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WILFREDO B. REYES
Complainant, Docket No: OMB-L-A-17-0303
-versus- For: Conduct Prejudicial to the Best
ADELA L. REBOLLIDO, ET AL., Interest of the Service; Dishonesty;
Respondent Grave Misconduct
x -------------------------------x
Your Honor,
POSITION PAPER
STATEMENT OF FACTS
4. However, under the verification section of all his complaints, including this
very complaint, complainant falsified the JURAT thereof. As evidenced by
the letter (marked as Annex A) of Atty. ROGELIO J. BOLIVAR, the latter
denied having notarized the complaint nor having met the complainant;
5. Not only did complainant falsified the verification of all his complainant
but likewise falsified his address,1766 BPTHAI 1, 1630 Ibayo Tipas, Taguig
City, as mentioned therein;
ISSUES
1. Whether or not public respondent is guilty and should be held liable for
violating Republic Act No. 9184 in relation to Republic Act No. 3019;
2. Whether or not public respondent is guilty and should be held liable for
violating Section 21 of Republic Act No. 10155 and Government
Procurement Policy Board (GPPB) Resolution NO. 05-2010, as amended
by GPPB Resolution NO. 04-2011;
3. Whether or not public respondent is guilty and should be held liable of
conduct prejudicial to the best interest of the service;
4. Whether or not public respondent is guilty and should be held liable for
dishonesty and grave misconduct; and
5. Whether or not public respondent should be preventively suspended.
ARGUMENTS/DISCUSSION
Since the complainant and his firm, BFI failed to join the public bidding
they cannot make claims that the biddings were rigged. Not having had any
knowledge of the events which transpired during the procurement process they
cannot assail the same. Their claims of irregularities are therefore mere fantasy
and speculations.
Under such transparent circumstances there is no way for public respondent and
the private respondent to connive or conspire since both were never privy to the bids of
other potential bidders. All the bids received by the Municipality would be opened
simultaneously and in front of the other bidders hence conspiracy and undue favor
cannot exist.
Clearly, the complaint is bereft of merit and in fact criminal. Its inception and
execution was committed with the precision of a recidivist thief taking advantage of
night while violating Section 35 and 36 of RA 6770 for being an unwarranted, false,
vexatious, malicious, and perjured pleading and therefore should be immediately
DISMISSED.
The respondent was impleaded only to allow the Honorable Office to acquire
jurisdiction over the private respondent. The complaint is cruel. In DOJ vs. Liwag [2] the
Supreme Court ruled:
It is clear therefore that this harassment complaint, which main target for
whatever reason is the private complainant, was treacherously filed by impleading
myself, without consideration for the anxiety and humiliation as well as expense
I will incur simply to satisfy the true complainants lust for revenge against private
respondent.
However, the respondent, as BAC CHAIRMAN will explain the legal basis for
making procurements in accordance with RA 9184 as well as to explain why this
complaint should be discarded for being perjured the respondent proceeds thus:
Section 3, Rule 6 of the Revised Rules of Court requires that a Complaint specify
the name and RESIDENCES of the parties thus:
Section 14(2) of Article III of the 1987 Philippine Constitution providing for the
right to confrontation, viz:
Section 14. x x x
(2) In all criminal prosecutions, the accused shall be presumed
innocent until the contrary is proved, and shall enjoy the right to be heard
by himself and counsel, to be informed of the nature and cause of the
accusation against him, to have a speedy, impartial, and public trial, to
meet the witnesses face to face, and to have compulsory process to secure
the attendance of witnesses and the production of evidence in his behalf.
xxxx
Therefore, the reason for the temporary postal address is clear. Complainant
intends to avoid the expected reciprocal legal action for this malicious complaint. In fact,
the complainant already abandoned his temporary postal address leaving
respondent without opportunity to take reciprocal action for his barratry.
The acts which constitute a violation of RA 9184 for public officials are enumerated
under Sections 65.1, 65.3, of the IRR of RA 9184 thus:
a) Opening any sealed bid including but not limited to Bids that
may have been submitted through the electronic system and any and all
documents required to be sealed or divulging their contents, prior to the
appointed time for the public opening of Bids or other documents.
Local governments are autonomous from the National Government and governed
by the Local Government Code through issuances of their respective Sanggunian(s) for
all their budgetary and administrative requirements and by RA 9184 in all their
procurement.
The Municipality, an LGU, more so the private respondent, could not have
violated a Provision of any GAA since the GAAs do not govern the Municipality or private
respondent.
