GARCIA VS.

COURT OF APPEALS
In February and March, 2003, the Government Service Insurance System (GSIS) published an
Invitation to Pre-Qualify to Bid for the construction of the GSIS Iloilo City Field Office (GSIS-ICFO)
Building with an approved budget cost of P57,000,000.00. After evaluation of the bids and post-
qualification, the Bids and Awards Committee (BAC) declared the bid of Embrocal Builders, Inc.
(Embrocal) as the "Lowest Calculated and Responsive Bid."
The Notice of Award dated November 4, 2003 was signed by Manager Teruel, Mateo E. Basa,
Jr., VP Area II-FOG and private respondent. Embrocal represented by its President Edgardo M. Brocal.
In his letter dated November 20, 2003, requested for the release of the 15% mobilization fee pursuant
to the terms of the contract. However, due to several letters from losing bidders and the protest filed by
F. Gurrea Construction, Inc. questioning the conduct of the bidding, SVP Disuanco investigated the
matter.1
The Report dated January 26, 2004 prepared by SVP-FOG Disuanco and Alfredo B. Pineda II of the
OSVP-FOG concluded that the bidding process conducted by the BAC was flawed for non-
compliance with the strict provisions of Republic Act (R.A.) No. 9184. It was further observed that
the field office committed oversights such as the presence of unofficial BAC members with no defined
roles and the BACs failure to comply with the requirement of promptly replying to formal queries in
consonance with the provisions of R.A. No. 6713.
On January 28, 2004, Ma. Josefina V. Rivas, Regional Cluster Director, Commission on Audit (COA),
GSIS-Iloilo City, submitted her observations to Manager Teruel recommending that her office explain
the reason for the release of mobilization fee to Embrocal despite non-issuance of the Notice to Proceed,
contrary to Section IB 10.10 (1) of Presidential Decree (P.D.) No. 1594. Rivas also noted that per their
ocular inspection conducted in late December 2003 at the project site, there was no discernible major
construction activity nor deliveries of construction materials or presence of construction crew except
for two security guards.
On February 19, 2004, private respondent was formally charged with Gross Neglect of Duty, Grave
Misconduct and/or Violation of Reasonable Office Rules and Regulations as provided under Section 46,
paragraphs (3), (4) and (12), Chapter 6, Book V, Title I, Subtitle A of Executive Order No. 292,
otherwise known as the "Administrative Code of 1987," in relation to Section 52 (A), paragraphs (2)
and (3), and (C), paragraph (3), Rule IV of the Civil Service Commission Resolution No. 99-1936
(URACCS).
In the meantime, upon reevaluation the GSIS Physical Resources Bids and Awards Committee
(PRBAC) declared a "failure of bidding" pursuant to Section 41 of the Implementing Rules and
Regulations (IRR) of R.A. 9184. Embrocal and its counsel were advised that the contract for the
construction of the GSIS-ICFO building entered into with private respondent was null and void ab
initio, and hence Embrocal should return the amount of mobilization fees illegally released to it. The
COA Regional Legal and Adjudication Office later issued a Notice of Disallowance of the amount
released to Embrocal as mobilization fee. Private respondent along with Teruel, Jamantoc, Corteza,
Sonalan, Capalla and Basa, Jr. were all found liable for the disallowed sum.
The respondent filed a certiorari to the court of appeals alleging that the charge against him
does not observe his due process. The Court of appeals rendered its decision that the respondent is
guilty only of Simple neglect of duty and not gross negligence.
 ISSUE:

Whether or not The Honorable Court of Appeals acted with grave abuse of discretion
amounting to lack or excess of jurisdiction when it went beyond the Petition for Certiorari
filed by respondent and proceeded to rule on the formal charge and the merits of the case.

