FIFTH DIVISION PEOPLE OF THE PHILIPPINES,sb.judiciary.gov.ph/RESOLUTIONS/2019/G_Crim_SB-16-CRM... · 2019-07-18 · was to be sourced from the 20% Development Fund of the IRA (DF-lRA),

FIFTH DIVISION

PEOPLE OF THE PHILIPPINES,Plaintiff,

- versus-SB-16-CRM-0737For: Violation R.A. No. 3019,Section 3(e)

BENEDICTO H. ALCALA,CATALINO A. SUMAYLO,ROGELIO S. BONAO,RENA D. GUIVENCAN,DIONISIA H. ESTOPITO,RENE B. LUSTRE,

18 July 2.01~

Accused.x-------------------------------------------------------------------------------------------x

RESOLUTION

CORPUS - MANALAC, J.:

Before the Court are the motions for reconsideration separately filed byaccused Catalino A. Sumaylo and Benedicto H. Alcala, of the April 26, 2019Decision finding them guilty of violating Section 3(e), Republic Act No. 3019,the dispositive portion of which reads:

WHEREFORE, in the light of all the foregoing, the Court finds accusedBenedicto H. Alcala and Catalino A. Sumaylo, GUILTY beyond reasonable doubtof violation of Section 3(e) of RA 3019, and each is hereby sentenced to suffer thepenalty of imprisonment from Six (6) years and One (1) month to Eight (8) yearswith perpetual disqualification to hold public office. Accused Rogelio S. Bonao,Rena D. Guivencan, Dionisia H. Estopito and Rene B. Lustre, are hereby acquittedof the charge for failure to prove their guilt beyond reasonable doubt. For all theaccused, no civil liability is adjudged against them as the basis for such award doesnot exist.

SO ORDERED.

Accused Sumaylo'sMotion for Reconsideration

In his Motion for Reconsideration, accused Sumaylo raises the followingarguments, viz:

Motions for Reconsideration (A1cala& Sumaylo) Page 2Crim. Case No. SB-16-CRM-0737People vs. Benedicto H. Alcala, et al.

x------------------------------------------------------------------------------------------------------------------------x"i. SUMAYLO, NOT BEING A STAFF OR A PART OF THE

PROCURING AGENCY, HE NEVER GA YE UNWARRANTED BENEFIT,ADV ANTAGE OR PREFERENCE TO GATEWAY MOTOR (CEBU), INC.,AS HE HAD [sic] PART IN THE PROCUREMENT OF THE KIA SORENTOBY THE PROCURING AGENCY. THUS, THERE WAS NO EVIDENTBAD FAITH, GROSS INEXCUSABLE NEGLIGENCE OR MANIFESTPARTIALITY ON THE PART OF SUMAYLO.

ii. SUMAYLO, NOT BEING A MEMBER OF THE MUNICIPALDEVELOPMENT COUNCIL AND SANGGUNIANG BAYAN OFPANGLAO, BOHOL, HAD NOT VIOLATED DILG AND DBM JOINTMEMORANDUM CIRCULAR NO. l. S. 2005."

Sumaylo argues that the procuring entity in this case was the Office of theMayor headed by his eo-accused Alcala. While it is true that he prepared the 2007Annual Procurement Plan of the Municipality of Panglao with therecommendation for the procurement through direct contracting of a"Vehicle/EquipmentlVan/SUV/Pick-up-M.O." in the amount of Pl,550,000.00,no specific brand was specified. He adds that as Chairman of the Bids and AwardsCommittee (BAC), he had no participation in the eventual purchase of the subjectvehicle. It was the Office of the Mayor that dealt with, transacted and eventuallypurchased the same. He stresses that as reflected in the Minutes of the BACMeeting and Pre-Bid Conference! and Resolution No. 001 Series of2008,2 "it wasthe motion ofEngr. Rogelio Bonao that the mode of purchase of the motor vehiclewould be by direct contracting," which was unanimously approved. He did noteven vote for its passage. He did not recommend direct contracting as a mode ofpurchase but it was the act of the BAC as a body upon its unanimous vote.

