REPUBLIC OF THE PHILIPPINES SANDIGANBAYAN Quezon City
Third Division
PEOPLE OF THE PHILIPPINES, Crim. Case No. Plaintiff, SB-16-CRM-0323 to 0324 For: Violation of Section 3(e) of Republic Act No. 3019 -versus-
MAGDALENA K. LUPOYON, Present: ET AL., Cabotaje-Tang, A.M., PJ., Accused. Chairperson Fernandez, B.,R, J. and Moreno, R.,B, J.
PROMULGATED: Tf?62P'V 'R~y ~! Z[;J:2-J x------
DECISION
Moreno, J.:
Accused Magdalena Kintapan Lupoyon and Albert Tenglab Marafo are charged before this Court with violation of Section 3(e) of Republic Act (R.A.) No. 3019, as amended. The Information reads as follows:
That on 26 June 2009 or sometime prior or subsequent thereto, in the Municipality of Barlig, Mountain Province, Philippines, and within the jurisdiction of this Honorable Court; the above named accused, MAGDALENA K. LUPOYON, a high ranking public officer with salary grade 27, being then the Municipal Mayor and ALBERT TENGLAB MARAFO, then Municipal Treasurer, both of the Municipality of Barlig, Mountain Province; while in the performance of their official and/or administrative functions; conspiring with one another, committing the offense in relation to their office, acting with evident bad faith or gross inexcusable negligence; did then and there wilfully, unlawfully and
criminally cause undue injury to the Municipality of Barlig, Mountain 1 Province by causing the repair or renovation of the pathway leading to ~ I
tt AD i : /-;~ Decision SB-16-CRM-0323-0324 People v. Lupoyon, et 01. x------x
Mount Amuyao in the amount of Fifty Thousand Pesos (Php50, 000. 00), without public bidding as required under Section 10 of Republic Act No. 9184, otherwise known as the Government Procurement Reform Act and its implementing rules and regulations, to the damage and prejudice of the government in the aforestated amount.
CONTRARY TO LAW.!
Lupoyon and Marafo, together with Edmundo Challiis Sidchayao, Clark Chatongna Ngaya, Fernando Yacam-ma Cablog and Danilo Rabina Lucas were likewise charged with violation of Section 3(e) ofR.A. No. 3019 in an Information worded as follows:
That on 23 December 2009 or sometime prior or subsequent thereto, in the Municipality of Barlig, Mountain Province, Philippines, and within the jurisdiction of this Honorable Court; the above named accused, MAGDALENA K. LUPOYON, a high ranking public officer with salary grade 27, being then the Municipal Mayor, EDMUNDO C. SIDCHAYAO, then Municipal Vice-Mayor; CLARK CHATONGNA NGAYA and FERNANDO YACAM-A1A CABLOG, both then Sangguniang Bayan Member, ALBERT TENGLAB A1ARAFO, then Municipal Treasurer and DANILO RABINA LUCAS, Municipal Engineer, all of the Municipality of Barlig, Mountain Province; while in the performance of their official and/or administrative functions; conspiring with one another, committing the offense in relation to their office, acting with evident bad faith or gross inexcusable negligence; did then and there wilfully, unlawfully and criminally cause undue injury to the Municipality of Barlig, Mountain Province by causing the construction of the open gymnasium in the amount of Two Million Five Hundred Thousand Pesos (Php2, 500,000.00), without public bidding as required under Section 10 of Republic Act No. 9184, otherwise known as the Government Procurement Reform Act and its implementing rules and regulations, to the damage and prejudice of the government in the aforestated amount.
CONTRARY TO LAW2
Accordingly, the Court issued a Hold Departure Order3 against Lupoyon, Marafo, Sidchayao, Ngaya, Cablog and Lucas per its Resolution of June 25, 2016. In the same Resolution, we also issued Warrants of Arrest against the six (6) accused.
Ngaya, Sidchayao and Cablog filed a Motion to Quash Information and/or Motion to Dismiss4 before the Sandiganbayan on October 27,2016 in SB-16-CRM-0324. /~
Record (vol. V:, p. 1. ! 2 Record (vol. 16, pp. 3-4. f Id at 370-372. It Ii 4 .: Record, vol. III, pp. 37-51. r :
2 Decision SB-16-CRM-0323-0324 People v. Lupoyon, et 01. x------x
In our ResolutionS dated December 7, 2016, we denied this motion for lack of merit.
Ngaya, Sidchayao and Cablog moved to reconsider this Resolution, but the Court denied their motion for reconsideration on March 30,2017.6
Lupoyon, Lucas and Marafo likewise filed their respective motions to quash and/or dismiss, but the Court denied these motions in its Resolution of January 27,2017.
When accused Lupoyon, Marafo, Sidchayao, Ngaya, Cablog and Lucas were arraigned, each of them individually and separately pleaded "NOT GUILTY',.8
The parties did not enter into any plea bargaining agreement during the pre-trial conference that ensued. However, the parties made the following stipulation of facts:
STIPULATIONS OF FACT
SB 16-CRM-0323
1. Accused Magdalena Kintapan Lupoyon admits her personal identity in the Information filed in SB-16-CRM-0323.
2. That during the period alleged in the Information in SB-16-CRM- 0323, accused Magdalena Kintapan Lupoyon was a public officer, holding the position of Municipal Mayor in the Municipality of Barlig, Mountain Province.
3. Accused Albert Tenglab Marafo admits his personal identity in the Information filed in SB-16-CRM-0323.
4. That during the period alleged in the Information in SB-16-CRM- 0323, accused Albert Tenglab Marafo was public officer, holding the position of Municipal Treasurer in the Municipality of Barlig, Mountain Province.
SB 16-CRM-0324
1. Accused Magdalena Kintapan Lupoyon, Edmundo Challiis Sidchayao, Clark Chatongna Ngaya and Fernando Yacam-ma Cablog, admit their respective personal identities in the Information filed in SB-16-CRM-0324.
[d. at 141-144. i [d. at 194-197. Id. at 168-175. Records, volume III, p. 25. Lupoyon and Marafo pleaded 'not guilty' in both SB-16-CRM-0323 and 0324.
3 Decision S8-16-CRM-0323-0324 People v. Lupoyon, et 01. x------x
2. Accused Albert Tenglab Marafo and Danilo Rabina Lucas admit their respective personal identities in the Information filed in SB- 16-CRM-0324.
3. That during the period alleged in the Information in SB-16-CRM- 0324, the accused were public officers, holding the following positions in the Municipality of Barlig, Mountain Province:
Magdalena Kintapan Lupoyon Municipal Mayor
Edmundo Challiis Sidchayao Vice Mayor
Clark Chatongna Ngaya Sangguninang Bayan Member
Fernando Yacam-ma Cablog Sangguninang Bayan Member
Albert Tenglab Marafo Municipal Treasurer
Danilo Rabina Lucas Municipal Engineer
The documentary exhibits for the prosecution were marked as Exhibits "A" to "AAAA" (with sub-markings), and that of the defense as Exhibits "1" to "48" (Lupoyon); Exhibits "1" to "4" (Sidchayao, Ngaya and Cablog); Exhibits" 1" to "7" (Marafo); and Exhibits" 1" to "6" (Lucas), also with sub-markings.
The intended witnesses for the prosecution were Ayson Naulgan; Albert Kiwan; Esther Daoas; Nikki Awilan; Dibangkitun Ayoong; Mary Falag-ey; Hilario Dumasan; Val Tubay; Bernardo Acosta; Raul Bulaong; Representative from ABS CBN Broadcasting Corporation; Rolando Valdueza; Judith Zamora; the Bank Manager/Representative from Bank of the Philippine Islands, West Triangle; Representative from BPI Main Office; Records Custodian and/or Secretary, Sangguninang Bayan of the Municipality of Barlig; Joseph Padcayan; Iluminada Balneg; Johnny Aglegan; Alfredo Pico; Mary D. Bacwaden; Lynn Sicangco; Mayor Genesis Changilan; Ceferino Oryan; Maximo Guting; Myrna Pakurao; Luis Mejia; Representative from the Office of the Municipal Treasurer; Representative from the Office of the Municipal Accountant; Representative from the Office of the Mayor; Representative from the Philippine National Bank in Bontoc; and Representative from GMA-7.
The intended witnesses for the defense, aside from the six accused, were Iluminada Balneg and Val Tubay (for Lupoyon); Rowena Hilario Dumasan, Nikki Awilan, Dibangkituin Ayoong, Mary D. Bacdawen, and the authorized representative of the contractor who constructed the open gymnasium (for Sidchayao, Ngaya and Cablog); and Val Tubay, Quimson I Decision SB-16-CRM-0323-0324 People v. Lupoyon, et 01. x------x
Ingson, Iluminada Balneg and the representative from the Municipal Local Government Unit of Barlig, Mountain Province (for Lucas).
EVIDENCE FOR THE PROSECUTION
The testimony of Esther Fagsao Daoas, as culled from her Judicial Affidavit, consisted of the following: that she was a State Auditor at the Commission on Audit from 1994 until 2018; that she was assigned as Audit Team Leader at the COA-Mountain Province in 2009; that she supervised the audit of receipt of funds by the Municipality of Barlig, Mountain Province, particularly the donations by GMA Network, Inc. and ABS-CBN Broadcasting Corporation in the amounts of P364,890.00 and P3,000,000.00, respectively; that during the cash examination of the cash accountabilities of the Municipal Treasurer of Barlig, the duplicate of Official Receipt No. 0051261 issued to ABS-CBN was found to have been marked 'cancelled'; that when she sought the explanation of Municipal Treasurer Albert Marafo, the latter told her that the Sangguniang Bayan of Barlig authorized him and the Municipal Mayor to deposit the amount donated by ABS-CBN to a PNB savings account; that she prepared an Audit Observation Memorandum (AOM) after she found that there had been a deliberate attempt not to subj ect the donated funds to government accounting and auditing rules and regulations, as evidenced by the deposit of these funds to the PNB instead of at the Land Bank Account of the Municipality; that she found that the amount donated by ABS-CBN was not recorded in the trust fund books of account of the municipality, and that there was no journal entry voucher and report of collections and deposits recording; that Mayor Magdalena Lupoyon submitted a letter-explanation (together with SB Resolution No. 36, S. 2009), but she found this explanation unsatisfactory; that she prepared a rejoinder reiterating her recommendations in the AOM; that after the Municipality of Barlig submitted additional documents, she prepared another AOM noting the deficiencies in the submitted documents; and that she issued a Notice of Suspension after she found the letter-explanation of Mayor Lupoyon to be unsatisfactory. 9
On cross-examination, Auditor Daoas reiterated that the cancelled OR issued to ABS-CBN prompted her to investigate. She recalled that Marafo went to her office in 2009 to seek advice. Daoas also stated that there was no COA Circular that prohibited beneficiaries of a government project to provide free labor. She maintained that Kagawad Cab log participated in some of the procurement of construction materials for the open gymnasium, and that SB Member Clark Ngaya issued a certification to the effect that he
9 Records, vol, III, pp. 3-54.
5 Decision SB-16-CRM-0323-0324 People v. Lupoyon, et 01. x------x
will be responsible for any disallowance that may be issued in connection to payments for hauling materials made for his brother. Daoas also stated that after she issued her rejoinder, the Municipal Treasurer transferred PSOO,OOO.OO from the PNB Savings Account to the trust fund of the LGU, and the accountant recorded the receipt of P3 million as well as the deposit of the PSOO,OOO.OO to the trust fund account of the LGU.lO
Nikki D. Awilan's testimony, per her Judicial Affidavit, were as follows: that she was a State Auditor IV of the COA, and was assigned as the Audit Team Leader of Team 2 Audit Group LGS-F in the Mountain Province in 2013; that she took the proper audit action after receiving the result of the post-inspection an evaluation or inspection report of the COA• CAR Technical and Information Technology Services on the Barlig Open Gymnasium project; that she issued notices of disallowances after discovering that the installation of some materials, as well as the payment of wages to laborers, were not in order; that a partial settlement was made as regards ND No. 13-001-100 (09), prompting her to adjust the balance via the issuance of a NSSDC. 11
On cross-examination, A wilan confirmed her findings in the Notice of Disallowance that Edmundo Sidchayao, Clark Ngaya and Fernando Cablog should be held liable for the purchase of Spanish gutters from Rose Steel Builders worth P17, 600.00, since they were members of the Inspection and Acceptance Committee, and that they signed the Committee Report.12 She also confirmed having issued three (3) Notices of Disallowance.
On further questioning, Awilan stated that she did not issue a NSSDC to the Notice of Disallowance issued by Auditor Daoas. She added that she evaluated the report of the Technical Audit Specialist (TAS) after receiving the post-inspection report. Awilan explained that the COA had two experts: first, the Auditor who does the financial and compliance audit; and second, the technical audit specialists who do the technical review of infrastructure projects.. 13
Awilan recalled that there had been three Notices of Suspension amounting to P2.S million each on the P3 million donation by ABS CBN, but the two suspensions were lifted due to an error. Awilan further testified that she issued a NSSDC to one of the Notices of Disallowance she issued l.
10 TSN, April 10, 2018, pp. 5-37. 11 Records, vol. II, pp. 520-531. 12 TSN, April12, 2018, pp. 23-50. 13 TSN, May 23,2018, pp. 6-40; See also TSN, July 31,2018, pp. 8-9. Decision S8-16-CRM-0323-0324 People v. Lupoyon, et 01. x------x because the Municipal Treasurer's Office made a partial payment in the amount 0[:P2, 933.33.14
When Awilan was recalled for SB-16-CRM-0323, she affirmed the contents of her Judicial Affidavit, as follows: that she was a State Auditor of the COA, and was assigned as the Audit Team leader of Team 2 Audit Group in the Mountain Province in 2013; that in 2017, she assisted her audit team member in evaluating the Time Book and Payrolls in relation to the payment of wages of laborers for the improvement/repair of the pathway to Mount Amuyao; and that she reviewed the Notice of Settlement of Suspension/Disallowance/Charge (NSSDC) and the Notice of Disallowance prepared by her team member. 15
On cross-examination, Awilan explained that a notice of suspension is a temporary audit action, while a notice of disallowance is a final audit action.• 16
Mary T. Falag-ey's testimony is summarized as follows: that she was a former State Auditor at the COA, and was assigned as Audit Team Leader of Audit Group-J in the Mountain Province in 2010; that she prepared the Annual Audit Report on the Municipality of Barlig for the year 2009 based on the audit conducted by Daoas; that the funds donated for the construction of the Barlig Open Gym were not recorded in the trust fund book of accounts, and not deposited in the trust fund account of Barlig; that there were no documents to show that the construction of the gym went through a public bidding; that she issued a Notice of Suspension after finding that the documents submitted by Mayor Lupoyon and Engr. Lucas were deficient, and that some elective officials had direct participation in the purchase and payment of construction materials; that she issued a Notice of Disallowance after she found that the documents submitted by Lupoyon (through then Mayor Sidchayao) and Engr. Lucas, were not in order; that she also issued another notice of suspension reiterating the submission of the lacking documents. 17
On cross-examination, Falag-ey stated that Lucas, via a letter dated December 13,2010, explained that he did not submit the Statement of Work Accomplished (SW A) and the Plans and Change Orders because the project did not go through the Municipality's BAC.18 .
