1

REPUBLIC OF THE PHILIPPINES)

CITY OF ZAMBOANGA)S.S.
x---------------------------------------------------------x

COUNTER-AFFIDAVIT

WE, LEONARDO REY D. VASQUEZ, Filipino, of legal age, married, and a

resident of Canelar, Zamboanga City, LOVELL CAMANZO ABAD, Filipino, of
legal age, married, and a resident of Cabatangan, Zamboanga City, TEOTIMO
C. REYES, Jr., Filipino, of legal age, married and a resident of Lantawan,
Pasonanca, Zamboanga City, ARNULFO A. ALFONSO, likewise Filipino, of legal
age, married and a resident of Lantawan, Pasonanca, Zamboanga City,
RODRIGO R. VEGA, Filipino, of legal age, married and a resident of Guiwan,
Zamboanga City and FERNANDO R. CAMBA, Filipino, of legal age, married
and a resident of Putik, Zamboanga City after having been duly sworn to in
accordance with law, under oath hereby jointly and severally DEPOSE and
STATE:

1. That in compliance with Ombudsman Memorandum dated 09 September

2003, the undersigned hereby indicate the following:

FULL NAME: LEONARDO REY DIMAGUILA VASQUEZ

OFFICIAL DESIGNATION: General Manager A, Office of the
General
Manager, Zamboanga City Water
District
SALARY GRADE: 28
OFFICIAL ADDRESS: ZCWD Main Bldg., Pilar St.,
Zamboanga City

FULL NAME: LOVELL CAMANZO ABAD

OFFICIAL DESIGNATION: Department Manager C, Legal and
Management Services Department,
Zamboanga City Water District and
Chairman, Bids and Awards Committee
SALARY GRADE: 24
OFFICIAL ADDRESS: 2/F ZCWD Bldg., Pilar St.,
Zamboanga City

FULL NAME: TEOTIMO C________ REYES, Jr.

OFFICIAL DESIGNATION: OIC - Production Department,
Zamboanga City
Water District and Vice- Chairman,
Bids and
Awards Committee
SALARY GRADE: 22
OFFICIAL ADDRESS: ZCWD Main Building, Pilar St.,
Zamboanga City
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FULL NAME: ARNULFO A____________ ALFONSO

OFFICIAL DESIGNATION: OIC – Maintenance Department,
Zamboanga
City Water District and Member,
Bids and
Awards Committee
SALARY GRADE: 22
OFFICIAL ADDRESS: ZCWD Main Building, Pilar St.,
Zamboanga City

FULL NAME: RODRIGO R__________ VEGA

OFFICIAL DESIGNATION: Division Manager C, Customer
Accounts
Division, Zamboanga City Water
District and
Member, Bids and Awards Committee
SALARY GRADE: 22
OFFICIAL ADDRESS: ZCWD Main Building, Pilar St.,
Zamboanga City

FULL NAME: FERNANDO RONAS CAMBA

OFFICIAL DESIGNATION: Division Manager C, Management
Services
Division, Zamboanga City Water
District, and Member, Bids and Awards
Committee
SALARY GRADE: 22
OFFICIAL ADDRESS: ZCWD Main Building, Pilar St.,
Zamboanga City

2. That the undersigned received on 11 May 2011, an Order emanating from

the Hon. Office of the Ombudsman, Mindanao pertinent to Case No. OMB-
M-C-11-0123-D entitled “BENDIMIL CONSTRUCTION DEVELOPMENT CORP.,
c/o Benjamin Dimaang, Summerhill Subd., Pasonanca, Zamboanga City,
Complainant, versus LEONARDO REY D. VASQUEZ, Gen. Manager A,
LOVELL C. ABAD, Chair-BAC, TEOTIMO REYES, JR., BAC Member,
FERNANDO CAMBA, BAC Member, ARNULFO A. ALFONSO, BAC Member,
RODRIGO VEGA, BAC Member, Respondents” for: Violation of RA 9184 and
violation of RA 3019;

