TABUK CITY, Kalinga – The Office of the Ombudsman Outrightly dismissed the five criminal and administrative cases that were filed against Mayor Darwin C. Estran͂ero, City Health Officer Henritta Bagayao and members of the city’s Bids and Awards Committee (BAC) and private respondents simultaneous with the eight similar cases which were also junked following its resolution of the motion for partial reconsideration for lack of probable cause in relation to the local government’s purchases of food packs and relief goods at the height of the COVID-19 pandemic.
In a 38-page joint resolution, the Ombudsman pointed out that the acts alleged in the consolidated complaints do not show that private respondents Letty Bides or Ruben Bides caused or induced Mayor Estrañero or the BAC members to enter into any contract or transaction manifestly and grossly disadvantageous to the city government or to give any unwarranted benefits, advantage or preference to them in securing the assailed procurements.
Further, the decision stated that the records are also bereft of evidence indicating that the actions of the private respondents were motivated by any willful intent to induce, persuade or knowingly influence public respondents for the purpose of favorably securing or bagging the procurement contracts of the local government.
The Ombudsman underscored that the complainants made a sweeping conclusion that private respondents induced public respondents to commit a violation of the pertinent provisions of Republic Act (RA) 3019 or the Anti-Graft and Corrupt Practices Act without even alleging how much inducement or influence was imposed upon public respondents.
“It bears stressing that the city government’s contracts with Letty Bides for the supply of food packs or meals and with Ruben Bides for the supply of relief goods and packs were covered by an existing agreement to supply goods during emergency as embodied in the 2019 memorandum of agreement (MOA) and a subsequent BAC resolution duly recommending to the concerned offices the necessity to procure the said goods through negotiated mode in the absence of a MOA,” the decision stressed.
Moreover, the MOA entered into with Caleb’s Catering or Bides Marketing was anchored on City Council Resolution No. 150, series of 2015 giving the local chief executive a blanket authority to enter into public-private partnerships through MOAs as long as it is warranted by an existing emergency and the supplier is capable and legitimate.
According to the decision, there seems to be no reason for private respondents or suppliers to induce or influence the concerned offices and the BAC for the purpose of favorably securing or bagging the procurement contracts of the local government.
The decision stipulated that it is undisputed that in 2020, during the period of the questioned procurements, the entire country was placed under a state of national health emergency because of the COVID-19 pandemic. As Such, Congress enacted RA 11469 or the Bayanihan 1 into law authorizing the President to adopt temporary emergency measures to respond to crisis brought by the pandemic. Among others, the law authorized the procurement of medical supplies as well as goods for social amelioration services, as the need arises, and in the most expeditious manner.
Under the said law, the aforesaid procurement are also exempt from the provisions of RA 9184 or the Government Procurement Reform Act and other relevant laws.
The Ombudsman emphasized clearly, the timeliness of the procurement of the meals intended for the frontliners and packs of relief goods for the affected constituents of the local government was critical and indispensable. Otherwise stated, public bidding was dispensed with to address a public health emergency in the most expeditious manner.
The decision noted that the allegations of complainants that shopping was erroneously used as the mode of procurement in the assailed procurement is misplaced. Corollarily, their allegations that result to such a mode or the purchase of food packs or meals was illegal because it was above the threshold amount of PhP100,000 is also untenable.
The decision added that as explicitly stipulated under BAC Resolution No. 66, series of 2020, during a state of calamity, the mode of procurement for those not covered by a MOA shall be negotiated procurement under emergency cases, thus, three request for quotations from different suppliers were not required from the said procurements contrary to the allegations of the complainants.
The BAC also passed Resolution No. 48, series of 2020 stating that goods to be procured shall be covered by a MOA in times of emergency and calamity. For those not covered by a MOA, negotiated procurement under emergency cases shall be adopted as the mode of procurement.
In the aforesaid cases, the Ombudsman found out that Caleb’s Catering has an existing MOA with the local government for the stockpiling of basic emergency supplies and provision of food subsistence or relief goods during calamities and disaster-related emergencies. Bides also submitted all the mandatory documentary requirements specified under the implementing rules and regulations of RA 9184.
The decision claimed that the local government’s division of the contracts was necessary to carry out the procurement in an efficient and economical manner and not to circumvent any provision of RA 9184 and its revised implementing rules and regulations. The purchase requests indicated varied number of food packs at certain periods from April to May 2020 depending on the number of frontliners that were required to report and care for the arriving locally stranded individuals and Overseas Filipino Workers (OFWs) mandated to undergo facility quarantine, thus, the procurement was rationalized based on the changing and variable needs at that time and that the mere act of dividing a contract into smaller quantities or phases does not automatically constitute splitting of contracts.
The Ombudsman ruled that the allegation of overpricing of the food packs or meals priced at PhP160 per pack is hearsay and speculative as no single proof was offered to collaborate it. In contrast, the price of PhP160 per food pack offered by Caleb’s Catering and approved by the BAC was thoroughly discussed during the meeting of the City Disaster Risk Reduction and Management Council (CDRRMC) on March 16, 2020.
In the case of the relief pack priced at PhP500 per pack, the decision claimed that the purported quotations offered by the complainant to support his claim of overpricing was insufficiently documented. The prices quoted from Mildred Store and Balageo’s Store are not for the same goods contained in the food packs procured, thus, there is no indication of the stores location and the prices quoted do not include the cost of manpower to repack the goods into individual food packs. There is also no showing that the actual canvass sheets or price quotations were obtained from legitimate or accredited suppliers, thus, they could not be used as valid basis to declare the subject meals/food packs overpriced.
The Ombudsman explained that the allegations of complainants of conspiracy between the private and public respondents is unfounded as there are no circumstances, much less direct evidence, to prove unity of intention among them in scheming or committing a felony because conspiracy is never presumed. Lastly, the decision asserted that there is no factual nor legal basis to administratively fault public respondents as records show that the required documents and prescribed procedures for the conducted of negotiated procurement under emergency cases was faithfully compiled by them.
It added that Mayor Estrañero signature on an undated purchase order is likewise inconsequential and it is not conclusive evidence of any irregularity or wrongdoing on his part. It is settled that mistakes committed by a public officer are not actionable absent any clear showing that they were motivated by malice or gross negligence amounting to bad faith.
The Ombudsman stressed that signing a document does not result to a liability of the official involved without any showing of irregularity on the document’s phase such that a direct examination would be warranted. By Dexter A. See
