the requested fertilizer should have been done through public bidding? A: Ah, yeah --- (Interrupted)
Q: "Yes" or "no", Mr. Witness. Did you inform him that the procurement of the fertilizer should have been done through competitive bidding? A: Yes. Decision 42 SB-17 -CRM -0452-53
Q: And, what was the response of the Mayor? A: That's why we prepared the Invitation to Bid for his --- (Interrupted)
Q: Mr. Witness, my question is, what was the response of the Mayor when you told him that the procurement of the fertilizer should have been done through competitive public bidding? A: I beg you pardon?
Q: What was the response when you informed him? You said that you informed him that the procurement should have been done through public bidding, right? A: Yes.
Q: And, what was his response? A: Pardon?
Q: Did he agree with you? A: No.
Q: No. Thank you, Mr. Witness. And, at the same day that you received those Memoranda and Resolution, you had meeting with the BAC Members, correct? A: Yes.
Q: And, after discussions, you signed the Resolutions, correct? A: Yes, including all Members of the BAC.
Q: Okay. Did Mayor Acain force you to sign that Resolution? A: No, he said --- (Interrupted)
Q: No. So you just signed the Resolution even if it was not in accordance with law because you said that it should have been conducted, it should have resort to public bidding, right? A: Yes.
Q: So, would you agree with me that by signing the Resolutions, Mr. Witness, you consented to the recommendation made by the
~ " Decision 43 SB-17-CRM-04S2-S3
Mayor to direct contracting? You agreed because you signed the Resolution? A: Ah, yes.
The foregoing testimony was further confirmed and corroborated by accused Jacalan, one of the members of the BAC of Libertad, in his Judicial Affidavit dated August 3, 2019, upon clarificatory questioning by this Court (pp. 26-29, TSN, September 16, 2019), to wit - -
JUSTICE R.B. MORENO: Q: SO you are now saying that you were anxious because you are aware that macro micro foliar fertilizer branded and yet the Mayor is requesting you, the BAC, to resort to alternative mode of procurement which is direct contracting, correct?
WITNESS/ ACCUSED: A: Yes, Your Honors.
Q: Now are you aware Mr. witness that being the member of the BAC, you should be the one recommending to the requesting party and it should not be the other way around? Do you know that? A: Yes, your Honors.
Q: Why is it that despite the fact, knowing for a fact, that based on the Procurement Law Republic Act 9184, it should be the BAC that should be recommending? Also see to it that the provision of the Procurement Law should be fully complied with, you acceded to the, was it directive, command of the Mayor? A: It was a directive coming from the Mayor and I don't know why he did that, Your Honors.
Q: So you are aware that should you follow the Mayor, you are violating the law, Republic Act 9184, correct? A: I don't know, Your Honors.
Q: You are not aware of the provisions of Republic Act 9184? ! / Decision 44 SB-17 -CRM-0452-53
A: I am aware, Your Honors, but I do not know that the Memorandum will push me to violate the provisions of 9184.
Q: You look at Section 12 of Republic Act and it says the BAC should be the one recommending to the procurement entity and it is BAC who should observe faithful compliance of the information of the law. A: I am just obeying the Memorandum of the Municipal Mayor, Your Honors.
Q: Despite knowing the provrsions of Republic Act 9184? A: I do not know the specific provisions of Republic Act, Your Honors.
Q: How do you describe this anxiousness, Mr. witness? Were you threatened to be killed, assasinated, ambused by the Mayor should you fail to comply with his directive? A: No, Your Honors.
Q: So what was the impression you got? A: I got the impression that he uses his inflluence as Mayor to direct us to conduct the procurement directly.
Q: Despite the fact that it will result to violation of the existing provisions of the law? A: I have no idea about that, Your Honors.
Q: So what is settled is that the members of the BAC fully knowing that macro micro liquid foliar fertilizer is a brand name which is prohibited under Republic Act 9184, you proceeded because there was just a diective coming from the Mayor? A: Yes, Your Honors.
