Republic of the Philippines

Court of Appeals
Manila

EIGHTH (8th) DIVISION

PETE GERALD L. JAVIER CA-G.R. SP NO. 151611

and DANILO B. TUMAMAO,
Petitioners, Members:

GONZALES-SISON, M.B.,
Chairperson,
-versus- PEREZ, P.A., and
LAUIGAN, R.R.R., JJ.

Promulgated:
TASK FORCE ABONO,
FIELD INVESTIGATION JANUARY 21, 2021
OFFICE and the OFFICE
OF THE OMBUDSMAN,
Respondents.

DECISION

PEREZ, J.:

By Petition for Review1 under Rule 43 of the Rules of Court,

petitioners Pete Gerald L. Javier (Javier) and Danilo B.
Tumamao (Tumamao) pleads Our review and reversal of the
September_19,_2016 Decision2 rendered by the Office of the
Ombudsman in OMB-C-A-11-0431-G, the decretal portion of
which reads:

“WHEREFORE, there being substantial evidence,

respondents PETE GERALD L. JAVIER and DANILO B.
TUMAMAO are found GUILTY of Dishonesty, Grave
Misconduct, and Conduct Prejudicial to the Best Interest of the
Service in connection with the procurement of 15,333 bottles of
Bio Nature Liquid Fertilizer.

1
Rollo, pp. 3-39.
2
Ibid., pp. 40-56.
CA-G.R. SP NO. 151611 Page 2 of 20
DECISION

Accordingly, they are meted the penalty of DISMISSAL

FROM THE SERVICE which shall carry with it the
cancellation of their eligibility, forfeiture of retirement benefits,
and perpetual disqualification from holding public office,
pursuant to Section 52 of the Revised Rules on Administrative
Cases in the Civil Service (RRACCS). In case the penalty of
DISMISSAL FROM THE SERVICE can no longer be
implemented due to retirement, resignation or separation from
the service for any reason, the alternative penalty of FINE
EQUIVALENT TO ONE YEAR SALARY of each respondent
shall be imposed, with the same accessory penalties thereof.

FURTHERMORE, the administrative charges against

respondents WILLIAM D. NICOLAS, SR., ROSANA E.
MARQUEZ, ARNOLD G. BELTRAN, and SOLEDAD E.
BULUSAN are DISMISSED for insufficiency of evidence.

SO ORDERED.”3 (Citation omitted.)

Likewise submitted for review is the OMB's March 3, 2017

Joint Order,4 denying petitioners' subsequent motion for
reconsideration.

The Antecedents

This is one of many administrative cases arising from the

highly-publicized “PhP 728 million fertilizer fund scam”.

Petitioners Javier and Tumamao were formerly the

Provincial Accountant and Provincial Agriculturist of the
Provincial Government of Isabela, respectively.

In a Complaint5 dated April 27, 2011, the Task Force Abono,

Field Investigation Office (TFA-FIO) of the Office of the
Ombudsman inculpated Javier and Tumamao, among others, for
Dishonesty, Grave Misconduct, and Conduct Prejudicial to the
Best Interest of the Service of the Uniform Rules on Administrative
Cases in the Civil Service. The charges arose from Javier and
Tumamao's purported participation in the anomalous and
irregular implementation of the Ginintuang Masaganang Ani
(GMA) Program of the Department of Agriculture (DA) under the
Agriculture and Fisheries Modernization Act of 1997.
3
Rollo, p. 54.
4
Ibid., pp. 57-65.
5
Ibid., 67-86.
CA-G.R. SP NO. 151611 Page 3 of 20
DECISION

The facts, as aptly synthesized by the Ombudsman in its

September_19,_2016 Decision, are as follows:

xxx
“The present complaint pertains to the first transaction
or the purchase of 15,333 bottles of liquid fertilizer.

