EN BANC
[ G.R. No. 157838, March 08, 2011 ]CANDELARIO L. VERZOSA v. GUILLERMO N. CARAGUE () +
CANDELARIO L. VERZOSA, JR. (IN HIS FORMER CAPACITY AS EXECUTIVE DIRECTOR OF THE COOPERATIVE DEVELOPMENT AUTHORITY), PETITIONER, VS. GUILLERMO N. CARAGUE (IN HIS OFFICIAL CAPACITY AS CHAIRMAN OF THE COMMISSION ON AUDIT), RAUL C. FLORES, CELSO D. GANGAN, SOFRONIO B. URSAL AND
COMMISSION ON AUDIT, RESPONDENTS.
D E C I S I O N
CANDELARIO L. VERZOSA v. GUILLERMO N. CARAGUE () +
CANDELARIO L. VERZOSA, JR. (IN HIS FORMER CAPACITY AS EXECUTIVE DIRECTOR OF THE COOPERATIVE DEVELOPMENT AUTHORITY), PETITIONER, VS. GUILLERMO N. CARAGUE (IN HIS OFFICIAL CAPACITY AS CHAIRMAN OF THE COMMISSION ON AUDIT), RAUL C. FLORES, CELSO D. GANGAN, SOFRONIO B. URSAL AND
COMMISSION ON AUDIT, RESPONDENTS.
D E C I S I O N
VILLARAMA, JR., J.:
The present petition for review on certiorari assails the Decision Nos. 98-424[1] and 2003-061[2] dated October 21, 1998 and March 18, 2003, respectively, of the Commission on Audit (COA) affirming the Notice of
Disallowance No. 93-0016-101 dated November 17, 1993 and the corresponding CSB No. 94-001-101 dated January 10, 1994.
The facts are:
On two separate occasions in December 1992, the Cooperative Development Authority (CDA) purchased from Tetra Corporation (Tetra) a total of forty-six (46) units of computer equipment and peripherals in the total amount of P2,285,279.00. Tetra was chosen from among three qualified bidders (Tetra, Microcircuits and Columbia). In the technical evaluation of the units to be supplied by the qualified bidders, CDA engaged the services of the Development Academy of the Philippines-Technical Evaluation Committee (DAP-TEC). The bidding was conducted in accordance with the Approved Guidelines and Procedures of Public Bidding for Information Technology (IT) Resources and Memorandum Order No. 237 issued by the Office of the President. Petitioner who was then the Executive Director of the CDA approved the purchase.
On May 18, 1993, the Resident Auditor sought the assistance of the Technical Services Office (TSO), COA in the determination of the reasonableness of the prices of the purchased computers.[3] In its reply-letter dated October 18, 1993, the TSO found that the purchased computers were overpriced/excessive by a total of P881,819.00. It was noted that (1) no volume discount was given by the supplier, considering the number of units sold; (2) as early as 1992, there were so much supply of computers in the market so that the prices of computers were relatively low already; and (3) when CDA first offered to buy computers, of the three qualified bidders, Microcircuits offered the lowest bid of P1,123,315.00 while Tetra offered the highest bid of P1,269,630.00.[4] The Resident Auditor issued Notice of Disallowance No. 93-0016-101 dated November 17, 1993, for the amount of P881,819.00.[5]
In a letter[6] dated May 13, 1994, CDA Chairman Edna E. Aberilla appealed for reconsideration of the disallowance to COA Chairman Celso D. Gangan, submitting the following justifications:
In compliance with the request of the Legal Office Director, the TSO submitted its comments on the justifications submitted by the CDA. On the non-comparability of Genesis and Trigem brands, it explained that the reference values were in accordance with the same specifications but exclusive of the "branded" information, since this was not stated in the P.O./Invoice, which was used as basis of the canvass. Since the said brands are both computers of the same general characteristics/attributes, the branded and non-branded labels propounded by the supplier is of scant consideration. As regards the UPS, it was pointed out that the enumerated advantages of the delivered items are the same advantages that can be generated from a UPS of the same specifications and standard features; in this case, the reference value pertains to a UPS with the same capacity, input, output, battery pack and back-up time, except for the brand. As to the period of purchase by the CDA, the TSO noted that based on its monitoring from October 1993 to May 1994, prices of Star and Epson printers and hard disk (120 MB Model St-3144A) either remained the same or even increased by 2% to 5%. It is therefore valid that the price of an item is the same from one period to another, and that an item may be available unless it is out of stock, or phased out, with or without a replacement. In this case, the reference value cannot be considered as the reduced price as a result of rapid changes due to research since the said reference value is the price for the same model already existing in December 1992 when the purchase was made and still available in August 1993, and not an equivalent nor replacement of a phased out model.[8]
On the other hand, the Resident Auditor maintained her stand on the disallowance and submitted to Assistant Commissioner Raul C. Flores her replies to the CDA's justifications, as follows: (1) on the allegedly erroneous comparison between Genesis and Trigem brands, if this will be the basis, then their bidding will not be acceptable because in the Abstract of Bids, the comparison of prices was not based on similar brands, i.e., Tetra offered Trigem-Korean for P1,269,620, Microcircuits offered Arche-US brand for P1,123,315, and Columbia offered Acer-Taiwan brand for P1,476,600; what is important is that, the specifications and functions are similar; (2) the 2nd, 3rd and 4th justifications are of no moment as all the offers of the three qualified bidders were of similar technical specifications, features and warranty as contained in the Proposal Bid Form; (3) on the 5th justification -- the companies referred to procured only one unit each and of much higher grade; (4) on the 6th justification -- while the date of the canvass conducted by the TSO does not coincide with the date of purchase, there is no showing that foreign exchange rate changed during the latter part of 1992 which will significantly increase the prices of computers; and (5) on the 7th justification -- while the COA witnessed the public bidding, the post-evaluation was left to the Pre-qualifications, Bids and Awards Committee (PBAC). The National Government Audit Office I concurred with the opinion of the Resident Auditor that CDA's request may not be given due course.[9]
On October 21, 1998, respondent COA issued the assailed decision affirming the disallowance. It held that whether or not the product is branded is irrelevant in the determination of the reasonableness of the price since the brand was not stated in the Call for Bids nor in the Purchase Order. The bids of the three qualified bidders were based on similar technical specifications, features and warranty as contained in their proposals. It was also found that the performance of the competing computer equipment would not vary or change even if the attributes or characteristics of said computers cited by petitioner were to be factored in. The difference in brands, microprocessors, BIOSes, as well as casings will not affect the efficiency of the computer's performance.[10]
Further, COA declared that CDA should not have awarded the contract to Tetra but to the other competing bidders, whose bid is more advantageous to the government. It noted that Microcircuits offered the lowest bid of P1,123,315.00 for the US brand said to be more durable than the Korean brand supplied by Tetra. CDA also should have been entitled to volume discount considering the number of units it procured from Tetra. Lastly, COA emphasized that the requirements and specifications of the end-user are of prime consideration and the other added features of the equipment, if not specified or needed by the end-user, should not be taken into account in determining the purchase price. The conduct of public bidding should be made objectively with the end in view of purchasing quality equipment as needed at the least cost to the government. The price for the equipment delivered having been paid, when such equipment could be acquired at a lower cost, the disallowance of the price difference was justified.[11]
Petitioner's motion for reconsideration having been denied, he now comes to this Court for relief on the following grounds:
Petitioner reiterates his argument that price was not the sole criteria in determining the winning bid for the purchased computers, price comprising only 50% of the criteria, while technical evaluation and support services were accorded 30% and 20%, respectively. He points out that the computer/hardware of generic class which was provided to the COA-TSO with low-priced quotations for comparison with the winning bid and as bases for disallowance in audit, never underwent technical or physical evaluation as did the computer equipment of the three final bidders. Moreover, the CDA-PBAC Bidding Procedure was designed in such a way that generic type (cloned) computers were eliminated even in the pre-qualification stage. It is for this reason that the final bidders all offered branded computers which, by their very nature, were all considered to be efficient by no less than the Information Technology Center (ITC) of the COA, as mentioned in the memorandum dated December 9, 1996 of Director Marieta SF. Acorda. The mere fact that the offered computers had different manufacturers can lead to a reasonable conclusion that the life spans of the same and reliability would also vary.[13]
As to the COA's position that even if only the price was considered, the contract should have been awarded to Microcircuits, petitioner points out that in such a case, CDA's disallowance would have been only P140,000.00, much lower than the present P881,819.00 disallowance. But as it is, on the basis of the three criteria applied during the pre-qualification stage, Tetra garnered the highest points as certified by the PBAC in its memorandum-update dated November 20, 1992. The application of all three criteria meets the standard set by COA Circular No. 85-55-A. Thus, although Microcircuits got the highest percentage on Cost/Price factor, it only ranked second in over-all performance, to Tetra, as evaluated by the PBAC.[14]
Petitioner cites the dissenting opinion[15] of COA Commissioner Emmanuel M. Dalman who found no overpricing in this case and the CDA decision as one done in good faith and with the presumption of regularity in the performance of official functions. Indeed, it behooved on COA to prove that the standards set by the COA circular were met in audit disallowance; it even failed to produce actual canvass sheets and/or price quotations from identified suppliers. The Summary of Price Data and comparison sheets attached to the Notice of Disallowance by themselves are not sufficient basis for the disallowance herein since they do not satisfy the requirement highlighted in the case of Arriola v. Commission on Audit.[16] The COA auditor herself (author of the Notice of Disallowance) admitted that she did not personally prepare actual canvass sheets and only a telephone canvass was conducted. As to the volume discount, again no evidence was adduced to show that the other bidders would have given the same if the contract was awarded to them. What is certain is that, owing to the consideration of the two major criteria of "technical evaluation" and "after-sales support", most of the computer equipments provided by Tetra pursuant to the disallowed transaction are still functioning to date, even after twelve (12) years of continued use.[17]
Finally, petitioner contends that he should not be made personally liable for the disallowed expense. He invokes the prevailing doctrine that unless they have exceeded their authority, corporate officers, as a general rule, are not personally liable for their official acts, because a corporation, by legal fiction, has a personality separate and distinct from its officers, stockholders and members. CDA though a government corporation, there is no single allegation or imputation, much less any evidence of any act, constituting bad faith, malice or negligence on the part of petitioner during his service as Executive Director of the CDA, he being a mere signatory to the documents after the winning bidder had been chosen, and was only a recommending officer on these matters.[18]
In its Manifestation and Motion[19] dated September 10, 2003, the Office of the Solicitor General stated that after a thorough review of the records of the case, it is constrained to adopt a position adverse to the COA.
Respondents filed their Comment, arguing that this Court's jurisdiction was not correctly invoked by petitioner who filed a petition for review under Rule 45 and not a petition for certiorari under Rule 65. Petitioner failed to allege that respondents acted without or in excess of their jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction. On the allegation that their finding of overprice was not supported by evidence, respondents assert that the evaluation report of the DAP-TEC clearly showed that Tetra ranked last in its evaluation while Microcircuits ranked the highest. It was clear that the most advantageous deal for the government should have been concluded with Microcircuits since their computer specifications were at par with those of Tetra and they offered a much lower cost to the government - lower than half the price offered by Tetra.[20]
Moreover, respondents point out that petitioner's contention that price was not the only basis for the award is negated by the finding of the Resident Auditor (Luzviminda V. Rubico) that the DAP-TEC technical evaluation report which became the basis for declaring Tetra as the winning bidder, was fraudulently acquired. Director Mesina signed the same unaware that it was already another version of the technical evaluation report which she had signed earlier, when Tetra's computers were found to be the most inferior in quality. It can be safely asserted that the computers of Tetra and Microcircuits were of the same quality, and therefore, the only basis left in determining the winning bid was the price/cost of the computers (P1,123,315.00 for Microcircuits and P2,285,279.00 for Tetra).[21]
Lastly, respondents maintain that petitioner is personally and solidarily liable for the disallowed amount of P881,819.00. As Executive Director, petitioner ordered the reconstitution of PBAC without any valid reason, on August 25, 1992 amending Special Order No. 91-117 dated October 24, 1991, which nullified the previous bidding conducted in December 1991. Petitioner then engaged the services of the DAP-TEC which came out with two different technical evaluation reports, when it was no longer his duty to do so but that of the PBAC Chairman. These acts show bad faith on the part of petitioner. Mr. Antonio L. Quintos, Jr. of the DAP-TEC confirmed that Mr. Rey Evangelista, staff of PBAC Chairman Edwin T. Canonizado, talked to him and asked him to change and/or make alterations on the first evaluation report, which he did, as set forth in his letter[22] dated November 23, 1995 to Ms. Minnie Mesina of the Center for Information Technology Development (CITD) of the DAP. As provided in the Manual on Certificate of Settlement and Balances (Revised 1973), "[a] public officer shall not be civilly liable for acts done in the performance of his official duties, unless there is clear showing of bad faith, malice or gross negligence." [23]
We deny the petition.
To begin with, petitioner availed of the wrong remedy in filing a petition for review under Rule 45. Article IX-A, Section 7 of the Constitution provides that decisions, orders or rulings of the Commission on Audit may be brought to the Supreme Court on certiorari by the aggrieved party.[24] Moreover, under Section 2, Rule 64, of the Revised Rules of Civil Procedure, a judgment or final order or resolution of the Commission on Audit may be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65. Moreover, on the merits, the petition lacks merit.
Pursuant to its constitutional mandate to "promulgate accounting and auditing rules, and regulations including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant or unconscionable expenditures, or uses of government funds and properties,"[25] the COA promulgated the amended Rules under COA Circular No. 85-55-A[26] dated September 8, 1985. With respect to excessive expenditures, these shall be determined by place and origin of goods, volume or quantity of purchase, service warranties, quality, special features of units purchased and the like.[27]
Price is considered "excessive" if it is more than the 10% allowable price variance between the price paid for the item bought and the price of the same item per canvass of the auditor. In determining whether or not the price is excessive, the following factors may be considered[28]:
The issue to be resolved is whether the computer units bought by CDA from Tetra were overpriced.
Records showed that while the respondents found nothing wrong per se with the criteria adopted by the CDA in the overall evaluation of the bids, the technical aspect was seriously questioned. The final technical evaluation report was apparently manipulated to favor Tetra, which offered a Korean-made brand as against Microcircuits which offered a US-made brand said to be more durable, at a lower price. The letter[29] dated November 3, 1992 signed by Ms. Mesina in behalf of DAP Vice-President Austere A. Panadero informed petitioner that based on their evaluation in compliance with the "grading system" specified by CDA, the DAP found the units of Tetra as "best suited" to the needs of CDA.
Upon investigation, respondents discovered that there was an earlier report (1st report) which actually stated a contrary finding (Tetra units emerged as the most inferior in quality) but the representative from CDA (Rey Evangelista) came to the DAP-CITD and gave further instructions on "penalty points" for deviation in hardware specifications, resulting in a modified 2nd report (faxed to petitioner's office) in which Tetra was already indicated to have the highest ranking.
These findings were detailed by Auditor Rubico in her letter dated November 23, 1995 to the COA Legal Counsel, to wit:
Convinced that there was indeed manipulations in the conduct of bidding to favor Tetra, particularly the introduction of additional features in the CDA grading system after the bids have been opened in order to justify the DAP to change, upon request of CDA, the results of its first evaluation, COA General Counsel Raquel R. Habitan referred the matter to COA's ITC to determine whether or not (1) the additional features introduced in CDA's grading system are really irrelevant to the efficiency of the computers' performance; and (2) the products of Tetra were the most inferior in quality as compared to those offered by the losing bidders at lower price on the basis of the specifications and function.[31]
In her Memorandum dated December 9, 1996 to Director Habitan, Ms. Marieta SF. Acorda, Director of COA's ITC, gave the following comments:
Based on the foregoing findings and observations supported by documentary evidence, respondents concluded that contrary to CDA's claims, the difference in brands, microprocessors, BIOSes, as well as casings will not affect the efficiency of the computers' performance. Clearly, the conduct of public bidding in this case was not made objectively with the end in view of purchasing quality equipment at the least cost to the government. The price difference far exceeded the 10% allowable variance in the unit bought and the same item's price, as shown by the following report submitted to the TSO Director[33]:
As above-indicated, the price per item of the PC units, laptop and UPS were overpriced by almost 50%. This comparison was based on the initial purchase of 23 PC units with the bid price by Tetra of P1,269,630.00 (23 PC units, 1 unit 386 Tower and 1 unit 386 Notebook) under Disbursement Voucher No. 01-92-12-2399. There was an additional (repeat) purchase of 21 PC units for P929,649.00 (same price per item of P44,269.00) and one unit UPS for P86,000.00. The total contract price obtained by Tetra was P2,285,279.00, of which COA disallowed the amount of P881,819.00 representing the overprice per the auditor's findings.