As regards the alleged violation of DILG and DBM Joint MemorandumCircular No. 1, Series of 2005, he claims he cannot be faulted. The appropriationfor the acquisition of the subject vehicle allegedly arose from the passage ofResolution No. 1, Series of 20073 by the Municipal Development Council (MDC)ofPanglao, of which he was not a member. He was not a member as well of theSangguniang Bayan ofPanglao which passed Resolution No. 1524 approving thePriority Development ProjectlPrograms of Activity for Funding. As a MunicipalBudget Officer, he had no power to oppose the said resolutions. If there was anirregularity therein, it should have been the MDC and SB members that should beheld accountable.

Accused Alcala'sMotion for Reconsideration

In A1cala's "Motion for Reconsideration," he argues on the followinggrounds:

1Exhibit "D"2 Exhibit" C"3 Exhibit "B"4 Exhibit" A_I"

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"First Ground - THAT THE EVIDENCE ADDUCED AREHEARSAY, UNCLEAR, AND INSUFFICIENT TO PROVE THEELEMENT OF GIVING UNWARRANTED BENEFIT, ADV ANT AGE ORPREFERENCE TO GATEWAY MOTORS THROUGH GROSS ANDINEXCUSABLE NEGLIGENCE

XXX

Second Ground - THAT THE CONSTITUTIONAL RIGHT OFACCUSED ALCALA TO EQUAL PROTECTION OF THE LAW ISVIOLATED SINCE THE ASSAILED DECISION UNJUSTLY SELECTEDHIM AND HIS CO-ACCUSED SUMA YLO TO BEAR THE LIABILITY OFTHE PROCUREMENT OF KIA SORENTO, TO THE EXCLUSION OF ALLOTHER PUBLIC OFFICERS OF LGU PANGLAO, WHO INDIVIDUALLYAND COLLECTIVELY PARTICIPATED IN THE APPROVAL OF THEMDC RESOLUTION NO. 1, SERIES OF 2007 (EXHIBIT "B", WITH SUB-MARKING "B-1-A"); SB RESOLUTION NO. 152, SERIES OF 2007(EXHIBIT"A-1"; 2007 ANNUAL PROCUREMENT PROGRAM (APP) OFPANGLAO (EXHIBIT "E" WITH SUB-MARKINGS EXHIBIT "E-1" & "E-2"); BAC RESOLUTION NO. 1 (EXHIBIT "C"); MINUTES OF BACMEETING AND PRE-BID CONFERENCE (EXHIBIT "0").

XXX"

He contends that the alleged violation of Section 3(e) of RA 3019 wascommitted via culpa and not by dolo, which are exclusive of each other contraryto the Information filed in this case, which alleged "xxx willfully, unlawfully, andfeloniously, through evident bad faith, manifest partiality and/or gross inexcusablenegligence, conspiring, confederating and mutually helping one another, giveunwarranted benefit, advantage or preference to Gateway Motors xxx," which isa mixture of the two modes - dolo and culpa. He notes that the Information allegedconspiracy among the accused which is inconsistent with gross inexcusablenegligence. Conspiracy implies an intentional act on the part of the accused andcannot arise from negligence, or gross inexcusable negligence.

Alcala also argues that the testimonies of prosecution witnesses JairusFuderanan, Roque B. Cubar, Marissa Amar Santos, Analyn Apduhan, RosalindaBuca Cabang, and Marites E. Banzali-Cullen were hearsay, opinion or conclusionof facts, while the documents identified by them including the subject Resolutions,and the Minutes ofBAC Meeting and Pre-Bid Conference dated January 9,20085

showed that the acts were unanimously approved by the Sangguniang Bayan andthe BAC.

He further avers that although the documents presented would show that aparticular brand was specified, it does not follow that Alcala "had acted with clear,notorious, or plain inclination or predilection to favor Gateway Motors Cebu" inthe purchase of the subject vehicle or gave the same unwarranted benefit,advantage or preference through gross inexcusable negligence. Such imputationis based more on presumption or conclusion of facts and not on solid evidence thatwould qualify as proof beyond reasonable doubt. Citing the case of Nava vs.

5 Exhibit "0" ~/I


Justice Palattao'' he claims that the omission of a procedural matter alone doesnot suffice to prove a violation of RA 3019, Section 3(e) more so as the"[p]rosecution's testimonial and documentary evidence failed to prove with moralcertainty that [he] was motivated with personal interest in the purchase of KiaSorento."