What is worse, the complainant concealed this fact, perjured, committed Forum
Shopping and Estafa when insisting on GPPB Resolution No. 05-2010 and DILG MC 32-
20102 fully aware that its sole basis, Section 29 of the GAA of 2010 was EXPRESSLY
INVALIDATED by the Court of Appeals in CA GR CV NO. 96075. As NPO
subcontractor he knew this as a fact since the NPO was made a necessary party to
the Court Orders invalidating Section 29 of the GAA and thus the DILG and GPPB
circulars.
Even assuming that Resolution No. 05-2010 was valid, the list of accountable
forms which it annexed (as shown in the Complaint) allegedly required to be procured
from Government Printers did not include the personalized and specialized
Municipality of Paoay accountable forms. There is no basis for the complaint at all.
Corollary thereto, the private respondent had no reason nor benefit to influence
public respondent in any manner, because public respondent could do nothing to favor
RFI into winning the bidding.
In numerous jurisprudences the Supreme Court has ruled that a charge for
a violation of Section 3 of RA 9184 requires concrete and tangible proof of
quantifiable damage in actual Pesos and Centavos. The complainant failed to prove
or even allege quantifiable damage to government or to himself. In fact, there was no
damage but full advantage which the Municipality derived from its procurement from
RFI. RFIs prices for the Municipality of Paoay Official Receipt AF 51 is P98.00/pad as
seen from the NOA. The NPO and APO prices are P110/pad and P125/pad. Thus, the
municipality could not have suffered undue damage by paying a lower cost with free
delivery of its forms.
Section 3 (e), (f) and (g) of RA 3019 define the Corrupt Practices of Public
Officers and not that of private individuals like the private respondent and reads
as follows:
-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. Xxx
Clearly the said provisions of RA 3019 refer to acts and omissions of public
officials not the private respondent. Herein respondent cannot also fathom how
public respondents could have caused undue injury to any party, including the
Government, or giving any private party any unwarranted benefits, advantage or
preference in the discharge of official administrative or judicial functions through
manifest partiality, evident bad faith or gross inexcusable negligence by merely
conducting a public bidding.
Public respondent could not have Neglected or refused, after due demand or
request, without sufficient justification, to act within a reasonable time on any matter
pending before her nor could he have entered on behalf of the Government, into any
contract or transaction manifestly and grossly disadvantageous to the same because,
the complainant had no transaction or request before public respondent which should
have been acted upon.
Dissatisfied with Banda, the NPO and its private printer subcontractor Triprint
Corporation, as Petitioners filed a Civil Case for DECLARATORY RELIEF questioning
the Land Transportation Offices procurement of accountable forms through public
bidding in accordance with RA 9184 before Branch 213 of the Mandaluyong Regional
Trial Court (Civil Case No. MC-10-4337) contending that Memorandum Circular No.
180 s. 2009 and Section 29 of the GAA of 2010 should be the Rule on the Procurement
of accountable forms as exception to RA 9184.
The Regional Trial Court on June 25, 2010 Ruled in its Decision that:
Upon the NPOs Motion for Reconsideration the Court Ruled on October 5, 2010
thus:
OCTOBER 5, 2010 ORDER (ON MR OF NPO)
Therefore, as early as October 5, 2010 when the Regional Trial Court rendered
its Final Decision the Courts Order remained in force until such a time as it was
reversed or affirmed, as has happened on May 11, 2014. The Entry of Judgment in CA
GR CV No. 96075 and the referred to Court Orders it affirmed in Civil Case MC 10-
4337 is attached. (Annex H, I and J, respectively).
A decision rendered in a case for Declaratory Relief which is final and executory
is governed by the Doctrine of Stare Decisis and is immovable and immutable and defines
the rights and obligations of parties, in this case that of procuring entities making the
procurement of all types of accountable forms and the transacting public and applies to
all future cases involving the same or similar issues, which is that a GAA provision
(including that of 2016 and any future GAA provision) or an executive issuance cannot
serve to amend RA 9184 and prohibits re-litigation.
All parties seeking to still controvert the Orders contained in the dispositive
portion or fallo of CA GR CV No. 96075 are estopped since the Decision in CA GR CV
No. 96085 is now final and conclusive not only as to every matter which was offered
and received to sustain or defeat the claim or demand but as to any other admissible
matter which must have been offered for that purpose
A GAA/EXECUTIVE ISSUANCE CANNOT
AMEND LOCAL GOVERNMENT CODE (RA 7160)
a. LEYNES v COA.
