EN BANC
|
CANDELARIO L. VERZOSA, JR. (in
his former capacity as Executive
Director of the Cooperative Development Authority), Petitioner, - versus – GUILLERMO N. CARAGUE (in his official
capacity as Chairman of the |
G.R.
No. 157838 Present: CARPIO, CARPIO
MORALES, VELASCO,
JR., NACHURA,* LEONARDO-DE CASTRO, BRION,* PERALTA, BERSAMIN, ABAD, VILLARAMA,
JR., PEREZ, SERENO,
JJ. |
|
COMMISSION ON AUDIT), RAUL C. FLORES, CELSO D. GANGAN, SOFRONIO B. URSAL
and COMMISSION ON AUDIT, Respondents. |
Promulgated: March
8, 2011 |
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DECISION
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
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
On 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 P881,819.00.[5]
In
a letter[6] dated
[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
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
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
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
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
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
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
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. -
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
x x x
x
6. 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.
7. 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.
8. On the
same date,
9. 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.
10. 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.
11. Thus, on
12. 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.
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.
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
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
1.1 Columbia
Computer Center (
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
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
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
|
Particulars (purchase doc.(s) / contract, quantity, item and
specifications) |
Purchase Price (Per unit) (In Pesos) |
Reference Value/s as of August 1993 (Per unit) (In Pesos) |
Auditor’s
Feedback Form |
|
Unit Price allowed in audit/ Remarks |
|||
|
P.O.#’s 92-107 dated P.O.#’s 92-118 dated Invoice # 18810 dated 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 |
44,269.00 |
386 SX Genesis Brand -100 MB Hard Disk -4 MB RAM on Board -TVS Monitor (low
radiation) *23,600.00 (10/93) |
|
|
P.O.#92107 dated Invoice # 18798 dated 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 |
|
|
P.O.# 92-107 dated Invoice # 18798 dated 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 |
**38,000.00 |
|
|
P.O. #93-120 dated Invoice # 1261 dated I unit MAGTEX Uninterrupted Power Supply (UPS) 1.0 (KVA) Input: 220V 60Hz. 1 dia. Output: 220V 60Hz. 1 dia. Capacity: 1 KVA Maintenance Back-up Time: 30 minutes |
Free 55,000.00 |
*22,000.00 APC 1000W
(8/93) *14,500.00 ADMATE 1000W (8/93) *29,000.00 PK 1000W
(8/93) |
|
|
P.O. #92-019 dated 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 |
|
|
P.O.#92-112 dated Invoice # 18806 dated 14 units OKI ML 321 Elite Printer, Dot Matrix Printer (9 pin. 122 cols. |
13,000.00 |
**12,500.00 |
|
SUMMARY
|
Number of units |
Total Cost |
Total Cost Allowable |
% Mark-up |
Total Cost Allowed |
Amount Disallowed |
|
44 Personal computer |
|
|
15 |
|
|
|
1 |
|
115,000.00 |
15 |
132,250.00 |
45,193.00 |
|
1 Notepad type |
|
38,000.00 |
15 |
43,700.00 |
30,300.00 |
|
1 UPS |
|
29,000.00 |
15 |
33,350 |
52,650.00 |
|
|
|
|
|
Total |
|
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
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
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
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 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.
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MARTIN S. VILLARAMA, JR. Associate Justice |
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No part Chief Justice |
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I join the Dissenting Opinion of Justice Sereno Associate Justice |
I join the dissent of J.
Sereno Associate Justice |
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PRESBITERO J. VELASCO, JR. Associate Justice |
(On official leave) ANTONIO
EDUARDO B. NACHURA Associate Justice |
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TERESITA
J. LEONARDO-DE CASTRO Associate Justice |
(On official leave) ARTURO D. BRION Associate Justice |
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DIOSDADO M. PERALTA Associate Justice |
I join the dissent of J.
Sereno Associate Justice |
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MARIANO C. Associate Justice |
I join the dissenting
opinion of J.M.L.P.A. Sereno Associate Justice |
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JOSE Associate Justice |
JOSE CATRAL Associate Justice |
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See dissenting opinion Associate Justice |
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C E R T I F I C A T I O N
Pursuant to Section
13, Article VIII of the 1987 Constitution, I certify that the
conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court.
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RENATO C. CORONA Chief Justice |
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*
On official leave.
[1] Rollo,
pp. 50-52.
[2]
[3] COA Records.
[4]
[5] Rollo, pp. 165-169.
[6]
[7]
[8] COA Records, Memorandum dated
[9]
[10] Rollo, p. 51.
[11]
[12]
[13]
[14]
[15]
[16] G.R. No. 90364,
[17] Rollo, pp. 33-40.
[18]
[19]
[20]
[21]
[22]
[23]
[24] Reyes v. Commission on Audit, G.R. No.
125129,
[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
[27] COA Circular No. 85-55-A, 2.6.
[28]
[29] Rollo,
pp. 88-89.
[30]
[31] COA
Records.
[32] Rollo, pp. 235-236.
[33] Rollo, pp. 166-169.
[34] Laysa v. Commission on Audit, G.R No.
128134,
[35] See
Villanueva v. Commission on Audit, G.R.
No. 151987,
[36] Rollo, pp. 292-294.