14 TSN, May 23,2018, pp. 6-40. ~ ~ 15 Records, vol. III, pp. 223-239. f 16 TSN, July 31, 2018, pp. 15-22. / 17 Record, vol. III, pp. 95-102. r= 18 TSN, May 24,2018, pp. 2-37. ( ~~ \ 7 Decision SB-16-CRM-0323-0324 People v. Lupoyon, et 01. x------x
On further questioning, Falag-ey testified that the basis of the Annual Audit Report that she prepared were the Audit Observation Memoranda, Notices of Suspension, and the Notices of Disallowance issued by her predecessor. She further stated that donations to Barlig should have been deposited in the trust fund account of the said municipality. 19
On additional cross-examination, Falag-ey testified that she was re• assigned in the last quarter of 2011 after serving as the audit team leader of Barlig; and that the audit was not yet finished when she transferred.20
Hilario Guevarra Dumasan's testimony, as culled from his Judicial Affidavit, were as follows: that he was a State Auditor IV at the COA, and was assigned as Audit Team Leader of the Provincial Accounts of Mountain Province from 2005 to 2011. According to him, he was designated as the OIC-Supervising Auditor of Audit Group J-LGS in 2009, and reviewed the AOM with regard to the liquidation of the P2.5 million withdrawn from the P3 million donation of ABS-CBN for the construction of the Barlig Open Gym. Dumasan also recalled that in 2012, he prepared and submitted a memorandum/status report on the notice of suspension previously issued in relation to the disbursement of the donation by ABS-CBN. Afterwards, the Regional Director of the COA-CAR, through its Supervising Auditor Dibangkituin Ayoong, required him to submit his final disposition on another notice of suspension previously issued in connection with the disbursement of P2.5 million from the donation of ABS-CBN, as well as the result of the audit of funds received from GMA Network for the construction of a comfort room and view deck along Mount Amuyao. After he complied with these directives, Dumasan reviewed the Statement of Audit Suspensions, Disallowance and Charges relative to the payment for the construction of the open gym, and found out that the amount of P2.5 million covering the payment for the gym construction had been suspended three times, arriving at a total suspended amount of P7.5 million. Thereafter, Dumasan issued a Notice of Settlement of Suspension/Disallowance/Charge lifting the first two notices of suspension to adjust the suspended amount, and retaining only Notice of Suspension No. 2011-001-101(09).21
On cross-examination, Dumasan recalled that there was a program of work, plans and specifications submitted to his office by the Municipal Engineer. He added that the previous Notices of Suspension had no attachments, but he was unable to verify if the remaining Notice of Suspension had documents attached to it relative to the participation of Sidchayao, Ngaya and Cablog in the procurement of materials. 6 19 Jd. 20 TSN, August 2,2018, pp. 4-7. 21 Record, vol. III, pp. 154-163. /7 f-6 f / 8 f ~v Decision S8-16-CRM-0323-0324 People v. Lupoyon, et 01. x------x
On further cross-examination, Dumasan recalled that he required Mayor Lupoyon to submit liquidation documents for the amount of P361,000.00. He explained that his intention in lifting the previous suspensions was to adjust the amount from P7.5 million to P2.5 million.
When Ayson Naulgan was called on the witness stand, he affirmed the contents of the Joint Affidavit that he executed with Jeff Constancio and Albert Kiwan. In this affidavit, Naulgan essentially stated that: he is a former Barangay Captain of Barangay Macalana and an elective official of Barlig; that Lupoyon and Sidchayao ordered Marafo to withdraw the amount donated by ABS CBN from the Land Bank of the Philippines, and to deposit it in a special savings combo account of Barlig in PNB; Marafo acceded to the order of Lupoyon and accompanied her (Lupoyon) and Sidchayao to complete the transfer of funds; that Lupoyon directed Marafo to cancel the original receipt initially issued in receiving the donated amount, and instructed him to issue an acknowledgement receipt; that Lupoyon and Sidchayao influenced the members of the Sangguniang Bayan to issue a resolution for the transfer of the donated amount from the municipality's LBP account to the PNB account; that the transfer paved way for Lupoyon, through Marafo, to periodically withdraw amounts from the PNB account for the indiscriminate purchase of materials and payment of laborers even without a definite approved program plan; that Lupoyon, Sidchayao, Ngaya, and Cablog planned the purchasing of materials and the hiring of laborers without a definite program plan, and directly procured the materials for the construction and hired the laborers without properly accounting for the purchases and disbursements; that the project was implemented without going through a public bidding; that the respondent members of the BAC allowed a certain Rogelio Abalos to supervise the construction project; that the respondents still proceeded with the project despite the Notice of Suspension issued by the COA on January 4, 2010; that the completed open gym was sub-standard; that Ngaya issued a certification to the effect that he will be responsible for any disallowance that may be issued for the payments made to his brother for hauling materials; that the respondents also implemented the pathway project without a public bidding, and that they personally hired some of their relatives to perform work on the pathway project; and that Sidchayao, Ngaya and Cablog participated in the procurement process, and acted as witnesses to the payment of supplies."
On cross-examination, Naulgan reiterated that the construction of the open gym did not go through the Bids and Awards Committee. He recalled that Lucas was the Chairman of the BAC at the time of the project, but Ngaya and Cab log were not members of the said Committee. He confirmed that he was not personally present when Lupoyon and Sichayao ordered Marafo to withdraw the donated fund from the LBP and deposit it at the
22 Record, vol. III, pp. 315-326. Decision SB-16-CRM-0323-0324 People v. Lupoyon, et 01. x------x
PNB; and that he did not see Lupoyon, Sidchayao, Ngaya and Cablog plan the purchase of material, as well as the hiring of Iaborers.r'
On further questioning, Naulgan stated that he always saw Rogelio Abalos at the project site, albeit he never talked with the latter. He maintained that the open gym was substandard; and that some of the workers were relatives of the accused.i"
On re-direct examination, Naulgan testified that he knew that the construction of the gym did not undergo public bidding based on the resolution issued by the Sangguniang Bayan."
The next prosecution witness was Jeb C. Constancio, a member of the Sangguniang Bayan of Barlig from 2007-2010 and one of the complainants. He affirmed the contents of the Joint Affidavit that he executed with Naulgan and Albert Kiwan. On additional direct• examination, Constancio recalled that the Sangguniang Bayan of Barlig passed a resolution authorizing Mayor Lupoyon and Marafo to transfer the P3 million donation by ABS CBN from the Land Bank trust fund account of the Municipality to a PNB account. He recalled that the Sangguniang Bayan passed Resolution No. 36, series of 2009 because of the request of Mayor Lupoyon in order to hasten the implementation of the project."
Constancio explained that withdrew his support to the Resolution via a letter of withdrawal after the COA Audit Team Leader Esther Daoas told him that the SB Resolution violated the terms of the deed of donation."
On cross-examination, Constancio maintained that he was not influenced by any person when he signed the SB Resolution. He added that Marafo's actions in making deposits and withdrawals were guided by the Sanggunian Resolution. He confirmed that he was not present when Lupoyon and Sidchayao directed Marafo to withdraw the donated amount and deposit it in a special combo savings account of the PNB; and when Lupoyon ordered Marafo to cancel the Original Receipt of the donation; and when the accused planned the purchase of material and hiring of laborers for the project. Constancio added that Regelio Abalos of the Engineering Department was in charge of the construction project. He maintained that Ngaya authorized his brother to deliver materials for the project.i"
On additional questioning, Constancio stated SB Resolution No. 36, series of 2009 was a collegial decision of the Sangguniang Bayan, and that he signed it in good faith. He confirmed that he withdrew his signature on
23 TSN, July 26,2018, pp. 47-73. 24 Id. 25 Id. at 74-76. 26 TSN, July 30, 2018, pp. 5-20. 27 Id. 28 TSN, July 30, 2018, pp. 21-47. Decision SB-16-CRM-0323-0324 People v. Lupoyon, et 01. x------x the said resolution on June 28, 2010. Constancio added that Daoas informed him that there was no bidding documents submitted to the COA.29
The Prosecution formally offered its evidence on August 28, 2018 consisting of Exhibits "A" to "JJJ-4" with sub-markings." The Court admitted these Exhibits in its Resolution of September 26,2018.31
Thereafter, the accused filed the following: Motion for Leave to File Demurrer to Evidence (Lucas); Motion for Leave of Court to file Demurrer to Evidence (Ngaya, Sidchayao and Cablog); Motion for Leave of Court to file Demurrer to Evidence and to Admit Hereto Attached Demurrer to Evidence (Lupoyon); and Motion for Leave of Court to file Demurrer with the attached Demurrer to Evidence x x x (Marafo). The Court denied these motions for lack of merit in its Resolution32 dated December 7, 2018.
In the Court's Resolution of January 20, 2019, we also denied the motions for reconsideration of Lucas, Lupoyon and Marafo, as well as the motion for leave to file demurrer to evidence by Sidchayao, Ngaya and Cablog."
EVIDENCE FOR THE DEFENSE
Evidence for the defense consisted of the testimonies of Magdalena Lupoyon, Edmundo Sidchayao, Fernando Cablog, Clark Ngaya and Danilo Lucas.
Magdalena Lupoyon's testimony, per her Judicial Affidavit, were as follows: that she was a former Barangay Captain, Sangguniang Bayan Member, Vice-Mayor, and Municipal Mayor; she completed her three-year term as Barlig Mayor in June 30, 2010; that Barlig is classified as a fifth• class municipality; ABS-CBN and GMA Network constructed their respective relay antennae in Mount Amuyao which is in Barlig sometime in the 1990s; ABS-CBN donated funds for the construction of an open gymnasium, while GMA Network donated funds for the construction of a pathway going to the top of Mt. Amuyao; the Indigenous Cultural Communities/Indigenous Peoples of the Balangao Tribe of Barangays Gawana, Macalana, Latang and Fiangtin of the Municipality of Barlig, GMA Network, Inc. and the National Commission on Indigenous Peoples (NCIP) entered into a Free and Prior Informed Consent (FPIC) - Memorandum of Agreement on July 31, 2007; GMA Network donated P50,000.00 for the pathway project; that Marafo duly paid the wages of all laborers who were residents from the four barangay beneficiaries after the completion of the6:
29 Id. 30 Record (vol. III), pp. 279-314. 31 Id. at 691-692. I 1'1 32 Record, vol. IV, pp. 7-8. 33 Id. at 107-108. /1 ~Y 11 \ Decision SB-16-CRM-0323-0324 People v. Lupoyon, et 01. x------x project; Ophelia Witawit had been the designated 'checker' of the laborers; she did not receive the COA Notice of Disallowance dated August 18, 2017; the Municipality of Barlig and ABS-CBN executed a Deed of Donation on January 12,2009; the total amount donated by ABS-CBN for the project was P3 million; the check representing the donated amount was handed to Marafo on May 7, 2009 per Acknowledgment Receipt issued by the latter; the gym construction was completed on December 23, 2009; the construction of the gym did not undergo a public bidding; out of the P3 million, only the disbursement of PSOO,OOO.OO had been subjected to a public bidding; SB Resolution No. 36, series of 2009 (dated May 22, 2009) had been brought about by the agreement between her and the Sangguniang Bayan to maximize the donated amount and avoid the contractor's profit; that she decided to stop the disbursement of the remaining PSOO,OOO.OO after receiving the Audit Observation Memorandum from Auditor Daoas, and that this amount had been disbursed only after bidding; she received Notice of Suspension No. 10-001-100-(09) dated January 4, 2010 requiring the submission of documents proving expenses; she complied with the requirements, but the subsequent Notices of Suspension (addressed to the then Mayor Sidchayao) required the submission of additional documents; Auditor Hilario Dumasan issued a Notice of Settlement of SuspensioniDisallowance/Charge (No. 12-05) on January 4, 2012 which rectified the amount to P2.S million; a NSSDC was issued by Auditor Awilan on July 11,2013; and the amounts donated by GMA and ABS-CBN had been properly spent."
On cross-examination, Lupoyon confirmed that the respective donations by GMA Network and ABS-CBN to the Municipality of Barlig should have been deposited in the Trust Fund account, that is, LBP Account No. 1042-100-28; and recorded in the Trust Fund Book of Account of the municipality. She agreed that the said donations should have been covered by official receipts, and that disbursements should have been covered by the corresponding vouchers to signify the certification and approval of the municipal accountant and municipal treasurer, respectively.
Lupoyon admitted during her cross-examination that there were no disbursement vouchers covering the release of funds donated by ABS-CBN; and that the pathway project and construction of the pen gymnasium did not go through a public bidding. She added that she made the Accomplishment and Inspection Report to comply with the COA Memorandum; and that her successor, Mayor Sidchayao, was able to comply with the required documentation.