In the same tenor, accused Pagalan, another BAC member, in her Judicial Affidavit dated August 3,2019, also corroborated the testimony given by accused Benlot and when asked further clarificatory questions by the Court. Accused Pagalan testified (pp. 36-39, TSN, October 14, 2019) (TSN dated October 14, 2019, pp. 46-48) (TSN dated October 14, 2019, pp. 52-54) - - / Decision 45 SB-17-CRM-0452-53
JUSTICE R. B. MORENO: Q: And, did I hear you correctly that you wanted to have a public bidding were it not for the memorandum of the Mayor?
WITNESS/ ACCUSED: A: Yes, Your Honor.
Q: Are you not aware that under Republic Act 9184, it should have been the Bids and Awards Committee who should recomment the procuring entity - - - (Interrupted) A: Yes, Your Honor.
Q: What mode of procurement should be availed of? A: Yes, Your Honor. We recommend.
Q: Okay. And, you admit that you failed to do your job as member of the Bids and Awards Committee because allegedly you were afraid of the Mayor? A: Yes, Your Honor.
Q: You were only threatened by the Mayor? A: I was threatened by the memorandum because I know the Mayor - - - (Interrupted)
Q: The question is, were you threatened personally by the Mayor? A: Not personally.
Q: That should you do against the memorandum, you will do harm against the person? A: I was threatened by the memorandum because many times - - - (Interrupted)
Q: You are not answering the question Ma'am. The question is, were you pesonally threatened by the Mayor? A: No.
Q: No? A: Because personally - - - (Interrupted) Decision 46 SB-17-CRM-0452-53
Q : Was there anyone who is close to the Mayor who threatened you? A: Nobody.
Q: Nobody threatened you, okay. Now, will you agree with me, Ma'am, that the macro micro liquid foliar fertilizer which was the subject matter of these instant two (2) cases are what is being referred to as brand? A: No.
Q: You do not agree with that? A: I do not agree that it is a brand.
Q: Why, Ma'am? Can you explain to us? A: Because I'm not familiar with brand names of fertilizer. I'm not familiar to that. I think it's - - - (Interrupted)
Q: You are not familiar with that? A: Yes.
Q: Are you not aware, Ma'am that under Republic Act 9184, you can create a Technical Working Group wherein you could be enlightened as to what you are going or you're supposed to purchase? A: Yes.
Q: Did you create a Technical Working Group to aid you in arriving at a rightful decision as to what mode of procurement and what particular item you are going to purchase? A: No.
Q: No. A: It's only the BAC - - - (Interrupted)
Q: Because again you were threatened by the memo again? A: The process of the LGU is only the BAC.
Q: No, Ma'am. Under Republic Act 9184, the Bids and Awards Committee has the right to create a Technical Working Group to aid in arriving at its functions and duties when it comes to public
/-i / /' ., /' Decision 47 SB-17 -CRM-04S2-S3
bidding and procurement of goods and services. Are you aware of that? A: Later. I was aware of that later.
Q: You were aware of that later. A: During the - - - (Interrupted)
Q: SO, you have failed also to observe that, correct? A: Yes, Your Honor.
Q: Okay. Now, again Ma'am you will agree with me that you have failed to verify the documents submitted by the supplier? A: We failed because we were not able to conduct the post-qualification.
Q: Okay. You admit also? A: Yes.
Q: So, most of the allegations against you together with your other co-accused are all admitted by you except that your defense is that you could say "no" to the memorandum of the Mayor, correct? A: Yes, Your Honor.
x x x
JUSTICE B.R. FERNANDEZ: Q: SO, the scheduling of the public opening in the morning and the bid opening was already disregarded altogether?
WITNESSj ACCUSED: A: Ah, yes, because we follow the Memorandum of the Mayor.
Q: In your afternoon meeting, was there already a document which indicated that Green's International Enterprises was the sole distributor of the fertilizer? A: Yes, it was included In the Memorandum.
Q: It was attached in the Memorandum? Decision 48 SB-17-CRM-0452-53
A: Yes, it was attached In the Memorandum.
Q: So, in other words, aside from the Memorandum which you signed recommending dierct contracting, attached therewith was a Memorandum coming from the Mayor, correct? A: Memorandum attached the DTI Certificte of Registration, the Business Permit and the Certificate of Exclusivity and Sole Distributorship of the Green's International - - - (Interrupted)
Q: And, you did not go beyond that certification by verifying whether indeed Green's International was the sole distributor or what? A: It could have been done, Your Honor.