As to petitioner's objection regarding the non-presentation of actual canvass sheets used by the auditor, the same is immaterial, considering the disparity in the prices of the computers paid by CDA to Tetra and offered by the lowest bidder, Microcircuits. The TSO report, prepared by personnel having the knowledge and expertise on computer equipment, supplied the auditor with reliable field data on which the auditor based her final computation. "Excessive expenditures" under COA Circular No. 85-55-A covered cases of "[o]verpricing of purchases, characterized by grossly exaggerated or inflated quotations, in excess of the current and prevailing market price by a 10% variance from the purchased item." The telephone canvass initially done by the resident auditor was merely confirmatory of the overpricing based on similar specifications and features as indicated in the TSO report.
Another important factor apparently ignored by the CDA was Microcircuits' branded computers reputed to be more durable (US-made) compared with Tetra's branded computers (Korean-made). Had this factor been considered together with the much lower quotation from Microcircuits, CDA would have assured a deal that is most advantageous to the government at the least cost.
Findings of quasi-judicial agencies, such as the COA, which have acquired expertise because their jurisdiction is confined to specific matters are generally accorded not only respect but at times even finality if such findings are supported by substantial evidence.[34] It is only upon a clear showing that the COA acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction that this Court will set aside its decisions or final orders.[35] We find no such arbitrariness or grave abuse on the part of the COA when it disallowed in audit the amount representing the overprice in the payment by CDA for the purchased computer units and peripherals, its findings are well-supported by the evidence on record.
With respect to the liability of petitioner, we likewise affirm the COA's ruling that he is personally and solidarily liable for the disallowed amount. The doctrine of separate personality of a corporation finds no application because CDA is not a private entity but a government agency created by virtue of Republic Act No. 6939 in compliance with the provisions of Section 15, Article XII of the 1987 Constitution. Moreover, respondents satisfactorily established that petitioner acted in bad faith when he prevailed upon the DAP-TEC to modify the initial result of the technical evaluation of the computers by imposing an irrelevant grading system that was intended to favor one of the bidders, after the bids had been opened.
Section 103 of Presidential Decree No. 1445 (Government Auditing Code of the Philippines) provides:
Further, Section 19 of the Manual on Certificate of Settlement and Balances under COA Circular No. 94-001 dated January 20, 1994 provides:
Petitioner believes that there is no basis to hold him personally liable on account of the fact that the purchased computers were not inferior in quality. In support thereof, he submitted a certification dated September 12, 2003 issued by incumbent CDA Executive Director, Atty. Niel A. Santillan, that 68% of the Tetra computers, or 30 out of 44 units, are still operational even after twelve (12) years of continuous use. Only fourteen (14) units have become unserviceable, which means that the Tetra computers have proven their worth and thus vindicated petitioner, the CDA, CDA-PBAC and the DAP-TEC.[36]
We are not persuaded.
The continued serviceability of the purchased computers is not a factor in the determination of whether the price paid by the government was unreasonable or excessive. The damage or injury caused to the government refers primarily to the amount exceeding the allowable variance in the price paid for the item purchased under a transaction which is not the most advantageous to the government. In this case, it was clearly shown that CDA could have purchased the same quality computers with similar technical specifications at much lower cost and the result of technical evaluation was manipulated to favor one bidder, for which the COA found the petitioner to be directly responsible.
WHEREFORE, the petition is DENIED. The COA Decision Nos. 98-424 and 2003-061 dated October 21, 1998 and March 18, 2003, respectively, are AFFIRMED and UPHELD. Petitioner Candelario L. Verzosa, Jr. is hereby ordered to REIMBURSE the amount of P881,819.00 subject of Notice of Disallowance No. 93-0016-101 dated November 17, 1993 and the corresponding CSB No. 94-001-101 dated January 10, 1994.
With costs against the petitioner.
SO ORDERED.
Corona, C.J., no part.
Velasco, Jr., Leonardo-De Castro, Peralta, Del Castillo, Perez, and Mendoza, JJ., concur.
Nachura, and Brion, JJ., on official leave.
Carpio, Carpio Morales, Bersamin, and Abad, JJ., join the dissenting opinion of J. Sereno.
Sereno, J., see dissenting opinion.
[1] Rollo, pp. 50-52.
[2] Id. at 61-63.
[3] COA Records.
[4] Id., Ist Indorsement dated June 6, 1994.
[5] Rollo, pp. 165-169.
[6] Id. at 73, 170.
[7] Id. at 74-77, 171-174.
[8] COA Records, Memorandum dated April 24, 1995.
[9] Id., Memorandum dated August 29, 1994.
[10] Rollo, p. 51.
[11] Id. at 51-52.
[12] Id. at 17-18.
[13] Id. at 23-29, 80-81.
[14] Id. at 29-33.
[15] Id. at 92-93.
[16] G.R. No. 90364, September 30, 1991, 202 SCRA 147.
[17] Rollo, pp. 33-40.
[18] Id. at 40-43.
[19] Id. at 109-111.
[20] Id. at 145-148.
[21] Id. at 148.
[22] Id. at 248-249.
[23] Id. at 148-152.
[24] Reyes v. Commission on Audit, G.R. No. 125129, March 29, 1999, 305 SCRA 512, 516.
[25] Art. IX-D, Sec. 2 [2], 1987 Constitution.
[26] Which amended, revised and/or amplified the existing rules contained in COA Circular No. 77-55 dated March 29, 1977.
[27] COA Circular No. 85-55-A, 2.6.
[28] Id., 3.3 (Standards for "Excessive" Expenditure).
[29] Rollo, pp. 88-89.
[30] Id. at 245-246.
[31] COA Records.
[32] Rollo, pp. 235-236.
[33] Rollo, pp. 166-169.
[34] Laysa v. Commission on Audit, G.R No. 128134, October 18, 2000, 343 SCRA 520, 526.
[35] See Villanueva v. Commission on Audit, G.R. No. 151987, March 18, 2005, 453 SCRA 782, 801.
[36] Rollo, pp. 292-294.
DISSENTING OPINION
SERENO, J.:
The Petition should have been granted for five reasons.
First, the Commission on Audit (COA) cannot violate the same rules it imposes on all public offices regarding the manner of conducting canvasses. These rules essentially require that written canvasses be made of the same item from at least three suppliers, using the proper canvass forms. The COA itself cannot violate these rules by disallowing purchases merely on the basis of an alleged overpricing. The base price identified by the COA was made only on the basis of an alleged undocumented telephone price canvass by a COA auditor. The COA likewise based its findings on a report of the Technical Services Office (TSO), which compared the equipment with that of only one supplier and only one brand of computer. The latter brand, Genesis, which produces inferior computer clones, is significantly different from Trigem - a well-known Korean brand - which produced the computers purchased by the Cooperative Development Agency (CDA). Neither was the Genesis clone one of the brands subjected to technical evaluation testing.
Second, the COA auditor, who admitted that she is not a computer technology expert, cannot substitute her own discretion for that of the CDA by denying the CDA's right to prefer the following as the required specifications for the computers CDA intended to purchase for its own use: (a) Intel microprocessor chips over any other kind of chips, including those manufactured by AMD; (b) ROM BIOS licensed by IBM, AMI, Phoenix or Awards over that of AcerBios; (c) tower casings over desktop casings; and (d) 2 megabytes over 640 kilobytes of Random Access Memory (RAM).
Third, the amount of disallowance has no basis in fact, is grossly disproportionate to the total purchase price, and is in the nature of punitive damages. Not only was a mere telephone canvass conducted, there was absolutely no basis in fact for the belief that a volume discount at an arbitrary amount determined solely by the COA auditor would have been granted by the supplier. This was a mere conjecture by the COA auditor.
Fourth, this Court relies on the allegation that there were instances of manipulation during the bidding process. However, the records show that this allegation was belatedly raised by respondents. It was only in respondents' Comment filed on 19 March 2004 before this Court that they raised the allegation. The COA Decision under question was dated 21 October 1998 and this Decision did not make any finding on this score, inasmuch as this issue was not raised before the Commission. Petitioner was not afforded due process to rebut these allegations while the case was still pending with respondent COA. Also, the documents on record do not support this allegation.
Fifth, there is no legal basis to make the CDA Executive Director personally liable for the return of the disallowance. He has demonstrated that his act of signing the purchase documents was only ministerial, as the Pre-qualification Bids and Awards Committee (PBAC) and the Board of Administrators (BOA) acted on them.
There is a clear, bright line that the Commission of Audit must not cross. The powers that the 1987 Constitution granted it are only to "define the scope of its audit and examination, establish the techniques and methods required therefor, and promulgate accounting and auditing rules and regulations, including those for the prevention and disallowance or irregular, unnecessary, excessive, extravagant, or unconscionable expenditures, or uses of government funds and properties."[1] This does not include the substitution of preference of government agencies. Nor does this allow COA to trample on the due process rights of government auditees.
In the case at bar, we are faced with a situation where basic principles in government procurement are threatened by COA's insistent interference and encroachment. In holding petitioner liable for the alleged excessive expenditure, we are introducing dangerous precedents in administrative procedures with regard to bidding and audit. First, the bidding process is rendered inutile if we hold that government agencies should always award purchase contracts in favor of the lowest bidder; or even worse, that they should simply purchase equipment from the suppliers offering the lowest prices, regardless of brand or quality. Second, the discretionary power of government agencies to determine criteria and the features of equipment or supplies becomes irrelevant; because, third, COA's preference in determining the criteria and the features or characteristics of the equipment or supplies is held as superior to that of any other government agency.
The Case
Before delving into the facts of the case, at the outset, I would like to emphasize that COA regulations and Supreme Court jurisprudence that require disclosure of the base prices used for auditing and that require that like products be the basis of price comparisons (apples cannot be compared to oranges) were already in force when the present controversy arose.
On 10 September 1990, respondent COA issued Resolution No. 90-43 which mandated the Price Evaluation Division, Technical Services Office (PED-TSO) to disclose or identify the sources of its reference values in connection with its price gathering and monitoring activities. The PED-TSO provides the auditors with reference values that are required to be obtained through a valid canvass in the open market. This resolution was issued partly in recognition that "price findings of the TSO that result from such audit determination of price reasonableness at times adversely affect auditees who would request TSO to disclose or identify the sources of these price quotations set by PED so that they can procure their supply needs from said sources."
The primary principle which the resolution upholds is that of transparency. Thus, the application of the resolution is not merely limited to the determination of possible sources of supplies. The principle of transparency should apply with more reason to instances when the information requested from the PED-TSO may result in a finding of liability against a government official.
More importantly, on 30 September 1991, we established the standards to be followed in issues of audit disallowance in Arriola v. COA.[2]
In Arriola, petitioners questioned the disallowance of the COA, which was based merely on a cost comparison submitted by the COA-TSO. We said:
Thus, we stated that the failure of COA to produce the canvass sheets or source documents was violative of due process and that we cannot uphold COA's disallowance that was based on undocumented claims.
We now go to the facts of the case at bar.
Petitioner is the executive director of the CDA, a government-owned and-controlled corporation. On 25 August 1992, he reconstituted the Committee on Public Bidding and Awards set up under Special Order No. 91-117, as the Pre-Qualification Bids and Awards Committee (PBAC) for the procurement of information technology (IT) resources for the use of the CDA.[3]
The bidding process consisted of three stages: (1) the pre-qualification stage; (2) the technical evaluation stage; and (3) the opening and evaluation of bids.
On 19 October 1992, 7 bidders out of the 26 suppliers who secured bid documents submitted Pre-qualification Documents. Of the 7 bidders, only 3 complied with all the PBAC requirements and were pronounced qualified to bid.[4] These were: Tetra Corporation-Trigem Computers (Tetra), Microcircuits Co. (Microcircuits), and Columbia Computers (Columbia).
The equipment of each of the three bidders was then sent to the Development Academy of the Philippines-Technical Evaluation Committee (DAP-TEC) to ensure an independent and objective technical evaluation thereof.
The DAP-TEC conducted a hardware benchmark testing to determine the quality and performance of the three bidders, based on the criteria and specifications approved by the PBAC. Since Tetra ranked first in the test, its equipment was recommended by DAP-TEC to CDA.[5]
Thereafter, the respective bids of the three companies were opened. Tetra offered P1,269,620; Microcircuits, P1,123,315; and Columbia, P1,476,600, for 23 units of 386SX computers, 1 unit of 386DX Tower, and 1 unit of 386SX Notebook.[6]
Following the criteria[7] approved by the PBAC, Tetra won the bid.
A second purchase order was issued for 21 additional units of computers. Meanwhile, the uninterrupted power supply (UPS) was acquired through negotiated contract, totalling the purchase amount to P2,285,279,[8] for all the equipment bought from Tetra.
On 17 November 1993, after auditing the purchase of the equipment, COA Auditor Luzviminda Rubico disallowed P881,819 of the total amount paid. Comparing the Tetra equipment to non-branded computers and peripherals, the COA resident auditor deemed Tetra's equipment to be overpriced. The auditor held petitioner to be jointly and severally liable with the PBAC members and the CDA chair, namely: Edwin Canonizado, Sylvia Posadas, Ma. Erlinda Dailisan, Ma. Luz Aggabae, Leonilo Cedicol, Amelia Torrente and Edna E. Aberilla.[9]
On 13 May 1994, Chair Edna E. Aberilla, representing petitioner and the PBAC members, moved for a reconsideration of the disallowance.[10]
On 21 October 1998, respondent COA affirmed the disallowance. It ruled that the comparison was based on specifications and functions; thus the brand differences had little bearing on the price findings. It likewise stated that Microcircuits - being a US brand - was more durable than Tetra, which was Korean-made. Respondent also pointed out that CDA should have been entitled to a volume discount from Tetra, considering that it was a bulk purchase. Thus, it held that the CDA officials should have purchased the equipment from Microcircuits, the lowest bidder, considering that both companies offered equipment of the same technical specifications and functions.[11]
Petitioner once again moved for a reconsideration of the Decision of respondent COA. In his motion for reconsideration, he stated that since CDA did not have the technical expertise to evaluate computers, it contracted the services of DAP-TEC to conduct the technical evaluation. The results of the evaluation were among the factors considered in determining the best bid. Petitioner reasoned that cost, quality and track record were also taken into consideration. He further stated that the bidding process was properly conducted. Lastly, he asserted that there was no evidence to show that CDA should have been entitled to a purchase discount.[12]
Dismissing the motion, respondent COA issued the assailed Resolution[13] on 18 March 2003, the dispositive portion of which states:
Commissioner Emmanuel M. Dalman, however, dissented from the majority ruling of the COA[14] and said:
The ponencia, unfortunately, affirms the findings of respondent COA and holds that there was excessive expenditure for the purchase of the Tetra computer equipment. It states that an actual canvass for the determination of the base price was not needed, because the auditor based her findings on the report of the Technical Services Office (TSO) of respondent COA.
This ruling is unwarranted.
First, respondents failed to show that there was substantial evidence to support a finding of liability.
Circular No. 85-55-A of the Commission of Audit clearly states:
State Auditor Luzviminda Rubico admitted in her 1st Indorsement dated 6 June 1994[15] that she did not conduct any actual canvass to determine the reasonableness of the price. Instead, she conducted a mere telephone canvass. Her failure to do so was contrary to the prevailing rules and jurisprudence at that time.
It is likewise inaccurate to say that since petitioner did not demand the canvass sheets, Arriola is inapplicable to the case at bar. Petitioner, from the very start, refused to acknowledge the validity of the PED-TSO price evaluation report, claiming that the comparison was between "apples and oranges." Petitioner demanded that respondents instead conduct a price comparison between the same items in the open market, or at the very least, "compare the acquired computer equipment and peripherals with the same modes of other branded computers."[16] By so doing, petitioner would have been fully apprised of the charge against him and the other CDA officials.
Thus, in Buscaino v. COA,[17] this Court held:
It bears emphasizing that, in the Summary of Price Data and Feedback Form on which respondents base their allegations, the officer-in-charge (OIC) of the PED-TSO of respondent COA disclosed that the other items were based only on one or two pieces of valid price information, instead of three as required. However, it did not disclose the source of the reference values or base prices. In fact, the OIC of the PED-TSO clearly stated that some pieces of equipment used for comparison had no data available. This was clearly contrary to Resolution No. 90-43 on PED-TSO's mandate to be transparent with regard to the sources of the reference values.
Respondents cannot sanction a person for an act or omission when they did not even bother to follow the standards they themselves established as well as those that have been established by this Court. Unfortunately, respondent COA merely relied on the report of the auditor. The auditor did not see, hold, or examine the equipment. Even the PED-TSO report that she relied on was incomplete, as will be explained more in detail later.