RULING:
While private respondent filed his answer to the Formal Charge issued by petitioner, he
filed a petition for certiorari in the CA questioning its validity and the order of preventive suspension,
even before the hearing proper was conducted. The CA found no jurisdictional ground to invalidate the
Formal Charge, and did not make any ruling on the issue of whether grave abuse of discretion attended
the imposition of the preventive suspension order. However, the CA proceeded to review the merits of
the administrative charge against private respondent, concurring with petitioners finding that private
respondent was remiss in his duties and responsibilities but declaring private respondent liable for the
lesser offense of Simple Neglect and imposing on him the lower penalty therefor. The CA thus
exceeded its certiorari jurisdiction when it reviewed the alleged errors of the disciplining
authority not only in finding a prima facie case against the private respondent but also in
determining his guilt. This despite the fact that the rendition of the decision in Adm. Case No. 04-
001 by the disciplining authority (GSIS) was earlier brought to the attention of the CA.
Considering that the CA did not declare any act of the petitioner to have been exercised
without or in excess of jurisdiction, or with grave abuse of discretion, the grant of relief to private
respondent by sentencing him to a lower offense with reduced penalty cannot be sustained. Whether the
private respondent may be held liable for Gross Neglect of Duty as stated in the Formal Charge or for
the lower offense of Simple Neglect of Duty should be properly threshed out in Adm. Case No. 04-001
and thereafter in a timely appeal to the Civil Service Commission, not in the certiorari proceedings
before the CA seeking nullification of the Formal Charge and preventive suspension order.

Commission on Audit vs. Link Worth International, Inc.,

581 SCRA 501,
G.R. No. 182559
March 13, 2009
On July 14, 2004, the Commission on Audit’s Bids and Awards Committee (COA-BAC)
conducted a bidding for various information communication technology equipment, specifically for Lot
6, which includes 3 units of document cameras. Link Worth and Audio Visual were among the bidders
declared by COA-BAC to have “passed” the technical specifications for the equipment. However,
COA-BAC did not disclose the respective specifications of the equipment offered by the bidders.
Link Worth and Visual Driver conducted the product demonstration. Link Worth told the
Technical Working Group (TWG), before whom the project demonstration was conducted, that the
equipment offered by Audio Visual failed to satisfy the technical specifications required for the
document camera.
Link Worth insisted that the technical specifications should be strictly complied with. Audio
Visual did not dispute that their equipment, the Ave Vision 300 camera, failed to meet the product
specifications required. On September 14, 2004, COA-BAC awarded the contract for Lot 6 to Audio
Visual.
Link Worth wrote to COA-BAC, questioning the award of the contract to Audio Visual and
prayed that the COA-BAC award the same to Link Worth having submitted the lowest calculated
responsive bid. On September 23, 2004, Link Worth received a faxed letter dated September 21, 2004,
from COA-BAC dismissing its complaint.
On February 2, 2005, pursuant to Section 58 of R.A. No. 9184, otherwise known as the
Government Procurement Reform Act, Link Worth filed a Petition for Certiorari under the 1997 Rules
of Civil Procedure, ascribing grave abuse of discretion to the COA “when it denied Petitioner’s protest,
which denial effectively sanctioned the disregard of technical specifications by COA-BAC in the
subject procurement, and sanctioned the clear violations of the Procurement Law and its IRR-A.”