Q: But? A: If after the resolution, we give the resolution to the Mayor, if he return the resolution for us, it could have been done because that was one of our discussions that we will evaluate. We will conduct a post -evaluation - - - (Interrupted)
Q: Okay. A: Because this supplier, we do not know this supplier. We did not see the supplier. Wala. Hindi ko nga nakita (tong anybody from Green's International.
Q: So, no verification was done on whether or not Green's International was indeed a sole distributor when the Memorandum was shown to you - - - (Interrupted) A: Yes, Your Honor.
Q: In the afternoon of June 11, correct? A: Yes, Your Honor.
Q: But you still signed the recommendation? A: Because of the Memorandum of the Mayor.
Q: In December, specifically December 22, 2004, you again met, correct? I jC" 1 I f l Decision 49 SB-17-CRM-0452-53
A: Ye, Your Honor.
Q: The BAC again met in the morning? A: Yes, Your Honor.
Q: Yes, and the topic of the agenda in the morning was? A: The scheduling of the Invitation to Bid of the bidding of the second purchase of the fertilizer.
Q: You again met in the afternoon? A: Yes, Your Honor.
Q: And the agenda for the afternoon meeting was? A: About the memorandum of the Mayor.
Q: So, in other words, the events that happened on June 11, 2004 was the same as the events that happened on December 22, 2004, correct? A: Yes, Your Honor.
Q: There was a meeting in the morning were you agreed to schedule the opening of bids and, then, there was also another meeting in the afternoon were the Memorandum of the Mayor came in? A: Yes, Your Honor.
Q: And you signed it, correct? A: Yes, Your Honor.
Q: Are you saying therefore that when the same events transpired in the afternoon of December 22,2004, you still had no occasion or at least a reaction not to abide with the Memorandum of the Mayor? A: We have the same reaction.
Q: The same reaction? A: Yes.
Q: And the reaction was? A: That we are afraid of the Mayor.
x x x Decision 50 SB-17-CRM-0452-53
PJ CABOTAJE-TANG: Q: You made handful of admissions today but your solitary defense is that you were afraid of the Mayor?
WITNESS/ ACCUSED: A: Yes, Your Honor.
Q: So you were aware that you were violating actually the Government Reform Procurement Act or RA9184? A: Yes, Your Honor.
Q: Now, did you not entertain greater that would subject you to penal or criminal liability? A: I have - - - (Interrupted)
Q: Than your fear for the Mayor? A: I have that fear, Ma'am, because I am a Budget Officer. During our meetings with Budget Officers, there are instances wherein we discussed the risk of our functions, the risk of our job when we signed documents that the Mayor wants us to sign ,that the Mayor wants us to process. There were instances, many instances that, ah no, myself is at risk. I don't know. There were instances.
Q: No, the question of the Court is this, you said that you were aware that you were already violating the provisions of the law but you did so out of fear of the Mayor, correct? A: Yes.
Q: But did you not entertain greater fear that the potential consequences of violating the law would be more severe or graver to you? A: (The witness is crying.) I entertained that because never came to my mind that it happened like this. Hindi dumating sa isip ko na makapunta ako dito. Siguro it's the prize of being a department head wherein we have to follow the instructions of the Mayor because I was scolded many times by this particular Mayor but I have to follow. Pero wala sa isip ko na pupunta ako dito, mapunta ako Decision 51 SB-17 -CRM-0452-53
dito na ma-preso ako, but I have those greatest fears.
Q: Yes, but the point is, you were aware that you were already violating provisions of the law. What could be more - - - (Interrupted) A: Siguro - - - (Interrupted)
Q: Disastrous to you, not following the Mayor or violating the provisions of the law? That's the question of the Court. A: (The witness is crying.) Yes Ma'am. That was the decision, the biggest decision I made in my life. I could have objected to the order of the Mayor but I was young during that time. I still have my children. I need my job. I'm a single mother. I did not imagine that will happen to me. That's the biggest mistake I committed in my life. It was risky. Our position take us, it's so risky. I think everybody here knows that that our signature can put us to jail.