It is also imperative to note that, acting on the Court's ruling in Arriola, on 31 March 1997, respondent COA issued Memorandum No. 97-012 which provides the guidelines for securing the evidence to support audit findings of overpricing. The COA memorandum cited this particular portion in Arriola:
It also cited National Center for Mental Health Management v. COA, to wit:[18]
In order to further clarify the role and status of price reference data in the audit evidence process, respondent COA also issued the following guidelines to determine whether there is overpricing. The guidelines state:
When respondent COA decided this case on 21 October 1998, these guidelines were already in force. This Court had already established the standards in Arriola. Thus, respondent COA should have, at the very least, ordered the auditor to present the documents enumerated in these guidelines. It should have made sure that the due process standards laid down in Arriola were followed.
In Nava v. Palattao,[19] we held that Arriola and Memorandum No. 97-012 were not applicable because Arriola was promulgated and these regulations were issued after the audit in Nava was conducted. Nava, however, is fundamentally different from the present case in two respects. First, at the time the audit in the present case was conducted, Arriola was already promulgated and respondent, being a party to the case, was already aware of the standards established in that case. Second, in Nava, the COA presented evidence proving beyond reasonable doubt that the accused in that case violated the Anti-Graft and Corrupt Practices Act in the purchase of laboratory tools and devices. Thus, we held:
Unfortunately, respondents failed to apply Arriola. It is even more regrettable that, in the case at bar, this Court has lowered the standards for due process it painstakingly established in Arriola.
Second, respondents violated petitioner's right to due process when they compared the equipment purchased with that of a different brand having different features and functions.
In Arriola, we held that there should have been a specific comparison between the pump purchased and the pump the TSO based its price findings from. We stated that it was not sufficient to compare the purchased item, a "Goulds Submersible pump model 25 EL 30432, 3 HP, 230 V., coupled to Franklin Submersible Electric Motor, 3 HP, 230 V. 3-phase, 60 Hz. 3450 RPM" to a mere "Goulds submersible pump." Thus, following Arriola, the "same item" referred to in COA Circular No. 85-55-A should therefore mean as the item having specifically the same brand with the same features and specifications with that item purchased.
In the case at bar, the price of the Tetra computers was compared with that of Genesis computers; the price of the Magtek uninterrupted power system was compared with that of APC, Admate and PK. These comparisons were in violation of COA Circular No. 85-55-A. As earlier discussed, a comparison should be made between the same items available in the market. Genesis computer clones are inferior to Tetra Trigem computers, which are branded Korean equipment; expectedly, Genesis would be priced differently. It does not take an expert to say that branded computers are superior to generic clones. As pointed out by petitioner - which was not refuted by respondents - Genesis was a non-branded computer which was incomparable to a branded product such as Trigem. Not only was it a different brand, but it also had different specifications and features. These items were not the same as those that were actually bought, but, instead, were alternatives.
Below is a summary of the comparison made by the OIC PED-TSO. This is based on the PED-TSO Report[20] provided to the OIC of the TSO (OIC-TSO), which was largely the basis of auditor Rubico's findings:
The OIC PED-TSO disclosed that other items were verified or evaluated but had no valid data for comparison. In short, the PED-TSO only knew the price of the computer peripherals, but it had no idea what their brands or specifications were.
I also wish to emphasize the inaccuracy of Auditor Rubico's reports[21] dated 17 and 23 November 1995, respectively, from which respondents base their Comment. Auditor Rubico stated that the TSO determined that both computers were of the same characteristics and attributes.[22] A cursory reading of the report immediately reveals that, contrary to the auditor's report, the PED-TSO disclosed that it lacked necessary information when it conducted the comparison.
The only other comparison conducted by respondent COA was by Director Marieta Acorda of the Information Technology Center of COA, where she compared Trigem computers with the computers of Columbia and Microcircuits. She did not compare Trigem with Genesis.[23] In her report, as will be discussed more in detail later, Director Acorda stated that the functions of the specific features - microprocessors, BIOSes and casings - of the three bidders did not affect the performance of the computer, except for the RAM capacity. This was therefore an irrelevant comparison to conclude that the Trigem computers should have been priced at those of Genesis; when it was not the brands being compared by Director Acorda.
Therefore, there is no basis for respondent COA's finding that Genesis and Trigem were of the same characteristics and attributes.
It is therefore clear that respondents' basis for holding petitioner liable is unsubstantiated and based on mere speculations and conjecture. First, no actual canvass was made; and second, it appears that no valid comparison was conducted either.
In applying Arriola to the case at bar, we should hold that respondents violated petitioner's due process when they failed (1) to conduct an actual canvass in the market; (2) to present canvass sheets or price quotations; (3) to disclose the source of the reference values or base prices; and (4) to compare the questioned equipment specifically to the same items - a situation even worse than that in Arriola, where at least COA compared items of the same brand but with different specifications; and where while no canvass sheets or price quotations were produced, actual written canvass was apparently conducted.
It is likewise unfair to compare Tetra's proposed Trigem computers to a computer clone that was not even qualified to be bidded on or was not subjected to the same hardware benchmark testing.
That the brands should not have mattered is wrongly maintained by both Director Acorda and by State Auditor Rubico (in the first Indorsement dated 6 June 1994). This assertion of course violates COA's own basic rules on investigations of allegations of irregularities in government purchases.
Respondent COA substituted its own judgment for that of CDA without legal authority to do so and without any legal or factual basis for its conclusions that its judgment in matters of preference was superior to that of CDA. Even if it were to be proven that its judgments or preferences were superior to those of CDA, the fundamental problem remains that it does not have the authority to substitute the judgment of the audited agency with those of its own. It can only audit purchases, not prescribe what are to be purchased.
Director Acorda observed that the two other bidders, Microcircuits and Columbia, were penalized for failing to comply with the CDA specifications. For example, CDA required Intel microprocessors, but only Tetra used Intel, while Microcircuits and Columbia used AMD. Thus, Mircocircuits and Columbia were penalized. CDA required ROM BIOS licensed by IBM, AMI, Phoenix or Awards. Thus, DAP-TEC penalized Columbia which provided AcerBios. Columbia was again penalized because the tower had a desktop casing and not a tower casing as required by CDA. Tetra was also penalized because the RAM of the Notebook was only 640 kilobytes instead of 2 megabytes (expandable). Director Acorda pointed out that, save for the RAM of the computers, the other specifications indicated by CDA did not affect the performance of the equipment. She, however, said that the benchmark testing conducted by DAP-TEC was not a sufficient basis to determine whether or not the Tetra computers were inferior to the other computers.
None of the above instances of substitution of judgment make sense. Unless questioned in a proper proceeding, it stands that the preference of CDA is justifiable by its requirements of functionality and durability of the computer equipment bought.
Meanwhile, auditor Rubico noted that Tetra did not give a volume discount on the purchase of the computers. She also pointed out that the prices of computers in 1992 were already relatively low given that there were a considerable number of suppliers in the market. She claimed that the brands of the equipment should not matter because the offers of the bidders were of similar technical specifications, features and warranty as contained in the proposal bid form. Finally, she stated that the date of the telephone canvass and the TSO report was immaterial because there was no showing that foreign exchange rate affected the price of the equipment over that period.
Respondents failed to show any basis for this conclusion. To adopt the above argument is to render the whole bidding process inutile, or to say that actual canvass can be done away with on findings of excessive pricing. Following this line of reasoning, price should then be the only factor to consider when the government acquires equipment and supplies. To reason thus is contrary to the admission of respondents that brands do affect the price and the quality of products. Respondent COA's own Circular No. 85-55-A states that, in determining whether there is an excessive expenditure, the brand of the product should also be taken into consideration. It expressly stated, "products of recognized brands coming from countries known for producing such quality products are relatively expensive." Thus, in the example given in Circular No. 85-55-A on scissors, respondent COA stated that Solingen scissors are expected to be more expensive than ordinary scissors, despite the fact that scissors which are not Solingen have the same function as the Solingen scissors. The circular likewise provided that price is not excessive if the equipment offers warranty or special features that are necessary to the needs of the agency, and these special features or warranty is reflected on the offer or reward. Respondents cannot now renege on this express admission, thereby denying petitioner his due process.
Respondent never denied that Genesis was a non-branded computer. Moreover, Tetra used Intel microprocessors, which were manufactured by Intel Corporation, the company that pioneered the production of microprocessors for personal computers, as Director Acorda herself pointed out. Other microprocessors, including AMD, are clones of the Intel microprocessor. There was no indication that Genesis also used Intel microprocessors. In fact, what was apparent in the report submitted by the PED-TSO was that Genesis had different specifications and less features than Trigem.
Likewise, Tetra was not legally obligated to give such discount to CDA. Neither was it shown that petitioner had the legal obligation to demand for a volume discount. Nothing in the cited COA regulations states that volume discounts should be demanded for all government purchases; or that failure to negotiate for a volume discount would result in the nullification of the bidding process or the contract; or that the parties shall be held administratively liable for failing to secure a volume discount. Neither was it shown that the other two bidders, Mircrocircuits and Columbia, would have given CDA a volume discount had they been chosen. Volume discount only becomes relevant in determining whether there were excessive expenditures when the discounts allowed for bulk purchases were not reflected in the price offered or in the award or in the purchases or payment document.[24] The term "allowed" here should signify that it is dependent on the negotiations of the parties, and not mandatory.
Furthermore, there was a denial of due process when respondents imposed their own judgment and discretion on the PBAC. If we were to analyze the case carefully, respondents actually attacked the discretion of the PBAC and the Board of Administrators (BOA) - not that of petitioner - in setting the criteria and approving the purchase of the equipment.
The 1987 Constitution provides that the powers of COA include the power to "promulgate accounting and auditing rules and regulations, including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures, or uses of government funds and properties." These powers, however, do not include the power to substitute its own preference over that of a government agency; or to dictate which equipment is better or more appropriate without following the requirements of due process.
To recall, the records are replete with documents from respondents alleging that there was overpricing. CDA allegedly bought the equipment when there were cheaper alternatives in the market. Respondents insist that, as long as the equipment had the same basic functions, brand should not matter. These alternatives did not necessarily possess the same functions or features identified by the PBAC; nevertheless, these alternatives were more acceptable to respondents. In short, they wanted to substitute their own judgment for that of the CDA officials, without even verifying with the CDA officials the purposes or uses of the equipment or of each specification required.
If respondents insist that petitioner and the other CDA officials should have purchased the cheaper alternatives, then they should have charged the CDA officials for "unnecessary" or "extravagant" expenditures under COA Circular No. 85-55-A, rather than "excessive" expenditures, to wit:
Respondent then would have proceeded with the case, going into the wisdom and reasonableness of the criteria and the functions of the equipment bought vis-à-vis the needs of the CDA. To reiterate, in the case at bar, respondents did not even go into CDA's purpose for the equipment bought.
Therefore, absent an undertaking of the proper process and, consequently, a finding that the criteria and standards were established with grave abuse of discretion, respondents cannot question the wisdom of petitioner and the other CDA officials with regard to the standards and criteria set.
Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction or, in other words, where the power is exercised in an arbitrary manner by reason of passion, prejudice, or personal hostility; and it must be so patent or gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined by law, or to act at all in contemplation of law.[25]
Respondents further claim that Microcircuits, having the lowest bid, should have won. However, even if they were to follow respondent COA's own suggestion, petitioner and the other officials of CDA would still have been held liable for overpricing, because even if they had chosen Microcircuits as respondents suggest, the equipment would still cost more than 10% of the allowable price variance when compared to the base price of Genesis, the chosen inferior clone product. None of the qualified bidders would have successfully won the bid. Stated differently, if respondents insist that petitioner should have accepted the bid of Microcircuits, then the amount of disallowance should have been based on the offer price of Microcircuits and not the price of Genesis.
Thus, respondents clearly contradict themselves when, on the one hand, they insist that the amount disallowed should be taken from the comparison with Genesis, but on the other insist that petitioners should have purchased Microcircuits computers.
The ponencia points out that there were instances of manipulation in the bidding process, specifically, during the second stage or the technical evaluation. It appears that, on 23 November 1995, auditor Rubico wrote to the legal counsel of respondent COA.[26] She alleged that on 4 November 1992, DAP-TEC faxed a "First and Impartial Result" from its technical evaluation of the equipment. The tests supposedly showed that Tetra was of the "most inferior quality and last in over-all ranking." On the same day, the CDA PBAC opened the bid documents in the presence of COA representatives. A day after the bids were known, a certain Rey Evangelista, allegedly a staff of PBAC Chair Edwin Canonizado, also allegedly went to DAP-TEC and asked the latter's technician to "change and/or make alteration on the 1st evaluation result and to indicate the name of Tetra Corporation the number one in the over-all ranking in the evaluation result which he did."[27]
After judiciously poring over the records, I find that the allegations of auditor Rubico are unsubstantiated. Respondents did not attach the so-called "First and Impartial Result." What they attached was the DAP-TEC technician's 23 November 1995 letter, which was issued upon the request of Abraham Rodriguez, allegedly a COA representative to the CDA, but which does not support the report of auditor Rubico. The letter states:[28]
Notably, the DAP-TEC technician merely stated that Mr. Evangelista provided them with guidelines for penalty points. The technician did not say that Mr. Evangelista instructed them to indicate Tetra as the winner. He only instructed DAP-TEC to indicate which bidder won the technical evaluation. Thus, there was nothing in the letter that conclusively showed that Mr. Evangelista had gone to DAP-TEC under the instructions of petitioner, specifically to manipulate the results.
Again, respondents did not investigate the matter. They did not even ask why CDA imposed `penalty points' or why CDA required those specifications. They merely took the report of auditor Rubico as the absolute truth, without verifying its content. The documents attached as evidence for our review is bereft of any indication that there was manipulation involved.
It is a basic tenet in the observance of administrative due process that the tribunal or any of its judges must act on its own independent consideration of law and facts of the controversy, and not simply accept the views of the subordinate. In the case at bar, respondents erroneously relied solely on the Indorsement of auditor Rubico for the disallowance despite the absence of substantial evidence to support the claim.
Petitioner enjoys the presumption of regularity. An allegation of manipulation must be accompanied by substantial evidence before respondents can conclude that bad faith attended the transaction.
More egregiously, respondents' allegation that the bidding process was tainted with irregularity was belatedly raised. It was only in respondents' Comment[29] before this Court dated 12 March 2004 that the allegation was made. Even if auditor Rubico's report cited above was dated 23 November 1995, the Decision dated 21 October 1998 did not discuss the issue of whether the bidding process was properly conducted. Neither did it state that the disallowance was upheld on the basis of the alleged manipulation. Respondents are therefore estopped from raising that matter very late in the day. Petitioner was only informed of the manipulation issue for the first time through respondents' Comment filed in 2004. It is again violative of petitioner's due process when respondents now come before us, insisting that the disallowance was based on the alleged manipulation, when it was never found to be so by respondent COA in its Decision in 1998. Thus, the reliance of this Court on respondents' belated allegation is clearly unwarranted.
In disposing of the issues of this case, the ponencia likewise relied on the doctrine that states that findings of quasi-judicial agencies are to be given great respect. However, this doctrine cannot be applied to the present case. To reiterate, COA Commissioner Dalman dissented from the 13 March 2003 COA Resolution. In addition, when this Court required public respondents to comment on the Petition, the Office of the Solicitor General (OSG) submitted a Manifestation and Motion in lieu of Comment.[30] The OSG informed us that it "is constrained to adopt a position adverse to the Commission on Audit."
In my opinion, these instances were red flags that should have warned us to look into the findings of respondent COA more carefully.
While it is settled that the Court is not a trier of facts and does not, as a rule, re-examine the evidence presented by the parties to a case, there are a number of recognized exceptions, such as when the judgment is based on a misapprehension of facts; when the findings of facts of lower courts are conflicting; or when the findings of facts are premised on the supposed absence of evidence but are contradicted by the evidence on record.[31]
I also note that respondents erroneously based the allegation of overpricing on the total amount paid for the purchases. Thus, in their Comment, respondents alleged:
In addition, respondents claimed,
These allegations are misleading. It is false to say that Microcircuits offered half the price of Tetra. The Tetra bid quoted above represents the initial order plus the purchase of the additional 21 computers. The price difference between Tetra and Mircocircuits based on the original bid only amounted to P146,305. This false allegation puts into question respondents' appreciation of the facts, especially considering that they merely quoted auditor Rubico's report, without providing this Court with supporting evidence on the record.
Lastly, as a public official, petitioner is assumed to have performed his functions regularly. The burden to prove otherwise rests on respondents. In the case at bar, not only did respondents fail to substantiate their allegations; worse, they violated petitioner's right to due process. There is no legal basis to make him personally liable for the disallowance.