On January 18, 2006, the RTC rendered the assailed Decision, The RTC ruled that “if COA knew that
any such deviation would be immaterial, then it should not have specified the technical
standards/requirements which must be met at the first step of the bid qualification.
The Court of Appeals affirmed the RTC’s finding that Audio Visual failed to comply with
several technical specifications required of the document cameras, and that COA violated certain
provisions of R.A. No. 9184 and its Implementing Rules. However, the appellate court deleted the
award of damages to Link Worth, holding that COA cannot be held liable for damages as this would
violate the commission’s immunity from suit. COA and Audio Visual were directed to make mutual
restitution.
ISSUE:
RULING:
Public bidding as a method of government procurement is governed by the principles of
transparency, competitiveness, simplicity and accountability. These principles permeate the provisions
of R.A. No. 9184 from the procurement process to the implementation of awarded contracts. It is
particularly relevant in this case to distinguish between the steps in the procurement process, such as
the declaration of eligibility of prospective bidders, the preliminary examination of bids, the bid
evaluation, and the post-qualification stage, which the Bids and Awards Committee (BAC) of all
government procuring entities should follow.
In this case, the bidders ranked as the two lowest bidders, All Visual and Columbia Tech, were
disqualified by the BAC presumably at the post-qualification stage when their bids failed to meet the
technical specifications for the project. Remarkably, however, despite the fact that there also existed
technical variances between the bid specifications and Audio Visual’s document camera, the BAC did
not post-disqualify Audio Visual.
During the preliminary examination stage, the BAC checks whether all the required documents
were submitted by the eligible bidders. Note should be taken of the fact that the technical specifications
of the product bidded out is among the documentary requirements evaluated by the BAC during the
preliminary examination stage. At this point, therefore, the BAC should have already discovered that
the technical specifications of Audio Visual’s document camera differed from the bid specifications in
at least three (3) respects, namely: the 15 frames/second frame rate, the weight specification, and the
power supply requirement. Using the non-discretionary criteria laid out in R.A. No. 9184 and IRR-A,
therefore, the BAC should have rated Audio Visual’s bid as “failed” instead of “passed.”
POST-QUALIFICATION
The function of post-qualification is to verify, inspect and test whether the technical
specifications of the goods offered comply with the requirements of the contract and the bidding
documents. It does not give occasion for the procuring entity to arbitrarily exercise its discretion and
brush aside the very requirements it specified as vital components of the goods it bids out.
DAMAGES
No award of damages can be made in favor of Audio Visual in this case, however. COA is an
unincorporated government agency which does not enjoy a separate juridical personality of its own.
Hence, even in the exercise of proprietary functions incidental to its primarily governmental functions,
COA cannot be sued without its consent.
Manila International Airport Authority vs. Olongapo Maintenance Services, Inc.,
543 SCRA 269
G.R. Nos. 146184-85, G.R. No. 161117, G.R. No. 167827
January 31, 2008

OMSI and TCSI were among the five contractors of MIAA which had janitorial and maintenance service contracts
covering various areas In the NAIA. Before their service contract expires on October 31, 1998, the MIAA board of
Directors, through Gana, Then General manager of MIAA, wrote OMSI and TCSI informing them that their contracts
would no longer be renewed after October 31, 1998

TCSI, wrote to Gana, expressed its concern over the award of its concession area to a new service contractor through a
negotiated contract. It said that to award TCSI's contract by mere negotiation would violate its right to equal protection of
the law. TCSI thus suggested that a public bidding be conducted and that the fffectivity of its service contract be
meanwhile extended until a winning bid is declared.
In reply, MIAA wrote TCSI and OMSI reiterating its disinclination to renew the latter's contracts, adding that it was to the
government's advantage to instead just negotiate with other contractors. The MIAA said that awarding a contract through
negotiation was in accordance with section 9 of EO 0-3; sec. 82 of RA 8522 and Sec. 417 of the Government accounting
and Auditing manual.
Consequently, OMSI and TCSI instituted civil cases against MIAA to forestall the termination of their contracts and
prevent MIAA from negotiating with other service contractors.
RULING:
The rationale behind the requirement of a public bidding, as a mode of awarding government contracts, is to
ensure that the people get maximum benefits and quality services from the contracts. More significantly, the strict
compliance with the requirements of a public bidding echoes the call for transparency in government transactions and
accountability of public officers. Public biddings are intended to minimize occasions for corruption and temptations to
abuse of discretion on the part of government authorities in awarding contracts.
In Kilosbayan, 246 SCRA 540 (1995), the ruling therein can very well apply to the cases at bar. We agree with
the apt observation of OMSI and TCSI that Sec. 1 of EO 301 and the exceptions to the bidding rule enumerated therein
only pertain to contracts for the procurement of supplies, materials, and equipment. Thus, corollarily, this express
enumeration excludes all others in accord with the elemental principle in legal hermeneutics, expressio unius est exclusio
alterius or the express inclusion of one implies the exclusion of all others. A contract for janitorial and maintenance
services, like a contract of lease of equipment, is not included in the exceptions, particularly Sec. 1(e) relied upon
by MIAA and Gana.
MIAA, however, eventually discarded the negotiation of new contracts with prospective service
contractors and has decided to hire personnel to render janitorial and messengerial services. Clearly, the
employment of said personnel is within the realm of management prerogatives of MIAA allowed under
its charter, EO 903, and other existing laws. Since the hiring of said employees dispensed with the need
for getting service contractors, then the relief of requiring MIAA to conduct public bidding is already
unavailing and has become moot and academic.