3. That the above-stated Order from the Hon. Office of the Ombudsman
required the undersigned to submit its Counter-Affidavit on the allegations
of a Complaint-Affidavit dated 18 March 2011 signed and executed by
Benjamin Dimaano chairman of the board of Bendimil Construction and
Development Corporation (COMPLAINANT), and in compliance thereto
herein Respondents respectfully submit the following DEFENSES, to WIT:

4. That the undersigned ADMIT paragraphs 1 and 4 of the Complaint-

Affidavit. Paragraph 3 is admitted but only as to the existence of the
complaint against the Respondents as stated above, while paragraph 2 is
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admitted, only as to the existence of PR No. 00345-10, which was the

project for the rehabilitation of pipeline at the Pasonanca-Sta. Maria Road,
Zamboanga City and which was subjected to failure of bidding in a
resolution by the Head of Procuring Entity (HOPE) dated 05 January 2011;

5. That paragraphs 5.a. and 5.b. are admitted, while the undersigned
specifically DENY paragraph 5.c., for while indeed the Bids and Awards
Committee issued a Notice of Lowest Calculated Bid (NLCB) to
COMPLAINANT, what was actually intended was a NOTICE OF LOWEST
BID AS READ. COMPLAINANT seems to make too much of the fact that it
had received the subject NLCB six (6) days from the opening of bids,
where neither the BAC nor the TWG had any actual opportunity to make a
detailed evaluation of the bids under PR 00345-10. Simply stated, the
NLCB sent to COMPLAINANT was merely based on the preliminary ranking
from lowest to highest bids during bid opening, subject to 1. Post
Evaluation under RULE IX, Sec. 32 of the Revised Implementing Rules
and Regulations RIRR of Republic Act (RA) 9184 and 2. Post
Qualification under RULE X, Sec. 32 of the same RIRR. COMPLAINANT
should not have been too elated when it received the NLCB as it should
have known that it was subject to the above-stated requirements;

6. That in order to prove that indeed, the NLCB received by COMPLAINANT

was not within the contemplation of that NLCB under Sec. 32 of the RIRR
(meaning that which shall be issued after post evaluation of bids),
attached as ANNEX “A” is a copy of MEMORANDUM No. BAC 2010-50 from
BAC Vice-Chairman Engr. Teotimo C. Reyes, Jr., addressed to TWG-II Head
Jaime Alvarez, requesting for a detailed post-evaluation report for PR No.
00345-10. The same Memorandum was dated 08 July 2010, or two (2)
days after the issuance of the NLCB in favor of COMPLAINANT. Also
attached as ANNEX “B” is an affidavit signed by Jennifer P. Sison of the
BAC Secretariat, expounding on the nature of the NLCB which
COMPLAINANT received. To reiterate, what was actually intended for
COMPLAINANT was a NLCB AS READ, not a NLCB after the post-evaluation
of bids;

7. That the undersigned DENY paragraph 5.d. of the Complaint-Affidavit,

specifically that portion where COMPLAINANT has made an erroneous
interpretation that “the ZCWD as procuring entity ‘is required’ to
undertake post-qualification of the bidder with the Lowest Calculated Bid
(LCB) within seven (7) days and as such it (COMPLAINANT) should have
received a communication on the post-qualification process.”
COMPLAINANT should be reminded that post-qualification under Sec. 34 of
the RIRR shall only take place when a Lowest Calculated Bid/Highest
Rated Bid shall have already been determined on the basis of the Abstract
of Bids under Section 32.3, Rule IX of the RIRR. Moreover, the Abstract of
Bids itself shall only be prepared after “all bids have been received,
opened, examined, evaluated, and ranked” by the BAC upon perusal of
the TWG’s post-evaluation report and findings. COMPLAINANT received its
NLCB without the bids having undergone the aforementioned processes,
as it was a mere NLCB AS READ;