It was clear that the PBAC was primarily responsible for the formulation of rules and guidelines on the conduct of the public bidding. It was also responsible for the criteria for pre-qualifying prospective bidders and for determining whether the documents submitted are in accordance with the required checklist of requirements. Finally, it was the body that recommends to the Board of Administrators (BOA) the winner of the bid, according to its own evaluation.
The BOA, meanwhile, was the body that gave the final approval for the purchase of the equipment.
It is presumed that petitioner, PBAC, BOA and even DAP-TEC were acting independently of each other. Each had their respective powers and functions. Respondents failed to rebut this presumption.
Even if it were true that there were instances of manipulation in the bidding process when a certain Rey Evangelista allegedly ordered the DAP-TEC to fix the results of the technical evaluation, it was likewise not conclusively shown that he was acting under the orders of petitioner. Mr. Evangelista was never proved to be directly connected or related to petitioner; instead, the auditor alleged that Mr. Evangelista was the staff of Edwin Canonizado, who is the PBAC chair.
Thus, to allege that petitioner had a role in the so-called manipulation of the bidding process, respondents carry the burden of substantially proving this to be true. The mere fact that petitioner was the one who reconstituted the PBAC or that he was the one who contracted the services of DAP-TEC does not conclusively show that he was directly involved in the alleged manipulation. Respondents likewise carry the burden of showing that they followed the proper procedure of assailing bidding procedures. However, respondents miserably failed in both respects.
What is more apparent is that petitioner was merely exercising ministerial functions with regard to the whole process. The discretion with regard to the purchase of the equipment clearly rested on the PBAC and the BOA.
Thus, absent any evidence showing that petitioner had any direct participation in the alleged fixing of the price, or that he exerted undue influence over the PBAC and BOA, he should not have been made liable under the circumstances.
This opinion likewise applies to the other CDA officials who were made solidarily liable with petitioner by public respondents.
I vote to grant the Petition.
[1] Article IX, Section 2 of the 1987 Constitution.
[2] G.R. No. 90364, September 30, 1991, 202 SCRA 147.
[3] Rollo at 67.
[4] Id. at 64-66.
[5] Id. at 90-91.
[6] Id. at 78 and 86.
[7] Cost/Price = 50%
Technical Evaluation = 30%
Support = 20%
[8] Note that respondent COA states in its Resolution dated 18 March 2003 that the total amount was P2,199,279.
[9] Rollo at 68-72.
[10] Id. at 73-77.
[11] Id. at 50-52.
[12] Id. 53-60.
[13] Id. at 61-63.
[14] Id. at 92-93.
[15] Id. at 78-79.
[16] Id. at 74.
[17] G.R. No. 110798, July 20, 1999, 310 SCRA 635.
[18] G.R. No. 114864, December 6, 1996, 265 SCRA 390.
[19] G.R. No. 160211, August 26, 2008, 499 SCRA 745.
[20] Rollo at 70-72.
[21] Id. at 231-233 and 243-247.
[22] Id. at 231 and 243.
[23] Id. at 80-81.
[24] COA Circular No. 85-55-A, par. 2, Standards for "Excessive" Expenditure.
[25] Daan v Sandiganbayan, G.R. Nos. 163972-77, March 28, 2008, 550 SCRA 233.
[26] Rollo at 243-247.
[27] Id. at 245.
[28] Id. at 248-249.
[29] Id. at 140-155.
[30] Id. at 109-110.
[31] Great Southern Maritime Services Corp. v. Surigao, G.R. No. 183646, 600 SCRA 795.
[32] Id. at 148.
[33] It is not clear in the records how respondents came up with this figure.
[34] It appears that Columbia made two bids, one for P1,476,600 and the other for P1,177,600. Rollo at 86.
[35] Rollo at 150.
The facts are:
On two separate occasions in December 1992, the Cooperative Development Authority (CDA) purchased from Tetra Corporation (Tetra) a total of forty-six (46) units of computer equipment and peripherals in the total amount of P2,285,279.00. Tetra was chosen from among three qualified bidders (Tetra, Microcircuits and Columbia). In the technical evaluation of the units to be supplied by the qualified bidders, CDA engaged the services of the Development Academy of the Philippines-Technical Evaluation Committee (DAP-TEC). The bidding was conducted in accordance with the Approved Guidelines and Procedures of Public Bidding for Information Technology (IT) Resources and Memorandum Order No. 237 issued by the Office of the President. Petitioner who was then the Executive Director of the CDA approved the purchase.
On May 18, 1993, the Resident Auditor sought the assistance of the Technical Services Office (TSO), COA in the determination of the reasonableness of the prices of the purchased computers.[3] In its reply-letter dated October 18, 1993, the TSO found that the purchased computers were overpriced/excessive by a total of P881,819.00. It was noted that (1) no volume discount was given by the supplier, considering the number of units sold; (2) as early as 1992, there were so much supply of computers in the market so that the prices of computers were relatively low already; and (3) when CDA first offered to buy computers, of the three qualified bidders, Microcircuits offered the lowest bid of P1,123,315.00 while Tetra offered the highest bid of P1,269,630.00.[4] The Resident Auditor issued Notice of Disallowance No. 93-0016-101 dated November 17, 1993, for the amount of P881,819.00.[5]
In a letter[6] dated May 13, 1994, CDA Chairman Edna E. Aberilla appealed for reconsideration of the disallowance to COA Chairman Celso D. Gangan, submitting the following justifications:
[1.] The basis of comparison (Genesis vs. Trigem computers and ferro-resonant type UPS vs. ordinary UPS) is erroneous, as it is like comparing apples to oranges. x x x Genesis, a non-branded computer, is incomparable to Trigem, a branded computer in the same manner as the MAGTEK-UPS, a ferro-resonant type of UPS, should not be compared with APC-1000W, ADMATE 1000W and PK 1000W, which are all ordinary types of UPS.
x x x It would have been more appropriate, therefore, to compare the acquired computer equipment and peripherals with the same models of other branded computers.
[2.] The technical specifications and other added features were given due weight. x x x [T]he criteria for determining the winning bidder is as follows:
Cost/price 50%
Technical Specifications 30%
Support Services 20%
[3.] The same technical specifications and special features explained the advantages of the acquired computer equipment and peripherals with those that are being compared with. With regards to our branded computer, the advantages include the following:
[a.] Original and Licensed Copy of its Disk Operating System specifically MS-DOS Ver 5.0.
[b.] Original and Licensed Operating System Diskettes and its Manuals.x x x x[c.] User's Manual and Installation Guide x x x
[d.] Computers offered should run PROGRESS Application Development System as indicated in the Bid Document x x x because the developing system for the establishment of the agency's Management Information System (MIS) is based on PROGRESS Application Software.
[e.] Legal Bios/License Agreement for the particular brand of computers offered to CDA. x x x
With these features, the agency is assured that the computers were acquired through a legitimate process (not smuggled/"pirated"), thereby, upholding the agency's respect for Intellectual Property Law or P.D. No. 49.
With regard to the UPS, x x x it is a ferro-resonant type x x x [which has] advantages to ensure greater reliability and will enable users to operate without interruption.
[4.] [As declared in] COA Circular No. 85-55-A, "the price is not necessarily excessive when the service/item is offered with warranty or special features which are relevant to the needs of the agency and are reflected in the offer or award. As will be seen from the criteria adopted by the agency, both the warranty and special features were considered and given corresponding weights in the computation for the support services offered by the bidder.
[5.] x x x [T]here is no overpricing because in the process of comparing "apples vs. apples", the other buyers in effect procured their units at a higher price than those of the CDA. We x x x are still in the process of gathering additional data of other transactions to further support our stand. x x x
[6.] x x x The rapid changes due to research and development in Information Technology (I.T.) results in the significant reduction of prices of computer equipment. x x x [M]aking a comparison given two different periods (December 1992 vs. August 1993) may be invalid x x x.
[7.] The procedures of the public bidding as adopted by the [CDA] x x x demonstrate a very effective mechanism for avoiding any possible overpricing.[7]
In compliance with the request of the Legal Office Director, the TSO submitted its comments on the justifications submitted by the CDA. On the non-comparability of Genesis and Trigem brands, it explained that the reference values were in accordance with the same specifications but exclusive of the "branded" information, since this was not stated in the P.O./Invoice, which was used as basis of the canvass. Since the said brands are both computers of the same general characteristics/attributes, the branded and non-branded labels propounded by the supplier is of scant consideration. As regards the UPS, it was pointed out that the enumerated advantages of the delivered items are the same advantages that can be generated from a UPS of the same specifications and standard features; in this case, the reference value pertains to a UPS with the same capacity, input, output, battery pack and back-up time, except for the brand. As to the period of purchase by the CDA, the TSO noted that based on its monitoring from October 1993 to May 1994, prices of Star and Epson printers and hard disk (120 MB Model St-3144A) either remained the same or even increased by 2% to 5%. It is therefore valid that the price of an item is the same from one period to another, and that an item may be available unless it is out of stock, or phased out, with or without a replacement. In this case, the reference value cannot be considered as the reduced price as a result of rapid changes due to research since the said reference value is the price for the same model already existing in December 1992 when the purchase was made and still available in August 1993, and not an equivalent nor replacement of a phased out model.[8]
On the other hand, the Resident Auditor maintained her stand on the disallowance and submitted to Assistant Commissioner Raul C. Flores her replies to the CDA's justifications, as follows: (1) on the allegedly erroneous comparison between Genesis and Trigem brands, if this will be the basis, then their bidding will not be acceptable because in the Abstract of Bids, the comparison of prices was not based on similar brands, i.e., Tetra offered Trigem-Korean for P1,269,620, Microcircuits offered Arche-US brand for P1,123,315, and Columbia offered Acer-Taiwan brand for P1,476,600; what is important is that, the specifications and functions are similar; (2) the 2nd, 3rd and 4th justifications are of no moment as all the offers of the three qualified bidders were of similar technical specifications, features and warranty as contained in the Proposal Bid Form; (3) on the 5th justification -- the companies referred to procured only one unit each and of much higher grade; (4) on the 6th justification -- while the date of the canvass conducted by the TSO does not coincide with the date of purchase, there is no showing that foreign exchange rate changed during the latter part of 1992 which will significantly increase the prices of computers; and (5) on the 7th justification -- while the COA witnessed the public bidding, the post-evaluation was left to the Pre-qualifications, Bids and Awards Committee (PBAC). The National Government Audit Office I concurred with the opinion of the Resident Auditor that CDA's request may not be given due course.[9]
On October 21, 1998, respondent COA issued the assailed decision affirming the disallowance. It held that whether or not the product is branded is irrelevant in the determination of the reasonableness of the price since the brand was not stated in the Call for Bids nor in the Purchase Order. The bids of the three qualified bidders were based on similar technical specifications, features and warranty as contained in their proposals. It was also found that the performance of the competing computer equipment would not vary or change even if the attributes or characteristics of said computers cited by petitioner were to be factored in. The difference in brands, microprocessors, BIOSes, as well as casings will not affect the efficiency of the computer's performance.[10]
Further, COA declared that CDA should not have awarded the contract to Tetra but to the other competing bidders, whose bid is more advantageous to the government. It noted that Microcircuits offered the lowest bid of P1,123,315.00 for the US brand said to be more durable than the Korean brand supplied by Tetra. CDA also should have been entitled to volume discount considering the number of units it procured from Tetra. Lastly, COA emphasized that the requirements and specifications of the end-user are of prime consideration and the other added features of the equipment, if not specified or needed by the end-user, should not be taken into account in determining the purchase price. The conduct of public bidding should be made objectively with the end in view of purchasing quality equipment as needed at the least cost to the government. The price for the equipment delivered having been paid, when such equipment could be acquired at a lower cost, the disallowance of the price difference was justified.[11]
Petitioner's motion for reconsideration having been denied, he now comes to this Court for relief on the following grounds:
RESPONDENT COMMISSION ON AUDIT'S FINDING THAT THE AMOUNT OF P881,819.00 SHOULD BE DISALLOWED IN THE PURCHASE OF THE COMPUTER EQUIPMENT BY THE CDA IS NOT SUPPORTED BY EVIDENCE AND IS CONTRADICTORY TO LAW AND JURISPRUDENCE.
RESPONDENT COMMISSION ON AUDIT ERRED IN HOLDING THE PETITIONER PERSONALLY AND SOLIDARILY LIABLE FOR THE DISALLOWED SUM OF P881,819.00, ABSENT ANY FINDING MUCH LESS EVEN AN ALLEGATION THAT HE HAD ACTED IN BAD FAITH, WITH MALICIOUS INTENT OR WITH NEGLIGENCE IN THE PURCHASE OF THE COMPUTER EQUIPMENT BY THE CDA.[12]
Petitioner reiterates his argument that price was not the sole criteria in determining the winning bid for the purchased computers, price comprising only 50% of the criteria, while technical evaluation and support services were accorded 30% and 20%, respectively. He points out that the computer/hardware of generic class which was provided to the COA-TSO with low-priced quotations for comparison with the winning bid and as bases for disallowance in audit, never underwent technical or physical evaluation as did the computer equipment of the three final bidders. Moreover, the CDA-PBAC Bidding Procedure was designed in such a way that generic type (cloned) computers were eliminated even in the pre-qualification stage. It is for this reason that the final bidders all offered branded computers which, by their very nature, were all considered to be efficient by no less than the Information Technology Center (ITC) of the COA, as mentioned in the memorandum dated December 9, 1996 of Director Marieta SF. Acorda. The mere fact that the offered computers had different manufacturers can lead to a reasonable conclusion that the life spans of the same and reliability would also vary.[13]
As to the COA's position that even if only the price was considered, the contract should have been awarded to Microcircuits, petitioner points out that in such a case, CDA's disallowance would have been only P140,000.00, much lower than the present P881,819.00 disallowance. But as it is, on the basis of the three criteria applied during the pre-qualification stage, Tetra garnered the highest points as certified by the PBAC in its memorandum-update dated November 20, 1992. The application of all three criteria meets the standard set by COA Circular No. 85-55-A. Thus, although Microcircuits got the highest percentage on Cost/Price factor, it only ranked second in over-all performance, to Tetra, as evaluated by the PBAC.[14]
Petitioner cites the dissenting opinion[15] of COA Commissioner Emmanuel M. Dalman who found no overpricing in this case and the CDA decision as one done in good faith and with the presumption of regularity in the performance of official functions. Indeed, it behooved on COA to prove that the standards set by the COA circular were met in audit disallowance; it even failed to produce actual canvass sheets and/or price quotations from identified suppliers. The Summary of Price Data and comparison sheets attached to the Notice of Disallowance by themselves are not sufficient basis for the disallowance herein since they do not satisfy the requirement highlighted in the case of Arriola v. Commission on Audit.[16] The COA auditor herself (author of the Notice of Disallowance) admitted that she did not personally prepare actual canvass sheets and only a telephone canvass was conducted. As to the volume discount, again no evidence was adduced to show that the other bidders would have given the same if the contract was awarded to them. What is certain is that, owing to the consideration of the two major criteria of "technical evaluation" and "after-sales support", most of the computer equipments provided by Tetra pursuant to the disallowed transaction are still functioning to date, even after twelve (12) years of continued use.[17]
Finally, petitioner contends that he should not be made personally liable for the disallowed expense. He invokes the prevailing doctrine that unless they have exceeded their authority, corporate officers, as a general rule, are not personally liable for their official acts, because a corporation, by legal fiction, has a personality separate and distinct from its officers, stockholders and members. CDA though a government corporation, there is no single allegation or imputation, much less any evidence of any act, constituting bad faith, malice or negligence on the part of petitioner during his service as Executive Director of the CDA, he being a mere signatory to the documents after the winning bidder had been chosen, and was only a recommending officer on these matters.[18]
In its Manifestation and Motion[19] dated September 10, 2003, the Office of the Solicitor General stated that after a thorough review of the records of the case, it is constrained to adopt a position adverse to the COA.