Prosecution's ConsolidatedComment/Opposition

On Alcala's Motion for Reconsideration

The prosecution counters that it has presented an overwhelming evidenceshowing that A1cala is guilty of the crime as charged, particularly that ofcommitting gross inexcusable negligence and giving unwarranted benefit,advantage or preference. It contends that as the head of the procuring entity, itwas incumbent upon him to know the procedures in the procurement of goods andsupplies as mandated by RA 9184. It was his duty to follow the same as failureto do so constitutes gross and inexcusable negligence citing the case of Ong vs.People. 7

It points out that as Municipal Mayor, it was accused A1cala who approvedthe 2007 APP of the Municipality ofPanglao where it was specified that the modefor procurement for a "VanlSUVlPick-up" for his Office was "direct contracting"unlike the purchase ofa "Jeep" which was specifically stated in the same APP thatthe mode of procurement was "public bidding". Thus, it is the prosecution'scontention that "[a]t this early stage of the procurement process, it already showsaccused Alcala's giving of unwarranted benefit to the prospective supplier of thesubject vehicle" citing Article IV, Section 10 of RA 9184 requiring a competitivebidding in all procurement, except when the conditions set forth by the said lawhas been complied with. Further, accused Alcala proceeded to approve the saidAPP, despite showing that the Pl,550,000 allocated budget for the same vehiclewas to be sourced from the 20% Development Fund of the IRA (DF-lRA), inviolation of the DILG and DBM Joint Memorandum Circular No. 1, s. 2005. Theprocurement of vehicle is not one of the allowable projects under the saidmemorandum.

The prosecution further advances that the giving of unwarranted benefit byaccused A1cala was made more evident when he, as requesting party andapproving authority, specifically indicated the subject brand in the PurchaseRequest. So that when Panglao's BAC Resolution No. 001, series of 2008recommending direct contracting in the acquisition of the motor vehicle for hisoffice was passed, he approved it. He too signed the Purchase Order, Obligation

6 G.R. No. 160211, August 28,2006 citing Centeno vs. Sandiganbayan (GR Nos. 181999 and 18200-04,September 2,2009) and Marquez vs. Sandiganbayan (G.R. No. 182020-24, September 2, 2009)7 G.R. No. 176546, September 25, 2009


Request, Disbursement Voucher, check corresponding to the purchase, as well asthe Inspection and Acceptance Request.

Taking into consideration the totality of accused Alcala's actions in thequestioned transaction, from the initial stages of the procurement process up tothe point of delivery and acceptance of the vehicle, it allegedly becomes clear thathe gave unwarranted benefits, advantage or preference to Gateway Motors, thesupplier of the Kia Sorento. That he cannot just claim that he is entitled to rely onthe wisdom of the BAC and of the MPDC in making such recommendation for"direct contracting" since "[t]he ultimate decision to purchase the Kia Sorentosquarely rests on his shoulders."

On Sumaylo's Motion for Reconsideration

The prosecution maintains that it has shown beyond reasonable doubt thatthrough series of overt acts, accused Sumaylo violated RA 9184 by favoring theprocurement of the subject vehicle through direct contracting without complyingwith the conditions mandated by law; and violated as well the DILG and DBMJoint Memorandum Circular No. 1, s. 2005 by sourcing the procurement of thesaid vehicle from the 20% DF-IRA. That when asked as to the regularity of theresort to direct contracting, Sumaylo as BAC Chair, "gave an all-encompassingassurance to the BAC members that such was allowed by law without specifyingthe conditions therein." The prosecution posits that without such assurance theBAC members would not have adopted Resolution No. 001.

In sum, the prosecution alleged that both accused failed to present any newcompelling evidence that warrants the reversal of the assailed Decision.

Findings and Ruling of the Court

As to Sumaylo's Arguments

Contrary to Sumaylo's assertions that he had no participation in the fundingand procurement of the subject vehicle by direct contracting, thus, he could not besaid to have given unwarranted benefit, advantage and preference to GatewayMotors, the records and the testimonies of the witnesses apparently showotherwise.

First, it was Sumaylo, as Municipal Budget Officer, who preparedPanglao's 2007 Annual Procurement Program" authorizing the procurement of thevehicle via direct contracting as he himself admitted on cross-examination." viz:

8 Exhibit "E"9 Transcript of Stenographic Notes (TSN), October 30,2018, p. 19

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Q Who prepared the APP, Sir?A The APP was prepared by the MPDC, Sir.Q Do you have a copy of the APP? I am showing to you the APP,

Annual Procurement Program Exhibit "E-I". May Imanifest, Your Honors, and could you please read prepared by? Youforgot? You forgot that you prepared this APP, Sir?

