REPUBLIC OF THE ~anbiganha~an Quezon City

FIRST DIVISION

PEOPLE OF THE PHILIPPINES, Plaintiff-Appel/e,

- versus - CRIM. CASE NO. S8-20-A/R-0019

AGUSTIN E. OCAMPO, Punong

RAMIL S. MORENA, Barangay Treasurer

CARLITO P. ADUANA, Kagawad,

All of: Barangay Lag-on, Daet, Camarines Norte, Accused-appel/ant.

Present:

DE LA CRUZ, J., Chairperson ECONG, J. CALDONA, J.

Promulgated on: o 1 JUL 2021 )(------)(

DECISION

DE LA CRUZ, J.:

On appeal before this Court is the Decision, dated September 10, 2018, of the (RTC) of Daet, Camarines Norte, Branch 39, convicting accused-appellants Agustin E. Ocampo and Carlito P. Aduana, for violation of Section 3(e) of Republic Act No. 3019, otherwise known as the "Anti-Graft and Corrupt Practices Act," in its Criminal Case No. 14674.

The Antecedents

On September 22, 2010, the Office of the Ombudsman DECISION PP. vs. Agustin E. Ocam 0, et.a/. Case No. SB-20-A/R-001

Page 2 0'20 x ------x

(OMB) issued a Review Resolution in OMB-L-C-09-0445-H,1 directing the filing of a lntormetiotr for violation of Sec. 3(e) of RA 3019, charging accused-appellants Punong Barangay Agustin E. Ocampo (Ocampo), Barangay Treasurer, Ramil S. Morena (Morena), and Barangay Kagawad, Bids and Awards Committee Chairperson Carlito P.Aduana (Aduana). The Information reads:

That on or about 6 June 2008, or sometime prior or subsequent thereto, in Daet, Camarines Norte, Philippines, and within the jurisdiction of this Honorable Court, the following accused:

a. Agustin E. Ocampo (SG 14), a public officer being then the Punong Barangay of Barangay Lag-on, aet, Camarines Norte;

b. Ramil S. Morena (SG 10), a public officer being then the Barangay Treasurer of Barangay Lag- on, Daet, Camarines Norte and

c. Carlito P. Aduana, (SG 10), a public officer being then the Barangay Kagawad of Barangay Lag-on, Daet, Camarines Norte,

committing the offense in the discharge of their official functions, acting together, conspiring and confederating with one another, with manifest partiality, evident bad faith and gross inexcusable negligence, did then and there, willfully, unlawfully and criminally, grant an unwarranted benefit to one Larry V. Navarro in the amount of TWO HUNDRED FIFTY THOUSAND PESOS ("250,000.00), Philippine Currency, by purchasing from one Larry V. Navarro one Mitsubishi Delica, identified through Plate Number XNA 867, out of public funds, namely, the barangay fund of Barangay Lag-on, Camarines Norte, as evidenced by Land Bank of the Philippines Check No. 2811167, through an unnumbered and undated voucher, three (3) days before the completion of canvass on 9 June 2008 and twenty four (24) days before the conduct of public bidding on 30 June 2008, both pertaining to the procurement of said vehicle, as a result of which all other possible suppliers were deprived of the opportunity to participate.

CONTRARY TO LAW.

1 Records, pp. 119-122.

2 Records, pp. __ . DECISION PP. vs. Agustin E. Ocam 0, et.a/. Case No. SB-20-A/R-0019

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Upon being arraigned, accused-appellants Ocampo and Aduana, pleaded not uilty to the charge against them.'

Meanwhile, ace sed Morena (whose provisional release was granted upon posting bail), 4 challenged his inclusion in the Information, arguing that his inclusion was merely the result of "inattention or oversight," warranting the exclusion of his name and thus, the dismissal of t e case against him."

On November 23, 2012, the RTC issued an Order, 6 dismissing the case a against accused Morena. The Court found no probable cause to hold him for trial.

During pre-trial," the prosecution and the defense stipulated on the identities of accused Ocampo and Aduana, that is, they are the same persons charged in the Information, and that at the time material to the case, Ocampo and Aduana were the Punong Barangay and Baran ay Kagawad, respectively, of Brgy. Lag-on, Daet, Camarines Norte. Aduana admitted the existence of the Mitsubishi Delica van ith Plate No. XNA 867, but Ocampo denied it. Both Ocampo and Aduana denied the purchase of the said vehicle and the holding of public bidding for its purchase. Aduana admitted that the fun s for its purchase came from the barangay, and Ocampo, while similarly admitting it, qualified that there was proper appropriation.

The trial against accused-appellants Ocampo and Aduana ensued.

