TABUK CITY, Kalinga – The Office of the Ombudsman outrightly dismissed the graft and grave misconduct charges that were earlier field against Mayor Darwin C. Estrañero and members of the city’s Bids and Wards Committee (BAC) in relation to the purchase of organic fertilizers for the farmers for lack of probable cause and lack of substantial evidence.
In a joint resolution, the Ombudsman stated that there is no probable cause to indict the named city officials for graft and grave misconduct as the complainants failed to show evidence of the offense charged. The decision added that the acts of the respondents in the said case which according to the complainants are purported violation of the pertinent provisions of Republic Act (RA) 9384 or the Government Procurement Law alone do not sufficiently establish the element of manifest partiality, evident bad faith, or gross inexcusable negligence considering the exacting demands of how the legal concepts are defined.
Earlier, respondents claimed good faith in awarding the contract to supply the organic fertilizers to Malabanan and communicating directly with it in that they believe that the latter was an eligible bidder who proposed the lowest bid price for the fertilizer project of the city government.
The Ombudsman found that consistent with their claim, the assailed BAC resolution showed that their recommendation to award the contract to Malabanan was not only predicated on the additional document submitted by the latter since they also considered the fact that it proposed the lowest bid price and its track record of delivering fertilizers in past projects.
Further, the resolution pointed out that given the paucity of guidance that can be found in law and from the Government Procurement Policy Board (GPPB) issuance on what constitutes similar business activities, there is no clear basis to declare Malabanan’s business permit to be deficient on its face as such determination would require an interpretation of the word in the said permit and the unspecified parameters laid down by the GPPB.
According to the Ombudsman, the weight of the evidence supports the claim of the respondents that their interpretation of Malabanan’s eligibility, mistaken though that interpretation may be, was made in good faith rather than motivated by evident bad faith, manifest partiality or gross inexcusable negligence.
“Relatedly, there is no evidence to hold that respondent BAC members communicated directly with Malabanan to unduly favor the latter in the procurement process. The rationale behind the no contact rule provided is to avoid any opportunity for qualified bidders to influence or collude with employees or officials of the procuring entity into skewing the award of contract in their favor. There is no evidence that BAC members’ communication with Malabanan was done for such a purpose. It is important to note that Malabanan proposed the lowest bid price for the fertilizer project independent of any exercise of influence or authority from respondents. BAC members communicated with Malabanan only after the latter was declared to have the lowest calculated bid and only when the technical working group raised the observation during post-qualification that Malabanan’s business description in its business permit renders it ineligible for the project,” the resolution added.
It pointed out that BAC members communicated with Malabanan under the belief that they were communicating with an eligible bidder who proposed the most advantageous price to the city government, thus, the communication was made in good faith to clarify the technical working group’s observation about Malabanan’s line of business rather than to skew the award of contract on his favor.
The Ombudsman also failed to prove that respondents gave any unwarranted benefits, advantage or preference or cause any undue injury to any party, including the government.
Moreover, it noted that two facts are undisputed in the said case, namely, Malabanan proposed the lowest bid price for the fertilizer project independent of any exercise of influence or authority from the BAC and the fertilizers were actually delivered by Malabanan on time and without any issue as to the quality or its pricing.
On the other hand, the Ombudsman claimed that there is no substantial evidence to hold respondents administratively liable for grave misconduct. The charge of misconduct is also premised on the respondent’s alleged violation of RA 9184 but as earlier discussed, respondents were able to show good faith in awarding the contract to Malabanan and in communicating with it during the procurement process.
As a final note, the Ombudsman stipulated that with regard to the findings of the Commission on Audit (COA) specifically on the notice of disallowance against the respondents, which are still pending appeal before the agency, the said findings are not conclusive nor are they a pre-requisite in the resolution of the case.
However, the Ombudsman reminded the respondents to be more prudent in following the procurement procedures laid down in RA 9184 and its implementing rules and regulations as this is only what is expected of them as public officers and to avoid giving any impression that the procedure is tainted with irregularity or bias.
Mayor Estrañero welcomed the latest ruling of the Ombudsman, saying that the concerned city officials who have been dragged into the cases that were earlier filed against them will now be able to have their respective peace of mind and can already concentrate in aggressively working for the interest of the people of Tabuk.
“It is very clear in the decisions of the Ombudsman that dismissed the cases that were earlier filed against us that the questioned transactions were above board in in compliance to existing laws, rules and regulations that is why we will continue to work hard to provide for what will be beneficial to our constituents in terms of the programs, projects and activities that will be implemented by the local government,” Mayor Estrañero stressed. By Dexter A. See
