Procurement without bidding

It is a well-entrenched rule that factual findings of the Sandiganbayan are conclusive upon the Supreme Court except where: (1) the conclusion is a finding grounded entirely on speculation, surmise and conjectures; (2) the inference made is manifestly mistaken; (3) there is grave abuse of discretion; (4) the judgment is based on misapprehension of facts and the findings of fact of the Sandiganbayan are premised on the absence of evidence and are contradicted by evidence on record.[20] None of the above exceptions obtains in this case.

Section 3 (e) of RA No. 3019, as amended, provides:

Section 3. Corrupt practices of public officers.- In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful

x x x x

(e)        Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.

The following essential elements must be present:

  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 gross inexcusable negligence; and
  3. 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.[21]

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 contention that the acquisition through a negotiated purchase was valid the same being pursuant to COA Resolution Nos. 95-244 and 95-244-A, is untenable.  Petitioner’s reliance on said COA Resolutions is misplaced. COA Resolution No. 95-244 as amended by Resolution No. 95-244-A states that there is no necessity of prescribing the limit of purchases not subject to public bidding since Executive Order No. 301[22] authorizes the heads of an agency with the approval of the Department Heads to enter into a negotiated purchase as long as the same is advantageous to the government.

Both resolutions are implementing guidelines which must be read and applied in conjunction with Title VI,[23] Book II, of Republic Act No. 7160 otherwise known as the Local Government Code of 1991.  Section 356 thereof states the general rule that the acquisition of supplies by the local government units shall be through competitive bidding.  The only instances when public bidding requirements can be dispensed with are provided under Section 366, to wit:

Section 366. Procurement without Public Bidding. Procurement of supplies may be made without the benefit of public bidding under any of the following modes:

(a)                Personal canvass of responsible merchants;

(b)               Emergency purchases;

(c)                Negotiated purchase;

(d)               Direct purchase from manufacturers or exclusive distributors; and,

(e)                Purchase from other government entities. (Underscoring supplied)

The negotiated purchase is further qualified by Section 369 thereof which states:

Section 369. Negotiated Purchase.- (a) In cases where public biddings have failed for two (2) consecutive times and no suppliers have qualified to participate or win in the biddings, local government units may, through the local chief executive concerned, undertake the procurement of supplies by negotiated purchase, regardless of amount, without public bidding: provided, however, that the contract covering the negotiated purchase shall be approved by the Sanggunian concerned x x x.

Thus, a local chief executive could only resort to a negotiated purchase under Section 366 of RA No. 7160 and COA Resolution Nos. 95-244 and 95-244-A, if the following two requisites are present:  (1) public biddings have failed for at least two consecutive times and; (2) no suppliers have qualified to participate or win in the biddings.

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[24] 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.  Hence, had petitioner observed the proper procurement 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 P500,000.00.  Without doubt, petitioner’s negligence caused undue injury to the government while at the same time gave unwarranted benefits to Josephine Ching.

The penalty for violation of Section 3(e) of RA 3019 is “imprisonment for not less than six years and one month nor more than fifteen years, and perpetual disqualification from public office.”[25] Under the Indeterminate Sentence Law, if the offense is punished by 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.[26]

In view of the circumstances obtaining in the instant case, the Sandiganbayan correctly imposed the indeterminate prison term of six (6) years and one (1) month, as minimum, to ten (10) years and one (1) day, as maximum, with perpetual disqualification from public office.

About Erineus

Born on December 28, 1965, Surallah, South Cotabato, Southern Mindanao, Philippines.
This entry was posted in Anti Graft and Corruption, Public Bidding and tagged , . Bookmark the permalink.

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