During the trial, the prosecution presented as witnesses Francisco Sarion," Baby Jeany Orendain,? Jesus Reblora, Jr., 10 Alberto Rafer 11 and Maria Elizabeth Escueta. 12 Appellants Ocampo and Aduana, through counsels, manifested in open court

3 Certificate of Arraignment and RTCOrder both dated Sept. 19,2012; RTC Records, p.p.140-14l.

4 RTC Order dated May 11, 2011; RTC Records, p.10l. 5 Motion for Judicial Determination of Probable Cause and/or Motion for Reconsideration, dated May 26, 2011; RTC Records, p.106.

6 RTC Order, dated November 23,2012; RTC Records, p.147.

7 RTC Pre-Trial Order, dated September 12, 2013. 8 TSN dated Aug. 6, 2014 and TSN dated Oct. 4, 2016.

9 TSN dated April. 21, 2015.

10 TSN dated Feb. 3, 2016.

11 TSN dated June 7, 2016. 12 TSN dated June 1, 2017. DECISION PP. vs. Agustin E. Ocam 0, et.a/. Case No. SB-20-A/R-0019

Page 4 0'20 x ------x during the hearing on October 4, 2017, that they opted not to present evidence for a d in their behalf."

The evidence of the prosecution and the stipulations between the prosecution and the defense established that during his incumbency as Punong Barangay of Barangay Lag-on, Camarines Norte, Ocampo and t en Barangay Kagawad Aduana, also then the Chairman of the Bids and Awards Committee of the said Barangay, in such ca acities, were responsible for the purchase of the Mitsubishi Delica an, with plate number XNA 867, from one Larry Navarro." They released on June 6, 2008, the Landbank Check No. 0281167, ated June 6,2008, payable to Larry Navarro, as payment for the sai vehicle in the amount of P250,000.00.15

Ocampo unilaterally executed the sale of the subject vehicle with a certain Larry Navarro. Aduana was the one who issued the Notice of Eligibility to Navarro, the seller, in the absence of documents required in the conduct of public bidding, such as the BIR-received financial statement, Tax Return and Tax Clearance." Moreover, Navarro was neither the registered owner of the subject vehicle, nor was he a licensed vehicle dealer. The registered owner of the van was one Roldan Serrano. The van's oldest registration was on ctober 20, 2003 at the LTO in Subic Bay. From 2005 to 2007, the registration was renewed at the LTO Batangas. Its latest registration which was renewed at the LTO Daet, Camarines Norte, was on July 10, 2015 still in the name of Serrano. 17

While the subject vehicle had been in the possession of and is being used by Barangay Lag-on, Daet, Camarines Norte, its registration is still in the name Serrano.18

Instead of cond cting public bidding for the acquisition of the said vehicle, the accused resorted to canvass where Navarro emerged as the 10 est bidder with the bid of P270,000.00. However, Landbank Check No. 0281167, in the amount of P250,000.00 was released to Navarro as payment for the vehicle

13 RTCOrder, dated October 4,2017.

14 Exhibit J, Records, p. 35. 15 Exhibit A, Records, p.84; TSN, dated August 6,2014, pp. 11-12.

16 Exhibits Band D, Records, pp. 27, 89.

17 Exhibits Kto K-6, Records, pp. 266-272; TSN, dated October 4, 2016, p. 6; TSN, dated June I, 2017, pp.6-10.

18 Ibid. DECISION PP. vs. Agustin E. Ocam 0, et.a/. Case No. SB-20-A/R-0019

Page 5 0'20 x ------x on June 6, 2008. The Deed of Sale of the vehicle was signed by Navarro. It turned out that the fund used to purchase the vehicle was not covered by barangay appropriation duly approved by the Sangguniang Sayan of Daet, Camarines Norte. 19 In an effort to regularize the transaction, a bidding of the said vehicle was scheduled on June 30, 2008 although the fund for the payment thereof had been released as early as June 6, 2008.20

The following etails appeared in the Audit Observation Memorandum of the Commission on Audit."

xxx

The above cited limitations are not however obtaining in the barangay fina cial transaction as observed based on the evaluation of the documents relative to the barangay purchase of the Mitsubishi Van (Delica) Automatic the details of which were as follows: Details of Payment

Name of payee Larry U. Navarro Sta. Rosa, Laguna and Almond corner Malave Tropical Tagaytay City Description of Vehicle Mitsubishi Van (Delica) Automatic Paid under LBP Check No. 0281167 Dated June 6, 2008 P250,000.00 thru unnumbered and undated voucher

The documents submitted revealed the calendar of activities as follows:

Particular Dates Date of PR May 30,2008 Date of PO None Date of Check June 6,2008 Date of Cavass June 9, 2008/June 5, 2008 Date of Scheule Bidding June 30, 2008 Date of BAC Recommendation None Date of Deed of Absolute Sale June 6,2008