Clearly, the foregoing are all judicial admissions made by the accused on the material allegations against them during the proceedings in open Court.
Judicial admissions is defined in Section 4, Rule 129 of the Revised Rules on Evidence, as follows - -
Section 4. Judicial admissions. An admission, oral or written, made by [the] party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that the imputed admission was not, in fact, made.
The nature and effect of judicial admissions were also elucidated by our Supreme Court in Helen Edith Lee Tan vs. People of the Philippines (G. R. No. 218902, October 17, 2016), to wit - -
A party may make judicial admissions in (a) the pleadings, (b) during the trial, either by verbal or written manifestations or stipulations, or (c) in other stages of the judicial proceeding. It is well• settled that judicial admissions cannot be
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contradicted by the admitter who is the party himself and binds the person who makes the same, and absent any showing that this was made thru palpable mistake, as in this case, no amount of rationalization can offset it. Also, in Republic of the Philippines v. D Guzman [667 Phil. 229,247 (2011)] citing Alfelor v. Halasan [520 Phil. 982, 991 (2006)], this Court held that "a party who judicially admits a fact cannot later challenge that fact as judicial admissions are a waiver of proof; production of evidence is dispensed with. A judicial admission also removes an admitted fact from the field of controversy." (bold ours)
Consequently, these series of judicial admissions on the material allegations of the Information, which was corroborated by each other member's of the Bids and Awards Committee (BAC)including its Chairman, immensely proved the existence of conspiracy, which included the vital involvement of accused Acain.
There is conspiracy when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Conspiracy is not presumed. Like the physical acts constituting the crime itself, the elements of conspiracy must be proven beyond reasonable doubt. While conspiracy need not be established by direct evidence, for it may be inferred from the conduct of the accused before, during and after the commission of the crime, all taken together, however, the evidence must be strong enough to show the community of criminal design. For conspiracy to exist, it is essential that there must be a conscious design to commit an offense. Conspiracy is the product of intentionality on the part of the cohorts (Bahilidad vs. People, G.R. No. 185195, March 17,2010).
More significant, conspiracy as a basis for conviction must rest on nothing less than a moral certainty. While conspiracy need not be established by direct evidence, it is, nonetheless, required to be proved by clear and convincing evidence by showing a series of acts done by each of the accused in concert and in pursuance of a common unlawful purpose (People vs Sandiganbayan, et. al., G.R. No. 197953, August 5,2015).
Conspiracy need not be shown by direct proof of an agreement of the parties to commit the Crime, as it can be Decision 53 SB-17 -CRM -0452-53
------inferred from the acts of the accused which clearly manifest a concurrence of wills, a common intent or design to commit a crime. An accepted badge of conspiracy is when the accused by their acts aimed at the same 0 bj ect, one performing one part of and another performing another so as to complete it with a view to the attainment of the same object, and their acts although apparently independent were, in fact, concerted and cooperative, indicating closeness of personal association, concerted action and concurrence of sentiments (Jesus Typoco, Jr. vs. People, G.R. No. 221857, August 16,2017).
Evidently, the two (2) Memorandum Orders issued by accused Acain, directing the BAC to dispense with the public bidding process and proceed with direct contracting in the procurement of Macro Micro Liquid Foliar Fertilizer, ignited the scheme by which the procurement process would be carried out.
In conformity to accused (Mayor) Acain, the BAC issued BAC Resolutions respectively dated June 11, 2004 (Exh. "0") and December 22, 2004 (Exh. "P"), recommending that the procurement be conducted through direct contracting despite full awareness of their being unlawful and irregular.
The BAC made it appear that a thorough review of the documents and circumstances surrounding the procurement process was conducted, when infact, none was done. It even made false assertions that the supplier, Green's International Enterprises (GIE), submitted a DTI certification showing it to be an exclusive distributor or dealer of the procured fertillizer.
For his part, accused (Mayor) Acain, as the HOPE, readily approved, at his instance, the BAC Resolutions respectively dated June 11, 2004 (Exh. "0") and December 22,2004 (Exh. "P"), without conducting his own due diligence and verification.
Accused (Mayor) Acain, as HOPE, was fully aware of his discretionary duty which includes the power to either approve or disapprove any recommendation found by him to be unlawful or not in compliance with the law or rules.
