Datumanong v.
Malaga  Respondent replied with formal written demands that the
GR 204906 | June 5, 2017 | Del Castillo, J.
Petitioners: DPWH Sec. Simeon Datumanong; DPWH Usec.
Manuel Bonoan; DPWH Central Office Director IV Clarita
Bandonillo; DPWH Region VI Regional Director Wilfredo
Agustino; DPWH Iloilo City District Engr. Vicente Tingson, Jr.;
and (Members of Bids and Awards Committees) Engineers
Ruby Lagoc, Mavu Jerecia and Elizabeth Gardose
Respondent: Maria Elena Malaga
FACTS
 Respondent Maria Malaga owns B.E. Construction, a
private contractor and lowest bidder for two concreting
projects of DPWH, particularly:
o Mandurriao-San Miguel Road, Brgy. Hibao-an
Section in Iloilo City; and
o Mandurriao-San Miguel Road, Guzman-Jesena
Section in Iloilo City
 Bidding for projects was held on Nov. 6, 2001 and was
based upon an Aug. 2001 published invitation to bid.
 However, before the scheduled bidding, the road
condition of Brgy. Hibao-an severely deteriorated to an
almost impassable state on account of prevailing typhoon
and monsoon season, prompting calls for immediate
repairs and other appropriate action.
 Petitioner Tingson (DPWH Iloilo City District Engr.)
requested his immediate superior Agustino (DPWH Region
VI Director) that the projects be implemented by
administration – undertaken directly and immediately by
the gov’t and taken out of list of projects bid out to private
contractors.
 On Aug. 23, 2001, Agustino wrote to DPWH Sec.
Datumanong, reiterating Tingson’s request.
 DPWH Usec. Bonoan personally inspected the area and in
a Memorandum to Datumanong, he recommended that
the projects be undertaken by administration.
 Agustino sent another letter to Datumanong, reiterating
earlier request.
 Since there was no response from Datumanong, DPWH
Regional Office VI proceeded with the scheduled bidding.
Respondent won as the lowest bidder for the projects.
 Nov. 7, 2001: Datumanong issued a Memorandum
approving the Aug. 23, 2001 request, but only with respect
to the road in Brgy. Hibao-an Section.
 Pursuant to such memorandum, the members of Bids and
Awards Committee (Lagoc, Jeresia, and Gardose)
conducted post-evaluation/qualification of respondent’s
firm, but only for the road in Guzman-Jesena Section.
Respondent was declared post-qualified for the project,
and the same was awarded to her.
 Respondent was then informed that the Mandurriao-San
Miguel Road, Brgy. Hibao-an Section may not be awarded
to her, in view of Sec. Datumanong’s memorandum.
project be awarded to her despite Datumanong's
directive, under pain of civil action and claim for damages.
 Lagoc wrote back disavowing any liability and claiming
that Datumanong's directive was a supervening event that
prevented the award of the subject project to respondent.
 Respondent then filed civil case for damages against
individual petitioners
o Individual petitioners conspired in bad faith to
deprive her of subject project and thus opened
themselves to a damage suit in their respective
individual capacities
o Reason behind individual petitioners' refusal to
award the project to her is to deny and deprive
her, "harass and teach her a lesson not to file
cases against the them even when there are valid
and lawful reasons to do so”
o It was more expedient to implement the project
by bid contract than by administration; that
individual petitioners are guilty of malice and
bad faith and intentionally delayed the
processes relative to the bidding for the said
project in order to defeat her valid claim
thereto, even if she was the lowest bidder
o She was deprived of the project and reasonable
profits she would have gained therefrom.
 Petitioners prayed for dismissal of the case
o Respondent had no right to the project since
under the IRR of PD 1594, a contractor is not
automatically entitled to an award of a project;
he must still undergo a mandatory post-
qualification procedure regarding his legal,
technical and financial capability and other
qualifications as under IB 10.5 of the IRR.
o Under the published Invitation to Bid for the
project, it is particularly stated that gov’t
reserved the right to reject any or all bids, waive
any minor defect therein, and accept the offer
most advantageous to it
o Respondent had a mere inchoate right, but
which does not give her a valid cause of action
o Respondent was awarded the other project she
bid for, which indicates lack of bad faith and
malice on their part
o Case is clearly an unauthorized suit against the
State, and since petitioners were sued in relation
to acts committed in performance of official
duties, they should be protected by the mantle of
state immunity
 RTC ruled in favor of petitioners and dismissed
complaint.