On additional queries from the Court, Lupoyon reiterated that the remaining PSOO,OOO.OO underwent a public bidding, and that the gym was completed during her term. She explained that she decided to forego the
34 Records, vol. IV, pp. 162-178.
12 Decision SB-16-CRM-0323-0324 People v. Lupoyon, et al. x------x bidding process in order to avoid the contractor's profit and withholding tax. She maintained that the remaining P500,000.00 had been subjected to bidding after the COA questioned the disbursement of the donated funds. Lupoyon also stated that she did not consult the COA prior to implementing the project due to her eagerness to construct the gym. She added that it was the municipal engineer who computed the contractor's profit in the event that there would be a public bidding. Lupoyon claimed that the decision to forego the bidding was a decision arrived at together with the municipal officials and heads of offices.35
The defense next presented Edmundo Sidchayao on the witness stand. Per his Judicial affidavit, Sidchayao testified that he was informed when he was the Vice-Mayor that the amount donated by ABS-CBN would not be enough to construct an open gym; the Sangguniang Bayan passed a resolution authorizing Marafo and Mayor Lupoyon to transfer the amount donated from the LBP to the PNB; that many residents volunteered during the gym's construction; the gym construction was finished during the term of Mayor Lupoyon; the AOM was issued before Lupoyon's term ended, and several Notices of Suspension were issued by the COA after he (Sidchayao) succeeded Lupoyon as Mayor; the COA issued a NSSDC to adjust the amount, and retained the January 19, 2011 Notice of Disallowance; he witnessed delivery of materials and signed the acknowledgment receipt; and another NSSDC dated July 11, 2013 addressed to then Mayor Ngaya was issued by Auditors Awilan and Bacdawen.36
On additional questioning, Sidchayao maintained that the construction of the gym did not cause any injury to the government: the gym was completed, and the residents of Barlig have been using it for various sports competitions and other activities of the municipality.Y
On cross-examination, Sidchayao clarified that he served as Vice• Mayor of Barlig from 2007 until 2010: he served as the presiding officer of the Sangguniang Bayan during that time. He stated that the P3 million donation from ABS-CBN was initially deposited at the municipality's LBP account, but it was later transferred to a PNB account on account of a resolution passed by the Sangguninang Bayan.i''
Sidchayao recalled that prior to the passage of the subject SB resolution, the municipal treasurer requested authority from the Sangguniang Bayan to transfer money. He claimed that he only knew later that there had .. ~
35 TSN, April 30, 2019, pp. 3-59. 36 Record, vol. IV, pp. 397-404. 37 TSN, May 30,2019, pp. 3-27. 38 TSN, June 27, 2019, pp. 6-54 .. Decision S8-16-CRM-0323-0324 People v. Lupoyon, et al. x------x been no public bidding regarding the construction project for the open gym.39
On further questioning, Sidchayao confirmed that he was not a member of the Inspection and Acceptance Committee. He admitted that he did not do anything even after learning that there had been no bidding conducted because it was "beyond his jurisdiction." He claimed that he also volunteered his service for the construction project.l''
Sidchayao also stated that he signed the Certificate of Acceptance upon completion of the construction project, and that he submitted the documents required by the COA in the Notices of Suspension it issued.41
Fernando Cablog's testimony, as culled from his Judicial Affidavit, is as follows: during his term as a councillor, he was informed that the money donated by ABS-CBN would not suffice for the construction of a gym; the members of the Sanggunian passed a resolution authorizing Marafo and Lupoyon to withdraw the donated money from the Land Bank and transfer it to a PNB account; there were many volunteers during the gym's construction; the construction was completed during Mayor Lupoyon's term; the COA issued an AOM before Mayor Lupoyon's term ended; the COA issued Notices of Suspension dated September 1, 2010 and January 19, 2011, respectively; the COA issued a NSSDC to adjust the amount, and retain only the Notice of Suspension dated January 19, 2011; and the COA, through Auditors Awilan and Bacdawen, issued another NSSDC on July 11, 2013.42
On cross-examination, Cablog reiterated that the P3 million donated by ABS-CBN was for the construction of an open gymnasium. He confirmed that the donated amount were not private funds. Cablog added that he was not aware that the procurement of an infrastructure project should go through a public bidding."
According to Cablog, he volunteered his service to the gym construction, particularly in the erection of columns. He denied handing payments to some of the suppliers of the construction materials, but admitted witnessing the payments made to these suppliers.
On additional questioning from the Court, Cab log testified that he learned that the construction project did not undergo a public bidding when the construction materials were already being delivered. He admitted I~
39 Id 40 Id 41 Id. 42 Record, vol. IV, pp. 417-424. 43 TSN, June 18,2019, pp. 25-40. Decision SB-16-CRM-0323-0324 People v. Lupoyon, et al. x------x signing the acknowledgment receipt of the payment to suppliers as a witness."
Clark Ngaya's testimony is summarized as follows: he was a former councilor of Balig, and became mayor in 2013; the construction of the open gym was finished during the term of Lupoyon; the COA issued an Audit Observation Memorandum before the term of Mayor Lupoyon ended; the COA also issued followed by Notices of Suspension dated September 1, 2010 and January 19, 2011, respectively; the COA issued a NSSDC and retained January 19, 2011 Notice of Suspension; after Barlig complied with the required documents, Auditors Awilan and Bacdawen issued another NSSDC; and the whole P3 million had been spent for the construction of the gymnasium,• 45
On cross-examination, Ngaya maintained that he was unaware that the construction of the open gym did not undergo a public bidding. He admitted that he signed the Acceptance and Inspection Report even if he was not a member of the Acceptance and Inspection Committee.46
Ngaya likewise confirmed that he was the one who paid some of the suppliers of the construction materials used for the gym construction; and that he was not an authorized disbursing officer of Barlig. He affirmed that Warren Ngaya was his brother, and that the latter was one of the persons who had been asked by the municipality to haul the construction materials for the gym.47
On further questioning, Ngaya claimed that he helped in the gym construction considering that the residents of Barlig needed the said facility. He added that he was not a member of the BAC or Technical Working Group."
On additional query from the Court, Ngaya testified that the municipal treasurer received the check from ABS-CBN. He added that he only knew that a gym would be constructed when he saw that the elementary school was being demolished. Ngaya also stated that he did not anymore bother to ask the mayor and other members of the Sangguniang Bayan why no bidding was conducted since he was overwhelmed by the construction of the gym.49
The testimony of Engr. Danilo R. Lucas, per his Judicial Affidavit, were as follows: that he has been the municipal engineer of Barlig for 26 years already; he checks and verifies the program of work done by his. G
44 Jd. at 41-45. 45 Record, vol. IV, pp. 373-381. 46 TSN, July 23,2019, pp. 29-50. 47 Jd. ~8 Id. 49 Id. at 44-47. Decision SB-16-CRM-0323-0324 People v. Lupoyon, et 01. x------x office; the Municipal Mayor directed his office to make a program of work for the construction of an open gym worth PI 0 million, but he was asked to revise it since ABS-CBN could only give P3 million; he submitted the program of work to the mayor who, in tum, gave it so ABS-CBN; he advised the mayor that the project should undergo as public bidding, but the construction of the gym proceeded even without a bidding; he received Notice of Suspension No. 10-001-100-(09) stating that the P2.5 million for the gym was suspended due to, among others, submission of two programs of work and lack of engineering specifications and drawings; he submitted a letter-explanation to Auditor Daoas explaining that the program of work with plans and specifications might have not reached her office; he prepared a program of work for P500,000.00 upon the request of Mayor Lupoyon; and the COA, via Notice of Suspension No. 2010-003-101, required him to submit a Statement of Work Accomplished for the Barlig Open Gym, but he was unable to do so because the gym construction was not supervised by his office for lack of bidding. 50
On cross-examination, Engr. Lucas explained that before a donation could be made by ABS-CBN, there should be a funding request containing a program of works. He stated that the program of works was prepared by Rogelio Abalos, the brother-in-law of Clark Ngaya; and that Abalos was an employee of Barlig assigned to the Office of the Municipal Engineer. Lucas claimed that he checked and verified the program of works before submitting it to Mayor Lupoyon."
On further questioning, Lucas stated that his office made two programs of work - one for PI0 million and another for P3 million. He reiterated that the construction of the Barlig Open Gym did not undergo a public bidding. He added that as municipal engineer, he had the duty to administer, coordinate, supervise and control the construction of public works of the municipality. 52
In open court, Albert T. Marafo's counsel manifested that she is adopting the testimony of all the witnesses presented by the other accused. 53
The accused, with counsel, filed their respective formal offer of evidence, to which the prosecution submitted its Consolidated Comment and/or Opposition x x x on February 3,2020.
In its Resolution of February 12, 2020, the Court admitted the following Exhibits: 1, I-a, 2, 2-a, 5, 5-a, 6, 7, 7-a, 7-b, 7-c, 8, 9, 9-a, 10 and 10-a (for Sidchayao, Cablog and Ngaya); 1, 2, 2-A, 2-B, 3, 3-A, 4, 5, 6, 7 and series, 8, 9, 10, 10-A, 10-B, 10-C, 10-D, 10-E, 10-F, 10-G, 12, 13, 14'[1
50 Record, vol. IV, pp. 472-481. 51 TSN, August 17,2019, pp. 14-30. 52 Id. 53 Per Order dated August 27, 2019. Decision SB-16-CRM-0323-0324 People v. Lupoyon, et 01. x------x
15, 16 and 17 (for Mara/a); 1, 3, 3-a, 3-b, 4, 5, 7, 10, 11, 30, 30-a, 30-b, 30- c, 30-d, 30-e, 30-f, 33, 34, 35, 36, 39, 39-a, 39-b, 39-c, 39-d, 39-e, 39-f, 39- g, 45, 47, 48 and 48-a (for Lupayan); and 1,2, 5-a, 6-a, 7, 8,9, 9-a, 10, 10-a to 10-1, 10-j to 10-s, and 11 to 11-c (Lucas).54
THE ISSUES:
The issues for the Court's consideration are: (1) whether accused Lupoyon and Marafo are criminally liable for violation of Section 3(e) of Republic Act No. 3019, as amended, in SB-16-CRM-0323; and
(2) whether the prosecution was able to establish the guilt of Lupoyon, Marafo, Sidchayao, Ngaya, Cablog and Lucas for violation of Section 3(e) ofR.A. No. 3019, as amended, with moral certainty in SB-16-CRM-0324. OUR RULING:
The evidence on record convinces Us that the prosecution was able to prove the guilt of all the accused beyond reasonable doubt for the offenses charged in the two Informations.
I. Violation of Section 3(e) ofR.A. No. 3019 in SB-16-CRM-0323
The prosecution duly established the elements of the crime charged
Mayor Lupoyon and Municipal Treasurer Marafo had been charged in Criminal Case No. SB-16-CRM-0323 with violation of Section 3( e) of R.A. 3019, as amended, which reads:
Sec. 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:
xxx
e. Causing 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 corporations charged with the grant of licenses or permits or other concessions.
54 See Records, vol. V, pp. 4&~50.
I 17 Decision SB-16-CRM-0323-0324 People v. Lupoyon, et 01. x------x
A violation under this provision requires that: (1) the accused is a public officer discharging administrative, judicial or official functions; (2) the accused acted with manifest partiality, evident bad faith or gross inexcusable negligence; and (3) the accused caused undue injury to any party including the Government, or giving any private party unwarranted benefits, advantage or preference in the discharge of his functions.
The first element of the offense charged is undisputed as the parties stipulated that during the period alleged in the Information in SB-16-CRM- 0323, accused Lupoyon and Marafo were public officers holding the positions of Municipal Mayor and Municipal Treasurer, respectively, in the Municipality of Barlig, Mountain Province.
The second element provides the modalities by which a violation of Section 3(e) of R.A. No. 3019 may be committed. "Manifest partiality", "evident bad faith", or "gross inexcusable negligence" are not separate offenses and proof of the existence of any of these three (3) in connection with the prohibited acts is enough to convict.f
The Supreme Court explained these terms in Uriarte v. People" in the following manner:
There is "manifest partiality" when there is a clear, notorious or plain inclination or predilection to favor one side or person rather than another. "Evident bad faith" connotes not only bad judgment but also palpably and patently fraudulent and dishonest purpose to do moral obliquity or conscious wrongdoing for some perverse motive or ill will. It contemplates a state of mind affirmatively operating with furtive design or with some motive or 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.
As will be discussed below, we hold that both accused exhibited manifest partiality, evident bad faith and gross inexcusable negligence in causing the repair or renovation of the pathway leading to Mt. Amuyao in the amount ofP50,000.00 without public bidding.
The Government Procurement Reform Act requires public bidding in all procurement of infrastructure, goods and services. Section 10 of this law provides that "all procurement shall be done through Competitive Bidding, except as provided for in Article XVI of this Act." By and large, / /<..A
55 See Farouk AB. Abubakar v. People a/the Philippines, G.R. Nos. 202408, 202409 and 202412, June 27,2018. , 56 Demie L. Uriarte v. People a/the Philippines, G.R. No. 169251, December 20,2006; Emphasis in the ~
original. )(y I 1: f(,~,.~ rW\1 '\, Decision SB-16-CRM-0323-0324 People v. Lupoyon, et 01. x------x competitive public bidding is the primary mode of procurement in the government. Corollarily, the general rule under Section 356 of R.A. No. 7160 (the Local Government Code of 1991) is that acquisition of supplies by local government units shall be through competitive public bidding. 57
In Philippine Sports Commission, et al. v. Dear John Services, Inc., 58 the Supreme Court explained that:
Public bidding, as a method of government procurement, is governed by the principles of transparency, competitiveness, simplicity, and accountability. By its very nature and characteristic, a competitive public bidding aims to protect the public interest by giving the public the best possible advantages thru open competition and in order to avoid or preclude suspicion of favoritism and anomalies in the execution of public contracts. Except only in cases in which alternative methods of procurement are allowed, all government procurement shall be done by competitive bidding.
That the project relating to the repair or improvement of the pathway going to Mt. Amuyao did not undergo the process of competitive bidding was never disputed. Mayor Lupoyon affirmed this fact during her court testimony, as follows:
xxxx
PROSECUTOR MARlCHELLE CORPUZ:
Q: Now having been in the government service for 16 years and having served as the Municipal Mayor of Barlig, am I correct to say Ma' am that you were aware that procurement of infrastructure projects is as a general rule should be done through competitive public bidding?
MAGDALENA LUPOYON
A: Yes, ma' am.
Q: The procurement activities of the municipality are to be undertaken by the Bids and Awards Committee (BAC)?