The pertinent testimony (pp. 14-22, TSN, July 24,2019) of accused Acain relative to the above, reads (bold ours) - -
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Pros. Regis: Q: SO since you have been also the Head of the Procuring Entity for nine (9) years, you must have known your duties and responsibilities as Head of the Procuring Entity?
WITNESS/ ACCUSED: A: Yes, Ma'am.
Q: And that you must have been aware that the recommendation of the BAC is subject to your approval? A: Yes, Ma'am.
Q: So it is not ministerial on your part to approve all the recommendations of the BAC. I mean you also have the right to disapprove? A: Yes, Ma'am.
x x x
Q: So will you agree with me Mr. Witness that under Section 50 (c) of the Republic Act 9184 direct contracting can only be resorted to if the conditions therein are present like in the case of exclusive distributorship. So will you agree with me Mr. Witness that the item/ s sought to be purchased must be sold by an exclusive distributor or manufacturer? A: Yes, Ma'am.
Q: Which does not have sub-dealer selling at lower prices? A: Yes, Ma'am.
Q: And that there is also no suitable substitute that can be obtained at more advantageous to the government? A: Yes, Ma'am.
Q: So at that time that-you said that you approved the recommendation of the BAC- at the time that you made that approval to resort to direct contracting. Will you agree with me Mr. Witness that there was no proof that Green's International Enterprises was an exclusive dealer or manufacturer of the fertilizer to be purchased? Decision 55 SB-l 7 -CRM -0452-53
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A: I cannot say that there is no proof to that.
Q: Did you see any certification that Green's International was an exclusive distributor of the fertilizer? A: Yes Ma'am.
Q: Who issued that Certification? A: There are signatories in the Certification as to what agency- I just relied on that- on the statements of the members that that certification is enough to support the procurement by direct contracting.
Q: Did you actually see? A: Yes, Ma'am.
Q: You don't have it with you now? A: I don't have the certification?
Q: So you don't have the certification. So there was no certification from Green's International. Was there also a proof that there was no sub-dealers of this Green's International Enterprises? Was there a proof? A: As far as I am concerned, I just asked the members.
Q: Just answer yes or no. Was there a proof that there was no sub-dealers? Because under the law as you also confirmed earlier that it is a requirement that there must be no sub-dealer selling at lower prices. So was there a proof that there was no sub-dealers selling at lowe prices at the time you approved this recommendation of the BAC? A: There is a statement that they are an exclusive distributor.
Q: I'm referring to the fact that there was no sub-dealers at lower prices? Was there a proof to that fact, Mr. Witness? A: Yes, Ma'am. Q: And you do not have it with you now? A: I don't have it. Decision 56 SB-17 -CRM -0452-53
Q: What was that proof that you were referring to that there was no sub-dealers selling at lowe prices? A: Because as far as I am concerned I did not see any dealer of that kind of fertilizer.
Q: I'm referring to the proof that there was no sub-dealers. What proof did you have at the time that you approved this recommendation of the BAC? A: I just relied on the recommendation of the BAC because they said that that is enough document/ s to support.
Q: Was that attached to the BAC resolution? A: Yes Ma'am.
Q: Are you sure, Mr. Witness? A: Yes, because I asked them, what is the basis of the recommendation? And then, they said that the bidder supplier is showing to them the certification to the effect that the supplier is the exclusive distributor of the fertilizer.
x x x
Q: So in that resolution Mr. Witness. On the second WHEREAS, Mr. Witness, were you aware that the BAC Resolution stated that Green's International Enterprises submitted a certification from DTI to be a sole distributor and or exclusive dealer of the mentioned fertilizer. Did you read that, Mr. Witness? A: I was able to read the certification, Ma'am.
Q: I mean that portion of the resolution? A: Yes ma'am.
Q: And did you see that certification referred to in that resolution? A: I asked them to present that certification, and I saw that certification itself. Q: SO it was issued by the DTI? A: All I saw is the certification. Decision 57 8B-17 -CRM-0452-53
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Q: But the resolution referred to was a certification from the DT!. So you mean to say that the certification that you saw was issued by the DTI? A: I cannot confirm if it is issued by the DT!. But all I saw is the certification.