Complainant [TFA-FIO] alleges the following:

By undated Purchase Request (PR) No. 201-04-13-004,

Tumamao [petitioner herein] requested the purchase of
15,333_bottles of Bio Nature Liquid Organic Fertilizer (Bio
Nature) at P750.00 per bottle or a total of Eleven million four
hundred ninety-nine thousand and seven hundred fifty pesos
(P11,499,750.00). Nicolas [Isabela Provincial Treasurer
William D. Nicolas] certified the availability of fund, while
Dy,_Jr. [Isabela Governor Faustino S. Dy, Jr.] approved the PR.
The corresponding Purchase Order (PO) No. 04-03-004
addressed to Feshan [Feshan Philippines, Inc. - liquid fertilizer
seller] was then approved by Vice Governer Santiago P.
Respicio (Respicio), albeit undated.

On 25 March 2004, Respicio issued a Certificate of

Acceptance, acknowledging receipt of 15,333 bottles of Bio
Nature. The Inspection and Acceptance Report (IAR) shows
that Bulusan [Supply Officer I Soledad E. Bulusan] inspected,
verified and found in order, as to quantity, the items procured
and received by Beltran [Property Officer Arnold G. Beltran]
on 29 March 2004. Respicio then approved the 29 March 2004
DV No. 302-04-03-00168 allowing the payment of
P11,395,206.82, net of tax, of the delivered Bio Nature. Javier
[petitioner herein] and Nicolas, acting as Provincial
Accountant and Provincial Treasurer, respectively, also signed
the DV. Thereafter, Respicio and Nicolas issued the 5 April
2004 LBP Check No. 0000233290 in the amount of
P11,395,206.82, net of tax. As proof of receipt, Feshan issued
OR No. 3022 dated 5 April 2014.

Adopting the 12 October 2004 COA Audit Observation

Memorandum (AOM) No. 2004-014, and 18 January 2007
Sworn Statement of Beatris A. Pataueg, COA State Auditor IV,
complainant pointed out the irregularities attending the
transaction between LGU-Isabela and Feshan, namely: (a) the
15,333 bottles of Bio Nature were purchased through direct
contracting with Feshan, allegedly the sole and exclusive
distributor of the organic liquid fertilizer, instead of by public
bidding; (b) the PO and IAR lack material and specific
CA-G.R. SP NO. 151611 Page 4 of 20
DECISION

information as required under COA Circular No. 96-0101;

(c) the distribution of the 14,571 bottles of Bio Nature were not
supported with a master list of actual farmer-recipients of the
municipalities of Gamu (1,700 bottles), San Mateo (1,704
bottles), Quirino (1,700 bottles), Quezon (1,700 bottles),
Naguilian (2,000 bottles), Roxas (4,703 bottles) and Jones
(1,604 bottles); (d) there was overpricing in the amount of Nine
million four hundred seventy-five thousand seven hundred
ninety four pesos (P9,475,794.00) based on the canvass
conducted by COA on similar foliar fertilizers which costs
P120.00/bottle as against the P750.00/bottle purchased from
Feshan. The purchase amount of P11,395,206.82, net of tax, is
still overpriced, even after considering the 10% tolerable
allowance under COA Circular No. 85-55-A and despite
Feshan's grant of 50% discount from the original price of
P1,500.00 to P750.00 per bottle.

FESHAN PHILIPPINES, INC.

Feshan was registered with the Securities and Exchange

Commission on 8 January 1998 with the following
incorporators:

xxx

Verifications made with the Mandaluyong City Business

Permit and License Office (BPLO) show that on 12 April 2006,
Feshan had renewed its permit, but the Certification issued by
the Quezon City BPLO states that as of 29 November 2006, no
business permit had been issued to Feshan.

Records from the Fertilizer and Pesticide Authority

(FPA) show that Feshan's License to Operate as importer and
distributor of fertilizer had expired on 5 March 2003 and that
it was not renewed. Thus, in 2004 Feshan, through private
respondents Gregorio [Feshan President Julie Gregorio] and
Antolin [Feshan General Manager Redentor Antolin], had no
authority to enter into a contract/transaction to supply 15,333
bottles of Bio Nature to LGU-Isabela. Therefore, the collusion
between and among public and private respondents caused
undue injury to the government and gave unwarranted benefit
and advantage to Feshan in the amount of P9,475,794.00.