Jacomille v. Abaya G.R. No. 212381 22 April 2015

Recently, the LTO formulated the Motor Vehicle License Plate Standardization Program
(MVPSP) to supply the new license plates for both old and new vehicle registrants. The DOTC
published in newspapers of general circulation the Invitation To Bid for the supply and delivery of
motor vehicle license plates for the MVPSP and stated that the source of funding in the amount of
P3,851,600,100.00 would be the General Appropriations Act (GAA). However, a perusal of R.A. No.
10352 or the General Appropriations Act of 2013 (GAA 2013), would show that Congress appropriated
only the amount of P187,293,000.00 under the specific heading of Motor Vehicle Plate-Making Project.
The DOTC proceeded with the bidding process, but delayed in the implementation of the project. The
Senate Committee on Public Services conducted an inquiry in aid of legislation on the reported delays
in the release of motor vehicle license plates, stickers and tags by the LTO.
Petitioner, by counsel and assisted by Retired Justice Leonardo A. Quisumbing, instituted this
taxpayer suit, averring that he was a diligent citizen paying his correct taxes to the Philippine
Government regularly; that he was a registered vehicle owner, as evidenced by the Certificate of
Registration of his motor vehicle and a registered licensed driver; that he would be affected by the
government issuance of vehicle plates thru its MVPSP upon his renewal of the registration of his
vehicle; that not being a participant to the bidding process, he could not avail of the administrative
remedies and procedure provided under Republic Act (R.A.) No. 9184 or the Government Procurement
Reform Act, and its Implementing Rules and Regulations (IRR); that as far as he was concerned, there
was no appeal or any plain or speedy remedy available to him.
For the respondents, the OSG stated that the issues presented had been rendered moot and
academic as the gap in the budget of MVPSP was already bridged and covered by the full and specific
funding by GAA 2014 in the amount of P4,843,753,000.00 for the item “Motor Vehicle Registration
and Driver’s Licensing Regulatory Services.” With the signing of MVPSP on February 21, 2014, after
the enactment of GAA 2014, the OSG claimed that all objections that petitioner might have, whether
right or wrong, had been rendered naught.
On the other hand, JKG-Power Plates averred that petitioner had no locus standi. It pointed out
that petitioner had admitted that he was not one of the bidders in MVPSP and so he would not suffer
any direct injury. Likewise, the present case was not a proper subject of taxpayer suit because no taxes
would be spent for this project. The money to be paid for the plates would not come from taxes, but
from payments of vehicle owners, who would pay P450.00 for every pair of motor vehicle license plate,
and P120.00 for every motorcycle license plate. Out of the P450.00, the cost of the motor vehicle plate
would only be P380.00. In effect, the government would even earn P70.00 from every pair of plate.
ISSUE:
RULING:
Before the enactment of R.A. No. 9184, there were already laws that required sufficient
appropriation before the government could enter into a contract. The Administrative Code of 1987
expressly prohibits the entering into contracts involving the expenditure of public funds unless two
prior requirements are satisfied. First, there must be an appropriation law authorizing the expenditure
required in the contract. Second, there must be a certification by the proper accounting official and
auditor, attached to the contract, attesting that funds have been appropriated by law and such funds are
available. Failure to comply with any of these two requirements renders the contract void. The
Government Auditing Code of the Philippines also provides for the same provisions. It further declares
that any contract entered into contrary to above cited two requirements shall be void, and the officer or
officers entering into the contract shall be liable to the government for any consequent damage. These
laws were applied by jurisprudence to invalidate government contracts without proper appropriations.
In Osmeña v. COA, 230 SCRA 585 (1994), the Court invalidated a contract entered into by then Mayor
Duterte because the agreed cost for the project was way beyond the appropriated amount. It was stated
therein that “fund availability is, as it has always been, an indispensable prerequisite to the execution of
any government contract involving the expenditure of public funds by all government agencies at all
levels.”
A procuring agency must ensure that it has a sufficient appropriation for the project before
commencing the procurement activity. If the procuring agency believes that the project will not be
given its full appropriation by the time the notice of award is to be issued, then the procuring agency
must also secure the MYOA from the DBM at the start of the procurement process. Hence, the general
public will be assured that the government projects are adequately funded and their implementation
will not be delayed. These are the practices that must be instilled to achieve effective fiscal governance.
Querubin vs. Commission on Elections En Banc
776 SCRA 715
G.R. No. 218787
December 8, 2015