A Yes, Sir. It was reviewed by the MPDC, Sir.Q It was reviewed by the MPDC, but it was prepared by you

as the budget officer?

WITNESS

A Yes, Sir.

Concomitant thereto, both Sumaylo and A1cala admitted during the Pre-trialthat "[t]hat the basis for the purchase of the 2008 model Kia Sorento EX (7-seaters) was the 2007 Annual Procurement Plan (APP) ofLGU Panglao, Bohol."IOSumaylo also testified lIon cross-examination in this wise:

XxxQ Okay. Why was there no publication of an invitation to bid

in this case?A If you may recall Sir, in the annual procurement plan there

is a mode of procurement there and it stated there its directcontracting.

Q Yes. So, in the APP you said that the mode of procurementwas indicated as direct contracting?

A Yes, Sir.XxxQ So, you are saying that since the method of procurement

was already indicated in the APP the BAC can no longerchange that?

A It is not the function of the BAC to change, Sir.Q So your answer is no?A Yes, Sir,Q Why did you say in question 12 that direct contracting is

the only available mode for the procurement of the motorvehicle?

A That's in the, as I said it is in the APP and the APP isrecommended by, it is a summary of all the procurementactivities of the different offices, Sir.

He, thus, begs the issue of himself not being responsible for theendorsement of direct contracting by pointing to the APP. He cannot simply take

. refuge from the APP, which he himself prepared.

Second, while Sumaylo was not a member of the Municipal DevelopmentCouncil (MDC) of Panglao, it was him as Municipal Budget Officer, who wasasked and consulted by the MDC before it approved the projects/programs andactivities for funding from the accumulated 20% DF-lRA ofPanglao in violationof DILG and DBM Joint Memorandum Circular No. 1. s. 2005. Sumaylo

10 Pre-trial Order dated March 27, 2017, Records, Volume 1, p. 1011 TSN, October 30,2018, pp. 17-19

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propelled the funding for projects/programs to be sourced from the accumulatedDF-IRA ofPanglao. Accused A1cala testified: 12

XxxQ As Municipal Mayor, can you tell some of your important

duties and functions?A I approved ordinances, resolutions, municipal development

plans and procurement programs, approved budgets of themunicipality, Sir.

XxxQ I'm showing to you this Resolution No. 152 x x x

tell the Court what relation is that resolution you mentioned?A This is a resolution approving the priority development

plans, projects, programs and activities for the funding outfrom the accumulative (sic) twenty percent (20%) IRADevelopment Fund of the Calendar year 2004,2005,2006,and 2007 in the total amount of Nineteen Million Thirty-Three. Thousand One Hundred Twenty-One and SixtyEight Centavos (Php 19,033,121.68) for the inclusion in theannual budget annual investment plan and communitydevelopment plan.

Xxx

Q In this Resolution No. 152, can you please read for therecord under heading C: Procurement of Vehicle, No. 4?

A Procurement of vehicle, equipment, no. 4, Vans/SUV/Pick-up, Municipal Mayor's office in the amount of One MillionFive Hundred Fifty Thousand (Php I ,550,000.00).

XxxQ Now, there is another document related to that Exhibit "2",

which is the Annual Procurement Program. Tell the Court,what relation has this document to the one that youmentioned earlier?

A This is a resolution from the Municipal DevelopmentCouncil approving the priority development project,programs, activities for funding out of the twenty percent(20%) IRA Development fund ofthe calendar year 2008 inthe amount of Five Million Three Hundred Twenty-SevenThousand Two Hundred Sixty-Seven Pesos and SixtyCentavos (Php5,327,267.60) and the accumulated twentypercent (20%) IRA development fund of the calendar yearfrom 2004, 2005, 2006, and 2007 in the amount ofNineteen Million Thirty Three Thousand One HundredTwenty-One and Sixty-Eight Centavos (PhpI9,033,121.68)for inclusion in the annual budget, annual investment plan,community development plan totaling in the amount ofTwenty-Four Million Three Hundred Sixty Thousand ThreeHundred Eighty-Nine and Twenty-Eight Centavos(Php24,326,389.28).

Xxx

Q Another document, Mr. witness, is related to what youmentioned, Resolution No. 151. Please look at this and tellthe Court what relation has that document to the one youmentioned?