Q: But again you don't have that with you now? A: In my possession.
Q: And you did not also ask for a copy from the BAC of that certification that you allegedly saw? A: I just read the certification attached to the resolution.
Q: Was that the only certification attached to the resolution. A: Yes, Ma'am.
Q: I'm showing you BAC Resolution Nos. 2 and 3, you just reslied on the recommendations of the BAC as you admitted in your Judicial Affidavit? A: Yes, Ma'am.
Q: In fact, you immediately approved that recommendation of the BAC? A: Yes, Ma'am.
Q: In fact, you approved the recommendation of the BAC to resort to direct contracting on the same day the BAC issued Resolution No.2? A: Yes, Ma'am.
Moreover, accused Acain, notwithstanding his supposed consultation with the Municipal Agriculturist regarding the nature of the subject fertilizer, still relied on the recommendations of the BAC, which was part of their common unlawful purpose of dispensing with competitive public bidding and proceeded to direct contracting, albeit prohibited, as well as naming and giving obvious preference and advantage to Green's International Enterprises. Decision 58 SB-17 -CRM-0452-53
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The pertinent testimony (pp. 43-46, TSN, July 24,2019) of accused Acain, revealed - -
AJ MORENO: Q: SO you maintain that it is not a brand?
WITNESSj ACCUSED: A: Yes, Your Honor.
Q: Okay. Therefore, then, you will agree with me that if it is not a brand then any kind of fertilizer which has all the composition as suggested to you by your Municipal Agriculturist will suffice, correct? A: Yes, Your Honor.
Q: And therefore, it IS immaterial for Green's International Enterprises to have a certification from DTI to be a sole distributor or exclusive dealer of the fertilizer because it is generic anyway. Any kind of fertilizer in the market which has the composition as suggested to you by your Municipal Agriculturist will do? No need to resort to this kind of Macro Micro Liquid Foliar Fertilizer, because this is not a brand, correct? So it is immaterial whether there is a certification from the DTI as a sole distributor. It does not make sense, correct? Because there will be available fertilizer in the market provided that the fertilizer will have the composition, as you made mention the composition given to you by your Municipal Agriculturist? Is it correct? A: Yes, Your Honor.
Q: So you will agree with me that it is immaterial the sole distributor or exclusive dealer for Green's International Enterprises. Because any fertilizer which has the same composition as suggested by the Municipal Agriculturist will do, correct? A: Yes, Your Honor.
Q: Okay. Now, Mr. Witness why then did BAC resorted to direct contracting? A: I cannot speak in their behalf, Your Honor because they are an independent body of the municipality.
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Q: Okay. Given, Mr. Witness, you said that the BAC recommended it to you? A: Yes, Your Honor.
Q: But you are the approving authority, correct? A: Yes, Your Honor.
Q: Did I hear you correctly earlier, you studied law? A: Yes, Your Honor.
Q: So having heard from the Municipal Agriculturist that this Macro Micro Liquid Foliar Fertilizer is not a brand but is generic and then any brand or any fertilizer in the market provided that it will have the same composition, as suggested to you by your Municipal Agriculturist will do, then, why did you rely on the certification coming from DTI of Green's International Enterprises as a sole distributor or exclusive dealer and thus resorting to directing contracting. When it is very obvious to you why are we going to resort to direct contracting when there will be available other fertilizers in the market? A: I relied on the capacity of the members of the BAC to determine the kind of procurement that they are going to look at.
Q: But will you agree with me that you cannot feel ignorance of the fact that: 1) you were able to confer it with your Municipal Agriculturist, what composition of fertilizer you will be needing; 2) you learned that Macro Micro Liquid Foliar fertilizer is not a brand. Therefore, the certification has no relevance at all. And then, why is it that despite having the knowledge you having studied law, still relied, I would suppose in good faith in the resolution of the BAC resorting to alternative mode of procurement which is direct contracting. When it could have been very obvious to you that you should not have resorted to direct contracting, correct? How could you claim good faith now? Could you tell me? A: Because of my trust in the capacity of the members of the BAC, Your Honor. )D~ Decision 60 SB-17 -CRM -0452-53
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Q: Okay. Given that you have trust to the BAC Committee. But you have learned prior to the recommendation of the BAC those knowledge like you have conferred with your Municipal Agriculturist knowing again that Macro Micro Liquid Foliar fertilizer is not a brand. So as against your knowledge of those facts prior to Resolution Nos. 02 and 03 having been presented to you by the BAC, why still did you agree to direct con tracting? A: Because as I have said, Your Honor, I trusted the members of the BAC.