Evidently, the procurement of the aforecited vehicle while it was not in accordance with the procurement law was more

19 Exhibit A, Records, p. 84. 20 Exhibits Band D, Records, pp. 27, 89; TSN, dated February 3, 2016, pp. 3-9.

21 Exhibits Band D, Records, pp. 27, 89. DECISION PP. vs. Agustin E. Ocampo, et.a/. Case No. SB-20-A/R-0019

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aggravated by the fact that it was not supported by a properly reviewed barangay appropriation based on the verbal and documentary narration of the Municipal Budget Officer and the SB Secretary. The former admitted that Brgy. Lag-on submitted Supplemented (sic) Budget No.1, CY 2008 sometime in the later part of June 2008 which she reviewed and placed into the form the suggested items to be included coupled with some corrections in pencil then advised the Brgy. officials to have the final copy certified by the Municipal Accountant.

The Municipal Budget Officer further emphasized the existing procedures being followed after her review, the budget forwarded to the for their approval and indorsed it back to the Barangay concerned. For unknown reason, the corrected Supplemental Budget was not returned by the barangay to the budget office nor directly submitted to the Sangguniang Bayan for review and for it to be declared operational hence the certification of the SB Secretary attesting that there was no supplemental budget submitted/received from Barangay Lag-on for SB review/approval.

The attestations as further supported by the evaluated documents submitted are proofs that the purchase of vehicle sometime in June 06, 2008 was way ahead of the basic requirement of law for an appropriation to be available first before any transaction could be entered leading to the disbursement of public fund.

xxx

The accused-appellants opted not to present their evidence.

On September 10, 2018, the RTC rendered its assailed Decision, convicting accused-appellants Ocampo and Aduana of the crime charged, the dispositive portion of which reads:

WHEREFORE, after finding the evidence of the prosecution sufficient to establish the elements of the offense, the above-named accused, AGUSTIN E. OCAMPO and CARLITO P. ADUANA, are hereby found GUILTY beyond reasonable doubt of the crime of Violation of Section 3 (e) of Republic Act 3019.

The penalty for violation of Section 3(e) of R.A. 3019, is "imprisonment for not less than six years and one month nor more than fifteen years, perpetual disqualification from public office." Under the Indeterminate Sentence Law, if the offense is punished by special law, the Court shall sentence the accused to an indeterminate penalty, the maximum term of which shall not DECISION PP. vs. Agustin E. Ocampo, et.a/. Case No. S8-20-A/R-0019

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exceed the maximum fixed by said law and the minimum term shall not be less than the minimum prescribed by the same.

The accused are, thus, sentenced to suffer the indeterminate penalty of imprisonment from SIX (6) YEARS and ONE (1) MONTH, as MINIMUM to TWELVE (12) YEARS and ONE (1) MONTH, as MAXIMUM, with the accessory penalty of perpetual disqualification from holding office.

SO ORDERED.

On September 18, 2018, accused-appellant Aduana filed a Notice of Appeaf" with the RTC and appealed the case with this Court.

On September 25, 2018, accused-appellant Ocampo moved for a reconsideration" of the RTC's September 10, 2018 Decision, but the same was denied in the RTC's Order" dated October 24, 2019.

On December 23, 2019, accused-appellant Ocampo filed a Notice of Appeaf" with the RTC and appealed the case with this Court.

Ocampo's Appeal

In his appeal,26 accused-appellant Ocampo advanced the following arguments:

1. He was not a member of the Bids and Awards Committee (BAC) that conducted the bidding for the procurement of the Mitsubishi Delica va and was not the one who awarded and issued the Notice of Eligibility to Larry Navarro.

2. He had no participation in the purchase of the van since the un-notarized Deed of Sale dated June 6,2008 was only signed by the vendor, Larry Navarro.

22 Notice of Appeal (Aduana) dated Sept. 18, 2018 and RTC Order dated Sept. 24, 2018, Records, pp. 24,26.

23 Motion for Reconsideration dated Sept. 25, 2018, RTC Records, p. 293.

24 RTC Order dated Oct. 24, 2019, Records, p. 27.

25 Notice of Appeal (Ocampo) dated Dec. 23, 2019 and RTCOrder dated Jan. 10, 2020, Records, pp. 29- 30.

26 Rollo, pp. 81-97. DECISION PP. vs. Agustin E. Ocampo, et.a/. Case No. SB-20-A/R-0019

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3. Brgy. Treasurer Ramil S. Morena should not have been dropped as co-accused based on the Ombudsdman's Order dated May 9, 2011, wherein it was stated that: "xxx the Barangay Treasurer had the ultimate responsibility of making sure that before barangay funds were disbursed, the procedure laid out in the Government Procurement Act were followed to the letter."