By Order dated 5 August 2011, respondents were

directed to file their respective counter-affidavits.
CA-G.R. SP NO. 151611 Page 5 of 20
DECISION

RESPONDENTS' DEFENSES

Javier avers that his act of signing the DV and JEV was
in compliance with his sworn duty as Provincial Accountant. As
all the supporting documents showing that the questioned
transaction was completed, i.e., from the approved PO to the
certification that the 15,3333 [sic] bottles of Bio Nature were
delivered to LGU-Isabela, he signed the DV.

Being outside his jurisdiction, he did not question the

pricing, specifications and quantity of goods delivered or
participated in choosing the supplier as he was not a BAC
member.

Upon submission of the paid DV from the Office of the

Provincial Treasurer, it was purely ministerial on his part, as
Provincial Accountant, to order/effect the recording of the
vouchers already and paid by LGU-Isabela.

xxx

Tumamao explains that aside from its [sic] being

organic and possessing technical attributes distinct from other
fertilizers, Bio-Nature has a three-fold effect in one agricultural
product, that is, fertilizer, growth enhancer and crop protection
or pest control.

He recalls that he prepared the PR for Respicio's

approval, then designated as OIC while Dy, Jr. was on leave.
Although he explained the product to Respicio, he also warned
him that the price of Bio Nature was exorbitant. After
bargaining with the distributor, however, the price of the
fertilizer was reduced to 50% or the contracted price of
P750.00/liter.

As Feshan is the exclusive distributor of the Bio Nature,

LGU-Isabela directly contracted with Feshan and procured the
15,3333 [sic] bottles of Bio Nature pursuant to Section 50 of RA
9184.”6
xxx
(Emphasis, Italics, and Underlining in the Original;
Citations Omitted)

In a Decision7 dated September 19, 2016, the Ombudsman

found Javier and Tumamao administratively guilty of Dishonesty,
Grave Misconduct, and Conduct Prejudicial to the Best Interest of
6
Rollo, pp. 44-48.
7
Ibid., pp. 40-56.
CA-G.R. SP NO. 151611 Page 6 of 20
DECISION

the Service and were each meted the penalty of dismissal from
service with the accessory penalties of cancellation of civil service
eligibility, forfeiture of retirement benefits, and perpetual
disqualification for re-employment in the government service.

The Ombudsman ruled that Tumamao's act of directly

contracting with Feshan for the 15,333 bottles of Bio Nature
Organic Fertilizer; and Javier's act of signing the Disbursement
Voucher certifying that the supporting documents for the
transaction were complete, notwithstanding the absence of public
bidding required under RA 9184,8 the lack of Feshan's authority
to operate as distributor and supplier of the subject fertilizer due
to the latter's expired License to Operate, and the over-priced
transaction resulted in the government's financial loss in the total
amount PhP9,475,794.00.

After the Ombudsman denied Tumamao and Javier's

motions for reconsideration in its March_3,_2017 Joint Order,9
petitioners filed the instant petition raising the following issues:

“38. Petitioners respectfully submits the following

questions of facts and law for the resolution of this Honorable
Court:

38.1. Based on the facts and evidence on record, there

was an unreasonable and unjustified five (5) year delay in
the disposition of the administrative case against the
Petitioners – from the time both had filed their respective
Counter-Affidavits in November 2011 until the September 19,
2017 [sic] Assailed Decision was approved by the Honorable
Ombudsman Conchita Carpio Morales on 05 December 2016
and finally received by the Petitioners on 07 February 2017.
Should the case against the Petitioners be dismissed on
the ground of violation of Petitioners' right to speedy
disposition of cases?

38.2. As Provincial Accountant and Provincial

Agriculturist, respectively, of the LGU-Isablea [sic], Petitioners
Javier and Tumamao did not have the function and/or
authority to, nor were they ever involved with or even
participate in the procurement of the 15,333 bottles of Bio
Nature Liquid Fertilizer for the LGU-Isabela but merely
performed their respective functions as the Provincial
8
Government Procurement Reform Act.
9
Rollo, pp. 57-65.
CA-G.R. SP NO. 151611 Page 7 of 20
DECISION

Accountant and Agriculturist, respectively of the LGU-Isabela.