8. That the undersigned ADMIT paragraph 5.e. of the Complaint-Affidavit,

with a clarification that the RIRR of RA 9184 does not require any
cancellation or revocation of the NLCB AS READ such as that which was
primarily issued in favor of COMPLAINANT prior to the issuance of a NLCB
after post-evaluation in favor of NLV. The fact that NLV was the fourth (4 th)
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lowest bidder during the bid opening cannot serve as basis for
COMPLAINANT to make an assumption that there was irregularity in the
issuance of a NLCB in its favor, inasmuch as the result of the post-
evaluation report prepared by the TWG-II has pointed to NLV as the bidder
with the LOWEST CALCULATED BID. The RIRR requires that a detailed
evaluation of bids shall be made to ensure fair and competitive bid
comparison, considering the twin criteria of completeness of the bid and
arithmetical corrections under Section 32 thereof. Attached as ANNEX “C”
to “C-8” is the Post Evaluation Report. Notably, in page 4 (ANNEX “C-3”) of
the Report, NLV’s Total Bidded Amount which was initially 19,530,649.27
has been corrected to 18,756,583.18. This would mean that the
difference of its bid offer from the Approved Budget Cost (ABC) has
increased from 17,469.73 to 791,535.82 thus making it the highest
ranking bidder in the Abstract of Bids;

9. That the undersigned DENY paragraph 5.f. of the Complaint-Affidavit

specifically that portion where COMPLAINANT claims that the BAC has
issued a “second NLCB” in favor of NLV, as well as the contents of its
letter dated 16 August 2010, attached in the Complaint-Affidavit as Annex
“F” to “F-3”, for the same reasons as stated above. That NLCB in favor of
NLV, notwithstanding the fact that it was issued forty-six days after bid
opening, is actually supported by the detailed evaluation report of TWG-II
pointing to it as the bidder with the lowest calculated bid. The August 17,
2010 letter sent by BAC Chair Atty. Lovell C. Abad to COMPLAINANT
(Annex “G” of the Complaint-Affidavit), while it was mistakenly addressed
to Mr. Eduardo Catis of the Zamboanga Erectors and Contractors, Inc.,
was all intended IN GOOD FAITH to notify herein COMPLAINANT of the
facts as indicated therein. The BAC Chairman even deeply apologized
towards Eduardo Ramon T. Dimaano, BENDIMIL President, for the mistake
in the notice dated August 17, 2010 per its August 19, 2010 letter (Annex
“G-1” of the Complaint-Affidavit. This shows that the BAC was not only
keen on notifying the bidders, but also in rectifying and apologizing for the
clerical error of its BAC Secretariat;

10. That the undersigned ADMIT paragraph 5.g. of the Complaint-Affidavit,

but vehemently and categorically DENIES the highly presumptive
assertion of COMPLAINANT (even contained in its letter dated August 20,
2010, Annex “H” to “H-2” of the Complaint-Affidavit), that it is “entitled to
a Notice of Award”. On the claim that “Bendimil had not been post-
disqualified”, it is most respectfully submitted that there is absolutely no
need to post-disqualify COMPLAINANT for the reason that it was not a
recipient of a NLCB AFTER POST-EVALUATION in the first place.
COMPLAINANT has no right to assume that it should be subject to post-
qualification under Sec. 34 of the RIRR inasmuch as the NLCB it received
was a mere NLCB AS READ;

11. That the undersigned have no personal knowledge sufficient to form a

belief as to the truth of the averments contained in paragraph 5.h. of the
Complaint-Affidavit, particularly with respect to the August 23, 2010
request for clarification (Annex “I” to “I-2” of Complaint-Affidavit) of the
COMPLAINANT to the Government Procurement Policy Board (GPPB for
brevity). Furthermore, the undersigned specifically and vehemently DENY
all the contents contained therein for being too self-serving and
manipulated to favor the COMPLAINANT purposely to mislead the GPPB as
to the true facts surrounding the proceedings involving PR No. 00345-10;
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12. That the undersigned ADMIT paragraph 5.i. of the Complaint-Affidavit;