Respondents filed their Comment, arguing that this Court's jurisdiction was not correctly invoked by petitioner who filed a petition for review under Rule 45 and not a petition for certiorari under Rule 65. Petitioner failed to allege that respondents acted without or in excess of their jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction. On the allegation that their finding of overprice was not supported by evidence, respondents assert that the evaluation report of the DAP-TEC clearly showed that Tetra ranked last in its evaluation while Microcircuits ranked the highest. It was clear that the most advantageous deal for the government should have been concluded with Microcircuits since their computer specifications were at par with those of Tetra and they offered a much lower cost to the government - lower than half the price offered by Tetra.[20]
Moreover, respondents point out that petitioner's contention that price was not the only basis for the award is negated by the finding of the Resident Auditor (Luzviminda V. Rubico) that the DAP-TEC technical evaluation report which became the basis for declaring Tetra as the winning bidder, was fraudulently acquired. Director Mesina signed the same unaware that it was already another version of the technical evaluation report which she had signed earlier, when Tetra's computers were found to be the most inferior in quality. It can be safely asserted that the computers of Tetra and Microcircuits were of the same quality, and therefore, the only basis left in determining the winning bid was the price/cost of the computers (P1,123,315.00 for Microcircuits and P2,285,279.00 for Tetra).[21]
Lastly, respondents maintain that petitioner is personally and solidarily liable for the disallowed amount of P881,819.00. As Executive Director, petitioner ordered the reconstitution of PBAC without any valid reason, on August 25, 1992 amending Special Order No. 91-117 dated October 24, 1991, which nullified the previous bidding conducted in December 1991. Petitioner then engaged the services of the DAP-TEC which came out with two different technical evaluation reports, when it was no longer his duty to do so but that of the PBAC Chairman. These acts show bad faith on the part of petitioner. Mr. Antonio L. Quintos, Jr. of the DAP-TEC confirmed that Mr. Rey Evangelista, staff of PBAC Chairman Edwin T. Canonizado, talked to him and asked him to change and/or make alterations on the first evaluation report, which he did, as set forth in his letter[22] dated November 23, 1995 to Ms. Minnie Mesina of the Center for Information Technology Development (CITD) of the DAP. As provided in the Manual on Certificate of Settlement and Balances (Revised 1973), "[a] public officer shall not be civilly liable for acts done in the performance of his official duties, unless there is clear showing of bad faith, malice or gross negligence." [23]
We deny the petition.
To begin with, petitioner availed of the wrong remedy in filing a petition for review under Rule 45. Article IX-A, Section 7 of the Constitution provides that decisions, orders or rulings of the Commission on Audit may be brought to the Supreme Court on certiorari by the aggrieved party.[24] Moreover, under Section 2, Rule 64, of the Revised Rules of Civil Procedure, a judgment or final order or resolution of the Commission on Audit may be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65. Moreover, on the merits, the petition lacks merit.
Pursuant to its constitutional mandate to "promulgate accounting and auditing rules, and regulations including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant or unconscionable expenditures, or uses of government funds and properties,"[25] the COA promulgated the amended Rules under COA Circular No. 85-55-A[26] dated September 8, 1985. With respect to excessive expenditures, these shall be determined by place and origin of goods, volume or quantity of purchase, service warranties, quality, special features of units purchased and the like.[27]
Price is considered "excessive" if it is more than the 10% allowable price variance between the price paid for the item bought and the price of the same item per canvass of the auditor. In determining whether or not the price is excessive, the following factors may be considered[28]:
A - Supply and demand forces in the market.
Ex. - Where there is a supply shortage of a particular product, such as cement or GI sheets, prices of these products may vary within a day.
B - Government Price Quotations
C - Warranty of Products or Special Features
The price is not necessarily excessive when the service/item is offered with warranty or special features which are relevant to the needs of the agency and are reflected in the offer or award.
D - Brand of Products
Products of recognized brand coming from countries known for producing such quality products are relatively expensive.
Ex. - Solingen scissors and the like which are made in Germany are more expensive than scissors which do not carry such brand and are not made in Germany.
The issue to be resolved is whether the computer units bought by CDA from Tetra were overpriced.
Records showed that while the respondents found nothing wrong per se with the criteria adopted by the CDA in the overall evaluation of the bids, the technical aspect was seriously questioned. The final technical evaluation report was apparently manipulated to favor Tetra, which offered a Korean-made brand as against Microcircuits which offered a US-made brand said to be more durable, at a lower price. The letter[29] dated November 3, 1992 signed by Ms. Mesina in behalf of DAP Vice-President Austere A. Panadero informed petitioner that based on their evaluation in compliance with the "grading system" specified by CDA, the DAP found the units of Tetra as "best suited" to the needs of CDA.
Upon investigation, respondents discovered that there was an earlier report (1st report) which actually stated a contrary finding (Tetra units emerged as the most inferior in quality) but the representative from CDA (Rey Evangelista) came to the DAP-CITD and gave further instructions on "penalty points" for deviation in hardware specifications, resulting in a modified 2nd report (faxed to petitioner's office) in which Tetra was already indicated to have the highest ranking.
These findings were detailed by Auditor Rubico in her letter dated November 23, 1995 to the COA Legal Counsel, to wit:
x x x x
All the above facts were documented and confirmed. As to authenticity and genuineness of the 1st and 2nd results, Mr. Quintos, Jr. told us that he was able to make Director Minerva Mecina signed the documents in behalf of Mr. A. Panadero without informing her of the discrepancies. On the other hand, Director Mecina admitted that it was her signature indeed but not knowing that she signed two different documents. This irregularity, we believed, is known to all members of the CDA PBAC Committee, more so by its Chairman, since all these documents were retrieved from the file of its Secretariat with some documents stamped received by CDA Planning Division Staff.
- After CDA and DAP came into an agreement, CDA PBAC Committee informed and instructed all the 3 qualified bidders to submit and brought [sic] their respective hardwares to DAP for Technical Evaluation for 3 consecutive days (As stated in the agreement) in which they all complied with.
- Eventually, on November 4, 1992 10:07 A.M., the [DAP] released/faxed the FIRST and IMPARTIAL RESULT (Exhibit 5) of the conducted technical evaluation by DAP-TEC signed by Director Minerva Mecina for and in behalf of Mr. A. Panadero. Most, if not all, on the categories of computer testing results showed that among the 3 computer hardwares evaluated, the product of [TETRA] which is Trigem Brand is of the most inferior quality and last in the over-all ranking. The technical evaluation was conducted by Mr. Antonio Quintos, Jr. This result was never presented to this office nor attached to the CDA disbursement voucher as supporting document in payment made to DAP but accidentally handed over to us.
- On the same date, November 4, 1992 11:20 A.M., the CDA PBAC Committee together with the presence of representatives from each suppliers/bidders and this office (as witness), opened the bid documents (Exhibits 6, 6A & 6B). Among the 3 bidders, [TETRA] offered the highest bid price quotation, (Tetra - P1,269,630; Microcircuits - P1,123,315; and Columbia - P1,177,600) in spite of the inferior quality of their products.
- It can be noted that CDA PBAC Committee had formulated their grading/point system (Exhibit 1). There were three (3) factors to consider in awarding the bid such as COST (50%), TECHNICAL EVALUATION (30%) and SUPPORT SERVICE (20%). In view of the above, as regards to the results of the technical evaluation and price bidding, there's no way [TETRA] could possibly win and be chosen as the winning bidder.
- The day after the results of the technical evaluation and opening of the bid prices were known, in which it could be clearly seen who's going to be the winner, MR. REY EVANGELISTA, staff of Mr. Canonizado (Who incidentally is the PBAC Chairman), went to DAP Office. As confirmed by Mr. Quintos, Jr. to us, Mr. Evangelista talked to him and asked him to change and/or make alterations on the 1st evaluation result and to indicate the name of [TETRA] the number one in the over-all ranking in the evaluation result which he did.
- Thus, on November 5, 1992, Mr. Quintos, Jr. issued and faxed the SECOND (2nd) RESULT (Exhibit 7). It was antedated November 3, 1992 and was signed by Director Mecina also on November 5, 1992 for and in behalf of Mr. A. Panadero. In this 2nd result, [TETRA] became the number one (1) in the over-all ranking and apparently there was the intention to favor [TETRA] and to make sure that it will turn out to be the winning bidder. It may be noted in attachment "A" of the letter sent by Mr. A. Panadero (Exhibit 4), which contained the manner and detailed activities the evaluation is to be conducted that there was no evaluation/testing really performed in this 2nd evaluation result. Notice the irrelevant columns added to the said result (CDA Grading system). We asked Mr. Quintos, Jr. if figures in the column "Below Specifications" will affect the capability and quality of the computer hardware that will make it inferior from the other and he answered in the negative. Therefore, in our view, the purpose of adding this "penalty" column is of no relevance to the evaluation conducted but just to give the CDA PBAC Committee all the reasons to give a plus or minus grade/percentage to the hardwares offered by the suppliers/bidders and to satisfy their need. Moreover, we believed that DAP from which CDA paid the amount of P15,000 for the technical service rendered should give an independent report.
- As regard to the factor in the CDA PBAC grading system which is the Support Service (20%) (Exhibit 1), we believe that Columbia Computer Center (UPSON) offering ACER brand is of more established and has advantage in terms of support service because of its business standing, facilities and equipment than [TETRA]. Please take note on the computation the CDA PBAC made as regard to this factor. The CDA PBAC Committee and its Secretariat never presented nor submitted data/documents to this office to support this computation.
x x x x[30] (Emphasis supplied.)
Convinced that there was indeed manipulations in the conduct of bidding to favor Tetra, particularly the introduction of additional features in the CDA grading system after the bids have been opened in order to justify the DAP to change, upon request of CDA, the results of its first evaluation, COA General Counsel Raquel R. Habitan referred the matter to COA's ITC to determine whether or not (1) the additional features introduced in CDA's grading system are really irrelevant to the efficiency of the computers' performance; and (2) the products of Tetra were the most inferior in quality as compared to those offered by the losing bidders at lower price on the basis of the specifications and function.[31]
In her Memorandum dated December 9, 1996 to Director Habitan, Ms. Marieta SF. Acorda, Director of COA's ITC, gave the following comments:
x x x x
1. On the first issue - we observed that no additional computer features were introduced in CDA's grading system, rather the bidders were penalized for non-compliance with technical specifications fixed by CDA.
On CDA's representation with the Development Academy of the Philippines - Technical Evaluation Committee (DAP Committee) and based on the grading system devised by the former, the DAP Committee agreed to impose penalties for non-compliance of the bids with the technical specifications. Hereunder are their reasons for the penalties and our comments thereto:
1.1 Columbia Computer Center (Columbia) and MicroCircuits Corporation (MCC) were penalized because the microprocessor of the computer hardware they delivered for evaluation were AMD and not Intel as required in the technical specification.
AMD and Intel are both microprocessor brands. It rarely malfunctions. Hence, the difference in brands, as in this case, will not affect the efficiency of the computer's performance. However, Intel microprocessors are more expensive and are manufactured by Intel Corporation which pioneered the production of microprocessors for personal computers.
1.2 Columbia was penalized because the ROM BIOSes of the computer hardware they delivered were AcerBios. a deviation from the technical specifications which requires ROM BIOSes licensed by IBM, AMI, Phoenix or Awards.
This will not affect the efficiency of the computer's performance. What is important is that these ROM BIOSes are legal or licensed.
1.3 Columbia was again penalized because the casing of the computer they delivered for evaluation in the Tower 386DX category has a desktop casing and not tower casing as provided in the technical specification.
Casings do not affect the efficiency of the computer's performance but may affect office furniture requirements such as the design of computer tables.
1.4 Tetra Corporation (Tetra) was penalized because the RAM of the Notebook it delivered for evaluation was only 640K instead of 2M (expandable).
We agree that RAM capacity will affect the efficiency of the computer's performance.
2. On the second issue - the Benchmark testing conducted by DAP-Committee in which Tetra got the lowest score in terms of Technical Evaluation is not a sufficient basis for us to determine whether or not Trigem computers are inferior to the computer brands offered by the other bidders.
In Benchmark Testing, weights are allocated to the different technical features of a computer. The computers are then evaluated/appraised using diagnostic software and ranked in accordance with the results of such evaluation/appraisal. The resulting ranking merely suggests which computer best the appraisals.[32] (Emphasis supplied.)
Based on the foregoing findings and observations supported by documentary evidence, respondents concluded that contrary to CDA's claims, the difference in brands, microprocessors, BIOSes, as well as casings will not affect the efficiency of the computers' performance. Clearly, the conduct of public bidding in this case was not made objectively with the end in view of purchasing quality equipment at the least cost to the government. The price difference far exceeded the 10% allowable variance in the unit bought and the same item's price, as shown by the following report submitted to the TSO Director[33]:
x x x x
Subject: Summary of Price Data & Feedback Form
Agency/Address: Cooperative Development Authority - Q.C.
PED Q#/Item Classification: 93-06-370-372 / Computer
T S O Reference Code: N=060393/190.5
(In Pesos)
(In Pesos)
Invoice # 18810 dated 12/29/92
23 units PC-AT 80386 SX with 21 units 80 mb Hard Disk
- 14" Paper white Monitor
- Trigem 386 SX
- 4 MB on Board
- 1.2 MB Floppy Disk drive
- 1.44 MB Floppy Disk drive
- Trigem VGA PW Monitor
- VGA card - Mouse with mouse pad
44,269.00386 SX Genesis Brand
-100 MB Hard Disk
-4 MB RAM on Board
-TVS Monitor (low radiation)
*23,600.00 (10/93)
Invoice # 18798 dated 12/11/92
1 unit PC-AT 80386 TOWER with:
- 600 MB Hard Disks
- 14" TG VGA Colored Monitor Display
- TG 986 XE (33 mhz.)
- 8 MB RAM on Board with math co-processor
- 1.2 MB FDD
- 1.44 MB FDD
- 600 MB SCSI HDD with controller
- VGA card
- 150 MB tape back-up with data cartridge
- External Modern (2400 BPS)
- with mouse
177,443.00
*115,000.00
Invoice # 18798 dated 12/11/92
1 unit PC-AT 80386 SX Laptop Notebook/Notepad Type w/
- 8 MB Hard Disk
- VGA (LCD) Display
- TG386 NP (25 Mhz.)
- 2 MB RAM on Board
- with mouse
74,000.00
I unit MAGTEX Uninterrupted Power Supply (UPS) 1.0 (
KVA)
Input: 220V 60Hz. 1 dia.
Output: 220V 60Hz. 1 dia. Capacity: 1 KVA
Battery Pack: sealed Maintenance Back-up Time: 30 minutes
Free 55,000.00
(8/93)
*29,000.00
PK 1000W (8/93)
3 units Upgrade PC-XT to PC-
AT 286
- 1 MB RAM expandable /16 Mhz. (Min.)
- 40 MB Hard Disk
- 1.2 Mb FDD
- 1.44 MB FDD
- with 101 Enhanced Key- board
15,350.00
*13,500.00
Printer (9 pin. 122 cols.
13,000.00
**12,500.00
SUMMARY
As above-indicated, the price per item of the PC units, laptop and UPS were overpriced by almost 50%. This comparison was based on the initial purchase of 23 PC units with the bid price by Tetra of P1,269,630.00 (23 PC units, 1 unit 386 Tower and 1 unit 386 Notebook) under Disbursement Voucher No. 01-92-12-2399. There was an additional (repeat) purchase of 21 PC units for P929,649.00 (same price per item of P44,269.00) and one unit UPS for P86,000.00. The total contract price obtained by Tetra was P2,285,279.00, of which COA disallowed the amount of P881,819.00 representing the overprice per the auditor's findings.
As to petitioner's objection regarding the non-presentation of actual canvass sheets used by the auditor, the same is immaterial, considering the disparity in the prices of the computers paid by CDA to Tetra and offered by the lowest bidder, Microcircuits. The TSO report, prepared by personnel having the knowledge and expertise on computer equipment, supplied the auditor with reliable field data on which the auditor based her final computation. "Excessive expenditures" under COA Circular No. 85-55-A covered cases of "[o]verpricing of purchases, characterized by grossly exaggerated or inflated quotations, in excess of the current and prevailing market price by a 10% variance from the purchased item." The telephone canvass initially done by the resident auditor was merely confirmatory of the overpricing based on similar specifications and features as indicated in the TSO report.
Another important factor apparently ignored by the CDA was Microcircuits' branded computers reputed to be more durable (US-made) compared with Tetra's branded computers (Korean-made). Had this factor been considered together with the much lower quotation from Microcircuits, CDA would have assured a deal that is most advantageous to the government at the least cost.
Findings of quasi-judicial agencies, such as the COA, which have acquired expertise because their jurisdiction is confined to specific matters are generally accorded not only respect but at times even finality if such findings are supported by substantial evidence.[34] It is only upon a clear showing that the COA acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction that this Court will set aside its decisions or final orders.[35] We find no such arbitrariness or grave abuse on the part of the COA when it disallowed in audit the amount representing the overprice in the payment by CDA for the purchased computer units and peripherals, its findings are well-supported by the evidence on record.
With respect to the liability of petitioner, we likewise affirm the COA's ruling that he is personally and solidarily liable for the disallowed amount. The doctrine of separate personality of a corporation finds no application because CDA is not a private entity but a government agency created by virtue of Republic Act No. 6939 in compliance with the provisions of Section 15, Article XII of the 1987 Constitution. Moreover, respondents satisfactorily established that petitioner acted in bad faith when he prevailed upon the DAP-TEC to modify the initial result of the technical evaluation of the computers by imposing an irrelevant grading system that was intended to favor one of the bidders, after the bids had been opened.