4. The prosecution failed to prove that he acted with manifest partiality, evident bad faith or gross inexcusable negligence and caused undue injury to any party, including the government or gave any private party unwarranted benefits, advantage or prefere ce in the discharge of his functions since most of the matters discussed by the RTC are functions of the BAC. Hence, the Arias doctrine applies in his favor.

Aduana's Appeal

In his appeal, accused-appellant Aduana submitted the following arguments:

1. The RTC committed serious errors of facts in finding the Audit Observation Memorandum (AOM) sufficient to prove his guilt.

The prosecutio failed to adduce evidence to prove that Aduana was involved in the van's alleged irregular purchase. No documentary evidence, such as the alleged "unnumbered and undated" disbursement voucher; the Land bank of the Philippines Check No. 281167, received by Larry Navarro; the certificate of canvass issued three (3) days after the payment was made to Larry Navarro; or any ocument to prove that the bidding was held on June 30, 2008 or 24 days after the van's purchase.

Considering that the Audit Observation Memorandum is merely initiatory and any finding thereof is not yet conclusive, it is not enough to establish Aduana's guilt beyond reasonable doubt. s

2. The RTC erred in convicting him for violation of Sec. 3(e) of RA 3019.

Prosecution's Appellee's Brief DECISION PP. vs. Agustin E. Ocampo, et.a/. Case No. SB-20-A/R-001

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In response to both accused-appeuants." the prosecution countered that:

1. The RTC correctly gave credence to the testimonies of the prosecution witnesses which were supported by documentary evidence on record, and found accused-appellants guilty beyond reasonable doubt for violation of Sec. 3(e) of RA 3019.

2. The prosec tion was able to prove that Ocampo and Aduana conspired with one another.

Issue

Essentially, the issue for the Court's resolution is whether or not the accused-appellants' conviction for the crime of violation of Sec. 3(e) of RA 3019 is proper.

Ruling of the Court

The appeals lack merit.

The prosecution was able to establish and prove all the elements of Section 3(e) of RA 3019.

Sec. 3(e) of RA 3019 provides:

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 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.

The following are the essential elements of violation of Section 3(e) of RA 3019:

27 Consolidated Plaintiff·Appelle@'s Brief dated March 11, 2021, Records, 138. DECISION PP. vs. Agustin E. Ocampo, et.a/. Case No. S8-20-A/R-0019

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1. The accused must be a public officer discharging administrative, judicial or official functions;

2. He must ave acted with manifest partiality, evident bad faith or inexcusable negligence; and

3. 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."

After a judicious review of the case, the Court is convinced that the trial court correctly convicted accused-appellants of the crime charged, as will be explained hereunder.

The first element is present. As stipulated by the parties, at the time material to the case, Ocampo and Aduana were the Punong Barangay and Barangay Kagawad, respectively, of Barangay Lag-on, Daet, Camarines Norte. They fall under definition of a "publi officer" in the which includes any person ho, by direct provision of the law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, or shall perform in said Government or in any of its branches public duties as an employee, agent, or subordinate official, of any rank or classes, shall be deemed to be a public officer. 29

The second element is also present.

The second element of Section 3(e) of RA 3019 may be committed in three ways, i.e., through manifest partiality, evident bad faith or gross inexcusable negligence. Proof of any of these three in connection with the prohibited acts mentioned in Section 3(e) of RA 3019 is en ugh to convict.

It is not enough that undue injury was caused or unwarranted benefits were given as these acts must be performed through manifest partiality, evident bad faith or gross inexcusable

28People v. , et.al., G.R. No. 160619, September 9, 2015, 770 SCRA171, 172, citing Uriarte v. People, G.R. No. 169251, December 20, 2006, 511 SeRA 471, 486, citing Santos v. People, G.R. No. 161877, March 23, 2006,485 SeRA 185, 194; Cabrera v. Sandiganbayan, G.R. Nos. 162314-17, October 25, 2004, 441 SCR377, 386; and Jacinto v. Sandiganbayan, G.R. No. 84571, October 2, 1989, 178 SeRA 254,259.

29 Revised Penal Code, Art. 203. DECISION PP. vs. Agustin E. Ocampo, et.a/. Case No. SB-20-A/R-0019

Page 11 0'20 x ------x negligence. Proof of any of these three in connection with the prohibited acts mentioned in Sec. 3(e) of R.A. No. 3019 is enough to convict. 30

On the meaning of "partiality," "bad faith," and "gross negligence," the Supreme Court in Coloma, Jr. v. Sandiganbayan elucidated that:

"Partiality" is synonymous with "bias" which "excites a disposition to see and report matters as they are wished for rather than as they are." "Bad faith" does not simply connote bad judgment or negligence; it imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; it partakes of the nature of fraud." "Gross negligence" has been so defined as negligence characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally with a conscious indifference to consequences in so far as other persons may be affected. It is the omission of that care which even inattentive and thoughtless men never fail to take on their own property."