Aside from doctrine established in CA GR CV No. 96075, the jurisprudence
issued in Judge Tomas Leynes v COA [2] where the Court ruled that executive issuances,
(MC 180) and/or any GAA provision cannot apply to Local Government LGU
procurements thus:
b. PIMENTEL v AGUIRRE
In Pimentel vs. Aguirre [3] the Supreme Court again explained why an executive
orders or issuance cannot operate to govern LGUs thus:
Again, in DBM vs. Leones [4] the Court ruled that GAAs, or National Budgets do
not operate to govern Local and Regional Government Units since these local
governments are autonomous vis the operations of the National Government.
Even assuming arguendo that GPPB Resolution No. 05-2010 (marked as Annex
K)/DILG MC 32-2012 is valid, still its Primary Whereas Provision show it relies solely
on Section 29 of the GAA of 2010 which reads:
In a subsequent Legal Opinion rendered also by the Office of the President dated
May 25, 2009 the Office of the President affirmed that MO 38 which is the basis of MC
180 has been repealed by RA 9184.
Any waiver provision required under the GAA of 2014-2017 and under GPPBs
Resolution has been determined by the Office of the President to be illegal and irregular
as early as February 24, 2009 (Annex O) and May 25, 2009 (Annex P) when the
OP issued Legal Opinions addressed to the BLGF. We quote the OP May 25, 2009
Opinion thus:
NPO claims that the it can still continue its sub-contract bidding
function because Memorandum Order (MO) No.38 s Nov 19,1998 (MC 180)
was not expressly repealed by executive order (EO) No.378, s. October
25,2004: that there exist no in consistency between the provision of the
two (2) orders; and to high light this point, it cited Sec. 27 0f RA 9401,
GAA FY 2017 and 2008 stressing on its provision xxx provide that in the
printing of accountable forms, a prior waiver from the national printing
office shall be secured.
The office holds that the provision of MO 38 (MC 180) granting NPO
to sub-contract bidding due to its incapacity are diametrically opposed to
the provision of EO no.378 on the matter. It is incongruous For NPO to
accredited its competitors.
-x-x-x-x-x-
COA Regional Director I, Director Lynn Sicangco, now Region III COA Regional
Director affirms (Annex Q) that:
COA Regional Director II, Director Pelilia Veloso writes (Annex R) to state that:
COA Regional Director X, Director Celso Vocal, affirms in his April 6, 2017
indorsement (Annex S) to the COA General Counsel that he agrees GAA or Executive
issuances cannot amend RA 9184 thus:
It is surprising that the complainant withheld from the Honorable Office GPPB
Resolution No. 12-2014, May, 2014. The Resolutions whereas provision of reads:
The GPPBs recommendation comes after the Court of Appeals issued it Order
declaring the GPPBs basis for GPPB Resolution No. 05-2010 irregular or illegal.
This is the reason why the PCOO no longer issues exemptions to government
agencies. The PCOO is no longer authorized to do so with the annulment of Resolution
No. 05-2010 by the Court and the declaration that the Philippine Information Agency
(nee PCOO) which is the PCOOs predecessor REFRAINS from issuing Guidelines for the
Printing of Accountable Forms since the procurement of accountable is solely the
responsibility of the BAC of the Procuring Entity.
By following the DOF instructions, the BLGF instructions, the Court Orders
issued by the Supreme Court in the Banda Case and the Court of Appeals in CA GR CV
NO. 96075 as well as abiding the Legal Opinion of the Office of the President and that
of COA Regional Directors how can it be said that the procurement of accountable forms
made by the Municipality in full accordance with RA 9184 is irregular.
Public respondent is NOT guilty and should NOT be held liable of conduct
prejudicial to the best interest of the service, dishonesty and grave
misconduct;
With all the foregoing discussions, public respondent, then, cannot be held liable for
conduct prejudicial to the best interest of the service, dishonesty and grave misconduct.
Misconduct is a transgression of some established and definite rule of action, more
particularly, unlawful behavior or gross negligence by a public officer. [See Civil Service
Commission v. Ledesma, 508 Phil. 569, 579 (2005)] In grave misconduct, as distinguished from
simple misconduct, the elements of corruption, clear intent to violate the law or flagrant disregard
of established rules, must be manifest and established by substantial evidence. Complainant with
mere allegation, did not and failed to establish by substantial evidence to prove that public
respondent acted with grave misconduct, dishonesty or conduct prejudicial to the best interest of
the service.