13. That the undersigned specifically DENY the allegations in paragraph

5.j. of the Complaint-Affidavit, for while there was confusion as to the
validity of the surety bond and Certification from the Insurance
Commission submitted by NLV, efforts were exerted by ZCWD to seek
clarifications on the matter as evidenced by its letter dated 03 September
2010 addressed to the GPPB at its Main Office at Unit 2506, Raffles
Corporate Center, F. Ortigas Road, Ortigas Center Pasig City and another
letter dated06 September 2010 addressed to the Insurance Commission
in its main Office at 1071 United Nations Avenue, Manila, all inquiring as
regards the Certification issued by the Insurance Commission, which has
accompanied NLV’s surety bond as its bid security. Again, this manifests
good faith on the part of the BAC, and on the part of the procuring entity
contrary to the fault-finding assertions of COMPLAINANT as stated in
paragraph 5.j. of its Complaint-Affidavit that “the BAC failed to check on
this basic bid document, or else, it deliberately and conveniently
overlooked this defect, which would immediately have disqualified NLV
from the bidding.”

14. That the undersigned ADMIT paragraph 5.k. of the Complaint-Affidavit,

but limit their admission only as to the existence of GPPB’s reply (Annex
“L” and “L-1” of the Complaint-Affidavit) to COMPLAINANT dated 23 August
2010. As to its contents, it may clearly be gleaned from the same GPPB
reply that COMPLAINANT should have sought a clarification with the
procuring entity (ZCWD) on which among the notices issued is correct.
This opportunity to seek clarification has been repeatedly done by
COMPLAINANT and ZCWD through its BAC has repeatedly clarified on the
matter. This notwithstanding, it appears that COMPLAINANT remains
steadfast in its self-serving declaration that it was a recipient of a NLCB on
the basis of a post-evaluation, when in truth and in fact the NLCB issued
to it was a NLCB AS READ, pending post-evaluation;

15. That undersigned are without knowledge or information sufficient to

form a belief as to the veracity of the averments in paragraph 5.l. of the
Complaint-Affidavit;

16. That the undersigned specifically DENY the allegation of COMPLAINANT

as stated in paragraph 5.m. of its Complaint-Affidavit, for while there was
no reply to the question regarding NLV’s bid security, actions were
initiated by the procuring entity as stated in paragraph 13 above to seek
clarification from the GPPB and the Insurance Commission as to the
Certification from the Insurance Commission submitted by NLV in support
of the latter’s surety bond as bid security;

17. That the undersigned DENY paragraph 5.n. of its Complaint-Affidavit

particularly the existence of the GPPB reply, allegedly dated October 20,
2010 as they were never officially furnished a copy of the same;

18. That the undersigned ADMIT the existence of COMPLAINANT’s letter-

demand dated 02 November 2010 as stated in paragraph 5.o. of its
Complaint-Affidavit. The undersigned however vehemently and
categorically DENY the contents thereof, inasmuch as no provision under
RA 9184 or its RIRR exists to justify COMPLAINANT’s “demand for the
issuance of a Notice of Award” in its favor. Likewise, the undersigned
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specifically takes exception to COMPLAINANT’s declaration that “secrecy

and subterfuge have attended the bid proceedings”, there being
absolutely no proof of the same and further rebutted by the fact that
ZCWD as the procuring entity has always been transparent to all bidders,
subject to the rules on confidentiality in order not to compromise the
affairs and best interests of the ZCWD;

19. That the undersigned admit COMPLAINANT’s allegations in paragraph

5.p. of its Complaint-Affidavit;

20. That the undersigned likewise vehemently and categorically DENY the
self-serving declarations made by COMPLAINANT in paragraph 5.q. of its
Complaint-Affidavit, particularly that the “BAC is vigorously defending its
decision to issue a second NLCB a total of 46 days after the opening of
bids” and that the “head of the procuring entity is using the delay as a
ground to declare a failure of bidding, [because] the resolution of Vasquez
came only after Bendimil questioned the bid security of NLV”. The latter
statements have no factual basis and are clearly being based on surmises
and imaginations of COMPLAINANT. Where it true that the BAC had
“vigorously defended its decision to issue a second NLCB to NLV”, then
would a later RESOLUTION TO DECLARE A FAILURE OF BIDDING from
no less than the head of the procuring entity be consistent with such
“vigorous” resolve? True, lengthy delays (albeit proof of justification as to
the delay is readily available for the appreciation of the Hon. Office of the
Ombudsman as will be discussed below) were incurred by the BAC, the
TWG-II and even perhaps the procuring entity itself in the entire bidding
process, from the moment the bids were opened up to the failure of bids;
but does the COMPLAINANT have the right in the first place to make a
cavalier DEMAND of the Notice of Award, knowing that it received its
NLCB AS READ without the benefit of post-evaluation? On the other hand,
the NLCB received by NLV was consistent with the provisions of RA 9184
and its RIRR for while there were delays prior to its issuance, the bids
have undergone detailed evaluation on the basis of completeness of the
bid and arithmetical corrections. Had COMPLAINANT been more
professional, it should have followed GPPB’s advice in its letter dated 23
September 2010 to seek a clarification from the procuring entity, on
which among the notices issued is correct;