Section 103 of Presidential Decree No. 1445 (Government Auditing Code of the Philippines) provides:
SECTION 103. General liability for unlawful expenditures. -- Expenditures of government funds or uses of government property in violation of law or regulations shall be a personal liability of the official or employee found to be directly responsible therefor. (Emphasis supplied.)
Further, Section 19 of the Manual on Certificate of Settlement and Balances under COA Circular No. 94-001 dated January 20, 1994 provides:
19.1. The liability of public officers and other persons for audit disallowances shall be determined on the basis of: a) the nature of the disallowance; b) the duties, responsibilities or obligations of the officers/persons concerned; c) the extent of their participation or involvement in the disallowed transaction; and d) the amount of losses or damages suffered by the government thereby. x x x
Petitioner believes that there is no basis to hold him personally liable on account of the fact that the purchased computers were not inferior in quality. In support thereof, he submitted a certification dated September 12, 2003 issued by incumbent CDA Executive Director, Atty. Niel A. Santillan, that 68% of the Tetra computers, or 30 out of 44 units, are still operational even after twelve (12) years of continuous use. Only fourteen (14) units have become unserviceable, which means that the Tetra computers have proven their worth and thus vindicated petitioner, the CDA, CDA-PBAC and the DAP-TEC.[36]
We are not persuaded.
The continued serviceability of the purchased computers is not a factor in the determination of whether the price paid by the government was unreasonable or excessive. The damage or injury caused to the government refers primarily to the amount exceeding the allowable variance in the price paid for the item purchased under a transaction which is not the most advantageous to the government. In this case, it was clearly shown that CDA could have purchased the same quality computers with similar technical specifications at much lower cost and the result of technical evaluation was manipulated to favor one bidder, for which the COA found the petitioner to be directly responsible.
WHEREFORE, the petition is DENIED. The COA Decision Nos. 98-424 and 2003-061 dated October 21, 1998 and March 18, 2003, respectively, are AFFIRMED and UPHELD. Petitioner Candelario L. Verzosa, Jr. is hereby ordered to REIMBURSE the amount of P881,819.00 subject of Notice of Disallowance No. 93-0016-101 dated November 17, 1993 and the corresponding CSB No. 94-001-101 dated January 10, 1994.
With costs against the petitioner.
SO ORDERED.
Corona, C.J., no part.
Velasco, Jr., Leonardo-De Castro, Peralta, Del Castillo, Perez, and Mendoza, JJ., concur.
Nachura, and Brion, JJ., on official leave.
Carpio, Carpio Morales, Bersamin, and Abad, JJ., join the dissenting opinion of J. Sereno.
Sereno, J., see dissenting opinion.
[1] Rollo, pp. 50-52.
[2] Id. at 61-63.
[3] COA Records.
[4] Id., Ist Indorsement dated June 6, 1994.
[5] Rollo, pp. 165-169.
[6] Id. at 73, 170.
[7] Id. at 74-77, 171-174.
[8] COA Records, Memorandum dated April 24, 1995.
[9] Id., Memorandum dated August 29, 1994.
[10] Rollo, p. 51.
[11] Id. at 51-52.
[12] Id. at 17-18.
[13] Id. at 23-29, 80-81.
[14] Id. at 29-33.
[15] Id. at 92-93.
[16] G.R. No. 90364, September 30, 1991, 202 SCRA 147.
[17] Rollo, pp. 33-40.
[18] Id. at 40-43.
[19] Id. at 109-111.
[20] Id. at 145-148.
[21] Id. at 148.
[22] Id. at 248-249.
[23] Id. at 148-152.
[24] Reyes v. Commission on Audit, G.R. No. 125129, March 29, 1999, 305 SCRA 512, 516.
[25] Art. IX-D, Sec. 2 [2], 1987 Constitution.
[26] Which amended, revised and/or amplified the existing rules contained in COA Circular No. 77-55 dated March 29, 1977.
[27] COA Circular No. 85-55-A, 2.6.
[28] Id., 3.3 (Standards for "Excessive" Expenditure).
[29] Rollo, pp. 88-89.
[30] Id. at 245-246.
[31] COA Records.
[32] Rollo, pp. 235-236.
[33] Rollo, pp. 166-169.
[34] Laysa v. Commission on Audit, G.R No. 128134, October 18, 2000, 343 SCRA 520, 526.
[35] See Villanueva v. Commission on Audit, G.R. No. 151987, March 18, 2005, 453 SCRA 782, 801.
[36] Rollo, pp. 292-294.
DISSENTING OPINION
SERENO, J.:
The Petition should have been granted for five reasons.
First, the Commission on Audit (COA) cannot violate the same rules it imposes on all public offices regarding the manner of conducting canvasses. These rules essentially require that written canvasses be made of the same item from at least three suppliers, using the proper canvass forms. The COA itself cannot violate these rules by disallowing purchases merely on the basis of an alleged overpricing. The base price identified by the COA was made only on the basis of an alleged undocumented telephone price canvass by a COA auditor. The COA likewise based its findings on a report of the Technical Services Office (TSO), which compared the equipment with that of only one supplier and only one brand of computer. The latter brand, Genesis, which produces inferior computer clones, is significantly different from Trigem - a well-known Korean brand - which produced the computers purchased by the Cooperative Development Agency (CDA). Neither was the Genesis clone one of the brands subjected to technical evaluation testing.
Second, the COA auditor, who admitted that she is not a computer technology expert, cannot substitute her own discretion for that of the CDA by denying the CDA's right to prefer the following as the required specifications for the computers CDA intended to purchase for its own use: (a) Intel microprocessor chips over any other kind of chips, including those manufactured by AMD; (b) ROM BIOS licensed by IBM, AMI, Phoenix or Awards over that of AcerBios; (c) tower casings over desktop casings; and (d) 2 megabytes over 640 kilobytes of Random Access Memory (RAM).
Third, the amount of disallowance has no basis in fact, is grossly disproportionate to the total purchase price, and is in the nature of punitive damages. Not only was a mere telephone canvass conducted, there was absolutely no basis in fact for the belief that a volume discount at an arbitrary amount determined solely by the COA auditor would have been granted by the supplier. This was a mere conjecture by the COA auditor.
Fourth, this Court relies on the allegation that there were instances of manipulation during the bidding process. However, the records show that this allegation was belatedly raised by respondents. It was only in respondents' Comment filed on 19 March 2004 before this Court that they raised the allegation. The COA Decision under question was dated 21 October 1998 and this Decision did not make any finding on this score, inasmuch as this issue was not raised before the Commission. Petitioner was not afforded due process to rebut these allegations while the case was still pending with respondent COA. Also, the documents on record do not support this allegation.
Fifth, there is no legal basis to make the CDA Executive Director personally liable for the return of the disallowance. He has demonstrated that his act of signing the purchase documents was only ministerial, as the Pre-qualification Bids and Awards Committee (PBAC) and the Board of Administrators (BOA) acted on them.
There is a clear, bright line that the Commission of Audit must not cross. The powers that the 1987 Constitution granted it are only to "define the scope of its audit and examination, establish the techniques and methods required therefor, and promulgate accounting and auditing rules and regulations, including those for the prevention and disallowance or irregular, unnecessary, excessive, extravagant, or unconscionable expenditures, or uses of government funds and properties."[1] This does not include the substitution of preference of government agencies. Nor does this allow COA to trample on the due process rights of government auditees.
In the case at bar, we are faced with a situation where basic principles in government procurement are threatened by COA's insistent interference and encroachment. In holding petitioner liable for the alleged excessive expenditure, we are introducing dangerous precedents in administrative procedures with regard to bidding and audit. First, the bidding process is rendered inutile if we hold that government agencies should always award purchase contracts in favor of the lowest bidder; or even worse, that they should simply purchase equipment from the suppliers offering the lowest prices, regardless of brand or quality. Second, the discretionary power of government agencies to determine criteria and the features of equipment or supplies becomes irrelevant; because, third, COA's preference in determining the criteria and the features or characteristics of the equipment or supplies is held as superior to that of any other government agency.
The Case
Before delving into the facts of the case, at the outset, I would like to emphasize that COA regulations and Supreme Court jurisprudence that require disclosure of the base prices used for auditing and that require that like products be the basis of price comparisons (apples cannot be compared to oranges) were already in force when the present controversy arose.
On 10 September 1990, respondent COA issued Resolution No. 90-43 which mandated the Price Evaluation Division, Technical Services Office (PED-TSO) to disclose or identify the sources of its reference values in connection with its price gathering and monitoring activities. The PED-TSO provides the auditors with reference values that are required to be obtained through a valid canvass in the open market. This resolution was issued partly in recognition that "price findings of the TSO that result from such audit determination of price reasonableness at times adversely affect auditees who would request TSO to disclose or identify the sources of these price quotations set by PED so that they can procure their supply needs from said sources."
The primary principle which the resolution upholds is that of transparency. Thus, the application of the resolution is not merely limited to the determination of possible sources of supplies. The principle of transparency should apply with more reason to instances when the information requested from the PED-TSO may result in a finding of liability against a government official.
More importantly, on 30 September 1991, we established the standards to be followed in issues of audit disallowance in Arriola v. COA.[2]
In Arriola, petitioners questioned the disallowance of the COA, which was based merely on a cost comparison submitted by the COA-TSO. We said:
We note that while NCA had provided receipts and invoices to show the acquisition costs of materials found by COA to be overpriced, COA merely referred to "a cost comparison made by an engineer of COA-TSO, based on unit costs furnished by the Price Monitoring Division of the COA-TSO," (p. 124, Rollo).
In fairness to petitioners, COA should have, with respect for instance to the submersible pump, produced a written price quotation specifically for "1 Unit Goulds Submersible Pump Model 25 EL 30432, 3 HP, 230 V., coupled to "Franklin Submersible Electric Motor, 3 HP, 230 V. 3-phase, 60 Hz. 3450 RPM." The cost evaluation sheet, dated September 15, 1986, Item No. 12 (attached to the decision of Mr. Jose F. Mabanta, (Actg. Director, COA-TSO), merely refers to a "Goulds submersible pump." While it is true that Mrs. Espiritu's report dated August 28, 1986 on price findings states with respect to said pump, as follows:
Submersible Deep well Pump
Model 25E 130432 coupled to
`Franklin' Submersible electric Motor,
3HP, 230 volts, 3-phase, 60Hz, 3450 RPM
. . ." (p. 80, Rollo).
this is not, in the absence of the actual canvass sheets and/or price quotations from identified suppliers, a valid basis for outright disallowance of agency disbursements/cost estimates for government projects. (Emphasis supplied.)
Thus, we stated that the failure of COA to produce the canvass sheets or source documents was violative of due process and that we cannot uphold COA's disallowance that was based on undocumented claims.
We now go to the facts of the case at bar.
Petitioner is the executive director of the CDA, a government-owned and-controlled corporation. On 25 August 1992, he reconstituted the Committee on Public Bidding and Awards set up under Special Order No. 91-117, as the Pre-Qualification Bids and Awards Committee (PBAC) for the procurement of information technology (IT) resources for the use of the CDA.[3]
The bidding process consisted of three stages: (1) the pre-qualification stage; (2) the technical evaluation stage; and (3) the opening and evaluation of bids.
On 19 October 1992, 7 bidders out of the 26 suppliers who secured bid documents submitted Pre-qualification Documents. Of the 7 bidders, only 3 complied with all the PBAC requirements and were pronounced qualified to bid.[4] These were: Tetra Corporation-Trigem Computers (Tetra), Microcircuits Co. (Microcircuits), and Columbia Computers (Columbia).
The equipment of each of the three bidders was then sent to the Development Academy of the Philippines-Technical Evaluation Committee (DAP-TEC) to ensure an independent and objective technical evaluation thereof.
The DAP-TEC conducted a hardware benchmark testing to determine the quality and performance of the three bidders, based on the criteria and specifications approved by the PBAC. Since Tetra ranked first in the test, its equipment was recommended by DAP-TEC to CDA.[5]
Thereafter, the respective bids of the three companies were opened. Tetra offered P1,269,620; Microcircuits, P1,123,315; and Columbia, P1,476,600, for 23 units of 386SX computers, 1 unit of 386DX Tower, and 1 unit of 386SX Notebook.[6]
Following the criteria[7] approved by the PBAC, Tetra won the bid.
A second purchase order was issued for 21 additional units of computers. Meanwhile, the uninterrupted power supply (UPS) was acquired through negotiated contract, totalling the purchase amount to P2,285,279,[8] for all the equipment bought from Tetra.
On 17 November 1993, after auditing the purchase of the equipment, COA Auditor Luzviminda Rubico disallowed P881,819 of the total amount paid. Comparing the Tetra equipment to non-branded computers and peripherals, the COA resident auditor deemed Tetra's equipment to be overpriced. The auditor held petitioner to be jointly and severally liable with the PBAC members and the CDA chair, namely: Edwin Canonizado, Sylvia Posadas, Ma. Erlinda Dailisan, Ma. Luz Aggabae, Leonilo Cedicol, Amelia Torrente and Edna E. Aberilla.[9]
On 13 May 1994, Chair Edna E. Aberilla, representing petitioner and the PBAC members, moved for a reconsideration of the disallowance.[10]
On 21 October 1998, respondent COA affirmed the disallowance. It ruled that the comparison was based on specifications and functions; thus the brand differences had little bearing on the price findings. It likewise stated that Microcircuits - being a US brand - was more durable than Tetra, which was Korean-made. Respondent also pointed out that CDA should have been entitled to a volume discount from Tetra, considering that it was a bulk purchase. Thus, it held that the CDA officials should have purchased the equipment from Microcircuits, the lowest bidder, considering that both companies offered equipment of the same technical specifications and functions.[11]
Petitioner once again moved for a reconsideration of the Decision of respondent COA. In his motion for reconsideration, he stated that since CDA did not have the technical expertise to evaluate computers, it contracted the services of DAP-TEC to conduct the technical evaluation. The results of the evaluation were among the factors considered in determining the best bid. Petitioner reasoned that cost, quality and track record were also taken into consideration. He further stated that the bidding process was properly conducted. Lastly, he asserted that there was no evidence to show that CDA should have been entitled to a purchase discount.[12]
Dismissing the motion, respondent COA issued the assailed Resolution[13] on 18 March 2003, the dispositive portion of which states:
WHEREFORE, premises considered, and there being no new material evidence adduced that would warrant a reversal or modification of the decision herein sought to be reconsidered, the instant request has to be, as it is hereby denied. Accordingly, COA Decision No. 98-424 dated October 21, 1998 is hereby affirmed with finality.
Commissioner Emmanuel M. Dalman, however, dissented from the majority ruling of the COA[14] and said:
1. The CDA cannot be faulted for overpricing since its decision to chose (sic) TETRA Corporation was done in good faith. It was based on the recommendation of the Development Academy of the Philippines (DAP) after a technical evaluation was conducted. Following the principle of presumption of regularity in the performance of official duties, the CDA cannot be held liable, unless there is a finding of fraud or irregularity which is not present in the instant case.
2. This Office is not incline to share the view of ITC that "...the performance of the competing equipments (sic) would not vary/change even if the attributes cited by management were to be factored in and that the difference in brands, microprocessors, BIOSES, as well as casings will not affect the efficiency of the computer's performance" (Emphasis supplied)
The type of microprocessors used is one among the many factors that affect the computer's performance. Even the brands represent different levels of performance, durability and, of course, prices. At the time the purchase was made and considering the type of computers then procured, distinction should have been made on whether the computer is branded or non-branded since the prices would actually vary although the specifications and other features are identical.
The ponencia, unfortunately, affirms the findings of respondent COA and holds that there was excessive expenditure for the purchase of the Tetra computer equipment. It states that an actual canvass for the determination of the base price was not needed, because the auditor based her findings on the report of the Technical Services Office (TSO) of respondent COA.
This ruling is unwarranted.
First, respondents failed to show that there was substantial evidence to support a finding of liability.
Circular No. 85-55-A of the Commission of Audit clearly states:
3.3 EXCESSIVE EXPENDITURES
Definition: The term `excessive expenditures' signifies unreasonable expense or expenses incurred at an immoderate quantity and exorbitant price. It also includes expenses which exceed what is usual or proper as well as expenses which are unreasonably high, and beyond just measure or amount. They also include expenses in excess of reasonable limits.
Standard for `Excessive' Expenditures
The term `excessive expenditures' pertains to variables of Price and Quantity.
1. Price - The price is excessive if it is more than the 10% allowable price variance between the price paid for the item bought and the prices of the same item per canvass of the auditor.
2. Volume Discounts - The price is deemed excessive if the discounts allowed in bulk purchases are not reflected in the price offered or in the award or in the purchase/payment documents.
3. Factors to be considered - In determining whether or not the price is excessive, the following factors may be considered.