A This is a resolution approving the annual budget of theMunicipality ofPanglao, Bohol for the Calendar year 2008as embodied in Appropriation Ordinance No. 6, series of2007 in the amount of Forty Million Six Hundred ThirtyFive Thousand Nine Hundred Sixty-Two and Seventy-fourCentavos (Php40,635,962.74).

Xxx

12 TSN, November 20, 2018, pp. 11-19

Motions for Reconsideration (A1cala& Sumaylo) Page 8Crim. Case No. SB-16-CRM-0737People vs. Benedicto H. Alcala, et al.}(------------------------------------------------------------------------------------------------------------------------)(

Q Can you explain, Mr. Witness, why in that document thatyou mentioned, there was that use of twenty percent (20%)development fund as sourced of budget for the procurementof vehicle. Can you explain?

XxxA The Municipal Council before we did operate with

regards to all the programs of the municipality, weasked from the Municipal Planning and DevelopmentCoordinator and the Budget Officer what are the itemsallowed by law to be included in our budget.

XxxQ The use of the twenty percent (20%) Development Fund as

sourced of fund for the procurement of the vehicle?A This is the only source of fund that we can use in acquiring

motor vehicle and other items included in the programs anddevelopment of the Municipality.

Q In the course of your deliberation during the regulativecounsel meeting, was that matter discussed?

A Yes, before we start the meeting we asked first ourBudget Officer and the Municipal PlanningCoordinator what are the items allowed by law to beincluded in our appropriation because they are the onesin charged in the ... they know about the rules regardingappropriation. (emphasis supplied)

Third, Sumaylo, as Chairman of the BAC, sweepingly assured the BACmembers that direct contracting is allowed without specifying that the conditionstherefor validly exist that led to the passing of Resolution No. 001 series of2008.13Rogelio Bonao, a BAC member, testified: 14

Q: Would you agree with me that the BAC is responsible forensuring that LGU Panglao abides by the requirements andstandards set forth by the Republic Act 9184?

A: Yes, sir.Q: You said that the BAC is responsible for the bidding. In

this particular case, was there a bidding conducted in thepurchase of the Kia Sorento?

A: There was no bidding that happened, sir.Q: There was no bidding?A: Because according to the BAC Chairman, Catalino

Sumaylo, he assured us that through alternative use ofdirect contracting it is allowed under Republic Act 9184,sir.

Q: SO Mr. Sumaylo assured you that direct contracting isallowed?

A: Yes, sir.xxxQ: Now, on Question Nos. 15 and 16 of your Judicial Affidavit

tackles on the questions asked during the meeting?A: Yes, sir.Q: SO you said that you asked Mr. Sumaylo whether direct

contracting is allowed, do you confirm that?A: Yes, sir.Q: SO aside from this question which you asked Mr. Sumaylo,

did you ask any other questions during the meeting inrelation to the purchase of the Kia Sorento?

A: Nothing more, sir.Q: How about the other BAC members, do you know if they

ask questions pertaining to the purchase of the KiaSorento?

A: They asked some questions about it, sir.

13 Supra, Note 214 TSN, June 6, 2018, pp. 10-14


x------------------------------------------------------------------------------------------------------------------------xQ: Could you tell this Honorable Court what those questions

are, if you still remember?A: I remember when Catalino Sumaylo gives assurance that

there was no hinder (sic) or it is allowed in Republic Act9184, so that is why we passed a resolution recommendingto purchase motor vehicle through direct contracting, sir.

Q: SO your recommendation to pass a resolution to purchasethe motor vehicle through direct contracting was based onthe word of Mr. Sumaylo?

A: Yes, sir.Q: Nothing else?A: Yes, sir.Q: In other words, you merely relied on the statements of Mr.

Sumaylo that direct contracting is allowed?A: Yes, sir.Xxx

Sumaylo conveniently argues he was not involved in the direct purchase ofthe vehicle as it was the office of eo-accused Alcala who did it. The evidence,however, showed that at the outset, he was consistent in auspiciously endorsingthe procurement of a vehicle via direct contracting without a valid basis there for,and that in fact, the brand name Kia Sorento was known to him since the samewas indicated in the Purchase Request that was forwarded to him. The burdenshifts to Sumaylo to dispute the prosecution evidence of his clear participation,cooperation and responsibility for the disallowed purchase of the subject vehicle.It requires evidence on his part to prove otherwise in which he failed.