o Unauthorized suit against the state
o Respondent must undergo post-qualification as
mandated by law
 o Rejection of gov’t to award project to respondent
is well within its prerogative to serve interest of
citizenry as there was public clamor of
impassable status of the road (drivers of PUVs,
transport groups, and residents thereof were
howling protest and indignant words against
DPWH).
o Petitioners’ acts were all committed in
performance of official functions and cannot be
said to have been tainted with malice and bad
faith as it passed thru proper procedures as
mandated by law
 On appeal with CA, respondent argued that when DPWH
entered into a contract with her, it descended to the level
of ordinary person and impliedly gave its consent to sue
and be sued; and that her action was against individual
petitioners on ground that they acted in bad faith and
malice in dealing with her, not against the State.
 CA ruled in favor of respondent.
o No relief was claimed against gov’t. Liability was
directly limited to the public officers as an
incident of their alleged wanton and malicious
acts.
o Doctrine of immunity from suit will not apply and
may not be invoked where the public official is
being sued in his private and personal capacity as
an ordinary citizen. Well-settled principle of law
that a public official may be liable in his personal
private capacity for whatever damage he may
have caused by act done with malice and in bad
faith, or beyond the scope of his authority or
jurisdiction.
o This suit was intended to compel the public
officers to compensate respondent for the
prospective profits she would have earned had
she been awarded the project
o Since there’s disputable presumption that official
duty has been regularly performed, in order to
properly determine the supposed existence of
capricious exercise of governmental discretion, in
the guise of performance of official duty, the
matter of damages should be fairly litigated
before RTC.
ISSUES
WON the project was awarded to respondent – NO.
 Procurement process basically involves the following
steps: (1) pre-procurement conference; (2) advertisement
of the invitation to bid; (3) pre-bid conference; (4)
eligibility check of prospective bidders; (5) submission and
receipt of bids; (6) modification and withdrawal of bids; (7)
bid opening and examination; (8) bid evaluation; (9) post
qualification; (10) award of contract and notice to
proceed
 Mere submission of lowest bid does not automatically
entitle petitioners to the award of the contract. Before a
government project is awarded to the lowest calculated
bidder, his bid must undergo a mandatory post-
qualification procedure whereby the "procuring entity
verifies, validates, and ascertains all statements made and
documents submitted by the bidder with the lowest
calculated or highest rated bid using a non-discretionary
criteria as stated in the bidding documents."
 Since respondent's lowest calculated bid for the subject
project did not undergo the required post-qualification
process, then she cannot claim that the project was
awarded to her, thus, she has no right to undertake the
same and she cannot demand indemnity for lost profits
or actual damages suffered in the event of failure to carry
out the same.
 Without a formal award of the project in her favor, such a
demand would be premature. Consequently, she has no
right of action against petitioners.
(MAIN) WON respondent may claim damages under Art. 27
CC – NO.
 It may be argued that respondent's claim for damages is
premised on Art. 27 CC and that individual petitioners'
refusal to award the project to her is the cause of her
injury.
o Art. 27. Any person suffering material or moral
loss because a public servant or employee
refuses or neglects, without just cause, to
perform his official duty may file an action for
damages and other relief against the latter,
without prejudice to any disciplinary
administrative action that may be taken.
 However, respondent still has no cause of action.
Individual petitioners could not have awarded the project
to her because her bid still had to undergo a post-
qualification procedure required under the law.
However, such post-qualification was overtaken by
events, particularly Datumanong's Nov. 7, 2001
Memorandum.
 In short, respondent's causes of action solely and primarily
based on a supposed award, actual or potential, do not
exist. Such an award and the whole bidding process for
that matter, no longer exist, as they were mooted and
superseded by the DPWH's decision to undertake the
project by administration, as well as by the reservation
contained in the Invitation to Bid that at any time during
the procurement process, government has the right to
reject any or all bids.
 Proper remedy for respondent should have been to seek
reconsideration or the setting aside of Datumanong's
Memorandum, and then a reinstatement of the bidding or
post-qualification process with a view to securing an
award of the contract and notice to proceed therewith.
 After all, said Memorandum enjoys the same presumption
of regularity that is attached to all official acts of
government.

RULING: Petition is GRANTED. Decision and Resolution of CA

are REVERSED and SET ASIDE. Civil Case before is ordered
DISMISSED.