21. That the undersigned ADMIT the existence of COMPLAINANT’s demand

letter dated January 12, 2011 as alleged in paragraph 5.r. of its Complaint-
Affidavit, but DENY the contents thereof;

22. That the undersigned ADMIT the allegations of the COMPLAINANT in

paragraph 5.s. of its Complaint-Affidavit, with due emphasis on the reply
of the GPPB on the Order to Re-bid (Annex “S” to “S-1” of Complaint-
Affidavit), a portion of which is quoted below as FOLLOWS:

“It is our (GPPB) view that decisions by the head of the

procuring entity, such as the use of the reservation clause,
fall solely within their sound authority as sanctioned
by law, but with concomitant responsibility that
they perform such functions with judiciousness and
adherence to the principles of transparency and
accountability. Thus, the responsibility for determining
whether any of the situations specified under Section 41
exists, the corresponding basis therefor, and the decision
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to declare failure of bidding on such basis rest

primarily on the head of the procuring entity or his
duly authorized representative.

As such, we (GPPB) have limited our guidance to the

ZCWD in confirming that Section 38.1 of the IRR mandates
procuring entities to complete the procurement process
from the opening of bids up to the award of contract
within three months and that Section 32.2.4 of the IRR
requires procuring entities to identify the Lowest
Calculated Bid that will be notified for purposes of post-
qualification, and failure to comply with these
provisions may be a ground for declaration of failure
of bidding under Section 41 (b) of the IRR.

In relation to this, please note that Section 65.1 (b) of

the IRR does not conflict with, nor preclude
declaration of, failure of bidding on the basis of non-
compliance with the mandatory period provided in
Section 38.1 of the IRR. It only applies as the basis for
the imposition of sanction when, after due proceedings, it
is proven in court that the public officer has no justifiable
cause to delay compliance within the prescribed periods in
the IRR.

(x-x-x)

Emphasis supplied.

Apparently being not satisfied with the above-stated advise of no less than
the GPPB, herein COMPLAINANT brings before the Hon. Office of the
Ombudsman a totally baseless, malicious and troublesome Complaint all
because of a controversy which started by virtue of COMPLAINANT’s own
misleading and self-serving declaration that it is entitled to demand for
itself a Notice of Award of the project.

23. That the undersigned ADMITS paragraph 5.t. of the Complaint-Affidavit;

24. That the undersigned categorically and vehemently DENY the entirety
of paragraph 51, page 4 of the Complaint-Affidavit, as the same contains
sweeping and unfounded accusations of violation of Section 65 b) and e) of
RA 9184, and further specifically set forth their defenses specifically as
FOLLOWS:

“a. That contrary to Sec. 34.8 of Rule IX of the IRR, respondent members of
the BAC deliberately delayed the post-qualification process on Bendimil
beyond the mandatory 7-day maximum period in order to give undue
benefit, advantage and preference to NLV.”