On October 27, 2014, the COMELEC en banc, through its Resolution No. 14-0715, released the
bidding documents for the "Two-Stage Competitive Bidding for the Lease of Election Management
System (EMS) and Precinct-Based Optical Mark Reader (OMR) or Optical Scan (OP-SCAN) System."
The COMELEC Bids and Awards Committee (BAC) set the deadline for the submission by interested
parties of their eligibility requirements and initial technical proposal on December 4, 2014.
 The joint venture of Smartmatic-TIM Corporation (SMTC), Smartmatic International Holding
B.V., and Jarltech International Corporation (collectively referred to as "Smartmatic JV") responded to
the call and submitted bid for the project on the scheduled date. Indra Sistemas, S.A. (Indra) and MIRU
Systems Co. Ltd. likewise signified their interest in the project, but only Indra, aside from Smartmatic
JV, submitted its bid.

Upon evaluation of the submittals, the BAC, through its Resolution No. 1 dated December 15,
2014, declared Smartmatic JV and Indra eligible to participate in the second stage of the bidding
process. The BAC then issued a Notice requiring them to submit their Final Revised Technical Tenders
and Price proposals on February 25, 2015, to which the eligible participants complied. Finding that the
joint venture satisfied the requirements in the published Invitation to Bid, Smartmatic JV, on March 26,
2015, was declared to have tendered a complete and responsive Overall Summary of the Financial
Proposal.

After the conduct of post-qualification, the BAC, through Resolution No. 9 dated May 5, 2015,
disqualified Smartmatic JV on two grounds, viz:15

1. Failure to submit valid AOI; and

2. The demo unit failed to meet the technical requirement that the system shall be
capable of writing all data/files, audit log, statistics and ballot images
simultaneously in at least two (2) data storages.

The ruling prompted Smartmatic JV to move for reconsideration. In denying the motion, the BAC,
through Resolution No. 1017 dated May 15, 2015, declared that Smartmatic JV complied with the
requirements of Sec. 23.1(b) of the Revised Implementing Rules and Regulations of RA 9184 (GPRA
IRR), including the submission of a valid AOI, but was nevertheless disqualified as it still failed to
comply with the technical requirements of the project.
Ruling of the COMELEC en banc