A: Yes, ma'am.
xxx
Q: And in a local government unit, ma'am, am I right that the head of the procuring entity is the Municipal Mayor? l
57 The provision authorizes the procurement of supplies without the benefit of p,tlblic bidding under any of the following modes: (a) personal canvass of responsible merchants; (b) emergency purchase; (c) negotiated purchase; (d) direct purchase from manufacturers or exclusive distributors: and (e) PurChas(e . from other government entities. If ~ , ss G.R. No. 183260, July 4, 2012. ~ L ' 19 ~.
\ Decision SB-16-CRM-0323-0324 People v. Lupoyon, et 01. x------x
A: Yes, ma'am.
xxxx
Q: Now, Ma'am, did I get you right that the improvement and repair of the pathway to Mt. Amuyao did not go through a public bidding?
A: Yes, ma'am.i"
Indeed, as the local chief executive, Mayor Lupoyon is not only expected to know the proper procedure in the procurement of supplies, she is also duty bound to follow the same and her failure to discharge this duty constitutes evident bad faith and gross and inexcusable negligence. From the start, there was no intention on her part to subject the donated fund to government accounting and auditing rules and regulations. We point out in this regard that in her letter-response dated July 14, 2009 to the Audit Observation Memorandum of State Auditor Daoas, Lupoyon admitted that the Original Receipt used by the Municipal Treasurer in receiving the amounts donated by, among others, GMA Network, Inc. had been cancelled and instead replaced by an acknowledgement receipt. In the same letter, Lupoyon stated that the "accounting and auditing of expenses will be done by the Municipal Officials to the residents of Barlig when the projects will be completed.t''" Notably, Auditor Daoas countered that the cancellation of the original receipts evidencing the donations cannot be a made in order to justify the non-recording of the donated amount in the municipality's books of accounts.
Per the Audit Observation Memorandum of the State Auditor Daoas, the amount donated by GMA Network, Inc. had been deposited at a PNB Savings Account. Notably, Mayor Lupoyon admitted that the donated fund should have been deposited in the trust fund account of the municipality, and recorded in the trust fund book of account. She also did not deny that there were no disbursement vouchers covering the release of the funds donated by GMA Network, Inc. In the Statement of Bank Reconciliation61 dated August 31, 2009 certified correct by Acting Municipal Accountant Val Tubay, the amount of P55,063.50 was indicated as 'disbursement without disbursement vouchers', and indicated Marafo as the disbursing officer. The Liquidation Report submitted by Marafo showed that total amount spent to be P55,000.00, with an additional indication that the "Amount of Cash Advance Per DV No. - none".62
To be sure, donations in cash or in kind to the Government or any of its instrumentalities or agencies become government funds or
59 TSN, April 30, 2019, pp. 33-34. 60 See Letter dated July 14,2009 of Magdalena Lupoyon to Esther Daoas, Annex "F". 61 Statement of Bonk Reconciliation dated August 31,2009, Annex "111". ~ ... ! 62 I..... Exhibit "ww' ~ ~o l ~~ Decision SB-16-CRM-0323-0324 People v. Lupoyon, et 01. x------x property. Even the proceeds of donations cannot be disbursed or disposed of except in accordance with law. The deposit of the donated amount to an account other than the trust fund account of the municipality in this case LBP Account No. 1042-1000-28 - violated Section 305( d) of the Local Government Code which provides that "[a]ll monies officially received by a local government officer in any capacity or on any occasion shall be accounted for as local funds. Corollarily, Section 309(b) of the same law provides that:
Section 309. Special Funds. There shall be maintained in every provincial, city, or municipal treasury the following special funds:
xxxx
(b) Trust Funds shall consist of private and public monies which have officially come into the possession of the local government or of a local government official as trustee, agent or administrator, or which have been received as a guaranty for the fulfillment of some obligation. A trust fund shall only be used for the specific purpose for which it was created or for which it came into the possession of the local government.
Since public bidding had not been resorted to as the mode of procurement, there was no transparency in the procurement process. In fact, Mayor Lupoyon took it upon herself to appoint the workers for the clearing, cleaning and improvement of the pathway to the summit of Mt. Amuyao, as evidenced by the Appointment document she signed. Moreover, Lupoyon was the one who determined how much wage a worker was to be paid per day. In addition, Mayor Lupoyon and Marafo approved the Time Book and Payroll prepared by the foreman/timekeeper and superintendent showing the payment alleged to have been received by the appointed laborers for the pathway project, with additional miscellaneous expenses for gasoline, fare, expenses for lost material and food. As earlier stated, none of these disbursements were covered by any voucher. To make matters worse, the expenses were supported only by a handwritten and unsigned subsidiary ledger.
Not surprisingly, the amount ofP50,000.00 out of the GMA Network donation for the pathway project had been the subject of a Notice of Suspension (No. 2011-004-910)63 dated August 31, 2011. This Notice of Suspension later on 'matured to' a Notice on Disallowance," considering that "the available documents relative to the x x x NS shows that the transaction is not in order x x X.,,65 Per notice of Disallowance No. 17-001- 300 (09), the "amount ofP50,000.00 was disallowed because the Program of l
63 Signed by Audit Team Leader Mary Falag-ey and supervising Auditor Dibangkitun Ayoong; Annex "JJJ". 64 Signed by Audit Team Leader Nikki Awilan and Supervising Auditor Asunta Cutiyog; See Annexes "JJJ-l" and "JJJ-2". i ~' ss S" Notice of Settlementof Suspension/Disallowance/Charge (NSSDC). AD /?,'!
21 .. ~A" 1M \ Decision SB-16-CRM-0323-0324 People v. Lupoyon, et al. x------x Work, Accomplishment Report and Inspection Report on work done x x x were not submitted.t''"
The lack of public bidding and consequent disbursement of the fund donated by GMA Network Inc. had deprived the municipality of the opportunity to obtain the lowest calculated responsive bid or the most advantageous and beneficial to the government. Verily, there was no compelling reason to dispense with the public bidding considering the absence of any urgency to improve the pathway. There was also no evidence shown that the municipality would have saved any money by doing away with public bidding, more so if we consider that 82 workers were 'appointed' by Lupoyon to do the pathway project.
We are not unaware that the Supreme Court has allowed dispensing with public bidding in several instances. National Center for Mental Health v. Commission on Audit" upheld the validity of the negotiated contracts for the renovation and the improvement of the National Center for Mental Health. In that case, petitioners were able to show that the long overdue need to renovate the Center "made it compelling to fast track what had been felt to be essential in providing due and proper treatment and care for the center's patients."
This justification was likewise accepted in Baylon v. Ombudsman68 in which we recognized that the purchases were made in response to an emergency brought about by the shortage in the blood supply available to the public. The shortage was a matter recognized and addressed by then Secretary of Health Juan M. Flavier, who attested that he directed the NKTI [National Kidney and Transplant Institute] to do something about the situation and immediately fast-track the implementation of the Voluntary Blood Donation Program of the government in order to prevent further deaths owing to the lack of blood.
In the present case, however, there was no showing of any immediate and compelling justification for dispensing with the requirement of public bidding. We reiterate that public bidding is the primary mode of procurement, and it was thus necessary on the part of the official concerned to show why an alternative mode of procurement was resorted to. Only in exceptional circumstances that R.A. No. 9184 and R.A No 7610 allow the procuring entity to forego the strict requirement of a public bidding.
As the Supreme Court held in in Office of the Ombudsman-Mindanao v. Martel, et al.,69 "[a] competitive public bidding aims to protect public interest by giving it the best possible advantages thru open competition. It is.g
66 See Notice of Disallowance No. 17-001-300 (09); Annex "'JJJ-2". 67 265 SCRA 390, December 6, 1996. 68 372 SCRA 437, December 14,2001. 69 G.R. No. 221134, March 1,2017. Decision SB-16-CRM-0323-0324 People v. Lupoyon, et 01. x------x precisely the mechanism that enables the government agency to avoid or preclude anomalies in the execution of public contracts. Strict observance of the rules, regulations, and guidelines of the bidding process is the only safeguard to a fair, honest and competitive public bidding."
We additionally note that Mayor Lupoyon, as the chief executive of the Municipality of Barlig, is responsible for all government funds pertaining to the municipality. Indeed, as the local chief executive, Marafo is not only expected to know the proper procedure in the procurement of supplies, she is also duty bound to follow the same and her failure to discharge this duty constitutes gross and inexcusable negligence.
On the other hand, among the duties of Marafo as Municipal Treasurer, was to take custody and exercise proper management of the funds of the local government unit concerned. He failed to discharge this duty when he allowed the amount of P50,000.00 from the GMA donation to be disbursed. He in fact admitted in his Affidavit dated September 17, 2010 that then Vice-Mayor Sidchayao, together with Ngaya and Cablog, took the amount of P50,000.00 for the payment of laborers; and that he himself witnessed the payment and the issuance of the Community Tax Certificates to the said laborers. Per Mayor Lupoyon, Marafo also paid the wages of the laborers for the pathway project. As earlier mentioned, the Statement of Bank Reconciliation dated August 31, 2009, the amount of P55,063.50 was indicated as 'disbursement without disbursement vouchers', and indicated Marafo as the disbursing officer.
Indeed, the improvement/construction of the pathway to Mt. Amuyao was a laudable project. Nonetheless, the accused should have acted in a circumspect manner to observe the law in order to promote transparency in the handling of government funds. The mere allusion to do away with the contractor's profit - without anything more - is not sufficient to forego the conduct of public bidding. Corollarily, the deposit of the donated fund in a PNB Account, coupled with the release of the donated fund without any vouchers, exposed the municipality to unaccounted costs.
Indeed, the law on public bidding is not an empty formality. It aims to secure the lowest possible price and obtain the best bargain for the government. It is based on the principle that under ordinary circumstances, fair competition in the market tends to lower prices and eliminate favouritism.
As held in Librado M Cabrera v. People a/the Philippinesi '
The rules on public bidding and on public funds disbursement are imbued with public interest. Laws regarding these matters were formulated to ensure minimization of expenditures of the public fund. Petitioners,
70 G.R. No. 191611-14, July 29,2019. Decision SB-16-CRM-0323-0324 People v. Lupoyon, et al. x------x
as public officials have the bounden duty to work for, and protect the interest of the government. Thus, greater degree of responsibility is imposed upon them to ensure that the laws are faithfully complied with. Any act which tends to violate the law or provides excuse to circumvent the law shall not be countenanced. Indeed, it is the policy of the Philippine Government, in line with the principle that a public office is a public trust, to repress certain acts of public officers and private persons alike which constitute graft or corrupt practices or which may lead thereto.
II. Violation of Section 3( e) of R.A. 3019, as amended, in Criminal Case No. SB-16-CRM-0324
As previously stated, a prosecution for violation of Section 3(e) of R.A. No. 3019 requires the concurrence of the following elements: (a) the offender must be a public officer discharging administrative, judicial, or official functions; (b) he must have acted with manifest partiality, evident bad faith or gross inexcusable negligence; and (c) 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. Thus, Sec. 3 (e) ofRA No. 3019 states:
(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 corporations charged with the grant of licenses or permits or other concessions.
There is no issue with regard to the first element as the parties stipulated during the pre-trial that the accused were public officers holding the following positions in the Municipality of Barlig: Municipal Mayor (Lupoyon); Vice-Mayor (Sidchayao); Sangguniang Bayan Member (Ngaya and Cablog); Municipal Treasurer (Marafo); and Municipal Engineer (Lucas).
The second element provides the modalities by which a violation of Section 3(e) of R.A. No. 3019 may be committed. An examination of the presented evidence showed that the accused exhibited manifest partiality, evident bad faith and gross inexcusable negligence in causing the construction of an open gymnasium in Barlig in the amount of P2.5 million without a public bidding.
We point out at the outset that the Deed of Donation between ABS• CBN Broadcasting Corporation and the Municipality of Barlig contained the following stipulations, viz:
24 Decision SB-16-CRM-0323-0324 People v. Lupoyon, et 01. x------x
xxxx
1. The DONOR hereby voluntary and freely gives to the DONEE, by way of donation, the sum of THREE MILLION PESOS (PJ,OOO,OOO.OO), under the following terms:
xxx
1.2. The donated amount shall be deposited in the Land Bank of the Philippines Trust Fund under Account No .. 1042- 1000-28 in the name of the Local Government Unit of Barlig, Mountain Province, as evidenced by the attached Sangguniang Bayan Resolution;
1.3. The DONEE shall be accountable for the funds and assistance received from the DONOR and shall institute a system of accounting for transparency purposes.
2. The DONEE will comply with the appropriate laws, rules and procedure on government procurement in the construction of the Open Gym."
That a P3 million donation had been received by the Municipality of Barlig is undisputed, as the records showed a P3 million BPI check dated April 1, 2009 issued by ABS-CBN, indicating Albert T. Marafo as payee. Contrary to the agreement, however (and as found by the COA), the donated amount was later deposited in a PNB Special Savings Combo Account.
We point out in this regard that the deposit to the PNB Account had been made on the basis of Sangguniang Bayan Resolution No. 36, s. 2009, which authorized Marafo and Mayor Lupoyon to: (a) transfer the amount of P3 million from the Land Bank of the Philippines Account No. 1042-1000- 28 to the Philippine National Bank- Bontoc Branch under Account No. 00 18446- TAO 1 for the construction of the open gym; and (b) withdraw the "amount needed during the implementation of the said project.r " Notably, this Resolution was signed by, among others, accused SB Member Cablog, and attested by Vice-Mayor Sidchayao. Later on, the amounts deposited in these accounts were withdrawn, as evidenced by Certification from the PNB Branch in Bontoc. This Certification noted that GMA and ABS CBN "were indicated in the Combo passbook savings x x X.,,73
In his testimony, Sidchayao testified that Resolution No. 36, s. 2009 was passed after the municipal treasurer made a request to "transfer a certain amount.v" For his part, Cablog stated in court that the said Resolution had /0
71 See Deed of Donation ,marked as Annex "A". 72 See Annex "C". 73 See PNB Certification dated August 19,2010, marked as Annex "a-I." 74 TSN, June 17,2019, pp. 16. Decision SB-16-CRM-0323-0324 People v. Lupoyon, et 01. x------x been passed at the instance or upon the request of Marafo and Lupoyon. This was corroborated by Ngaya in his cross-examinarion.f
Notably, the Annual Audit Report on the Municipality of Barlig for the year ended December 31, 2009 had the following findings and observations with regard to the violations of the terms of the Deed of Donation:
xxxx
2.a The donation of P3,000,000.00 was deposited under PNB SA# 402838900046 instead of depositing the amount at LBP in the name of Barlig Municipality. This is contrary to government accounting rules and regulations and to Sections 305(d) and 309(b) of the Local Government Code x x x x
2.b There was no proper accounting as the fund was not recorded in the trust fund books of accounts. The Report of Collections and Deposits originally prepared was cancelled and thus, there was no report to be forwarded to the accounting office for recording.