Q: So you knowledge of the facts or your reliance on the BAC committed prevailed in what you have learned prior to as bein presented with the Resolution Nos. 2 and 3? A: Because they are the ones who evaluated the documents, Your Honors, so they have come up with that resolution.
Q: Yes, they have evaluated the documents. But you yourself you were able to verify the facts, correct? As you have mentioned earlier, you were able to confer with your Municipal Agriculturist. So why you still proceeded with direct contracting, just because it was the recommendation of the BAC? A: Yes, Your Honor.
Clearly , We can only conclude that all the accused conspired with each other.
Finally, it would be best to underscore Section 50 of the Implementing Rules and Regulations (IRR-A) of R. A. No. 9184, otherwise known as the Government Procurement Reform Act. It provides - -
Section 50. Direct Contracting
Direct Contracting or single source procurement is a method of procurement of goods that does not require elaborate bidding documents. The supplier is simply asked to submit a price quotation or a pro-forma invoice together with the conditions of sale. The offer may be accepted Decision 61 SB-17-CRM-04S2-S3
immediately or after some negotiations. Direct contracting may be resorted to by concerned procuring entities under any of the following conditions:
a) Procurement of items of proprietary nature which can be 0 btained only from the proprietary source, i.e. when patents, trade secrets and copyrights prohibit others from manufacturing the same item;
b) When the procurement of critical plant components from a specific manufacturer, supplier or distributor is a condition precedent to hold a contractor to guarantee its project performance, in accordance with the provisions of its contract; or
c) Those sold by an exclusive dealer or manufacturer which does not have sub-dealers selling at lower prices and for which no suitable substitute can be obtained at more advantageous terms to the Government. (bold ours)
From the records, no proof was even presented to show compliance with any of the conditions required in Section 50 (c), particularly, that the dealer or manufacturer does not have sub-dealers at lower prices and no suitable substitute can be obtained at more advantageous terms to the Government.
WHEREFORE, premises considered, judgment is hereby rendered in the following manner - -
In Criminal Case No. SB-17-CRM-0452, accused Alberto Bacaylan Acain; Oscar Anino Benlot; Isidro Namocot Gervacio; Elizabeth Abut Pagalan; and, Sergio Agagaring Jacalan, Jr., are all found GUILTYbeyond reasonable doubt of a violation of Section 3 (e) of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, and hereby sentencing each of them to an indeterminate penalty ranging from six (6) years and one (1) month, as minimum, to eight (8) years, as maximum, and to suffer perpetual absolute disqualification.
In Criminal Case No. SB-17-CRM-0453, accused Alberto Bacaylan Acain; Oscar Anino Benlot; Isidro Namocot Decision 62 SB-17 -CRM-04S2-S3
Gervacio; Elizabeth Abut Pagalan; and, Sergio Agagaring Jacalan, Jr., are all found GUILTY beyond reasonable doubt of a violation of Section 3 (e) of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, and hereby sentencing each of them to an indeterminate penalty ranging from six (6) years and one (1) month, as minimum, to eight (8) years, as maximum, and to suffer perpetual absolute disqualification.
Considering that accused Lucia Mugot Almene; Ricardo Mendoza, Jr.; and, Ma. Lourdes Mendoza, remain at-large despite outstanding warrants for their arrest, let the instant cases be sent to archives subject to revival upon their arrest.
In the meantime, let the appropriate alias warrants be issued for the arrest of accused Lucia Mugot Almefie, Ricardo Mendoza Jr. and Ma. Lourdes Mendoza.
SO ORDERED.
date Justice
We concur: Decision 63 SB-17 -CRM-0452-53
ATTESTATION:
I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.
Chairperson, tr Diuisi n Presiding Justice
CERTIFICATION
Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.
J