The seven-man commission was unanimous in holding that Smartmatic JV's OMR+ sufficiently
satisfied the technical requirements itemized in the TOR, time interval.
Notwithstanding Smartmatic JV's compliance with the technical requirements in the TOR,
Commissioner Luie Tito F. Guia (Guia) would nonetheless dissent in part, questioning the sufficiency
of the documents submitted by the Smartmatic JV. Taking their cue from Commissioner Guia's dissent,
petitioners now assail the June 29, 2015 Decision of the COMELEC through the instant recourse.
ISSUE:
WHETHER OR NOT THE COMELEC EN BANC ACTED WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN GRANTING THE
CORPORATION AS THE BIDDER WITH THE LOWEST CALCULATED RESPONSIVE BIDS
RULING:
It is a basic tenet that except only in cases in which alternative methods of procurement are
allowed, all government procurement shall be done by competitive bidding.
The COMELEC has the power to review a bidder’s lack of eligibility at any stage of the procurement
process. Section 23.7 (Eligibility Requirements for the Procurement of Goods and Infrastructure
Projects) of the Revised Implementing Rules and Regulations of Republic Act No. 9184 and Section 30
of the bidding documents provide for this. Section 23.7 of the Implementing Rules and Regulations
states: Section 23. Eligibility Requirements for the Procurement of Goods and Infrastructure
Projects . . . . 23.7. Notwithstanding the eligibility of a prospective bidder, the procuring entity
concerned reserves the right to review the qualifications of the bidder at any stage of the procurement
process . . . Should such review uncover any misrepresentation made in the eligibility requirements,
statements or documents, or any changes in the situation of the prospective bidder which will affect the
capability of the bidder to undertake the project so that it fails the eligibility criteria, the procuring
entity shall consider the said prospective bidder as ineligible and shall disqualify it from obtaining an
award or contract.

