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Position Paper on Administrative Case involving the Iloilo City Supplementary Contract Award before the Ombudsman

Position Paper on Administrative Case involving the Iloilo City Supplementary Contract Award before the Ombudsman

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Published by Manuel Mejorada
This is the verified position paper I filed before the Ombudsman-Visayas on the administrative case against City Mayor Jed Patrick E. Mabilog and the Bids and Awards Committee (BAC) composed of Atty. Jose Junio Jacela (chairman), Engr. Karl Quimsing (vice chairman), Norlito Bautista, Jess Sio, Agustin Sangrador Jr. and Joy Ann Toledo, members.
This is in compliance with the Order of the Ombudsman dated June 18, 2013.
This is the verified position paper I filed before the Ombudsman-Visayas on the administrative case against City Mayor Jed Patrick E. Mabilog and the Bids and Awards Committee (BAC) composed of Atty. Jose Junio Jacela (chairman), Engr. Karl Quimsing (vice chairman), Norlito Bautista, Jess Sio, Agustin Sangrador Jr. and Joy Ann Toledo, members.
This is in compliance with the Order of the Ombudsman dated June 18, 2013.

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Published by: Manuel Mejorada on Jul 29, 2013
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02/22/2015

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Republicof
the
Philippines
oFFTGEOF
THE
OMBUDSMAN(VISAYAS)
Deportment
of Agriculture
RO-7
Compound,
M.
Velez
St.,
Guadalupe,
60A0Cebu
City
MAI\IIJEL
P.
MEJORADA,
Complainant,-versus-
OMB-V-A-12-0091-BJED
PATRICK
E.
MABILOG,
City
Mayor,
ATTY.
JOSE
JUNIO
G.
JACELA,
Chairman,
Bids
&
Awards
Committee,
ENGR.
KARL
QUIMSING,
BACVice
Chairman,
,
MR.
NORLITO
BAUTISTA,MR.
JESS
SIO,
MR.AGUSTIN
SANGRADOR,
JR
MS.
JOYANN
TOLEDO,
BAC
Members
All
of
the
Iloilo
City
Govemment,
Iloilo
City,
ResPondents.
X------------X
POSITIONPAPER
COMES
NOWCOMPLAINANT
by himself
and
to this
Honorable
Office
most
respectfully
submits
thisPOSITIONPAPERin
compliance
with
its
Order
dated
June
18,
2013
which
he
receivedon
July16,2013.
FACTS
OF
THE
CASE
Respondent
Jed
Patrick
E.
Mabilog
wasthe
City
Mayor of
Iloilo
City
for
the
term 2010'2013
and
Head
of
the
Procuring
Entity
(HOPE)who
approved theaward
of
a
contract
for
Php224,171,752.59
to
theFF Cruz
and
Co./IreyssinetFilipinas
Co. JointVenture
for
thesupplementary
works
onthe
Iloilo
CityHall
project
by
wayof
negotiatedprocurement underSection
53.4
of
theRevised
Implementing
Rules
and
Regulations
ofRepublic Act
No.
9184.
Respondents
Jose
Junio
Jacela,
Engr.
Karl
Quimsing,
Norlito
Bautista,
Jess
Sio,
Agustin
Sagrador,
Jr.,
and
Joy
Ann
Toledo
wereMembers
of
the
Bids
and
Awards
Committee
(BAC)
constitutedunderSection
11
ofRepublicAct
No.
9184.
Respondent Jacelawas
the chairman
and
respondent
Quimsing
was
the
vice
chairman
of
the
BAC.
 