In other words, there is "manifest partiality" when there is a clear, notorious, or plain inclination or predilection to favor one side or person rather than another. On the other hand, "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. 32

Here, appellant took advantage of their position and acted with manifest partiality, evident bad faith and gross inexcusable negligence in their dealings with Navarro that led to the sale of the van absent a valid appropriation and prior to the conduct of a public bidding.

A basic understanding of the fundamentals of public bidding embodied in RA 9184 or the Government Procurement Reform Acf33was spelled out in Pabillo, et. a/. v. COMELEC and IBP v.

30 Rivera v. People, G.R. Nos. 156577, 156587, 156749, December 3, 2014, 743 SeRA 476.

31 Coloma, Jr. v. Sandiganbayan, G.R. No. 205561, September 24, 2014, 736 SeRA 537, citing Sison v. People, G.R. Nos. 170339 and 170398-403, March 9, 2010, 614 SeRA 670, 679. 32 Fuentes v. People, G.R. No. 186421, April 17, 2017, citing Uriarte v. People, G.R. No. 169251, December 20, 2006, 511 SeRA 471.

33 An Act Providing for The Modernization, Standardization and Regulation Of The Procurement Activities Of The Government And For Other Purposes. (Approved: January 102003). DECISION PP. vs. Agustin E. Ocam 0, et.al. Case No. SB-20-A/R-0019

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COMELEC,34 which is instructive in this case. Thus:

In this jurisdiction, public bidding is the established procedure in the grant of government contracts. Section 3, Article I of the GPRA - the standing procurement law approved on January 10, 2003 - states that U[a]1Iprocurement of the national government, its departments, bureaus, offices and agencies, including state universities and colleges, government-owned and/or-controlled corporations, government financial institutions and local government units, shall, in all cases, be governed by these principles:

(a) Transparency in the procurement process and in the implementation of procurement contracts.

(b) Competitiveness by extending equal opportunity to enable private contracting parties who are eligible and qualified to participate in public bidding.

(c) Streamlined procurement process that will uniformly apply to all government procurement. The procurement process shall be simple and made adaptable to advances in modem technology in order to ensure an effective and efficient method.

(d) System of accountability where both the public officials directly or indirectly involved in the procurement process as well as in the implementation of procurement contracts and the private parties that deal with government are, when warranted by circumstances, investigated and held liable for their actions relative thereto.

(e) Public monitoring of the procurement process and the implementation of awarded contracts with the end in view of guaranteeing that these contracts are awarded pursuant to the provisions of this Act and its implementing rules and regulations, and that all these contracts are performed strictly according to specifications. "

Commission on Audit v. Link Worth International, Inc., synthesizes these principles as such: Public bidding as a method of government procurement is governed by the principles of transparency, competitiveness, simplicity and accountability. These principles per eate the provisions of [the GPRA] from the procurement process to the implementation of awarded contracts. x xx

34 G.R. Nos. 216098 and 216562, April 21, 2015. DECISION PP. vs. Agustin E. Ocampo, et.al. Case No. SB-20-A/R-0019

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By its very nature, public bidding aims to protect public interest by giving the public the best possible advantages through open competition. Under Section 5 (e), Article I of the GPRA, public bidding is referred to as "Competitive Bidding," which is defined as "a method of procurement which is open to participation by any interested party and which consists of the following processes: advertisement, pre-bid conference, eligibility screening of prospective bidder. , receipt and opening of bids, evaluations of bids, post-qualification, and award of contract, the specific requirements and mechanics of which shall be defined in the [GPRA's Implementing Rules and Regulations (IRR)]."

Case law states that competition requires not only bidding upon a common standard, a common basis, upon the same thing, the same subject matter, and the same undertaking, but also that it be legitimate, fair and honest and not designed to injure or defraud the gove" ment. The essence of competition in public bidding is that the bidders are placed on equal footing which means that all q alified bidders have an equal chance of winning the auction through their bids. Another self-evident purpose of competitive bidding is to avoid or preclude suspicion of favoritism an anomalies in the execution of public contrects.»

Guided by the foregoing disquisition, it is evident that it is an established policy.P" as well as a statutory mandate, 37that all government procure ent by all branches and instrumentalities of governments,38 shall e done through competitive public bidding.

The accused-appellants, however, flouted and ignored these rules.

There was evi ent bad faith on the part of Ocampo and Aduana when they acted together in purchasing the van (1) despite the absence of a validly passed barangay ordinance authorizing its

35 Pabillo, et.al. v. COMELEC and IBP v. COMELEC, G.R. Nos. 216098 and 216562, April 21, 2015. [Emphasis supplied; Citations omitted].