2.c There was no compliance with appropriate laws, rules and procedure on government procurement. Public bidding was not the mode of procurement, hence there was no transparency in the procurement process. Instead, the municipal officials took it upon themselves to buy the materials and pay the labor for the construction of the open gym even without a Program of Work, Plan and cost estimates.
Clearly, it was the intention of the municipal officials not to subject the fund to government accounting and auditing rules and regulations. This was confirmed when the Municipal mayor stated in one of her replies to our AOM that the accounting and auditing expenses will be done by the Municipal Officials to the residents of Barlig.
xxxx
More importantly, and despite the clear and unequivocal terms of the Deed of Donation that the Municipality of Barlig ( donee) will comply with the appropriate laws, rules and procedure on government procurement in the construction of the Open Gym, Mayor Lupoyon admitted in her direct examination that there was no bidding conducted prior to the disbursement of the initial P2.5 million donation; and that it was only the remaining P500,000.00 that had been subjected to bidding. She reiterated this fact on cross-examination, thus:
I
75 TSN, July 23,2019, p. 36.
26 Decision SB-16-CRM-0323-0324 People v. Lupoyon, et 01. x------x
xxxx
PROSECUTOR MARl CHELLE CORPUZ:
Q: Now having been in the government service for 16 years and having served as the Municipal mayor of Barlig, am I correct to say Ma' am that you were aware that procurement of infrastructure projects is as a general rule should be done through competitive public bidding?
MAGDALENA LUPOYON:
A: Yes, rna' am.
xxxx
Q: Do you also confirm having admitted in x x x your Judicial Affidavit that there was also no public bidding of the construction of the Barlig open gym?
A: Yes, ma'am.76
That no public bidding had been conducted that the construction of the Barlig Open Gym in the amount of P2.5 million was confirmed by Municipal Engineer Lucas himself in his direct and cross-examinations.
Significantly, Lupoyon also maintained in her July 14, 2009 letter to Auditor Daoas that it had been agreed that the disbursement of expenses for the open gym will not follow the government procedures due to the following reasons: to maximize the use of money; to avoid the long process of bidding; and to allow participation of the labor force from the involved community. She reiterated this fact during additional questioning from the Court, thus:
JUSTICE FERNANDEZ:
Q: As far as the ABS-CBN project is concerned, you admitted that there was no public bidding relative to the P2.S million?
M.LUPOYON:
A: Yes, Your Honor.
xxxx
Q: What triggered your action now to conduct a bidding on the remaining fund[,] the PSOO,OOO.OO?
A: Your Honor during the construction of the Open Gym because [sic] we really decided not to go to the rules that ! w 76 TSN, April 30, 2019, pp. 33-35. [Emphasis supplied] Decision SB-16-CRM-0323-0324 People v. Lupoyon, et 01. x------x
bidding [sic], for the reason that we would like very much to save that contractor's profit and then the withholding tax. Because according to the Engineering's Office if we will go to that bidding then P900,000.00 will be deducted, so we will only having [sic] P2.1 million. x x x77
We point out that the alleged amount of contractor's profit was not supported by the records or by any member from the Municipal Engineering Office. Municipal Engineer Lucas, in fact, stated in his direct examination that he advised Mayor Lupoyon that the construction of the Barlig Open Gym should undergo a public bidding.
Even if true, the contractor's profit is not a sufficient justification to dispense with the public bidding. As aptly observed by the State Auditor Daoas in her letter to Lupoyon:
As for the 10% Contractor's Profit, even if it does not undergo the government procurement process, there will always be the contractor's or supplier's profit. We are sure that the contractor or the supplier will always have a profit in the transactions because this is their goal unless the supplier/contractor is willing to sell the construction material without any profit.
As for the free labor to be provided by the people, this can still be done even if the construction of the Open Gym follow the government procurement process. The Government Procurement Act does not prohibit beneficiaries of a government project to provide free labor. On the contrary, there are many government projects that require beneficiaries to provide their counterparty (which may be in the form of free labor) to the project,. 78
It also bears noting that, similar to the disbursement of the fund donated by GMA, Mayor Lupoyon likewise admitted that the disbursement of the fund donated by ABS-CBN was also not covered by disbursement vouchers.
The third element refers to two (2) separate acts that qualify as a violation of Section 3(e) of Republic Act No. 3019. An accused may be charged with the commission of either or both. An accused is said to have caused undue injury to the government or any party when the latter sustains actual loss or damage, which must exist as a fact and cannot be based on . . 79 specu1 attons or conjectures.
The second punishable act under the third element of Section 3( e) of Republic Act No. 3019 is the giving of unwarranted benefits, advantage, or preference to a private party. This does not require actual damage as it is/t
77 Jd. at 50. 78 See Annexes "N" to "N-2". 79 See Abubakar v. People, G.R. No. 202408, June 27, 2018. Decision SB-16-CRM-0323-0324 People v. Lupoyon, et al. x------x
sufficient that the accused has given "unjustified favor or benefit to another.i"
As a matter of policy, public contracts are awarded through competitive public bidding. The purpose of this process is two (2)-fold. First, it protects public interest by giving the public the "best possible advantages thru open competition." Open and fair competition among bidders is seen as a mechanism by which the public may obtain the best terms on a given contract. Participating bidders offer competing proposals, which are evaluated by the appropriate authority "to determine the bid most favorable to the government." Second, competitive public bidding avoids "suspicion of favoritism and anomalies III the execution of public contracts. ,,81
Verily, the lack of public bidding and consequent disbursement of the fund donated by ABS-CBN had deprived the Municipality of Barlig of the opportunity to obtain the lowest calculated responsive bid or the most advantageous and beneficial to the government. Consequently, the lack of public bidding led to questionable and unaccounted disbursements such as the P370,000.00 labor cost awarded to one Lorenzo Backian, which was not even supported by any statement of work accomplished. Lupoyon's claim that the labor cost paid by the municipality to Backian "is less than 20% of the total project cost which is very low and more economical compared to the programming of labor cost for building construction't'" was not supported by the evidence on record.
The Notice of Suspension (No. 2010-003-101) dated September 1, 2010 also enumerated the other questionable transactions regarding the amount donated by ABS-CBN vis-a-vis the construction of the open gymnasium, as follows: the P71,100.00 acknowledgment receipt issued to Warren Ngaya was not supported by a list of construction materials hauled; the Angle Bar worth P69, 800.00 were no yet delivered, contrary to what had been stated in the Acceptance and Inspection Report of July 10, 2009; the payment of transformer rental to MOPRECO was not receipted; and the change of the five (5) boxes of welding rod to another item was not reflected in the Acceptance and Inspection Report. There was also a finding that the 'gutter installed was not in accordance with specification.'
Per the Notices of Disallowance issued by Auditor Awilan, it had also been observed that labor payrolls for construction works on the Barlig Open Gym were paid even after the date of final inspection and acceptance on December 23, 2009.
80 Id. ! 81 Id. f, 82 See Annex "0"/
29 Decision SB-16-CRM-0323-0324 People v. Lupoyon, et 01. x------x
Lupoyon also admitted in her letter dated April 28, 2010 to Supervising Auditor Dumasan that the materials were already being purchased even before the completion of the program of work.
We emphasize that the rules on competitive public bidding and those concerning the disbursement of public funds are imbued with public interest. Government officials whose work relates to these matters are expected to exercise greater responsibility in ensuring compliance with the pertinent rules and regulations."
The presence of conspiracy
Conspiracy exists when two or more persons come to an agreement to commit an unlawful act. It may be deduced from the mode or manner in which the offense was perpetrated; or inferred from the acts of the accused, who were acting in concert in the pursuit of their unlawful design. Conspiracy, like the crime itself, must be proven beyond reasonable doubt. Existence of conspiracy must be clearly and convincingly proven.
In order to establish the existence of conspiracy, unity of purpose and unity in the execution of an unlawful objective by the accused must be proven. Direct proof is not essential to show conspiracy. It is enough that there be proof that two or more persons acted towards the accomplishment of a common unlawful objective through a chain of circumstances, even if there was no actual meeting among them.
What are the established facts?
After Marafo received the P3 million check from ABS-CBN, Marafo cancelled the original receipt, and did not anymore record this amount in the trust fund books of accounts. Mayor Lupoyon and Marafo requested the Sanggunian Bayan to issue a Resolution authorizing Marafo and Mayor Lupoyon to: (1) transfer the amount ofP3 million from the Land Bank of the Philippines Account No. 1042-1000-28 to the Philippine National Bank• Bontoc Branch under Account No. 0018446-TA01 for the construction of the open gym; and (2) to withdraw the "amount needed during the implementation of the said project.,,84 SB Member Cablog and Vice-Mayor Sidchayao signed this Resolution.
It is indubitable that Mayor Lupoyon signed as the requesting officer and approving officer in all the purchase requests; while Sidchayao and Ngaya acted as members of the Inspection and Acceptance Committee even if they were not members of the said committee. /4
83 See Farouk B. Abubakar v. People a/the PhiliPPPines.{(}.R.No. 202408, June 27, 2018. ~ 84 See Annex "C'. I 0 r - U
30 Decision SB-16-CRM-0323-0324 People v. Lupoyon, et al. x------x
Sidchayao likewise admitted having witnessed the construction materials being unloaded from the delivery truck, and then signing the acknowledgment receipt even if he was not a member of the Inspection and Acceptance Committee. In like manner, Ngaya also testified that he signed the Inspection and Acceptance Report even if he, like Sidchayao, was not a member of the Inspection and Acceptance Committee.
Ngaya and Cablog handed payments to some suppliers, even if they were not authorized disbursing officers. In his cross-examination, Ngaya did not deny that he personally paid the suppliers for the materials used in the gym construction. We stress that it is the Municipal Treasurer, and not SB members, who is the authorized official to disburse funds.
In addition, one of the persons who had been hired by the Municipality of Barlig to haul materials for the gym construction was Warren Ngaya, the brother of herein accused Clark Ngaya. Accused Ngaya issued a certification to the effect that he will be responsible for any disallowance that may be issued for payments made to his brother for hauling of materials.
Engr. Lucas, for his part, approved the Program of Works. Per Auditor Daoas, the Program of Work was just a one-page summary of all the items or works to be done, and that it lacked "the cost estimates of each program of items of work. ,,85 We do not subscribe to the defense of Lucas that another person actually made the Program of Works, and that he merely checked and/or verified it. The verification process included the authority to disapprove the POW if it had been found to be incomplete.
As the Municipal Engineer, Lucas is in charge of initiating, reviewing and recommending changes in policies and objectives, plans and programs, techniques, procedures and practices, infrastructure development and public works in general. He is also tasked to advise the governor or the mayor, as the case may be, on infrastructure, public works, and other engineering matters. He also administers, coordinate, supervise and control the construction, maintenance, improvement and repair of roads, bridges and other engineering and public works of the LGU.86
In the present case, Lucas admitted that he did not anymore bother to supervise or intervene in the construction project because it did not go through a public bidding. He reiterated this fact on various instances in his Judicial Affidavit and during cross-examination, as follows: l
i 85 r; See TSN, April 10, 2018, p. 36. ~/iI 86 See Article 122, par (g) (2), Rules and Regulations Implementing the Local Government Code. . ! , H.~~ 31 (,"1; i Decision SB-16-CRM-0323-0324 People v. Lupoyon, et 01. x------x xxxx
ATTY. DALOG:
Q: What did you do when they proceeded to construction without public bidding:
ENGR. LUCAS:
A: I did not involve myself anymore in the construction and implementation of the gym.
Q: Why is that so Mr. Witness?
A: Because the project did not undergo public bidding and what I know is it is not within my function anymore to supervise the construction of the project.87
In his cross-examination, Lucas testified as follows:
xxxx
PROSECUTOR CORPUZ:
Q: Now, sir, as Municipal Engineer, you have the duty to administer, coordinate, supervise and control the construction of public works projects of the Municipality, is that correct, sir?
ENGR. LUCAS:
A: Yes, ma'am.
Q: And in the discharge of your duty as Municipal Engineer you have to see to it that the work items specified in the Program of Works prepared by your office were actually done or installed?
A: Yes, rna' am.
xxxx
Q: Am I correct ... do I get it right, sir, that you did not concern or did not bother yourself anymore with this project and did not supervise the construction of the Barlig Open Gym because it did not undergo public bidding?
A: Yes, ma'am.
xxxx
Q: And considering, sir, that the construction of Barlig Open Gym is a public works project of Municipality of Barlig using public funds, did you not deem it proper of necessary, sir, to lJ
87 Judicial Affidavit of Engr. Danilo Lucas, pp. 5-6; Records vol. IV, pp. 475-476.
I~ 11 i' f~.r Decision SB-16-CRM-0323-0324 People v. Lupoyon, et 01. x------x
intervene in its construction being then the Municipal Engineer of Municipality of Barlig?
xxxx
A: Yes, I did no longer supervise because what I know they did not ask for public bidding.[sic]88
The 'hands-off attitude of Lucas on the gym construction is a dereliction of his tasks as municipal engineer. That the project did not go through a public bidding is also not a sufficient justification for him to refrain from issuing any statement of work accomplished. To rule otherwise would be to promote negligence on the part of the municipal engineer, considering that there are other allowable alternative methods of procurement other than a through public bidding.
We are not unaware that aside from Notice of Suspension No. 10-001- 100-(09)89where Lucas was among those mentioned as responsible persons (for approving "the Program of Works without the necessary Plans and Specifications") requiring compliance by the eOA; and NS No. 2010-003- 10190 where he (Lucas) was determined responsible for preparing the Statement of Work Accomplished, Plans and Change Orders, Lucas' name was not anymore included in the succeeding Notices of Suspension and Notices of Disallowance that the COA issued.