The function of the BAC, in making an initial assessment as to the eligibility of the bidders during
prequalification, is ministerial and nondiscretionary. It merely counterchecks the documents submitted
by the bidder against the checklist of requirements included in the bid documents disseminated by the
procuring agency. It cannot consider documents not listed in the checklist for purposes of ascertaining a
bidder’s eligibility during prequalification.
CORPORATE NATIONALITY
Petitioners failed to present any evidence relating to the nationality of the owners of the corporations.
The only proof they showed was the financial report of Smartmatic Limited, which is not a party to this
case. Only SMTC and Smartmatic International Holding B.V. are partners in the Smartmatic Joint
Venture. Respondents, on the other hand, presented SMTC’s General Information Sheet, showing that
Smartmatic Joint Venture is Filipino-owned, not foreign-owned. In any case, the law allows the
COMELEC to procure from foreign sources. Thus: SECTION 12. Procurement of Equipment and
Materials.—To achieve the purpose of this Act, the Commission is authorized to procure, in
accordance with existing laws, by purchase, lease, rent or other forms of acquisition, supplies,
equipment, materials, software, facilities, and other services, from local or foreign sources free from
taxes and import duties, subject to accounting and auditing rules and regulations. With respect to the
May 10, 2010 elections and succeeding electoral exercises, the system procured must have
demonstrated capability and been successfully used in a prior electoral exercise here or abroad.
Non-Submission of Articles of Incorporation
The inescapable result is that mere failure to file an AOI cannot automatically result in the bidder
concerned being declared ineligible, contrary to petitioners’ claim.
Office of the Ombudsman-Mindanao vs. Martel
819 SCRA 131
G.R. No. 221134
March 1, 2017
 In the Purchase Requests, dated January 24, 2003, February 18, 2003 and July 15, 2003, the
Office of the Governor of Davao del Sur requested the acquisition of five service vehicles, for the use
of the Governor and the Vice Governor.
The procurement of the five (5) vehicles was not subjected to a public bidding as it was
immediately effected through direct purchase pursuant to the recommendation of Putong as PGSO. The
recommendation was approved by the members of the PBAC, which included Martel and Guiñares.
Accordingly, the said vehicles were purchased and delivered to the provincial government.
Subsequently, a concerned citizen wrote to the Ombudsman, reporting the lack of public bidding of the
said procurement. Acting thereon, the Ombudsman launched an investigation concerning the
acquisition of the said vehicles.
The Ombudsman’s Ruling
In its Decision, the Ombudsman found Martel, Guiñares, Putong, and Mier guilty of grave
misconduct and gross neglect of duty. The Ombudsman opined that these PBAC officers improperly
resorted to direct purchase, completely disregarding the required public bidding. Gan, however, was
relieved of his administrative liability due to his reelection as provincial board member.
Martel, Guiñares, Mier, and Putong moved for reconsideration, arguing that they had no intent to
commit any irregularity as they only approved the recommendation of the PGSO to directly purchase
the vehicles.
Undaunted, Martel and Guiñares appealed before the CA under Rule 43 of the Rules of Court.
The CA’s Ruling
The CA ruled that there was no failure of bidding because no public bidding was ever
conducted. It also observed that the PBAC violated (1) Section 18 of R.A. No. 9184 prohibiting the
reference of brand names for the purpose of procurement; and (2) COA Circular No. 75-6 precluding
government officials or employees from using more than one motor vehicle.
Further, the CA did not give credence to the excuse of Martel and Guiñares that they merely
followed the recommendation of Putong as PGSO. The appellate court emphasized that under R.A. No.
9184, the PBAC had the final and independent authority to determine the mode of procurement.
The CA, however, lowered the penalty imposed on Martel and Guiñares from dismissal to one
(1) year suspension without pay. The appellate court opined that the penalty should be lowered because
aside from the fact that there was no proof of overpricing or damage to the government, the length of
service of Martel and Guiñares warranted a mitigated penalty.
ISSUE:
Whether or not THE COURT OF APPEALS COMMITTED AN ERROR IN THE
INTERPRETATION OF LAW WHEN IT AUTOMATICALLY CONSIDERED LENGTH OF
SERVICE AS A MITIGATING CIRCUMSTANCE IN FAVOR OF RESPONDENTS.
RULING:
The procurement of the vehicles violated R.A. No. 9184 and R.A. No. 7160 and COA Circular No.
92-386
 In this case, no public bidding was conducted in the procurement of the service vehicles for the
Governor and Vice Governor. The absence of public bidding was a glaring violation of R.A. No. 9184
and R.A. No. 7160 and COA Circular No. 92-386,
The respondents, however, reasoned out that it was upon the recommendation of the PGSO that they
resorted to the direct purchase of the vehicles and the PBAC merely approved the recommendation of
the PGSO. The argument utterly lacks merit.
Accordingly, as members of the PBAC, the respondents were not bound by the recommendation of the
PGSO to determine the mode of procurement. As an independent committee, the PBAC was solely
responsible for the conduct of the procurement and could not pass the buck to others. As correctly
stated by the CA, the PBAC had control over the approval of the mode of procurement and the
respondents could not wash their hands from liability thereof. Their role in choosing the mode of
procurement was clearly an active action, and not a passive one as the respondents would want to
convey.
Length of service does not justify mitigation of penalty
First, the element of misappropriation is not indispensable in an administrative charge of grave
misconduct. Thus, the lack of proof of overpricing or damage to the government does not ipso facto
amount to a mitigated penalty.
Second, length of service is not a magic phrase that, once invoked, will automatically be
considered as a mitigating circumstance in favor of the party invoking it. Length of service can either
be a mitigating or aggravating circumstance depending on the factual milieu of each case. Length of
service, in other words, is an alternative circumstance.
Here, Martel and Guiñares had been the Provincial Accountant and the Provincial Treasurer,
respectively, and both were members of the PBAC for a number of years. With their extensive
experience, it was expected that they were knowledgeable with the various laws on the procurement
process. Thus, it is truly appalling that the respondents failed to apply the basic rule that all
procurement shall be done through competitive bidding and that only in exceptional circumstances
could public bidding be dispensed with.