36 Power Sector Assets and Liabilities Management Corporation v. Pozzolanic Philippines, lnc., G.R. No. 183789, August 24, 2011, 656 SCRA214.

37 Section 10, Article IV, RA 9184: "All procurement shall be done through Competitive Bidding, except as provided for in Article XVI of this Act." 38 Section 4, RA 9184: Section 4. Scope and Application. - This act shall apply to the Procurement of Infrastructure Projects, Goods and Consulting Services, regardless of source of funds, whether local of foreign, by all branches and instrumentalities of government, its departments, offices and agencies, including government-owned and/or-controlled corporations and local government units, subject to the provisions of Commonwealth Act No. 138. Any treaty or international or executive agreement affecting the subject matter of this Act to which the Philippine government is signatory shall be observed. DECISION PP. vs. Agustin E. Dca po, et.a/. Case No. SB-20-A/R-0019

Page 140(20 x ------x purchase; and (2) prior to the conduct of the actual bidding.

The Audit Observation Memorandum issued by Reblora, COA's Audit Team Leader, reveals that the purchase of the van quoted in the amount of P270,000.00 was made in the absence of "an appropriation re uired by law" and thus was an "improper act.'?"

Although an actual bidding was made, this was conducted only on June 30, 2008 or 24 days after the actual purchase of the van on June 6, 2008. It was on this date that Ocampo issued in favor of Navarro the LBP Check No. 0281167 in the amount of P250,000.00, payabl to Navarro, as payment for the van. The LBP check was signed by Ocampo and Morena. The Disbursement Voucher, however, as unnumbered and undated."? These act likewise show manifest partiality in favor of Navarro since the accused disregarded the law that was meant to protect public funds from irregular or unlawful utilization.

The bidding held on June 30, 2008 was indeed a mere afterthought to give a semblance of regularity to an otherwise irregular and invalid transaction. What is clearly established is that at the time the ap ellants actually purchased the van and thereafter released p blic funds for its payment, a valid public bidding has not yet been conducted. As the RTC aptly pointed out:

That the accused chose among themselves a seller of the vehicle even prior to the conduct of the bidding renders the actual bidding, which they still performed, nugatory. They may have even conducted the same to give the transaction a semblance of legality to cover up their acts. In the case of Caballero, et.al. v. Sandiganbayan,41 the Supreme Court detailed the proper procedure a government agency must follow with respect to the purchase and bidding of materials and services, to wit: "In a nutshell, the procedure for the procurement of government supplies and materials can be summarized as follows: the end-user agency or department draws a purchase request for the supplies and materials; an invitation to bid is announced; the bidding and award to the lowest bidder will be conducted by the Committee on Awards; purchase order will then be executed in favor of the winning bidder; the supplies and materials will be delivered to the end-user agency or department; inspection of the delivered supplies will be made by the requisitioning officer; and DVs will be executed for payment of the supplies and materials." To deviate from the foregoing process, or worse to completely abandon the holding of a valid bidding, opens the transaction to the risks of arbitrariness, collusion and

39 Exhs. Band D, Audit Observation Memorandum dated Aug. 26, 2008; RTC Records, pp. 27, 89. 40 Id., at pp. 28, 90.

41 G.R. Nos. 137355-58, Sept. 25, 2007. DECISION PP. vs. Agustin E. Ocampo, et.a/. Case No. SB-20-A/R-0019

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corruption."

The third element was also proven.

The Court has consistently held that there are two ways by which a public official violates Section 3(e) of RA 3019 in the performance of his fu ctions, 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. 3019.43

Under the first mode, the term "undue injury" in the context of Sec. 3(e) of RA 3019 punishing the act of "causing undue injury to any party," has a meaning akin to that civil law concept of actual damage. As explained in Santos v. People:"

In jurisprudence, "undue injury" is consistently interpreted as "actual damage." Undue has been defined as "more than necessary, not proper, [or] illegal;" and injury as "any wrong or damage done to another, either in his person, rights, reputation or property; that is, the invasion of any legally protected interest of another." x x x.

To be found guilty under the second mode, it suffices that the accused has given u justified favor or benefit to another, in the exercise of his official, administrative and judicial functions'". The element of damage is not required."

In Cabrera v. Sandiganbayan,47 the Court ruled that:

x x x "unwarranted" means lacking adequate or official support; unjustified; unauthorized; or without justification or adequate reasons. "Advantage" means a more favorable or improved position or condition; benefit or gain of any kind; benefit from course of action. "Preference" signifies priority or higher evaluation or desirability; choice or estimation above another.