A - Supply and demand forces in the market.
Ex. - Where there is a supply shortage of a particular product, such as cement or GI sheets, prices of these products may vary within a day.
B - Government Price Quotations
C - Warranty of Products or Special Features
The price is not necessarily excessive when the service/item is offered with warranty or special features which are relevant to the needs of the agency and are reflected in the offer or award.
D - Brand of Products
Products of recognized brands coming from countries known for producing such quality products are relatively expensive.
Ex. - Solingen scissors and the like which are made in Germany are more expensive than scissors which do not carry such brand and are not made in Germany. (Emphasis supplied.)
State Auditor Luzviminda Rubico admitted in her 1st Indorsement dated 6 June 1994[15] that she did not conduct any actual canvass to determine the reasonableness of the price. Instead, she conducted a mere telephone canvass. Her failure to do so was contrary to the prevailing rules and jurisprudence at that time.
It is likewise inaccurate to say that since petitioner did not demand the canvass sheets, Arriola is inapplicable to the case at bar. Petitioner, from the very start, refused to acknowledge the validity of the PED-TSO price evaluation report, claiming that the comparison was between "apples and oranges." Petitioner demanded that respondents instead conduct a price comparison between the same items in the open market, or at the very least, "compare the acquired computer equipment and peripherals with the same modes of other branded computers."[16] By so doing, petitioner would have been fully apprised of the charge against him and the other CDA officials.
Thus, in Buscaino v. COA,[17] this Court held:
Going into the merits of the case, the Court finds that the Commission on Audit acted with grave abuse of discretion in handing down its assailed decision. The various disbursements upon which petitioner's liability is based have not been indubitably established as patently invalid or irregular and the disallowances ordered by COA were not substantiated by sufficient evidence on record.
To begin with, as regards the items disallowed on the ground of overpricing, petitioner was adjudged liable therefor because he was a member of the Canvass and Award Committee which was tasked to certify that the prices submitted were the lowest and which recommended the award to the supplier. The disallowances were made on the basis of respondent's allegation or theory that the school and other office supplies may be bought from other suppliers at prices much lower than those of the supplier to whom the bid was awarded.
In order to find out how the COA reached such a conclusion, petitioner asked the COA to furnish him with the necessary information and/or documents that would indicate the large disparity in the prices such as the quotation of prices of every item re-canvassed by the resident auditor, reflecting the brand or quality of the items, the names and addresses of the suppliers where the items were re-canvassed and the date subject items were re-canvassed. Respondent COA, however, did not furnish the same on the two occasions that the said request was made. Without the necessary information and/or documents, it baffles the Court how COA could have arrived at the conclusion that there were cases of overpricing. And without the needed information and/or documents, the petitioner was not afforded the opportunity to refute the disallowances, item by item, and to justify the legality of the purchases involved. As argued by the petitioner,
"How can the undersigned (petitioner) determine the difference in prices and per cent increases between the then procurement officer's canvassed prices and the then COA Auditor's re-canvassed prices and possibly justify item by item the legality of the purchase when as you said `no such document as you indicated above were turned-over to the undersigned (present PUP COA Auditor)'? The purchase orders contain several items and it is important that those items which were allegedly overpriced should be identified."
The requirements of due process of law mandate that every accused or respondent be apprised of the nature and cause of the charge against him, and the evidence in support thereof be shown or made available to him so that he can meet the charge with traversing or exculpatory evidence. COA's failure to furnish or show to the petitioner the inculpatory documents or records of purchases and price levels constituted a denial of due process which is a valid defense against the accusation. Absent any evidence documentary or testimonial to prove the same, the charge of COA against the herein petitioner must fail for want of any leg to stand on.
In the 1991 decision in the case of Virgilio C. Arriola and Julian Fernandez vs. Commission on Audit and Board of Liquidators, rendered on September 30, 1991, which was reiterated in the case of National Center for Mental Health Management vs. Commission on Audit on December 6, 1996, this Court succinctly held that mere allegations of overpricing are not,
" `x x x in the absence of the actual canvass sheets and/or price quotations from identified suppliers, a valid basis for outright disallowance of agency disbursements/cost estimates for government projects.'
A more humane procedure, and totally conformable to the due process clause, is for the COA representative to allow the members of the Contracts Committee mandatory access to the COA source documents/canvass sheets. Besides, this gesture would have been in keeping with COA's own Audit Circular No. 85-55-A par. 2.6, that:
`x x x As regards excessive expenditures, they shall be determined by place and origin of goods, volume or quantity of purchase, service warranties/quality, special features of units purchased and the like x x x'
By having access to source documents, petitioners could then satisfy themselves that COA guidelines/rules on excessive expenditures had been observed. The transparency would also erase any suspicion that the rules had been utilized to terrorize and/or work injustice, instead of ensuring a "working partnership" between COA and the government agency, for the conservation and protection of government funds, which is the main rationale for COA audit.
xxx xxx xxx
We agree withpetitioners that COA's disallowance was not sufficiently supported by evidence, as it was premised purely on undocumented claims, as in fact petitioners were denied access to the actual canvass sheets or price quotations from accredited suppliers. xxx
xxx xxx xxx
It was incumbent upon the COA to prove that its standards were met in its audit disallowance. The records do not show that such was done in this case.
x x x absent due process and evidence to support COA's disallowance, COA's ruling on petitioner's liability has no basis."
Indeed, without the evidence upon which the charge of overpricing is anchored, apart from being a denial of due process, it would not be possible to attach liability to petitioner. (Emphasis supplied.)
It bears emphasizing that, in the Summary of Price Data and Feedback Form on which respondents base their allegations, the officer-in-charge (OIC) of the PED-TSO of respondent COA disclosed that the other items were based only on one or two pieces of valid price information, instead of three as required. However, it did not disclose the source of the reference values or base prices. In fact, the OIC of the PED-TSO clearly stated that some pieces of equipment used for comparison had no data available. This was clearly contrary to Resolution No. 90-43 on PED-TSO's mandate to be transparent with regard to the sources of the reference values.
Respondents cannot sanction a person for an act or omission when they did not even bother to follow the standards they themselves established as well as those that have been established by this Court. Unfortunately, respondent COA merely relied on the report of the auditor. The auditor did not see, hold, or examine the equipment. Even the PED-TSO report that she relied on was incomplete, as will be explained more in detail later.
It is also imperative to note that, acting on the Court's ruling in Arriola, on 31 March 1997, respondent COA issued Memorandum No. 97-012 which provides the guidelines for securing the evidence to support audit findings of overpricing. The COA memorandum cited this particular portion in Arriola:
Price findings reflected in a report are not, in the absence of the actual canvass sheets and/or price quotations from identified suppliers, valid bases for outright disallowances of agency disbursements for government projects.(Emphasis supplied.)
It also cited National Center for Mental Health Management v. COA, to wit:[18]
It would be difficult to concede to the quoted summary of overpricing made by the Technical Audit Analyst to be a final basis for an out-and-out rejection of agency disbursements/cost estimates in the absence of actual canvass sheets and/or price quotations from identified suppliers. (Emphasis supplied.)
In order to further clarify the role and status of price reference data in the audit evidence process, respondent COA also issued the following guidelines to determine whether there is overpricing. The guidelines state:
3.2 To firm-up the findings to a reliable degree of certainty, initial findings of over-pricing based on market price indicators mentioned in pa. 2.1. above have to be supported with canvass sheets and/or price quotations indicating:
a) the identities/names of the suppliers or sellers;
b) the availability of stock sufficient in quantity to meet the requirements of the procuring agency;
c) the specifications of the items which should match those involved in the finding of over-pricing; and
d) the purchase/contract terms and conditions which should be the same as those of the questioned transaction.
In the assignment of the liability for the disallowed overprice, the auditor shall carefully study the procedures followed in processing the questioned transactions and determine those officials/employees who had direct participation in the fixing of the price/prices of the questioned transaction. Officials/employees, whose signatures or initials may appear on the vouchers and/or transactions documents, who are determined to have had no participation in the fixing of the price shall not be included among those to be held liable for the disallowance. (Emphasis supplied.)
When respondent COA decided this case on 21 October 1998, these guidelines were already in force. This Court had already established the standards in Arriola. Thus, respondent COA should have, at the very least, ordered the auditor to present the documents enumerated in these guidelines. It should have made sure that the due process standards laid down in Arriola were followed.
In Nava v. Palattao,[19] we held that Arriola and Memorandum No. 97-012 were not applicable because Arriola was promulgated and these regulations were issued after the audit in Nava was conducted. Nava, however, is fundamentally different from the present case in two respects. First, at the time the audit in the present case was conducted, Arriola was already promulgated and respondent, being a party to the case, was already aware of the standards established in that case. Second, in Nava, the COA presented evidence proving beyond reasonable doubt that the accused in that case violated the Anti-Graft and Corrupt Practices Act in the purchase of laboratory tools and devices. Thus, we held:
Anyway, the logical sequence of events was clearly indicated in the COA Report:
"1.5.1. Obtained samples of each laboratory tools and devices purchased by the Division of Davao del Sur, Memorandum Receipts covering all the samples were issued by the agency to the audit team and are marked as Exhibits 1.2 and 3 of this Report."
"1.5.2. Bought and presented these samples to reputable business establishments in Davao City like Mercury Drug Store, Berovan Marketing Incorporated and [A]llied Medical Equipment and Supply Corporation (AMESCO) where these items are also available, for price verification.
"1.5.3. Available items which were exactly the same as the samples presented were purchased from AMESCO and Berovan Marketing Incorporated, the business establishments which quoted the lowest prices. Official receipts were issued by the AMESCO and Berovan Marketing Incorporated which are hereto marked as Exhibits 4,5,6 and 7 respectively."
The COA team then tabulated the results as follows:
Total P380,013.60
What is glaring is the discrepancy in prices. The tabulated figures are supported by Exhibits "E-1," "E-2," "E-3," and "E-4," the Official Receipts evidencing the equipment purchased by the audit team for purposes of comparison with those procured by petitioner. The authenticity of these Exhibits is not disputed by petitioner. As the SBN stated in its Decision, the fact of overpricing -- as reflected in the aforementioned exhibits -- was testified to or identified by Laura S. Soriano, team leader of the audit team.
... ... ...
Second and more important, the circumstances in Arriola are different from those in the present case. In the earlier case, the COA merely referred to a cost comparison made by the engineer of COA-Technical Services Office (TSO), based on unit costs furnished by the Price Monitoring Division of the COA-TSO. The COA even refused to show the canvass sheets to the petitioners, explaining that the source document was confidential.
In the present case, the audit team examined several documents before they arrived at their conclusion that the subject transactions were grossly disadvantageous to the government. These documents were included in the Formal Offer of Evidence submitted to the Sandiganbayan. Petitioner was likewise presented an opportunity to controvert the findings of the audit team during the exit conference held at the end of the audit, but he failed to do so. (Emphasis supplied.)
Unfortunately, respondents failed to apply Arriola. It is even more regrettable that, in the case at bar, this Court has lowered the standards for due process it painstakingly established in Arriola.
Second, respondents violated petitioner's right to due process when they compared the equipment purchased with that of a different brand having different features and functions.
In Arriola, we held that there should have been a specific comparison between the pump purchased and the pump the TSO based its price findings from. We stated that it was not sufficient to compare the purchased item, a "Goulds Submersible pump model 25 EL 30432, 3 HP, 230 V., coupled to Franklin Submersible Electric Motor, 3 HP, 230 V. 3-phase, 60 Hz. 3450 RPM" to a mere "Goulds submersible pump." Thus, following Arriola, the "same item" referred to in COA Circular No. 85-55-A should therefore mean as the item having specifically the same brand with the same features and specifications with that item purchased.
In the case at bar, the price of the Tetra computers was compared with that of Genesis computers; the price of the Magtek uninterrupted power system was compared with that of APC, Admate and PK. These comparisons were in violation of COA Circular No. 85-55-A. As earlier discussed, a comparison should be made between the same items available in the market. Genesis computer clones are inferior to Tetra Trigem computers, which are branded Korean equipment; expectedly, Genesis would be priced differently. It does not take an expert to say that branded computers are superior to generic clones. As pointed out by petitioner - which was not refuted by respondents - Genesis was a non-branded computer which was incomparable to a branded product such as Trigem. Not only was it a different brand, but it also had different specifications and features. These items were not the same as those that were actually bought, but, instead, were alternatives.
Below is a summary of the comparison made by the OIC PED-TSO. This is based on the PED-TSO Report[20] provided to the OIC of the TSO (OIC-TSO), which was largely the basis of auditor Rubico's findings:
1. Tetra
PC-AT 80386 SX with
- 80mb Hard Disk
- 14" Paper white Monitor
- Trigem 386 SX
- 4 MB on Board
- 1.2 MB Floppy Disk drive
- 1.44 MB Floppy Disk drive
- Trigem VGA PW Monitor
- VGA card
- Mouse with mouse pad1. Genesis 386 SX
- 100 MB Hard Disk
- 4MB RAM on Board
- TV8 Monitor (low radiation)2. Tetra
PC-AT 80386 Tower with
- 600 MB Hard Disks
- 14" TG VGA Colored Monitor Display
- TG 386 XE (33mhz.)
- 8MB RAM on Board with math co-processor
- 1.2 MB FDD - 1.44 MB FDD
- 600 MB SCSI HDD with controller
- VGA card - 150 MB tape back-up with data cartridge
- External Modern (2400 BPS)
- with mouse3. Tetra
PC-AT 80386 SX Laptop Notebook/Notepad Type with
- 80 MB Hard Disk - VGA (LCD) Display
- TG386 NP (25Mhz.)
- 2MB RAM on Board
- with mouse4. Tetra
Magtek Uninterrupted Power Supply (UPS) 1.0 (KVA)
- Input: 220V 60Hz. 1 dia.
- Capacity: 1 KVA
- Battery Pack: sealed
- Maintenance-free
- Back-up time: 30 minutes5. Upgrade PC-XT to PC-AT 286
- 1 MB RAM expandable /16 Mhz. (Min.)
- 40 MB Hard Disk
- 1.2 Mb FDD
- 1.44 MB FDD
- With 101 enhanced keyboard6. Tetra
OLI ML 321 Elite Printer, Dot matrix printer (9 pin. 122 cols.)
The OIC PED-TSO disclosed that other items were verified or evaluated but had no valid data for comparison. In short, the PED-TSO only knew the price of the computer peripherals, but it had no idea what their brands or specifications were.
I also wish to emphasize the inaccuracy of Auditor Rubico's reports[21] dated 17 and 23 November 1995, respectively, from which respondents base their Comment. Auditor Rubico stated that the TSO determined that both computers were of the same characteristics and attributes.[22] A cursory reading of the report immediately reveals that, contrary to the auditor's report, the PED-TSO disclosed that it lacked necessary information when it conducted the comparison.
The only other comparison conducted by respondent COA was by Director Marieta Acorda of the Information Technology Center of COA, where she compared Trigem computers with the computers of Columbia and Microcircuits. She did not compare Trigem with Genesis.[23] In her report, as will be discussed more in detail later, Director Acorda stated that the functions of the specific features - microprocessors, BIOSes and casings - of the three bidders did not affect the performance of the computer, except for the RAM capacity. This was therefore an irrelevant comparison to conclude that the Trigem computers should have been priced at those of Genesis; when it was not the brands being compared by Director Acorda.
Therefore, there is no basis for respondent COA's finding that Genesis and Trigem were of the same characteristics and attributes.
It is therefore clear that respondents' basis for holding petitioner liable is unsubstantiated and based on mere speculations and conjecture. First, no actual canvass was made; and second, it appears that no valid comparison was conducted either.
In applying Arriola to the case at bar, we should hold that respondents violated petitioner's due process when they failed (1) to conduct an actual canvass in the market; (2) to present canvass sheets or price quotations; (3) to disclose the source of the reference values or base prices; and (4) to compare the questioned equipment specifically to the same items - a situation even worse than that in Arriola, where at least COA compared items of the same brand but with different specifications; and where while no canvass sheets or price quotations were produced, actual written canvass was apparently conducted.
It is likewise unfair to compare Tetra's proposed Trigem computers to a computer clone that was not even qualified to be bidded on or was not subjected to the same hardware benchmark testing.
That the brands should not have mattered is wrongly maintained by both Director Acorda and by State Auditor Rubico (in the first Indorsement dated 6 June 1994). This assertion of course violates COA's own basic rules on investigations of allegations of irregularities in government purchases.
Respondent COA substituted its own judgment for that of CDA without legal authority to do so and without any legal or factual basis for its conclusions that its judgment in matters of preference was superior to that of CDA. Even if it were to be proven that its judgments or preferences were superior to those of CDA, the fundamental problem remains that it does not have the authority to substitute the judgment of the audited agency with those of its own. It can only audit purchases, not prescribe what are to be purchased.