Grave misconduct necessarily includes the lesser offense of simple misconduct. Thus, a
person charged with grave misconduct may be held liable for simple misconduct if the misconduct
does not involve any of the elements to qualify the misconduct as grave.
We point out that to constitute an administrative offense, misconduct should relate to or be
connected with the performance of the official functions and duties of a public officer . The
respondent in the present case, in several instances, performing the functions of his office, engaged
in unlawful behavior. In Manuel v. Judge Calimag, Jr. [367 Phil 162 (1999)], the Court explained
that:
x x x Misconduct in office has been authoritatively defined by Justice Tuazon in Lacson v.
Lopez in these words: Misconduct in office has a definite and well-understood legal meaning. By
uniform legal definition, it is a misconduct such as affects his performance of his duties as an
officer and not such only as affects his character as a private individual. In such cases, it has been
said at all times, it is necessary to separate the character of the man from the character of the officer
x x x It is settled that misconduct, misfeasance, or malfeasance warranting removal from office of
an officer must have direct relation to and be connected with the performance of official duties
amounting either to maladministration or willful, intentional neglect and failure to discharge the
duties of the office x x x.
First and foremost, the evidence is never strong. Taking into account the integrity
of the Department of Finance instructions, the Bureau of Local Government of Finance
instruction, the Court Orders issued by the Supreme Court in the Banda Case and the
Court of Appeals in CA GR CVNo.96075 as well as abiding by the Legal Opinion of the
Office of the President and that of Commission of Audit Regional Directors, it cannot be
said that the procurement of the accountable forms made by the Municipality in
accordance with RA 9184 is irregular. Hence, not only is the element of strong evidence
of guilt lacking in the instant case but public respondent is not even guilty at all of the
offense being charged against her.
Complainant failed to present any evidence to prove the grounds or elements of
dishonesty, oppression or grave misconduct or neglect in the performance of duty on
my part. Allegations concerning the commission of any of the foregoing violations are
nowhere to be found in the complaint. Hence, the grant of the prayer for the issuance
of preventive suspension against public respondent would tantamount to denial of due
process.
Further, my continued stay in the office can never prejudice the case filed against
me. This Honorable Court should be prompted with the fact that the pieces of evidence
presented by the complainant against me were substantially sourced from the website
of PhilGEPs, a single portal which serves as the primary source of information on
government procurement.
There is no way can I prejudice the information coming from the PhilGEPs website
for she has no control of such. This Electronic Procurement System is being managed
by the Department of Budget and Management and under the direct supervision of
GPPB. It is virus-resilient and has sufficient security. It also has centralized electronic
bulletin board for posting procurement opportunities, notices, awards and reasons for
award. All procuring entities, including the Municipal Government of Paoay, are
required to post all procurement opportunities, results of bidding and related
information in the PhilGEPs bulletin board.
Inasmuch as the claims of the complainant have no basis in law and in fact, and
the grounds for the issuance of preventive suspension were not satisfied in the instant
case, the prayer for the issuance of said suspension against me should be denied.
RELIEF
IN LIGHT OF THE FOREGOING, it is respectfully prayed that the instant VERIFIED
POSITION PAPER be admitted and considered for the decision in the case pursuant to the Rules
of Procedure of the Office of the Ombudsman in Administrative Cases.
FURTHER, it is respectfully prayed that after due notice, deliberation, evaluation and
investigation by the Honorable Office, judgment be rendered DISMISSING this instant case.
Other relief and remedies justifiable under the circumstances are likewise prayed for.
IN WITNESS WHEREOF, I signed this pleading this 17th of December 2015 at Cantilan,
Surigao del Sur, Philippines.
ADELA L. REBOLLIDO
RESPONDENT
Copy furnished:
WILFREDO B. REYES
c/o 1766 BPTHAI I
1630 Ibayo Tipas, Taguig City
EXPLANATION
A copy of this position paper is being furnished to complainant not by personal service but
by registered mail due to time constraint and the distance involved.
VERIFICATION AND CERTIFICATION
3. I have read the contents thereof and the facts stated therein are true and
correct of my personal knowledge and/or on the basis of copies of documents
and records in my possession;
4. I have not commenced any other action or proceeding involving the same
issues in the Supreme Court, the Court of Appeals, or any other tribunal or
agency;
6. If I should thereafter learn that a similar action or proceeding has been filed
or is pending before the Supreme Court, the Court of Appeals, or any other
tribunal or agency, I undertake to report that fact within five (5) days therefrom
to this Honorable Court.
ADELA L. REBOLLIDO
Respondent