There is no deliberate delay in the post-qualification to speak of, as the

delays incurred by the BAC and TWG were more than justified especially
considering that since the beginning of year 2010, all concerned were
pressed with time to meet the heavy task of having to consecutively
implement three (3) major ZCWD infrastructure projects (PR Nos. 00458-10,
000340-10 and 00345-10). As early as 08 July 2010, the BAC had already
1 The Complaint Affidavit contains two (2) paragraph 5s, one commencing at page 1 and the other commencing at page 2.
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forwarded to the TWG-II for post-evaluation all the bids submitted in the
three (3) infrastructure projects as stated above. This has, needless to state,
tripled the workload of the TWG-II, hence on 19 July 2010 it requested for an
extension of time to submit its post-evaluation report to the BAC. Further
delay was caused due to the several queries presented by the ZCWD before
the GPPB and the Insurance Commission as evidenced by its letters dated
____________________, hereto attached as ANNEXES D and E, respectively. As
a measure of prudence and judiciousness, the ZCWD and its BAC deemed it
wise to defer proceedings on the bidding process, pending replies from the
afore-stated official queries.

No undue benefit, advantage or preference was enjoyed by NLV. The act of

issuing the NLCB in its favor was a ministerial duty that the BAC was
obligated to perform under the RIRR of 9184 when he TWG-II, after having
finally submitted its post-evaluation report, made a finding that NLV’s Bid
was actually the Lowest Calculated Bid or Highest Ranking Bid under Sec. 32
of the RIRR. On the contrary, it would have been inappropriate and
unlawful for the BAC to maintain its first NLCB AS READ issued to
COMPLAINANT and treat the latter as the winning bidder, in utter
disregard of the post-evaluation report and findings submitted by
the TWG-II.

“b. That 46 days after the opening of the bids, the BAC issued a second
NLCB to another bidder, without first post-disqualifying Bendimil and even
any notice as to the grounds for such disqualification, if any, as required
under section 34.5 of the IRR; that significantly the BAC issued said second
NLCB to NLV without subjecting the 2nd and 3rd lowest bidders to post-
qualification as required under Section 34.6 of the IRR.”

It is most respectfully submitted that the above statement is once again a

clear misapplication of Sec. 34 of the RIRR on the actual events which
transpired in the instant controversy. COMPLAINANT was never entitled to
any post-disqualification as already expounded and clarified above, for the
reason that it was NLV who was the recipient of a NLCB after the detailed
evaluation conducted by the TWG. Neither was there a need to subject the
2nd and 3rd lowest bidders to post-qualification inasmuch as Sec. 34 clearly
indicates that ONLY ONE (1) BIDDER shall be subject to post-qualification.
Sec. 34.1 states: “The Lowest Calculated/Highest rated Bid shall undergo
post-qualification in order to determine whether the bidder concerned
complies with and is responsive to all the requirements and conditions as
specified in the Bidding Documents.” Clearly, the provision means that that
bidder considered to have the lowest calculated/highest bid (which in this
case is NLV), shall be subjected to post-disqualification. The same provision
never required that herein COMPLAINANT, as recipient of a NLCB AS READ,
shall be subject to post-disqualification. The fact that the NLCB issued in
favor of COMPLAINANT was a NLCB AS READ has been made clear and
explained numerous times to the COMPLAINANT, as evidenced by a the
Notice dated August 17, 2010 hereto attached as ANNEX “F” addressed to
Bendimil President Eduardo Ramon T. Dimaano, a letter of apology dated
August 19, 2010 hereto attached as ANNEX “G”, explaining the inadvertence
of the BAC when it sent its first letter to supposedly notify COMPLAINANT of
the fact that it had issued to NLV the Notice of Lowest Calculated Bid to a
bidder in another project, and the RESOLUTION of the BAC dated 24 August
2010, hereto attached as ANNEXES “H” to “H-2” after the ZCWD and its BAC
has already been bombarded with unfounded protests and complaints by
losing bidders.
 9

“c. That when Bendimil demanded for the results of the ‘recalculated bid
price as evaluated by the TWG’ showing NLV as the lowest bidder, the BAC
could not even present any.”