It is worth reiterating the assailed Decision'? in its discussion on Sumaylo'sculpability, as follows:

To summarize, accused Sumaylo, in his capacity as Budget Officer preparedthe Municipality of Panglao's 2007 APP, specifying "direct contracting" as themode of procurement of a "VanlSUV /Pick-up" for the Office of the Mayor with anallocated budget of PI ,550,000.00 sourced from Panglao's 20% Development Fundin order to "Improve Monitoring/Delivery of Basic Services," which accused Alcala,as Municipal Mayor, approved. On January 9, 2008, Sumaylo as SAC Chairpresented the APP to the SAC and on the basis thereof, the BAC including accusedBonao, Guivencan, Estopito and Lustre, as members, passed Resolution No. 001series of 2008 on January 9, 2008 which Alcala likewise approved. The saidresolution recommended to the Head of the Procuring Entity [Alcala] that the"acquisition of Motor Vehicle under the Office of the Mayor should be done throughDirect Contracting." The undated Purchase Request of the vehicle signed by Alcalaboth as a requesting party and approving entity specifically indicated the item to bepurchased as "Brand New Model 2008 Model Kia Sorento Ex (7 Seaters) AirconStereo Accessories Mags 2.5L Diesel Engine A Color: Black." The Purchase Orderspecifying the same item for acquisition as well as the Obligation Request weresigned by both Alcala as Mayor, and Sumaylo as Municipal Accountant-Designate,Guivencan as Municipal Treasurer, and approved for payment by Alcala,asMunicipal Mayor. The corresponding check payment was signed by Alcala andGuivencan, while the Inspection and Acceptance Report was signed solely byAlcala.

XxxIn the same parlance, Sumaylo's approbation for "direct contracting" in the

procurement of the vehicle has no valid factual and legal basis. He prepared theAPP as Budget Officer, and led the BAC, as Chair thereof, to adopt or recommend,"direct contracting" in relation to Alcala's request for the branded vehicle. This wasnotwithstanding the question raised by Bonao, a BAC member, on the regularity ofresort to direct contracting. As the evidence shows, Sumaylo was steadfast in his

15 Records, Vol. 3, pp. 18-21

Motions for Reconsideration (Alcala & Sumaylo) Page 10Crim. Case No. SB-16-CRM-0737People vs. Benedicto H. AIcaIa, et al.x------------------------------------------------------------------------------------------------------------------------x

sweeping assurance that direct contracting is allowed without specifying that theconditions therefor exist, in gross violation of the Procurement Law. The SupremeCourt in PSC vs. Dear John Services, Inc. held:

"The PSC-BAC is obliged to observe and enforce the[rules] in the procurement of goods and services for the project.The law on public bidding is not an empty formality. A strictadherence to the principles, rules and regulations on publicbidding must be sustained if only to preserve the integrity and thefaith of the general public on the procedure."

Additionally, in sourcing the fund for the purchase of the vehicle from the20% DF-IRA, AIcala and Sumaylo, as responsible officers thereof, wiIlfullyviolated DILG and DBM Joint Memorandum Circular No. I, s. 2005.

Xxx

As to Alcala's Arguments

Contrary to Alcala' s claim that the prosecution evidence is insufficient toprove his guilt, the records revealed his act of giving unwarranted benefit,advantage or preference to Gateway Motors.

Accused Alcala was the Chair of the Municipal Development Council whopassed Resolution No. 1, Series of2007 .16It specifically included the procurementof the subject vehicle for his Office [the Office of the Mayor] using Panglao's20% Development Fund of its accumulated Internal Revenue Allotment (DF-lRA)in violation of DILG and DBM Joint Memorandum Circular No. 1, s. 2005. Heapproved Panglao's 2007 Annual Procurement Program (APP) prepared andrecommended by Sumaylo, which included the purchase of the subject vehicleoutright through direct contracting in violation of the Procurement Law. Helikewise approved the BAC Resolution No. 001, Series of200817 dated January 9,2008 which recommended direct contracting as a mode of procurement of thesubject branded vehicle for his own Office. In blatant disregard of the Law onProcurement, he instructed his staff to prepare the Purchase Request" for thesubject branded vehicle, left indiscriminately and irresponsibly the purchasethereof to his staff. Finally, he signed and approved the pertinent documentsrelative to the purchase of the subject vehicle which included the PurchaseOrder,'? the Obligation Request.i? Disbursement Voucher," Check dated January19,2008,22 Charge Invoice No. 5838,23Sales Invoice No. 0409,24Official ReceiptNo. 7605,25Inspection and Acceptance Report," Delivery Receipt No. 040927 and

16 Supra, Note 317 Supra, Note 218 Exhibit "F"19 Exhibit "G"20 Exhibit "H"21 Exhibit "I"22 Exhibit "I"23 Exhibit "N"24 Exhibit "M"25 Exhibit "L"26 Exhibit "K"27 Exhibit 11A"

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the Memorandum of Receipt for Equipment Semi-Expendable and Non-Expendable.