It bears noting, however, that NS No. 2010-003-101 had been issued even after Lucas already submitted the Program of Works with plans and specifications. Surprisingly, while Lucas claimed that the Program of Work was made before the donation was given, Mayor Lupoyon stated in her April 28, 2010 letter to Supervising Auditor Dumasan (thru State Auditor Falag• ey) that "[w]ith regard to the plan and program of work that should have been prepared before spending such amount, the Municipal Officials did not require the program of work and detailed cost estimates.,,91
Lucas did not dispute that there was no SWA and plans and change orders prepared regarding the project. Notably, the Inspection Report for Infrastructure Projects signed by Technical Audit Specialist Joseph Padcayan noted that 'plans' had not been submitted for the project, while the Inspection Report x x x dated May 15, 2013 noted that 'plans' were submitted. In any event, that the project did not go through a public bidding was not a sufficient justification for Lucas not to make an accomplishment report on the status of the construction project. It bears noting that Lucas was even present when Padcayan conducted an inspection of the Barlig a . 4J TSN, August 27,2019, pp. 25-27. . 89 Dated January 4, 2010; signed by Audit Team Leader Esther Daoas and Supervising Audijoe Dibangkituin Ayoong. .' A[) 90 Dated September 1, 2010; signed by Audit Team Leader Mary Fa1ag-ey and Supervising Auditoe Dibangkituin Ayoong. J 91 See Exhibit "E". ~
. 33 I~I:~ 111~j Decision SB-16-CRM-0323-0324 People v. Lupoyon, et al. x------x
Open Gym Project.92 His duties as municipal engineer did not end after the verification and approval of the Program of Work. Clearly, Lucas was negligent in his duties as municipal engineer he did not anymore bother to supervise or intervene in the construction project.
Under these given facts, there can be no question that the accused acted in concert to attain a common purpose. Their respective actions summed up to collective efforts to achieve a common objective.
It is common design which is the essence of conspiracy - conspirators may act separately or together, in different manners but always leading to the same unlawful result. The character and effect of conspiracy are not to be adjudged by dismembering it and viewing its separate parts but only by looking at it as a whole." Acts done to give effect to the conspiracy may be, in fact, wholly innocent acts. Yet, if they are parts of the sum of the acts which are relied upon to effectuate the conspiracy which the law forbids, they lose that character. Such acts become a public wrong if the result is harmful to the public or to the individual against whom the concerted action IS. diirecte d . 94
Verily, the rules on public bidding and on public funds disbursement are imbued with public interest. The positions and functions of the six accused impose upon them a greater responsibility in ensuring that rules on these matters are complied with. They are expected to exercise a greater degree of diligence.
IlL The Proper Penalty
On the appropriate penalty, a person guilty of violating Section 3(e) of R.A. No. 3019, as amended, is punishable with imprisonment for not less than six (6) years and one (1) month nor more than fifteen (15) years and perpetual disqualification from public office.
Under the_Indeterminate Sentence Law, if the offense is punishable by a special law, as in the present case, an indeterminate penalty shall be imposed on the accused, the maximum term of which shall not exceed the maximum fixed by the law, and the minimum not less than the minimum prescribed therein.
Accordingly, the Court finds it proper to impose an indeterminate penalty of six (6) years and one (1) month, as minimum, to eight (8) years, as maximum, and to suffer perpetual disqualification from holding public office on all the accused charged in the two (2) Informations. l I 92 Engr. Lucas was also present when TAS Johnny Nanglegan made an inspe.. ihon in 2013. 93 AD See Juanita A. Aquino v. Teresita B. Paiste, G.R. No. 147782, June 25,29°8. 94 Supra, note 35. /f f~.'!: 34 I: 'v \ Decision SB-16-CRM-0323-0324 People v. Lupoyon, et 01. x------x
WHEREFORE, in light of all the foregoing, judgment is hereby rendered as follows:
1. In SB-16-CRM-0323, accused Magdalena K. Lupoyon and Albert T. Marafo are found GUILTY beyond reasonable doubt of violation of Section 3(e) of R.A. No. 3019, as amended, and are each hereby sentenced to suffer an indeterminate penalty of imprisonment of six (6) years and one (1) month, as minimum, to eight (8) years, as maximum; and to suffer perpetual disqualification to hold public office; and
2. In SB-16-CRM-0324, accused Magdalena K. Lupoyon, Albert T. Marafo, Edmundo Challiis Sidchayao, Clark Chatongna Ngaya, Fernando Yacam-ma Cablog and Danilo Rabina Lucas are found GUILTY beyond reasonable doubt of violation of Section 3(e) of R.A. No. 3019, and are sentenced to suffer an indeterminate penalty of imprisonment of six (6) years and one (1) month, as minimum, to eight (8) years, as maximum; and to suffer perpetual disqualification to hold public office.
SO ORDERED.
WE CONCUR:
35 Decision SB-16-CRM-0323-0324 People v. Lupoyon, et 01. x------x
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.
CER TIFICATION
Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairman's Attestation, 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's Division.
/ / THIRD DIVISION
SB-16-CRM-0323-0324 - PEOPLE OF THE PHILIPPINES, plaintiff, versus MAGDALENA K. LUPOYON, ET AL., accused.
Promulgated: x ------x
DISSENTING OPINION
CABOTAJE-TANG, A.M. P.J.
I respectfully dissent for reasons hereinafter discussed.
THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE
Paragraph (2), Section 14, Article III of the 1987 Constitution mandates that in every criminal prosecution, an accused is presumed innocent until proven otherwise. This constitutional presumption should be upheld at all times and can only be overturned upon presentation of proof beyond reasonable doubt. This rule places upon the prosecution the burden of establishing the guilt of the accused, relying on the strength of its own evidence, and not on the weakness of the defense. 1
THE CASES
These cases stemmed from two (2) Informations charging accused Magdalena K. Lupoyon and Albert Tenglab with Violation of Section 3(e) of Republic Act (R.A.)No. 3019. Both accused Lupoyon and Tenglab are also charged, together with Edmundo C. Sidchayao, Clark Chatongna Ngaya, Fernando Yacam-Ma Cablog and Danilo Rabina Lucas, with Violation of
~ 1 Villarosa v. People, G.R. Nos. 233155-63, June 23, 2020. Dissenting Opinion 2 SB-16-CRM-0323-0324 People v. Lupoyon, et al.
Section 3(e) of Republic Act (R.A.) No. 3019 relative to the donations made by GMA Network Inc. and ABS-CBN Broadcasting Corporation to the Municipality of Barlig.
The Informations, docketed as SB-16-CRM -0323 and SB- 16-CRM-0324, respectively read:
SB-16-CRM -0323
That on 26 June 2009 or sometime prior or subsequent thereto, in the Municipality of Barliq, Mountain Province, Philippines, and within the jurisdiction of this Honorable Court: the above named accused, MAGDALENA K. LUPOYON, a high ranking public officer with salary grade 27, being then the Municipal Mayor and ALBERT TENGLAB MARAFO, then Municipal Treasurer, both of the Municipality of Barliq, Mountain Province; while In the performance of their official and/ or administrative functions; conspiring with one another, committing the offense in relation to their office, acting with evident bad faith or gross inexcusable negligence; did then and there willfully, unlawfully and criminally cause undue injury to the Municipality of Barliq, Mountain Province by causing the repair or renovation of the pathway leading to Mount Amuyao in the amount of Fifty Thousand Pesos (PhpSO, 000. 00), without public bidding as required under Section 10 of Republic Act No. 9184, otherwise known as the Government Procurement Reform Act and its implementing rules and regulations, to the damage and prejudice of the government in the aforesaid amount. 2 //
2 p. 1, Vol. I, Record Dissenting Opinion 3 SB-16-CRM-0323-0324 People v. Lupoyon, et al.
SB-16-CRM -0324
That on 23 December 2009 or sometime prior or subsequent thereto, in the Municipality of Barliq, Mountain Province, Philippines, and within the jurisdiction of this Honorable Court: the above named accused, MAGDALENA K. LUPOYON, a high ranking public officer with salary grade 27, being then the Municipal Mayor, EDMUNDO C. SIDCHAYAO, then Municipal Vice-Mayor; CLARK CHATONGNA NGAYA and FERNANDO YACAM-MA CABLOG, both then Sangguniang Bayan Member [sic], ALBERT TENGLAB MARAFO, then Municipal Treasurer and DANILO RABINA LUCAS, Municipal Engineer, all of the Municipality of Barliq, Mountain Province; while In the performance of their official and/ or administrative functions; conspiring with one another, committing the offense in relation to their office, acting with evident bad faith or gross inexcusable negligence; did then and there willfully, unlawfully and criminally cause undue injury to the Municipality of Barliq, Mountain Province by causing the construction of the open gymnasium in the amount of Two Million Five Hundred Thousand Pesos (Php2, 500, 000. 00), without public bidding as required under Section 10 of Republic Act No. 9184, otherwise known as the Government Procurement Reform Act and its implementing rules and regulations, to the damage and prejudice of the government in the aforesaid amount~
3 pp. 3-4, Vol. I, Record Dissenting Opinion 4 SB-16-CRM-0323-0324 People v. Lupoyon, et al.
I. The elements of the crimes charged. ------
The Supreme Court teaches that to sustain a conviction for a violation of Section 3(e) of R.A. No. 3019, the prosecution must establish the presence of all of the following elements, VIZ:
1. That the accused is a public officer discharging administrative, judicial, or official functions or a private person charged in conspiracy with the former;
2. That the public officer has acted with manifest partiality, evident bad faith or gross inexcusable negligence;and
3. That he or she causes undue injury to any party, whether the government or a private party; or gave any party any unwarranted benefits, advantage or preference to such parties in the discharge of his functioris.?
II. The prosecution evidence fails to establish the presence of all the aforesaid elements of the crimes charged. ------
The presence of the first element in these cases is undisputed. The parties stipulated during the pre-trial that during the period alleged in the Informations, the accused were public officers in the Municipality of Barl~
4 PCGG v. Office of the Ombudsman, G.R. No. 194619, March 20, 2019 5 pp. 403-404, Vol. II, Record Dissenting Opinion 5 SB-16-CRM-0323-0324 People v. Lupoyon, et al.
As to the second element, I concur with the finding that the accused acted with gross inexcusable negligence in dispensing with the legal requirement on public bidding involving the procurement for the construction of the gymnasium and the repair of the pathway.
Jurisprudence defines gross inexcusable negligence as a kind of negligence that is characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally with a conscious indifference to the consequences insofar as other persons may be affected;" it is the omission of that care even inattentive and thoughtless men never fail to take on their own property."
As applied to these cases, R.A. No. 9184, otherwise known as the Government Procurement Reform Act, categorically prescribes the requirement of a competitive public bidding to any procurement of infrastructure projects regardless of the source of the funds." Likewise, competitive public bidding is the primary mode of procurement which cannot be dispensed with except when there are immediate and compelling reasons to dispense with such requirement.?
In People v. Naciongayo,lO the Supreme Court explained the rationale for the said requirements of the law in this wise:
Section 10, Article IV, in relation to paragraphs (n) and (0), Section 5, Article I, of R.A. No. 9184, mandates that "all acquisition of goods, consulting services, and the contracting for infrastructure projects by any branch, department, office, agency, or instrumentality of the government, inclUdi~
6 Fuentes v. People, 822 SeRA509 (2017) /' 7'd 8 R.A. No. 9184, Art. I, Sec. 4
9 See R.A. No. 9184, Art. IV, Sec. 10 in relation to Art. XVI, Sees. 48-54 10 G.R. No. 243897, June 8, 2020 Dissenting Opinion 6 SB-16-CRM-0323-0324 People v. Lupoyon, et al.
state universities and colleges, government• owned andj or-controlled corporations, government financial institutions, and local government units shall be done through competitive bidding." "This is in consonance with the law's policy and principle of promoting transparency in the procurement process, implementation of procurement contracts, and competitiveness by extending equal opportunity to enable private contracting parties who are eligible and qualified to participate in public bidding." Notably, Section 4 of the law itself states that it applies to the "Procurement of Infrastructure Projects, Goods and Consulting Services, regardless of the source of funds ... 11
Here, the evidence shows that the accused caused the repair of the pathway going to Mt. Amuyao and the construction of the open gymnasium, except as to portion pertaining to the remaining P500, 000.00 donated by ABS• CBN, without undergoing public bidding. The evidence further establishes that the accused were aware of these legal requirements. Despite this, they chose to dispense with a public bidding allegedly to save on costs which is completely unacceptable basis for foregoing with the legally prescribed requirement on public bidding.
However, I disagree with the majority opmion that the lack of a public bidding ALONE is sufficient to hold the accused guilty of violation of Section 3(e) of R.A. No. 3019. Apart from this, the prosecution is still burdened to show by independent and competent evidence how such a lack of public bidding caused undue injury to the government.
As hereinbefore stated, the third element of a violation of Section 3(e) of R.A. No. 3019 requires that the accused either caused undue injury to any party, including the government, or gave any private party any unwarranted benefit, advantage or preference. ~
11 Emphasis supplied Dissenting Opinion 7 SB-16-CRM-0323-0324 People v. Lupoyon, et al.
The accused are charged with having committed the first punishable act. Under this, it is essential that undue injury be proven without reasonable doubt. Jurisprudence instructs that undue injury in the context of Section 3 (e) of R.A. No. 3019 should be equated with the civil law concept of "actual damage" in that its existence must be specified, quantified, and proven to the point of moral certatnty.t? Unlike in actions for torts, undue injury in Sec. 3 (e) cannot be presumed even after a wrong or a violation of a right has been establtshed."- Thus, its existence must be proven as one (1) of the elements of the crime. On the other hand, under the second punishable act, there is no need to prove actual loss or damage; it is sufficient that the accused gave any private party any unwarranted or unjustified benefit, advantage or preference. 14
Jurisprudence also instructs that the accused may be charged under either or both modalities. As above stated, however, in these cases, the Informations charge the accused only under the first punishable act. Thus, they can only be found guilty of a violation of Section 3(e) of R.A. No. 3019 upon an affirmative showing that there was undue injury to the government resulting from the lack of a public bidding.