Director Acorda observed that the two other bidders, Microcircuits and Columbia, were penalized for failing to comply with the CDA specifications. For example, CDA required Intel microprocessors, but only Tetra used Intel, while Microcircuits and Columbia used AMD. Thus, Mircocircuits and Columbia were penalized. CDA required ROM BIOS licensed by IBM, AMI, Phoenix or Awards. Thus, DAP-TEC penalized Columbia which provided AcerBios. Columbia was again penalized because the tower had a desktop casing and not a tower casing as required by CDA. Tetra was also penalized because the RAM of the Notebook was only 640 kilobytes instead of 2 megabytes (expandable). Director Acorda pointed out that, save for the RAM of the computers, the other specifications indicated by CDA did not affect the performance of the equipment. She, however, said that the benchmark testing conducted by DAP-TEC was not a sufficient basis to determine whether or not the Tetra computers were inferior to the other computers.
None of the above instances of substitution of judgment make sense. Unless questioned in a proper proceeding, it stands that the preference of CDA is justifiable by its requirements of functionality and durability of the computer equipment bought.
Meanwhile, auditor Rubico noted that Tetra did not give a volume discount on the purchase of the computers. She also pointed out that the prices of computers in 1992 were already relatively low given that there were a considerable number of suppliers in the market. She claimed that the brands of the equipment should not matter because the offers of the bidders were of similar technical specifications, features and warranty as contained in the proposal bid form. Finally, she stated that the date of the telephone canvass and the TSO report was immaterial because there was no showing that foreign exchange rate affected the price of the equipment over that period.
Respondents failed to show any basis for this conclusion. To adopt the above argument is to render the whole bidding process inutile, or to say that actual canvass can be done away with on findings of excessive pricing. Following this line of reasoning, price should then be the only factor to consider when the government acquires equipment and supplies. To reason thus is contrary to the admission of respondents that brands do affect the price and the quality of products. Respondent COA's own Circular No. 85-55-A states that, in determining whether there is an excessive expenditure, the brand of the product should also be taken into consideration. It expressly stated, "products of recognized brands coming from countries known for producing such quality products are relatively expensive." Thus, in the example given in Circular No. 85-55-A on scissors, respondent COA stated that Solingen scissors are expected to be more expensive than ordinary scissors, despite the fact that scissors which are not Solingen have the same function as the Solingen scissors. The circular likewise provided that price is not excessive if the equipment offers warranty or special features that are necessary to the needs of the agency, and these special features or warranty is reflected on the offer or reward. Respondents cannot now renege on this express admission, thereby denying petitioner his due process.
Respondent never denied that Genesis was a non-branded computer. Moreover, Tetra used Intel microprocessors, which were manufactured by Intel Corporation, the company that pioneered the production of microprocessors for personal computers, as Director Acorda herself pointed out. Other microprocessors, including AMD, are clones of the Intel microprocessor. There was no indication that Genesis also used Intel microprocessors. In fact, what was apparent in the report submitted by the PED-TSO was that Genesis had different specifications and less features than Trigem.
Likewise, Tetra was not legally obligated to give such discount to CDA. Neither was it shown that petitioner had the legal obligation to demand for a volume discount. Nothing in the cited COA regulations states that volume discounts should be demanded for all government purchases; or that failure to negotiate for a volume discount would result in the nullification of the bidding process or the contract; or that the parties shall be held administratively liable for failing to secure a volume discount. Neither was it shown that the other two bidders, Mircrocircuits and Columbia, would have given CDA a volume discount had they been chosen. Volume discount only becomes relevant in determining whether there were excessive expenditures when the discounts allowed for bulk purchases were not reflected in the price offered or in the award or in the purchases or payment document.[24] The term "allowed" here should signify that it is dependent on the negotiations of the parties, and not mandatory.
Furthermore, there was a denial of due process when respondents imposed their own judgment and discretion on the PBAC. If we were to analyze the case carefully, respondents actually attacked the discretion of the PBAC and the Board of Administrators (BOA) - not that of petitioner - in setting the criteria and approving the purchase of the equipment.
The 1987 Constitution provides that the powers of COA include the power to "promulgate accounting and auditing rules and regulations, including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures, or uses of government funds and properties." These powers, however, do not include the power to substitute its own preference over that of a government agency; or to dictate which equipment is better or more appropriate without following the requirements of due process.
To recall, the records are replete with documents from respondents alleging that there was overpricing. CDA allegedly bought the equipment when there were cheaper alternatives in the market. Respondents insist that, as long as the equipment had the same basic functions, brand should not matter. These alternatives did not necessarily possess the same functions or features identified by the PBAC; nevertheless, these alternatives were more acceptable to respondents. In short, they wanted to substitute their own judgment for that of the CDA officials, without even verifying with the CDA officials the purposes or uses of the equipment or of each specification required.
If respondents insist that petitioner and the other CDA officials should have purchased the cheaper alternatives, then they should have charged the CDA officials for "unnecessary" or "extravagant" expenditures under COA Circular No. 85-55-A, rather than "excessive" expenditures, to wit:
"UNNECESSARY" EXPENDITURES
Definition: The term pertains to expenditures which could not pass the test of prudence or the diligence of a good father of a family, thereby denoting non-responsiveness to the exigencies of the service. Unnecessary expenditures are those not supportive of the implementation of the objectives and mission of the agency relative to the nature of its operation. This would also include incurrence of expenditure not dictated by the demands of good government, and those the utility of which cannot be ascertained at a specific time. An expenditure that is not essential or that which can be dispensed with without loss or damage to property is considered unnecessary. The mission and thrusts of the agency incurring the expenditures must be considered in determining in whether or not an expenditure is necessary.
... ... ...
"EXTRAVAGANT" EXPENDITURES
Definition: The term "extravagant expenditure" signifies those incurred without restraint, judiciousness and economy. Extravagant expenditures exceed the bounds of propriety. These expenditures are immoderate, prodigal, lavish, luxurious, wasteful, grossly excessive, and injudicious. (Emphasis supplied.)
Respondent then would have proceeded with the case, going into the wisdom and reasonableness of the criteria and the functions of the equipment bought vis-à-vis the needs of the CDA. To reiterate, in the case at bar, respondents did not even go into CDA's purpose for the equipment bought.
Therefore, absent an undertaking of the proper process and, consequently, a finding that the criteria and standards were established with grave abuse of discretion, respondents cannot question the wisdom of petitioner and the other CDA officials with regard to the standards and criteria set.
Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction or, in other words, where the power is exercised in an arbitrary manner by reason of passion, prejudice, or personal hostility; and it must be so patent or gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined by law, or to act at all in contemplation of law.[25]
Respondents further claim that Microcircuits, having the lowest bid, should have won. However, even if they were to follow respondent COA's own suggestion, petitioner and the other officials of CDA would still have been held liable for overpricing, because even if they had chosen Microcircuits as respondents suggest, the equipment would still cost more than 10% of the allowable price variance when compared to the base price of Genesis, the chosen inferior clone product. None of the qualified bidders would have successfully won the bid. Stated differently, if respondents insist that petitioner should have accepted the bid of Microcircuits, then the amount of disallowance should have been based on the offer price of Microcircuits and not the price of Genesis.
Thus, respondents clearly contradict themselves when, on the one hand, they insist that the amount disallowed should be taken from the comparison with Genesis, but on the other insist that petitioners should have purchased Microcircuits computers.
The ponencia points out that there were instances of manipulation in the bidding process, specifically, during the second stage or the technical evaluation. It appears that, on 23 November 1995, auditor Rubico wrote to the legal counsel of respondent COA.[26] She alleged that on 4 November 1992, DAP-TEC faxed a "First and Impartial Result" from its technical evaluation of the equipment. The tests supposedly showed that Tetra was of the "most inferior quality and last in over-all ranking." On the same day, the CDA PBAC opened the bid documents in the presence of COA representatives. A day after the bids were known, a certain Rey Evangelista, allegedly a staff of PBAC Chair Edwin Canonizado, also allegedly went to DAP-TEC and asked the latter's technician to "change and/or make alteration on the 1st evaluation result and to indicate the name of Tetra Corporation the number one in the over-all ranking in the evaluation result which he did."[27]
After judiciously poring over the records, I find that the allegations of auditor Rubico are unsubstantiated. Respondents did not attach the so-called "First and Impartial Result." What they attached was the DAP-TEC technician's 23 November 1995 letter, which was issued upon the request of Abraham Rodriguez, allegedly a COA representative to the CDA, but which does not support the report of auditor Rubico. The letter states:[28]
"After compiling, tabulating and interpreting the test results, our office communicated to CDA our findings as evidenced by letter and attachments labeled as `1st result'.
"A day or two after submitting our findings, Mr. Evangelista came to our office and directed us to include in our report penalties for any deviation from the hardware specifications, providing us with penalty points to be followed and imposed. Mr. Evangelista, also, directed us to specify in our report the name of the winning supplier, which we did, per our letter & attachment labeled as `2nd result'."
Notably, the DAP-TEC technician merely stated that Mr. Evangelista provided them with guidelines for penalty points. The technician did not say that Mr. Evangelista instructed them to indicate Tetra as the winner. He only instructed DAP-TEC to indicate which bidder won the technical evaluation. Thus, there was nothing in the letter that conclusively showed that Mr. Evangelista had gone to DAP-TEC under the instructions of petitioner, specifically to manipulate the results.
Again, respondents did not investigate the matter. They did not even ask why CDA imposed `penalty points' or why CDA required those specifications. They merely took the report of auditor Rubico as the absolute truth, without verifying its content. The documents attached as evidence for our review is bereft of any indication that there was manipulation involved.
It is a basic tenet in the observance of administrative due process that the tribunal or any of its judges must act on its own independent consideration of law and facts of the controversy, and not simply accept the views of the subordinate. In the case at bar, respondents erroneously relied solely on the Indorsement of auditor Rubico for the disallowance despite the absence of substantial evidence to support the claim.
Petitioner enjoys the presumption of regularity. An allegation of manipulation must be accompanied by substantial evidence before respondents can conclude that bad faith attended the transaction.
More egregiously, respondents' allegation that the bidding process was tainted with irregularity was belatedly raised. It was only in respondents' Comment[29] before this Court dated 12 March 2004 that the allegation was made. Even if auditor Rubico's report cited above was dated 23 November 1995, the Decision dated 21 October 1998 did not discuss the issue of whether the bidding process was properly conducted. Neither did it state that the disallowance was upheld on the basis of the alleged manipulation. Respondents are therefore estopped from raising that matter very late in the day. Petitioner was only informed of the manipulation issue for the first time through respondents' Comment filed in 2004. It is again violative of petitioner's due process when respondents now come before us, insisting that the disallowance was based on the alleged manipulation, when it was never found to be so by respondent COA in its Decision in 1998. Thus, the reliance of this Court on respondents' belated allegation is clearly unwarranted.
In disposing of the issues of this case, the ponencia likewise relied on the doctrine that states that findings of quasi-judicial agencies are to be given great respect. However, this doctrine cannot be applied to the present case. To reiterate, COA Commissioner Dalman dissented from the 13 March 2003 COA Resolution. In addition, when this Court required public respondents to comment on the Petition, the Office of the Solicitor General (OSG) submitted a Manifestation and Motion in lieu of Comment.[30] The OSG informed us that it "is constrained to adopt a position adverse to the Commission on Audit."
In my opinion, these instances were red flags that should have warned us to look into the findings of respondent COA more carefully.
While it is settled that the Court is not a trier of facts and does not, as a rule, re-examine the evidence presented by the parties to a case, there are a number of recognized exceptions, such as when the judgment is based on a misapprehension of facts; when the findings of facts of lower courts are conflicting; or when the findings of facts are premised on the supposed absence of evidence but are contradicted by the evidence on record.[31]
I also note that respondents erroneously based the allegation of overpricing on the total amount paid for the purchases. Thus, in their Comment, respondents alleged:
"...Foregoing premises considered it can be safely asserted that the computers of TETRA and Microcircuits were of the same quality and therefore, the only basis left in determining the winning bid was the price/cost of the computers, which to repeat, Microcircuits offered at a much lower price of P123,315.00, that is half the price of P2,285,279.00 of TETRA's computers."[32]
In addition, respondents claimed,
"...Among the three bidders, TETRA offered the highest bid price quotation of P2,269,630[33] while Microcircuit P1,123,315.00 and Columbia - P1,177,600.00[34] despite the reported inferior quality of TETRA's products..."[35]
These allegations are misleading. It is false to say that Microcircuits offered half the price of Tetra. The Tetra bid quoted above represents the initial order plus the purchase of the additional 21 computers. The price difference between Tetra and Mircocircuits based on the original bid only amounted to P146,305. This false allegation puts into question respondents' appreciation of the facts, especially considering that they merely quoted auditor Rubico's report, without providing this Court with supporting evidence on the record.
Lastly, as a public official, petitioner is assumed to have performed his functions regularly. The burden to prove otherwise rests on respondents. In the case at bar, not only did respondents fail to substantiate their allegations; worse, they violated petitioner's right to due process. There is no legal basis to make him personally liable for the disallowance.
It was clear that the PBAC was primarily responsible for the formulation of rules and guidelines on the conduct of the public bidding. It was also responsible for the criteria for pre-qualifying prospective bidders and for determining whether the documents submitted are in accordance with the required checklist of requirements. Finally, it was the body that recommends to the Board of Administrators (BOA) the winner of the bid, according to its own evaluation.
The BOA, meanwhile, was the body that gave the final approval for the purchase of the equipment.
It is presumed that petitioner, PBAC, BOA and even DAP-TEC were acting independently of each other. Each had their respective powers and functions. Respondents failed to rebut this presumption.
Even if it were true that there were instances of manipulation in the bidding process when a certain Rey Evangelista allegedly ordered the DAP-TEC to fix the results of the technical evaluation, it was likewise not conclusively shown that he was acting under the orders of petitioner. Mr. Evangelista was never proved to be directly connected or related to petitioner; instead, the auditor alleged that Mr. Evangelista was the staff of Edwin Canonizado, who is the PBAC chair.
Thus, to allege that petitioner had a role in the so-called manipulation of the bidding process, respondents carry the burden of substantially proving this to be true. The mere fact that petitioner was the one who reconstituted the PBAC or that he was the one who contracted the services of DAP-TEC does not conclusively show that he was directly involved in the alleged manipulation. Respondents likewise carry the burden of showing that they followed the proper procedure of assailing bidding procedures. However, respondents miserably failed in both respects.
What is more apparent is that petitioner was merely exercising ministerial functions with regard to the whole process. The discretion with regard to the purchase of the equipment clearly rested on the PBAC and the BOA.
Thus, absent any evidence showing that petitioner had any direct participation in the alleged fixing of the price, or that he exerted undue influence over the PBAC and BOA, he should not have been made liable under the circumstances.
This opinion likewise applies to the other CDA officials who were made solidarily liable with petitioner by public respondents.
I vote to grant the Petition.
[1] Article IX, Section 2 of the 1987 Constitution.
[2] G.R. No. 90364, September 30, 1991, 202 SCRA 147.
[3] Rollo at 67.
[4] Id. at 64-66.
[5] Id. at 90-91.
[6] Id. at 78 and 86.
[7] Cost/Price = 50%
Technical Evaluation = 30%
Support = 20%
[8] Note that respondent COA states in its Resolution dated 18 March 2003 that the total amount was P2,199,279.
[9] Rollo at 68-72.
[10] Id. at 73-77.
[11] Id. at 50-52.
[12] Id. 53-60.
[13] Id. at 61-63.
[14] Id. at 92-93.
[15] Id. at 78-79.
[16] Id. at 74.
[17] G.R. No. 110798, July 20, 1999, 310 SCRA 635.
[18] G.R. No. 114864, December 6, 1996, 265 SCRA 390.
[19] G.R. No. 160211, August 26, 2008, 499 SCRA 745.
[20] Rollo at 70-72.
[21] Id. at 231-233 and 243-247.
[22] Id. at 231 and 243.
[23] Id. at 80-81.
[24] COA Circular No. 85-55-A, par. 2, Standards for "Excessive" Expenditure.
[25] Daan v Sandiganbayan, G.R. Nos. 163972-77, March 28, 2008, 550 SCRA 233.
[26] Rollo at 243-247.
[27] Id. at 245.
[28] Id. at 248-249.
[29] Id. at 140-155.
[30] Id. at 109-110.
[31] Great Southern Maritime Services Corp. v. Surigao, G.R. No. 183646, 600 SCRA 795.
[32] Id. at 148.
[33] It is not clear in the records how respondents came up with this figure.
[34] It appears that Columbia made two bids, one for P1,476,600 and the other for P1,177,600. Rollo at 86.
[35] Rollo at 150.