The culpa of accused Alcala in this case was laid down in the assailedDecision. To reiterate:

For accused Alcala, there is no excuse for his alleged reliance on theAPP which indicated the mode of procurement for the subject vehicle by"direct contracting." In the first place, it was he himself [who) approved theAPP so that he was responsible for the consequences thereof. There is also thequestion why the APP prescribed "direct contracting" for the "V anlSUV /Pick-up-M.O." [for the Office of the Mayor], while "public bidding" was the modeindicated for the procurement of "Jeep (Surplus) Peace and Order-PNP." Thereis likewise no excuse for his alleged reliance on the BAC since he himselfapproved and signed the BAC resolution which recommended "directcontracting." Apart therefrom, he thereafter processed and controlled theprocurement of the Kia Sorento which he specified in his Purchase Request, inblatant disregard of the procurement law. Alcala testified:

Q: Okay. So, since you approved the recommendationto procure the vehicle, what happened after that?

A: So, we procured the ... I instructed them toprocure the vehicle.

Q: From what supplier?A: They purchased at the Gateway Motors.Q: Where is that located?A: In the City of Tagbilaran.Q: Is that the only supplier available in Tagbilaran?A: Yes, Sir. During that time.Q: What do you mean, yes, Sir? Were there no

other suppliers during that time?A: During the time when we procured the vehicle,

it was only the Gateway Motors who's selling vehiclein the City of Tagbilaran.

Q: Now, who made the decision, Mr. Witness, tospecify the procurement ofKia Sorrento in thistransaction?

A: I instructed my staff to prepare the purchaserequest for the purchase of the vehicle and it wasmy staff who typed the name of the vehicle.

Q: SO, it was your staff?A: It was my staff.Q: And you followed the recommendation of your

staff?A: Yes, Sir.Q: Who also made the decision to procure that Kia

Sorrento vehicle from Gateway Motors?A: Yes, Sir.Q: Who also made the decision to procure that Kia

Sorrento vehicle from Gateway Motors?A: It was my staffwho went to the City of Tagbilaran

and look for the vehicle that they want to purchase.Xxx

Being the Municipal Mayor and Head of the Procuring Entity, it is hisobligation to know the law pertinent to government procurement and ensurethat the municipality's purchases comply with existing rules. Under thecircumstances of this case, his failure to do so constitutes negligence that isgross and inexcusable, particularly so as the record is bereft of evidence toshow that he exerted the slightest effort to comply therewith, or avoid anyinfraction thereof that he is duty-bound to observe. In Ong vs. People/" theSupreme Court thus ruled:

28 Ong vs. People, GR No. 176546, September 25, 2009.


x------------------------------------------------------------------------------------------------------------------------x

As the local chief executive, petitioner is not onlyexpected to know the proper procedure in the procurement ofsupplies, she is also duty bound to follow the same and his failureto discharge this duty constitutes gross and inexcusablenegligence. [emphasis supplied]

Xxx

On Alcala's claim that his right to equal protection of the law has beenviolated due to his and Sumaylo's selected liability for the procurement of the KiaSorento to the exclusion of other officials of Panglao, the Court has aptlyestablished and discussed the matter in the assailed Decision, viz:

With respect to accused Bonao, Guivencan, Estopito and Lustre,while as BAC members they approved the direct contracting method, they werenot similarly situated with Sumaylo as it was credibly impressed that they wereonly passive participants and were misled by the latter's assertion about theregularity thereof, creating doubts on their supposed knowing and willfulintention to violate the procurement law. It bears to note that the Office of theOmbudsman in its Joint Resolution approved by then Ombudsman Morales onJanuary 19,2017 in OMB-V-A-14-0136 and OMB-V-C-14-0141, found themliable only for Simple Misconduct "considering the complainant failed toestablish that their actions were motivated by corruption, willful intent toviolate the law, or to disregard established rules." They should not be said tohave conspired with Sumaylo and Alcala in transgressing the rules onprocurement. Upon the other hand, as regards the irregular sourcing of fundfor the vehicle indicated in the APP, the prosecution failed to present evidenceof their participation therein.