The finding of guilt in the Decision is predicated on the following grounds, viz:
In SB-16-CRM-0323:
... [W]e hold that both accused exhibited manifest partiality, evident bad faith and gross inexcusable negligence in causing the repair or renovation of the pathway leading to Mt. Amuyao in the amount of PSO,OOO.OO without public bidding. ~
12 Rivera v. People, 743 SeRA 476 (2014); Emphasis supplied 13ld 14 Cabrera v. People, G.R. Nos. 191611-14, July 29, 2019 Dissenting Opinion 8 SB-16-CRM-0323-0324 People v. Lupoyon, et al.
[ ... ]
The lack of public bidding and consequent disbursement of the fund donated by GMA Network Inc. had deprived the Municipality of Barlig of the opportunity to obtain the lowest calculated responsive bid or the most advantageous and beneficial to the government. Verily, there was no compelling reason to dispense with the public bidding considering the absence of any urgency to improve the pathway. There was also no evidence shown that the municipality would have saved any money by doing away with public bidding, more so if we consider that 82 workers were 'appointed' by Lupoyon to do the pathway project.
We are not unaware that the Supreme Court has allowed dispensing with public bidding in several instances. [ ... ]
In the present case, however, there was no showing of any immediate and compelling justification for dispensing with the requirement of public bidding. We reiterate that public bidding is the primary mode of procurement, and it was thus necessary on the part of the official concerned to show why an alternative mode of procurement was resorted to. Only in exceptional circumstances that R.A. No. 9184 and R.A. No. 7610 allow the procuring entity to forego the strict requirement of a public bidding. IS
In SB-16-CRM-0324:
The second punishable act under the third element of Section 3(e) of Republic Act No.
15 Decision, pp. 18, 22; Emphasis supplied a Dissenting Opinion 9 SB-16-CRM-0323-0324 People v. Lupoyon, et al.
3019 is the giving of unwarranted benefits, advantage, or preference to a private party. This does not require actual damage as it is sufficient that the accused has given "unjustified favor or benefit to another.
[ ...]
Verily, the lack of public bidding and consequent disbursement of the fund donated by ABS-CBN had deprived the Municipality of Barlig of the opportunity to obtain the lowest calculated responsive bid or the most advantageous and beneficial to the government. Consequently, the lack of public bidding led to questionable and unaccounted disbursements such as the P370,000.00 labor cost awarded to one Lorenzo Backian, which was not even supported by any statement of work accomplished. Lupoyon's claim that the labor cost paid by the municipality of Backian "is less than 20% the total project cost which is very low and more economical compared to the programming of labor cost for building construction" was not supported by the evidence on record.tv
I disagree with the said findings for two (2) reasons.
First. The above justification does not satisfy the requirement of undue injury to the government or any party based on the case of Ong v. People.!?
To be sure, Ong involved an accused who was similarly charged with a violation of Section 3(e) of R.A. No. 3019 regarding the acquisition of a dump truck without public bidding. Unlike these cases, however, in Ong, the accused was charged under both modalities. More importantly, the
~ 161d, pp. 28-29; Emphasis supplied 17601 SeRA 47 (2009) Dissenting Opinion 10 SB-16-CRM-0323-0324 People v. Lupoyon, et al.
prosecution presented evidence showing that the truck could have been acquired at a much lower cost. Thus, the Supreme Court ruled that undue injury was caused to the Government because it was proven that the dump truck could have been purchased at a much lower price, to wit:
We find that all the elements of the offense charged have been duly established beyond reasonable doubt. Petitioner, being then the Mayor of Angadanan, Isabela is a public officer discharging administrative and official functions. The act of purchasing the subject truck without the requisite public bidding and authority from the Sangguniang Bayan displays gross and inexcusable negligence. Undue injury was caused to the Government because said truck could have been purchased at a much lower price.
The Sandiganbayan correctly ruled that by procuring the subject truck through a negotiated purchase without public bidding, petitioner failed to comply with the above stated procedure. Indeed, as the local chief executive, petitioner is not only expected to know the proper procedure in the procurement of supplies, she is also duty bound to follow the same and her failure to discharge this duty constitutes gross and inexcusable negligence.
Price quotations obtained from several suppliers as well as the testimonies of Ramon de Guzman Sevilla, Ruben Lappay and Mirasol Lappay proved that the dump truck purchased by petitioner was over-priced.w Hence, had petitioner observed the proper procurement procedure, the municipality of Angadanan could
~ 18 Emphasis supplied Dissenting Opinion 11 SB-16-CRM-0323-0324 People v. Lupoyon, et al.
procedure, the municipality of Angadanan could have acquired a dump truck similar to, if not better than the one originally bought, at a much lower price of not more than PSOO, 000.00. Without doubt, petitioner's negligence caused undue injury to the government while at the same time gave unwarranted benefits to Josephine Ching,"?
In these cases, it is neither alleged nor proved that the construction of the gymnasium or the repair of the pathway could have been com pleted using the same or similar materials at a much lower cost. The prosecution did not present any price quotations or testimonies from competent witnesses to prove that the purchases made in these cases were over-priced or that they could have been obtained at lower prices via public bidding. Neither is there any allegation of misused funds for the construction of the gymnasium and the pathway in the subject Informations.
More importantly, it is undisputed that the projects in these cases were actually implemented and completed albeit no public bidding was conducted in the procurement thereof. In fact, the accused admitted to not complying with the rule on public bidding for these infrastructure projects. However, the mere failure to follow the rules on public bidding is insufficient to find the accused guilty of violation of Section 3(e) of R.A. No. 3019 in the absence of proof of actual injury to the government. The mere lack of opportunity to obtain the lowest calculated responsive bid or the most advantageous and beneficial to the government will not suffice. As held by the Supreme Court in Abubakar v. PeopZe:20
An accused is said to have caused undue injury to the government or any party when the latter sustains actual loss or damage, which must exist
~
19 Supra note 17, pp. 54, 56 20 868 SeRA 489 (2018) Dissenting Opinion 12 SB-16-CRM-0323-0324 People v. Lupoyon, et al.
as a fact and cannot be based on speculations or conjectures. In Caunan u. People and Marquez v. People, et al.,21 the Supreme Court acquitted the accused therein upon the following ratiocination:
We are not unmindful of the fact that petitioners failed to conduct the requisite public bidding for the questioned procurements. However, the lack of public bidding alone does not automatically eguate to a manifest and gross disadvantage to the government. As we had occasion to declare in Nava v. Sandiganbayan,22 the absence of a public bidding may mean that the government was not able to secure the lowest bargain in its favor and may open the door to graft and corruption. However, this does not satisfy the third element of the offense charged, because the law requires that the disadvantage must be manifest and gross. After all, penal laws are strictly construed against the government.23
While the aforesaid cases involved a prosecution for a violation of Section 3(g) of R.A. No. 3019, I submit that the ruling therein, that while the absence of a public bidding may mean that the government was not able to secure the lowest bargain in its favor and may open the door to graft and corruption, it does not satisfy the third element of the offense charged, is applicable by analogy to the third element of a charge for Violation of Section 3(e) of R.A. No. 3019 under the first act punished therein; that is, that the accused caused undue injury to the government or a private party. For the said third element to exist, it is not enough that there was no public bidding. It must be further established that the lack of a public bidding caused undue injury to the government by proofof actUallOSY-::;
21597 seRA 538 (2009) 22499 seRA 745, 772 (2006)
23 Emphasis supplied Dissenting Opinion 13 SB-16-CRM-0323-0324 People v. Lupoyon, et al.
To be sure, the burden to prove undue injury rests on the prosecution. It is therefore incumbent upon it to show that the projects could have been completed at a much lower cost before the burden shifts to the accused to prove otherwise. The burden cannot be immediately shifted to the accused because there is no presumption, even disputable, that the government could have caused the construction at a much lower cost as that would fall under the realm of utter speculation.
Second. In SB-16-CRM-0324, the Decision cites the second punishable act in R.A. No. 3019 as basis for finding the accused guilty.
To begin with, the undersigned agrees that the lack of a public bidding and the resulting award of the contract to a private party through a negotiated contract equate to the giving of unwarranted benefit to a private person should it be shown that there was no justifiable reason for dispensing with a public bidding.
In Cabrera v. People.s" the Supreme Court found accused Cabrera guilty of violating Section 3 (e) of R.A. No. 3019 in awarding the contract for the purchase of medicines to a private person without the benefit of a competitive public bidding. The High Court ruled that in awarding the contract to the private party without public bidding, despite the lack of justifiable reasons to forego with the bidding, the accused gave unwarranted benefit, advantage or preference in favor of private persons, ~
24 Supra note 14 Dissenting Opinion 14 SB-16-CRM-0323-0324 People v. Lupoyon, et al.
As can be read from the Information, petitioners are charged of violation of Section 3 (e) of R.A. No. 3019 under the second punishable act which is giving unwarranted benefits, advantage, or preference to a private party, through manifest partiality, bad faith and gross inexcusable negligence.26 Indeed, the choice of DLI as the grantee of the medicines, in the absence of public bidding, shows that petitioners gave unwarranted benefit, advantage or preference In favor of DLI. The words "unwarranted," "advantage" and "preference" were defined by the court in this wise:
"[U]nwarranted" means lacking adequate or official support; unjustified; unauthorized or without justification or adequate reason. "Advantage" means a more favorable or improved position or condition; benefit, profit or gain of any kind; benefit from some course of action. "Preference" signifies priority or higher evaluation or desirability; choice or estimation above another.
In the instant case, there is no sufficient justification or adequate reasons why DLI was favorably chosen. DLI was awarded the procurement contract without the benefit of a fair system in determining the best possible price for the government. And the only way to ascertain the best possible price advantageous to the government is through com• petitive public bidding. Indeed, public bidding is the accepted method for arriving at a fair and reasonable price and it ensures that overpricing and favoritism, and other anomalous practices are eliminated or minimized. To circumvent this requirement outside the valid exceptions, IS evidence of bad faith. As held by this Court: /7
26 Emphasis su pplied Dissenting Opinion 15 SB-16-CRM-0323-0324 People v. Lupoyon, et al.
The further discovery that the procuremen ts were made by the petitioners from DLI without them first ensuring that the local government would be acquiring the medicines at the lowest possible price is sufficient to negate any presumption of good faith, especially since such failure prima facie constitutes a contravention of the Local Government Code.
It was established in this case and admitted by petitioners, that DLI is a corporation whose stockholders, directors and officers are the relatives of Librado. Petitioners' refusal to conduct public bidding and to award the contract to the winning bidder, smack of favoritism and bias In favor of DLI. Indeed, nothing demonstrates manifest partiality more than the awarding of procurement contract to second degree relatives, either by consanguinity or affinity, without the benefit of competitive public bidding.
By choosing DLI without public bidding, petitioners evidently give unwarranted benefit, advantage or preference in favor of private persons, through manifest partiality.s>
Likewise, in People v. Naciongayo,27 the Supreme Court found accused Naciongayo guilty of violation of Section 3(e) of R.A. No. 3019 for procuring a third party's services without public bidding, viz:
As to the third and last element, case law instructs that "there are two ways by which a public official violates Section 3 (e) of [RA] 3019 in the performance of ~
26 Supra note 14 /' ' 27 G.R. No. 243897, June 8, 2020 Dissenting Opinion 16 SB-16-CRM-0323-0324 People v. Lupoyon, et al.
functions, namely: (1) by causing undue injury to any party, including the Government; or (2) by giving any private party any unwarranted benefit, advantage or preference. The accused may be charged under either mode or both. The disjunctive term 'or' connotes that either act qualifies as a violation of Section 3 (e) of R.A. No. 3019. In other words, the presence of one would suffice for conviction." Here, accused-appellant's act of procuring Enviserve's services without the requisite competitive bidding pursuant to R.A. No. 9184 gave the latter unwarranted benefits, advantage, and preference, especially considering that the latter was able to derive income through the collection of registration fees from business establishments in Pasig City.
It bears to emphasize, however, that in both Cabrera and Naciongayo, the accused were charged in the Information with a violation of Section 3(e) of R.A. No. 3019 under the second publishable act. In this case, however, the two (2) Informations specifically charge the accused only under the first punishable act. To find them guilty under the second punishable act would be highly improper as that would unduly impinge on their constitutional right to be informed of the nature and cause of accusation against them.
In People v. Valdez)29 the Supreme Court emphasized the importance of specifying the charges in the Informations, to wit:
The requirement of sufficient factual averments is meant to inform the accused of the nature and cause of the charge against him in order to enable him to prepare his defense. It emanates from the presumption of innocence in his favor, pursuant to which he is always presumed to have no independent knowledge of the details of the crime he is
29679 Phil. 279 (2012) ~ Dissenting Opinion 17 SB-16-CRM-0323-0324 People v. Lupoyon, et al.
being charged with. To have the facts stated in the body of the information determine the crime of which he stands charged and for which he must be tried thoroughly accords with common sense and with the requirements of plain justice.
Quite recently, in the case of ViZlarosa v. People.t" the Supreme Court reversed the finding of guilt against accused Villarosa for violation of Section 3(e) of R.A. No. 3019 on the ground that the prosecution failed to prove evident bad faith, which is the only modality alleged in the Information. The High Court further ruled that Villarosa cannot be found guilty on the basis of "gross inexcusable negligence," which is not alleged in the Information, as doing so would violate the constitutional right of the accused, viz:
Well-entrenched in jurisprudence is the rule that the conviction of the accused must rest, not on the weakness of the defense, but on the strength of the evidence for the prosecution. The burden is on the prosecution to prove guilt beyond reasonable doubt, not on the accused to prove his innocence.
Should the prosecution fail to discharge its burden, it follows, as a matter of course, that an accused must be absolved of the crime charged. Thus, in the instant case, good faith on the part of petitioner need not even be proved. It is for the prosecution to show beyond reasonable doubt that he is guilty of evident bad faith. However, the prosecution has fallen short of discharging its burden of proving petitioner's guilt beyond reasonable doubt./?