Further manifesting COMPLAINANT’s stubbornness and desperation is the

statement above, in that it even went to the extent of demanding for the
results of the recalculated bid price as evaluated by the TWG. The
same demand was altogether and outright ignored by the BAC inasmuch as
the post-evaluation report and finding by the TWG is a document solely for
the consumption and appreciation of the BAC and especially considering the
confidential nature of the document COMPLAINANT demanded. Had the
BAC’s decision been otherwise, there would be a violation of RA 3019 (k)
which punishes a public officer for “divulging valuable information of a
confidential character, acquired by his office or by him on account of his
official position to unauthorized persons, or releasing such information in
advance of its authorized release date”. The non-disclosure of the TWG’s
post-evaluation report was a discretionary exercise of prudence and caution
on the part of the BAC which has to the best of its efforts, defended itself
from the harassment and threats of losing bidders.

Be that as it may, for the satisfaction of COMPLAINANT and due to the fact
that the bidding process has been rendered moot and academic by virtue of
the failure of bidding, the undersigned has attached the post-evaluation
report and findings of the TWG-II (already attached as ANNEX “C” to “C-8”
as indicated above), with emphasis on page 4 thereof, highlighting the fact
that NLV’s bid offer which was initially 19,530,649.27 has been corrected
to 18,756,583.18, as already explained in paragraph 8, page 2 of this
Counter-Affidavit.

“d. That the explanation of the BAC that the delay in the post-qualification
was caused by the travel of TWG members is not tenable. (x-x-x)”

COMPLAINANT, perhaps in its hopelessness and condescension, even goes

to the extent of arrogating unto itself a determination of what constitutes
the exceptional circumstances which may justify delays within the
contemplation of RA 9184 and its RIRR. The grant of the request for an
extension of time for the TWG to come up with the post-evaluation report is
an exercise of the BAC and the General Manager’s discretion, which was
exercised with due caution and good judgment, in view of the attending
circumstances. Again, worthy to reiterate is the fact that the TWG was time
pressed to simultaneously come up with post-evaluation reports and
findings on three (3) infrastructure projects involving millions of Pesos and
keeping in mind the best interests of the ZCWD. A hastily prepared post-
evaluation report would have put the bid proceedings in a more precarious
position.

“e. That in another project, Proposed Replacement of Talon-Talon

Distribution Pipeline issued the NOA to Teddie Construction Development
Corporation some 110 days after the opening of bids on June 29, 2010,
which proves that insofar as ZCWD is concerned, delay per se in the bidding
and post-qualification process has not been a ground to declare failure of
bidding.”

The decision to declare a failure of bidding by the ZCWD General Manager in

his capacity as HOPE is one which is peculiar to the projects affected,
 10

namely PR Nos. 00345-10 and 00458-10. No less than the GPPB has
affirmed the authority of the HOPE to appreciate facts and interpretations of
law, review recommendations presented before him by the BAC, and
thereafter render a decision or resolution on the basis thereof. The facts and
circumstances involved in PR No. 00340-10 (Talon-Talon Pipeline
Replacement Project) are not to be confused with those in PR Nos. 00345-10
and 00458-10. It was the best judgment and for the benefit of the ZCWD
that the HOPE decided to push through with PR No. 00340-10, and when it
decided to declare a failure of bidding with respect to PR Nos. 00345-10 and
00458-10. This is best shown by the numerous queries (see letters with
corresponding replies from the GPBB hereto attached as ANNEXES I, J, K, L
& M respectively) the HOPE has presented before the GPPB before coming
up with its Resolution dated 05 January 2011 declaring a failure of bidding.
The Supreme Court has declared in ALBAY ACCREDITED CONTRACTORS
ASSOCIATION, INC. vs. HON. OMBUDSMAN, ET. AL., {G.R. No. 133517;
January 30, 2006} : “The discretion to accept or reject a bid and award
contracts is vested in the government agencies entrusted with that
function. The discretion given to authorities to accept or reject a bid is of
such wide latitude that courts will not interfere, unless it is apparent that it
is exercised arbitrarily, or in the language of Bureau Veritas vs. Office of the
President {205 SCRA 705 (1992)}, used as a shield to a fraudulent award.
The exercise of that discretion is a policy decision that necessitates
prior inquiry, investigation, comparison, evaluation and
deliberation.”

“f. That GM Vasquez cancelled the bidding results without conducting the
post-qualification on the 2nd and 3rd lowest bidders; that obviously, “failure of
bidding” is intended to ensure that the 2nd and 3rd bidders will not post-
qualify, so that NLV can still win in a new bid.”