42 RTC Decision dated Sept. 10, 2018; Records, p. 22. 43 Braza v. Sandiganbayan, G.R. No. 195032, February 20, 2013, 691 SCRA 471, citing Velasco v. Sandiganbayan, G.R. No. 160991, February 28, 2005, 452 SCRA 593; Constantino v. Sandiganbayan, G.R. Nos. 140656 and 154482, September 13, 2007, 533 SCRA 205.

44 G.R. No. 161877, March 23, 2006,485 SCRA 185, citing Llorente vs. Sandiganbayan, G.R. No. 122166 March 11, 1998, 287 SCRA 382.

45 Ambit. Jr. v. Sandiganbayan, G.R. No. J75457. July 6,2011,653 SCRA 576,602.

46 Sison v. People, G.R. Nos. 170339 & 170398-403, March 9, 2010, 614 SCRA 670,681, citing Quibal v. Sandiganbayan, G.R. No. 109991, May 22, 1995, 244 SCRA 224.

47 G.R. Nos. 162314-17, October 25, 2004, 441 SCRA 377 citing Gal/ego v. Sandiganbayan, G.R. No. L- 57841 July30,1982,115 SCRA793. [Citations omitted). DECISION PP. vs. Agustin E. Ocampo, et.a/. Case No. SB-20-A/R-0019

Page 160'20 x ------x

In the present case, the undue injury caused to the barangay of Lag-on, Camarines Norte consists in the appellants' act of going through the purchase of the van without undergoing a public bidding. As a result, the public was not given the opportunity to participate through open competition.

The unwarranted benefit or advantage was made manifest when the appellants purposely bought the van from Navarro through the use of public funds, without the participation of other bidders. This prevented the government from securing the best bid. Even though a subsequent public bidding was held, the same can no longer be considered competitive in the sense that appellants already preferred Navarro over the other two bidders even before the actual bidding began. The Court hereby quotes with approval the RTC's observation on this matter. Thus:

The damage to the State includes, first and foremost, deprivation of its right to select the best and lowest bidder. The barangay was prejudiced when it was not given the right to select the best product at the best price in accordance with law, which is the rationale of a public bidding. Indeed, in the canvass showing the bids, Larry Navarro reflects the lowest bids. However, the basis of the accused in choosing Larry Navarro is suspect, considering that Larry Navarro, according to COA Auditor Jesus Reblora, Jr., is not a licensed vehicle dealer. Moreover, a review of the history of the registration of the vehicle shows that the same is still registered with a certain Roldan B. Serrano. As to how or why Larry Navarro became the owner of the vehicle is not clear based from the history of transfers and registration of the vehicle. These facts, although not directly related to the elements of the offense, leave much to be desired in the quality of the transaction and the sourcing of qualified sellers or bidders. Conversely, due to the highly irregular conduct of the accused, one cannot also ignore the possibility that even the said list of bidders was fabricated.?".

Accused-appellant Ocampo's reliance on the Arias Doctrine is misplaced.

Ocampo invokes the Arias Doctrine'? which states that "[aJII heads of offices have to rely to a reasonable extent on their subordinates and on the good faith of those who prepare bids, purchase supplies, or enter into negotiations." He contends that he is not a member of the BAC tasked to advertise and/or post the invitation to bid/request for expressions of interest, conduct pre- procurement and pre-bid conferences, determine the eligibility of

48 RTC Decision dated Sept. 10, 2018; Records, p. 2l.

49 Arias v. Sandiganbayan, G.R. No. 81563, Dec. 19, 1989. DECISION PP. vs. Agustin E. Ocampo, et.a/. Case No. SB-20-A/R-0019

Page 170(20 x ------x prospective bidders, receive bids, conduct the evaluation of bids, and undertake post-q alification proceedinqs."

The doctrine, however, is not iron-clad. By jurisprudence, the Arias doctrine does not apply when a public officer is faced with a situation where there are circumstances that would excite or warrant him to conduct a "detailed examination" of each paper or document presented before him.51

The records disclosed that there were red flags that surrounded the purc ase of the van that would have prompted Ocampo to probe into the transaction, such as: (1) the absence of a valid appropriation ordinance for the van's procurement; (2) the award in favor of Navarro, even prior to an actual bidding; and (3) proper eligibility documents and financial statements (BIR statement, Tax Returns and Tax Clearances).

On these irregularities alone, accused-appellant Ocampo ought to have known that something was amiss. If indeed, he was looking after the best interest of the barangay he swore to serve, he should have gone beyond what his subordinates prepared or recommended. 52Aside from this, he could have advised his co- accused not to proceed with the purchase lest they both end up liable to their constituents, considering that public funds were involved.

Unfortunately, accused-appellant Ocampo, to his own detriment did none of these.