30 G.R. Nos. 233155-63, June 23, 2020 Dissenting Opinion 18 SB-16-CRM-0323-0324 People v. Lupoyon, et al.
Yet, even as petitioner's actions were clearly not proven to be tinged with evident bad faith, there are still those that opine that an acquittal should not logically follow. The dissent advances the view that petitioner could still be convicted for violation of Section 3 (e) of RA 3019 because the latter's actions may be considered to fall under the rubric of gross inexcusable negligence regardless. The dissent further points out that such a conviction would be justified - even if the Informations against petitioner do not contain any allegation of gross inexcusable negligence - following the case of Sistoza v. Desierto. This is plain error. 31
Contrary to the dissent's view, it would be highly improper, nay unconstitutional, to convict petitioner on the basis of gross inexcusable negligence. It rrrust be emphasized that the Informations filed against petitioner all accuse the latter of violating Section 3 (e) of RA 3019 through the modality of evident bad faith only. Not one Information accused petitioner of violating the same provision through gross inexcusable negligence. As can be derived from our earlier discussions, evident bad faith and gross inexcusable negligence are two of the three modalities of committing violations of Section 3 (e) of RA 3019. Also, by our previous discussion, we were able to establish that each modality of violating Section 3 (e) of RA 3019 is actually distinct from the others. Hence, while all three modalities may be alleged simultaneously in a single information for violation of Section 3 (e) of RA 3019, an allegation of only one modality without mention of the others necessarily means the exclusion of those not mentioned. Verily, an accusation for a violation of Section 3 (e) of RA 3019 committed through evident bad faith only, cannot be
" Emph"" ,"ppl'ed // Dissenting Opinion 19 SB-16-CRM-0323-0324 People v. Lupoyon, et al.
considered as synonymous to, or includes an accusation of violation of Section 3 (e) of RA 3019 committed through gross inexcusable negligence.
To adopt the dissent's view, therefore, would inevitably sanction a violation of petitioner's due process rights, particularly of his right to be informed of the nature and cause of the accusation against him.32 Convicting petitioner of violation of Section 3 (e) of RA 3019 on the basis of gross inexcusable negligence, when he was but charged of committing the violation by means of evident bad faith only, would be highly unfair as it effectively deprives the petitioner of the opportunity to defend himself against a novel accusation. This outcome simply cannot be countenanced. In People v. Manalili, we were taught as much:
The hornbook doctrine in our jurisdiction is that an accused cannot be convicted of an offense, unless it is clearly charged in the complaint or information. Constitutionally, he has a right to be informed of the nature and cause of the accusation against him. To convict him of an offense other than tha t charged in the complaint or information would be violative of this constitutional right.33
Neither would the case of Sistoza offer any refuge to the dissent's view. As astutely observed by Associate Justice Alfredo Benjamin S. Caguioa in his Concurring Opinion, the quotation in Sistoza that was relied upon by the
32 Emphasis supplied ~ 33 Emphasis supplied Dissenting Opinion 20 SB-16-CRM-0323-0324 People v. Lupoyon, et al.
dissent to justify their view is just an obiter dictum. In other words, Sistoza never intended to definitively settle the question of whether an information for a violation of Section 3 (e) of RA 3019 committed through evident bad faith only, can be sufficient to sustain a conviction for violation of the same provision albeit committed through the modality of gross inexcusable negligence.
Moreover, the prosecution did not present any evidence as to this second modality, i.e. giving unwarranted benefit, advantage or preference in favor of private persons. There is absolutely want of any allegation! evidence on the specific person! s to whom the accused gave unwarranted benefits, advantage, or preference and how they did so. In fact, the prosecution's evidence focused on the failure of the accused to observe the proper procedures in the procurement of the construction of the gymnasium and the pathway.
A review of the records of these cases will show that majority of the prosecution witnesses were from the Commission on Audit (COA). Notably, their testimonies centered on the failure of the accused to follow the rules on procurement and the non-submission of documents relative to the projects undertaken. The only witnesses they presented, who were not from the COA, were the private complainants whose testimonies also revolved around the fact that there was no public bidding, and not on the fact that the donations were misused or lost.
Finally, I am aware that the COA issued Notices of Disallowance covering the subject donations, as follows: /? Dissenting Opinion 21 SB-16-CRM-0323-0324 People v. Lupoyon, et al.
GMA Donation
1. Notice of Disallowance 17-001-300(09) dated August 18, 2017 amounting to 50,000.00.
Reason for disallowance: the following documents were not submitted: Program of Work, Accomplishment Report, and Inspection Report.
ABS-CBN Donation
2. Notice of Disallowance 13-001-100 dated July 12, 2013 amounting to PI7,600.0034; but later on reduced to PI4,666.67 after a partial payment of P2,933.33 was made.v>
Reason for disallowance: the TAS Inspection Report that revealed that the gutters installed were 6" diameter PVC pipes instead of the Spanish gutters as specified in the Purchase Order.
3. Notice of Disallowance 13-002-100(10) dated February 20,2014 amounting to P22,275.00.36
Reason for disallowance: The payment of laborers were made after the completion of the gym. The gym was completed on December 23, 2009 and the payments were made from January 01-30,2010.
4 . Notice of Disallowance 13-003-100 dated February 20, 2014 amounting to PI16,264.01.37
Reason for disallowance: The payment of laborers were made after the completion of the gymnaSlUm~
34 Exh. "JJ"
35 See NSSDC 14-004-BAR dated February 20, 2014, Exh. "SS" 36 Exh. "UU" 37 Exh. "TT" Dissenting Opinion 22 SB-16-CRM-0323-0324 People v. Lupoyon, et al,
The said documents show that as to the GMA Fund, the Notice of Suspension was issued on August 31, 2011, while the Notice of Disallowance was issued six (6) years later, or on August 18, 2017. The reason for the disallowance, however, was the non-submission of the documents as required in the Notice of Suspension. In fact, there is a dearth of evidence and testimony presented during the trial on the fund donated by GMA. As to the ABS-CBN Fund, only the amount of P153,205.68 was disallowed in audit and the rest of the disbursements were found by the eOA to be supported by receipts. Unfortunately, the prosecution did not delve on the issue of the regularity/irregularity of these disbursements as its evidence centered on the establishment of the fact that there was no public bidding conducted for the construction of the gymnasium and repair of the pathway.
Furthermore, the existence of notices of suspension and/ or notices of disallowance does not automatically result in a criminal charge, more so, a conviction, for violation of Section 3(e) of R.A. No. 3019. A notice of disallowance merely shows that a transaction was disapproved in audit by the COA upon finding such transaction to be illegal, irregular, unnecessary, excessive, extravagant, or unconscionable."? More importantly, it must be reiterated that the Informations clearly charge the accused with causing undue injury to the government for causing the repair arid renovation of the pathway and the construction of the gymnasium without conducting a public bidding, and not for the alleged misuse of funds.
On the premise that there was no proper accounting of funds, I still maintain that this is not sufficient to hold the accused guilty of a violation of Section 3(e) of R.A. No. 3019 in the absence of proof of actual loss resulting from the lack of a public bidding. In these cases, no evidence, whether documentary or testimonial, was presented to show that the government suffered actual loss in the undertaking of the projects. For the said unaccounted funds, the accused can perhaps be indicted for some other crime but not unde~
372009 Revised Rules of Procedure of the Commission on Audit, Rule I, Sec. 14(4), and Rule II, Sec. 1(1) Dissenting Opinion 23 SB-16-CRM-0323-0324 People v. Lupoyon, et al.
rubric of Section 3(e) of R.A. No. 3019 if the crime had not, in the meantime, prescribed.
Prescinding from the aforesaid disquisitions, I vote to ACQUIT the accused.
Presiding Jus Ice Chairperson, Third Division REPUBLIC OF THE PHILIPPINES ~anbiganba!,an Quezon City
SPECIAL THIRD DIVISION
PEOPLE OF THE PHILIPPINES, CRIM. CASE Nos. SB-16- Plaintiff, CRM-0323 to 0324
-versus- MAGDALENA K. LUPOYON, ET For: Violation of Sec. 3( e), AL., R.A. No. 3019, as amended Accused.
x------x
SEPARATE OPINION
MENDOZA-ARCEGA, J.:
It is my humble submission that the elements of Section 3( e) of Republic Act No. 30191 were duly established in the present cases except for Engr. Danilo Rabina Lucas (accused in SB-16-CRM-0324) for reasons to be stated hereunder.
Section 3(e) ofR.A. No. 3019 states:
"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:
xxx
(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
I "Anti-Graft and Corrupt Practices Act" I People v. Lupoyon, et al. Criminal Case Nos. SB-16-CRM-0323 to 0324 Page 2 of 4 x ------x
employees of offices or government corporations charged with the grant of licenses or permits or other concessions."
The following are the essential elements of violation of Sec. 3(e) ofRA 3019:2
"1. The accused must be a public officer discharging administrative, judicial or official functions;
2. He must have acted with manifest partiality, evident bad faith or inexcusable negligence; and
3. That his action caused any undue injury to any party, including the government, or giving any private party unwarranted benefits, advantage or preference in the discharge of his functions.l"
Foremost, the presence of the first and second elements are not disputed. However, there are various views whether the third element, i.e., that the action of the accused caused undue injury to any party, including the government, was established.
With due respect, the acts of all the accused, save for Engr. Lucas, caused undue injury to the Municipality of Barlig, Mountain Province for dispensing with public bidding. Public bidding is the rule of thumb and the alternative methods can merely be resorted to under highly exceptional cases." In Subic Bay Metropolitan Authority, et al., v. eGA,5 the petitioners did not conduct public bidding to procure the uniforms of the employees, and argued that they resorted to the alternative modes of procurement to obtain the most advantageous price for the government through negotiation with accredited SBMA suppliers. The Supreme Court disagreed with the petitioners. It was underscored that as public bidding is the general rule and alternative methods of procurement are mere exceptions, it was incumbent upon petitioners to prove the definite and particular alternative method of procurement they availed of under Section 48 ofR.A. No. 9184.6 The defense miserably failed to establish the necessity to dispense with the requisite public bidding.
The danger of not conducting a public bidding is that it opens the floodgates to corruption and it erodes public trust. Despite the absence of proof that the disputed projects were over-priced, the provisions of the Government Procurement Reform Act cannot be easily disregarded. AS!
2 Consigna v. People, et aI., G.R. No. 175750-51, April 2, 2014. 3 Id., citing Cabrera v. Sandiganbayan, 484 Phil. 350, 360 (2004), citing Jacinto v. Sandiganbayan, 387 Phil. 872, 881 (2000). 4 Article XVI ofR.A. No. 9184, otherwise known as the" Government Procurement Reform Act." 5 G.R. No. 230566, January 22,2019. 6 rd. People v. Lupoyon, et al. Criminal Case Nos. SB-16-CRM-0323 to 0324 Page 3 of 4 x------x succinctly ruled in MIAA, et al. v. Olongapo Maintenance Services, Inc., et «:
"The rationale behind the requirement of a public bidding, as a mode of awarding government contracts, is to ensure that the people get maximum benefits and quality services from the contracts. More significantly, the strict compliance with the requirements of a public bidding echoes the call for transparency in government transactions and accountability of public officers. Public biddings are intended to minimize occasions for corruption and temptations to abuse of discretion on the part of government authorities in awarding contracts."
Adding a fatal blow to the accused's claim of innocence is the fact that the disputed projects did not undergo proper accounting and auditing procedures. It is well established that the donated amounts were not initially deposited to the trust fund account of the municipality.
To reiterate, competitive public bidding may not be dispensed with nor circumvented, and alternative modes of procurement for public service contracts and for supplies, materials, and equipment may only be resorted to in the instances provided for by law. 8
Regarding Danilo Rabina Lucas, he must be acquitted based on reasonable doubt. The conviction of Engr. Lucas is anchored on his failure to submit a Statement of Work Accomplished (SWA) for the Barlig Open Gym. Although he has the duty to administer, coordinate, supervise and control the construction of public works of the municipality, his failure to prepare the SWA should not be equated to gross inexcusable negligence. In fact, his "hands-off' attitude is a clear indication of his refusal to take part in the construction of the gym which did not undergo public bidding. Supposing that he supervised the said construction and prepared the SWA, will he not be indicted in the present case?
To warrant a conviction under Section 3(e) of R.A. No. 3019, the negligence required must be gross in character such that it is tantamount to bad faith. As held in one case:"
"Gross and inexcusable negligence is characterized by a want of even the slightest care, acting or omitting to act in a situation in which there is a duty to act - not inadvertently, but wilfully and intentionally, with conscious indifference to consequences insofar as other persons are! affected.1o Bad faith does not simply connote bad judgment or simple
7 G.R. Nos. 146184-85, January 31, 2008. srd. 9 Bacasmas v. Sandiganbayan, et aI., G.R. No. 189343, July 10,2013. 10 Id., citing Albert v. Sandiganbayan, G.R. No. 164015, February 26, 2009. People v. Lupoyon, et at. Criminal Case Nos. SB-16-CRM-0323 to 0324 Page 4 of 4 x ------x
negligence. 11 It imports a dishonest purpose or some moral obloquy and conscious doing of a wrong, a breach of a known duty due to some motive or interest or ill will that partakes of the nature of fraud. 12"
Also, the evidence of the prosecution falls short in establishing the guilt of Engr. Lucas with moral certainty. Although he is one of those responsible for the approval of the Program of Works without the necessary plans and specifications, his subsequent refusal to prepare the SWA creates a tinge of doubt. Thus, where the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction. 13 The equipoise rule provides that where the evidence in a criminal case is evenly balanced, the constitutional presumption of innocence tilts the scales in favor of the accused. 14 Hence, the innocence ofEngr. Lucas must be upheld.
With the foregoing, I vote as follows:
1. In Criminal Case No. SB-16-CRM-0323, to CONVICT Magdalena K. Lupoyon and Albert Tenglab Marafo;
2. In Criminal Case No. SB-16-CRM-0324:
a.) To CONVICT Magdalena K. Lupoyon, Edmundo C. Sidchayao, Clark Chatongna Ngaya, Fernando Yacam-Ma Cablog and Albert Tenglab Marafo; and
b.) To ACQUIT Danilo Rabina Lucas based on reasonable doubt.
11 Id., citing Cojuanco Jr. v. CA, 369 Phil. 41 (1999). 12 rd. 13 People v. Erguiza, G.R. No. 171348, November 26,2008, citing People v. Agustin, 316 Phil. 828, 832 (1995). 14Id., citing People v. Lagmay, G.R. No. 125310, April21, 1999,306 SeRA 157.