The above-quoted statement is specifically DENIED for obviously being

presumptuous, self-serving, and wanting of legal and factual basis.
Apparently, COMPLAINANT is trying to bring to life pigments of his
imagination with the use of surmises and conjectures. The failure of bidding
as declared by the ZCWD General Manager was an exercise of sound
discretion in good faith and with heavy reliance on GPPB opinions and upon a
careful perusal of the facts presented to him. That the failure of bidding “has
been intended to ensure (x-x-x) that NLV can still win in a new bid” is not
supported by any evidence and is highly presumptive. If anything, it is
crystal clear proof that COMPLAINANT are determined only to harass the
undersigned for not giving in to its demand for a Notice of Award, which
it does not even deserve in the first place.

25. That the undersigned categorically DENY paragraph 6 of the

Complaint-Affidavit as the same is a sweeping statement, which cannot
even remotely be substantiated by any of its annexes. Clearly, no benefit,
advantage or preference has been derived or enjoyed by NLV by reason of
the events which have transpired, taken altogether. There is likewise no
manifest partiality of the undersigned to speak of, inasmuch as all
decisions with respect to the bidding process in PR 00345-10 up to the
declaration of failure of bidding were done with utmost judiciousness and
prudence. Even the delays were justifiable, as have already been
explained above.

26. Paragraph 7 of the Complaint-Affidavit is specifically DENIED by the

undersigned. COMPLAINANT is noticeably quoting legal phrases to make it
 11

appear that Respondents are already guilty of their baseless accusations.

No “undue injury” has been suffered by COMPLAINANT. In Llorente vs.
Sandiganbayan {G.R. No. 122166, 11 March 1998, 287 SCRA 282},
“undue injury” was defined as actual damage capable of proof and
actually proven with a reasonable degree of certainty and does
not include speculative damages which are too remote to be
included in an accurate estimate of the loss or injury.

27. That finally paragraphs 8 and 9 are SPECIFICALLY and VEHEMENTLY

DENIED by the undersigned as the accusations of “manifest partiality and
evident bad faith” have all been rebutted as discussed above, and all
pointing out to the fact that these sweeping accusations are entirely
based on mere surmises and conjectures. In order to be held liable for
violation of Section 3 paragraph (e) of RA 3019 as amended, the following
elements must concur: (1) the accused is a public officer discharging
administrative, judicial or official functions; (2) he must have acted with
manifest partiality, evident bad faith or inexcusable negligence;
and (3) his action has caused undue injury to any party, including
the Government, or has given any party any unwarranted benefit,
advantage or preference in the discharge of his functions. It was
held in Gallego vs. Sandiganbayan {G.R. No. 57841, 30 July 1982, 115
SCRA 793} it was held that “manifest partiality,” “evident bad faith” and
“gross inexcusable negligence” describe different modes by which the
offense penalized in Section 3 (e) of RA 3019 may be committed. Among
these three different modes, not even one was proved and substantiated
by COMPLAINANT.

28. The undersigned have the right to be protected against malicious and
oppressive prosecution, to be secure from an open and public accusation
of a crime and from the trouble, expense and anxiety of a public trial.
Proof, not mere conjectures or assumptions, should be submitted to
indicate a person’s criminal liability, for otherwise the accusations would
serve no other purpose than to bother, coerce, and harass innocent public
officers such as the undersigned.

29. That this affidavit is being executed for the purpose of jointly and
severally countering the charges as alleged in COMPLAINANT’s Counter-
Affidavit, and for the purpose of causing the dismissal of the instant case
before the Office of the Hon. Ombudsman-Mindanao for utter lack of
merit.

RESPECTFULLY SUBMITTED this 16th day of May 2011 in the City of

Zamboanga, Philippines.

LEONARDO REY D. VASQUEZ LOVELL C.

ABAD
Respondent Respondent

TEOTIMO C. REYES, Jr. ARNULFO A.

ALFONSO
Respondent Respondent
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RODRIGO R. VEGA FERNANDO R.

CAMBA
Respondent Respondent