There was conspiracy between accused-appellants Ocampo and Aduana.

A conspiracy is in the nature a joint offense. It exists when two or more persons come to an agreement concerning the commission of a felo y and decide to commit it. To determine conspiracy, there must be a common design to commit a felony.53

Conspiracy may arise in a public bidding as explained in

50 Appellant's Brief (Ocampo); Records, p.95.

51 Gov. Enrique Garcia, Jr. v. Office of the Ombudsman, G.R. No. 197567, Nov. 19, 2014.

52 Rivera v. People, G.R. No. 156577; Perez, Jr. v. People, G.R. No. 156587; Montero v. People, G.R. No. 156749,Dec.3,2014.

53 People v. Morilla, G.R. No. 189833, February 5, 2014. DECISION PP. vs. Agustin E. Ocampo, et.a/. Case No. SB-20-A/R-0019

Page 18 of20 x ------x

Lagoc v. Malaga, et. al., 54 thus:

Collusion implies a secret understanding whereby one party plays into another's hands for fraudulent purposes. It may take place between and every contractor resulting in no competition, in which case, the government may declare a failure of bidding. Collusion may also ensue between contractors and the chairman and members of the PBAC to simulate or rig the bidding process, thus insuring the award to a favored bidder, to the prejudice of the government agency and public service. For such acts of the chairman and the members of the PBAC, they may be held administratively liable for conduct grossly prejudicial to the best interest of the government service. Collusion by and among the members of the PBAC and/or contractors submitting their bids may be determined from their collective acts or omissions before, during and after the bidding process. 55

Here, Ocampo and Aduana conspired in the rigging of the bidding process which was held only after the actual purchase of the van. They made it appear that the bidding was competitive when in fact, they knew beforehand that Navarro would turn out to be the winning bidder, since they already paid him even before the bidding commenced. They did this without a certification of availability of funds, without an appropriation of funds and without complying with the bidding process.

They also made it appear that Navarro was the lowest bidder (with a bid of P270,OOO.OO) based on the price quotation made after the canvass. However, there was an absence of other documents required in the conduct of a valid bidding, such as a SIR-received financial statement, Tax Return and Tax Clearance. Despite this, Aduana, who was the SAC Chairman, issued a Notice of Eligibility to Navarro.

Notably, the RTC in its Order denying accused-appellant Ocampo's motion for reconsideration emphasized Ocampo's complicity with Aduana that led to the irregular purchase of the van; thus:

It is highly unthinkable that the barangay planned the purchase of a barangay service vehicle, scouted for a buyer, and eventually paid the said buyer using a government check without the knowledge, consent and participation of the . Indeed, Carlito P. Aduana was the Chairman of the BAC and he was the one who issued Larry Navarro the Notice of Eligibility. However, the purchase even prior to the actual bidding can only be made with

54 G.R. No. 184785, July 9,2014, citing Disierto v. Ocampo, G.R. No. 155419, March 4, 2005. 55 Id. (Lagoc Case). [Emphasis supplied]. DECISION PP. vs. Agustin E. Ocam 0, et.a/. Case No. SB-20-A/R-0019

Page 190'20 x ------x

the express consent and participation of the barangay chief, considering that Punong Barangay Ocampo was responsible for preparing the budget of the barangay and, following the enactment of the appropriation ordinance, was also the one who drew the check together with the barangay treasurer for the payment of the van. Then, right after the purchase, Ocampo also took possession and custody of the Oelica van, and only turned over the pertinent documents to his successor after his term. The sum of his action belies innocence and lack of participation in the irregular purchase of the subject vehicle.56

Prescinding from the foregoing, the RTC correctly ruled that accused-appellants Ocampo and Aduana violated Sec. 3(e) of RA 3019, and hence, must be held criminally liable therefor.

WHEREFORE, i light of all the foregoing, both appeals are DENIED. The Decision, dated September 10, 2018, of the Regional Trial of Daet, Camarines Norte, Branch 39, convicting accused-appellants Agustin E. Ocampo and Carlito P. Aduana for violation of Section 3(e) of Republic Act No. 3019 in Criminal Case No. 14674, is AFFIRM D.

SO ORDERED.

FREN ~E LA CRUZ Chairperson/Associate Justice

We Concur:

~~ ~~~.Ou~ GERALDINE FAITH . ECONG ---e:nerAR 0 M. CALDONA Associate Justice Associate Justice

56 RTCOrder dated Oct. 24, 2019, R@cords, p. 27. DECISION PP. vs. Agustin E. Ocampo, et.a/. Case No. SB-20-A/R-0019

Page 20 0'20 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.

EFREN ~E LA CRUZ Chairperson, First Division

ERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division's Chairperson'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.

RO M. CPCacm~ Presiding Justice

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