,
On
May
24,2}Il,the
respondents
Jacela,
Quimsing,
Bautista,Sio,Sangrador
and
Toledo,
in
their
capacity
as
Chairrnan,
Vice
Chairman
and
Members
of
the
BAC,
adopted
BAC
Resolution
No.
11-05-046-Q
entitled
"A
Resolution
Justiffing
and
Recommending
for
ApprovalofNegotiated
Procurement
as
a
Modeof
Procurement
for
the
Worksof
the Updated
Plans
for
the
New
Iloilo
CityHallBuilding
as
the
I't
Eco
Friendly 'Green'Building
BidNo.
0051";l
fn
sum,
the
BAC
justified
the resort
to
a
NegotiatedProcurement
as
the mode
for
theaward
of
the contract
on
thegroundthat
"the
scopes
of
work
(have)actual
and
physical
contact
with
and
closely
connected
to
the
original
contract"
and deemed
it
as
complying
with
therequirements
set
forthin
Section53.4
of
the
RIRR,
RA
9184.2In
one
of
the'o'Whereas"
clauses
contained
in
theaforesaid
BAC
Resolution,respondents
stated
that'Negotiated
Procurement,
as
an
alternativemethod
of
procurement,shallpromoteeconomy
and
efficiency
and
thatthemost
advantageous
pricefor
thegovernmentshall
be
obtained."
Respondent
Mabilog
approvedtherecommendation
of
the
BAC
as
shownby
his
signature
on
the
lastpage
of
the
BAC
Resolution
No.
11-05-046-Q.Subsequently,respondent
Mabilog
signed
the
contactwith
F.F.
Cruz
and
Co.lFreyssinet
Filipinas,Inc.
JointVenture.The
implementationof
thesupplementarycontractwas
ca:ried
out,
and
the
City
Governmentoccupiedthe
building
sometime
in
December2011.
In
an
Audit
Observation
Memorandum
dated
December
12,2A113,
the
Commission
on
Audit
made
the
following
comments:
1.
"The
Contract
-
SupplementalAgreement
No.
1
coveringthe
constructionof
theUpdatedPlans
of
the
New
Iloilo
CityHallBuilding
did
not
mention
the mode
of
procurementthatwasopted
to
bythe
Iloilo
City
Govemment.
2.
"No
documentwassubmifted
to
showthat
a
publicbidding
was conductedon thesupplemental
works,
consideringthe
materiality of
the
cost,
neither
was
there
a
BAC
Resolution
on
the
altemative
mode
of
procurement
resorted
to
by the
City
Government.
3.
"There
wasno
proof
that
the
Noticeof
Award
for
theSupplemental
Works
was
posted
in
the
PHILGEPS
website.
4.
"The
payment
to
thecontractor
of the
15%
mobilization
expenses
for
thesupplemental
works
was contrary
to
COA
Ctt.82-177
dated
March
A4,
L982, since
mobilization
had
already
been
paid
to
the
same
contractor.The
stated
Circular
providesthatthe
advance
payment
covers
the cost
of
mobilizing
equipment
to
the
job
site.
Considering
that
this
tAnnex
"3"
of
the
Counter-affidavit
of
Respondent
Jose
Junio
Jacela.
2
"Section
53,4
-
Adjacentor Contiguous.Where thesubject contract
is
adjacentor contiguous
to
an
on-going
lnfrastructure
Projector Consulting
Service
where
the
consultants
have
uniqueexperienceand expertise
to
deliver
the
requiredservice:Provided, however,That
(a)
the
original
contract
is
the
resultof
a
CompetitiveBidding;
(b)
the subjectcontract
to
be
negotiated
has
similarorrelated
scopes
of
work;
(c)
it
is
within the
contracting
capacity
ofthe
contractor/consultant;
(d)
thecontractor/consultant
uses
the
sameprices
or
lowerunit
prices
as
in
the
original
contract
less
mobilization
cosU(e)
the
amount involved
does
not
exceed
the
amount
of
the
ongoingproject;and
(f)
,
thecontractor/consultant
has
no
negative
slippage/delay:
Provided,
further,
Thatnegotiationsfor
the
procurement
are
commencedbefore
the
expiry of the original
contract"
'
Annex
o6"
of theCounter-affidavitofrespondent
Jose
Junio
Jacela.
 
is
a
supplemental
agreementand
the
scope
of works
do
notrequireheavy equipment,thepayment
of
the
additional
l5Yofor
mobilization
is unnecessary-
5.
"The
submission
of
the subjectContract
to this Office
was
notcompliantto COACir.
2009-001
dated
February12,2009.Audited
agencies
should
furnish
the
auditor
with
copies
of
perfectedcontracts
within
5
working
days
upon apptovaltogether
with
thesupportingdocuments
forreview.
While
the contract
was
perfectedon
July
22,2011,
the
same
was submitted
to COAonly
on
August
22,2011.-
The
same
COA-AOM
added
thatthe"observationswere brougtrt
to
theattention
ofLGU
managementon
October05,2011thru
a
Memorandum
dated
October A3,2011.
However,noreply
or managomentcommentwasreceived
to date."
It
is
noteworlhy tomention
that these
same
auditobservations werereiteratedin tlre
Annual
Audit
Report
of
the
COA
for
Iloilo
City
for
theyear2011.
A
copy
ofthis
reportcould
be
viewed
on
the
COA
website
www.coa.gov.ph/audit/AARhtm.
ISSUES
Did
respondents,
conspiring
and
confederating
with
each
other,
violate Republic
Act
No.
91844
whenthey awardedthe supplementary contract
involving
the amount
of
Php
224,171,752.59
for
the construction
of
the
Iloilo
CityHall Building
without
a
competitivepublicbidding?Did
the
respondents,
asa
direct
consequence
oftheir
actionsin theperfonnance
of
their
offrcial
functions,
cause
undue
injury
to
the Government
in
entering
into
a
contractgrossly
disadvantageous
to
t}re
same
with
evident
bad
faith, violate
Section3,
(3)ofRepublic
ActNo.
3019?
DISCUSSION
AI\ID
ARGT]MENT
THEAWARD
OF
THE
CONTRACT
WITHOUT
UNDERGOINGA
COMPETITIVE
PUBLIC BIDDING
WAS
ILLEGAL
At
issue
inthis
case
is whether or not the
scopes
ofwork
covered
by
the supplementarycontract
for
Php
224,171,752.59between the
Iloilo
City
Government
and
F.F.
Cruz
and
Co.ffreyssinetFilipinas
Co. Joint Venture
for
theconstruction
of
the
New
Iloilo
City HallBuilding
fall
underthe
definition of
"Adjacent
and
contiguous" providedfor
under Section53.4
of
the Revised
Implementing
Rules
and
Regulations
of
RA
9184.Section
10
of
RA
9184providesthat
all
procurementshall
bedone
through competitivepublicbidding
except
for
situations
providedfor
under
Article
XVI.
Therationale behind therequirement
of
a
publicbidding,
as a
mode
of
awarding
govemment
contaots,
is
to
ensure
that
the
people
get
maximum
beuefits
and
quality
serviees
fromthe.eontraetsr$rIorc
o
'Section
10.
Competitive
Bidding.-
All
Procurement
shall be
done
through
CompetitiveBidding, except
as
provided
for
in
Article
XVI
of this
A€1."
1.
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