Nonetheless, Alcala's reliance on the constitutional precept of "equalprotection clause" in hope for exoneration, is misplaced. No less than the SupremeCourt in People vs. Dumlao/" elucidates that:

"[w]hile all persons accused of crime are to be treated on a basis of equality beforethe law, it does not follow that they are to be protected in the commission of crime.It would be unconscionable, for instance, to excuse a defendant guilty of murderbecause others have murdered with impunity. The remedy for unequal enforcementof the law in such instances does not lie in the exonerations of the guilty at theexpense of society xxx. Protection of the law will be extended to all persons equallyin the pursuit of their lawful occupations, but no person has the right to demandprotection of the law in the commission ofa crime."

The infraction of Alcala and Sumaylo is not simply procedural orinsignificant that can be ignored. It rather extends to a violation of the heart andrationale of the Procurement Law, through gross inexcusable negligence thatevidently borders on bad faith. Alcala and Sumaylo were well aware of theirresponsibilities as public officers. They should have lived up to the dictum that apublic office is a public trust. As public officers they were expected to "performand discharge their duties with the highest degree of excellence, professionalism,intelligence and skill.?" Yet, they chose to disregard the requirements laid downby law as well as the rules and regulations by illegally procuring the subjectvehicle through direct contracting and using the 20% DF-lRA of the Municipalityof Panglao, thereby giving unwarranted benefit and preference to Gateway

29 People vs. Hermenegildo Dumlao, et al., G.R. No. 168918, March 2, 200930 Id., citingR.A. 6713, Sec. 4(b) (1989).

'Motions for Reconsideration (Alcala& Sumaylo) Page 13Crim. Case No. SB-16-CRM-0737People vs. Benedicto H. Alcala, et al.x------------------------------------------------------------------------------------------------------------------------x

Motors. Their acts as discussed did not only show gross inexcusable negligenceamounting to bad faith, but clearly demonstrated conspiracy when taken together.The interplay of their actions showed a unified scheme and purpose that led tofavoring the supplier in this case, i.e. Gateway Motors. The Supreme Court inGuy vs. People" explains that:

"x x x proof of the agreement need not rest on direct evidence, as the agreement itselfmay be inferred from the conduct of the parties disclosing a common understandingamong them with respect to the commission of the offense. It is not necessary toshow that two or more persons met together and entered into an explicit agreementsetting out the details of an unlawful scheme or the details by which an illegalobjective is to be carried out. Therefore, if it is proved that two or more personsaimed their acts towards the accomplishment of the same unlawful object, eachdoing a part so that their acts, though apparently independent, were in fact connectedand cooperative, indicating a closeness of personal association and a concurrence ofsentiment, then a conspiracy may be inferred though no actual meeting among themto concert means is proved."

As to Alcala' s claim that conspiracy is not consistent with gross andinexcusable negligence, the pronouncement of the Supreme Court in Bacasmasvs. Sandiganbayan32 is instructive, viz: "[t]here is no inconsistency in allegingboth the presence of conspiracy and gross inexcusable negligence, because thelatter was not simple negligence. Rather, the negligence involved a willful,intentional, and conscious indifference to the consequences of one's actions oromissions." Here, the act of Alcala and Sumaylo in transgression of theprocurement Law is definitely willful and without the slightest regard to the coststhereof, thus, meriting a verdict of guilt for violation of the Anti-Graft Law.

WHEREFORE, there being no new matters discussed in accused Sumayloand Alcala's respective motions for reconsideration that would warrant amodification or reversal of the assailed Decision, the said motions are herebyDENIED for lack of merit.

SO ORDERED.

MARYANN E. ~s - MANALAC"T" Justice

WE CONCUR:

4(}lAFAEL R. LAGOS

ChairpersonAssociate Justice

31 Cesar P. Guy vs. People, G.R. Nos. 166794-%, March 20, 200932 Supra, Note 31

Documents

FIFTH DIVISION PEOPLE OF THE PHILIPPINES,sb.judiciary.gov.ph/RESOLUTIONS/2019/G_Crim_SB-16-CRM... · 2019-07-18 · was to be sourced from the 20% Development Fund of the IRA (DF-lRA),