Should they be held liable for the failure of the LGU-
Isabela to comply with the requirement of open
competitive bidding in purchasing the said fertilizer? If
not, did the Office of the Ombudsman commit grave
errors of facts and law when it issued the Assailed
Decision and Order finding Petitioner guilty of Grave
Misconduct, Grave Dishonesty and Conduct Prejudicial
to the Best Interest of the Service? ”10
(Emphasis, Underlining, and Italics in the Original)

On September 11, 2020, petitioners filed, via electronic mail,

a Motion for Early Resolution11 of their petition, praying for this
Court to take judicial notice of the June 10, 2020 Decision12 of the
Supreme Court, First Division, in G.R. No. 237997 (Javier and
Tumamao v. Sandiganbayan) which ordered the dismissal of
Criminal Case No. SB-17-CRM-178113 against petitioners
involving the same facts by reason of the inordinate delay in their
prosecution which violated their right to a speedy disposition of
cases.

The Ruling of the Court

The petition has no merit.

No violation of petitioners' right

to speedy disposition of cases.

Petitioners argue that the more than five (5)–year

unjustified delay by the respondent TFA-FIO in the disposition of
the administrative case against them violated their right to a
speedy disposition of cases, thus warranting its dismissal.

The right to a speedy disposition of cases is enshrined under

Section 16, Article III of the Constitution, viz.:

“All persons shall have the right to a speedy disposition

of their cases before all judicial, quasi-judicial or administrative
bodies.”
10
Rollo, pp. 11-12.
11
Ibid., pp. 660-663.
12
Ibid., 665-675.
13
Sandiganbayan's criminal action against Javier and Tumamao for violation Section 3(e) of Republic Act
No. 3019 (Anti-Graft and Corrupt Practices Act).
CA-G.R. SP NO. 151611 Page 8 of 20
DECISION

This right, however, is violated when the proceedings are

attended by vexatious, capricious, and oppressive delays.
However, the concept of speedy disposition of cases is relative or
flexible, and a simple mathematical computation of the time
passed is insufficient. The facts and circumstances peculiar to
each case must be examined. More particularly, in ascertaining
whether the right to speedy disposition of cases has been violated,
the following factors must be considered: (1) the length of delay;
(2) the reasons for the delay; (3) the assertion or failure to assert
such right by the accused; and (4) the prejudice caused by the
delay.14

In Binay v. Ombudsman,15 the Supreme Court, citing

Cagang v. Sandiganbayan,16 reiterated clear guidelines in
determining whether there has been a violation of a person's right
to speedy disposition of cases, thus:

“This Court now clarifies the mode of analysis in

situations where the right to speedy disposition of cases or the
right to speedy trial is invoked.

First, the right to speedy disposition of cases is different

from the right to speedy trial. While the rationale for both
rights is the same, the right to speedy trial may only be invoked
in criminal prosecutions against courts of law. The right to
speedy disposition of cases, however, may be invoked before any
tribunal, whether judicial or quasi-judicial. What is important
is that the accused may already be prejudiced by the proceeding
for the right to speedy disposition of cases to be invoked.

Second, a case is deemed initiated upon the filing of a

formal complaint prior to a conduct of a preliminary
investigation. This Court acknowledges, however, that the
Ombudsman should set reasonable periods for preliminary
investigation, with due regard to the complexities and nuances
of each case. Delays beyond this period will be taken against
the prosecution. The period taken for fact-finding investigations
prior to the filing of the formal complaint shall not be included
in the determination of whether there has been inordinate
delay.

14
Tilendo v. Ombudsman, G.R. No. 165975, September 13, 2007, (Per J. Carpio, Second Division), citing
Dela Peña v. Sandiganbayan, G.R. No. 144542, June 29, 2001, (Per CJ. Davide, Jr., En Banc).
15
G.R. Nos. 213957-58, August 7, 2019, (Per J. Leonen, Third Division).
16
G.R. Nos. 206438 and 206458, July 31, 2018, (Per J. Leonen, En Banc).
CA-G.R. SP NO. 151611 Page 9 of 20
DECISION

Third, courts must first determine which party carries

the burden of proof. If the right is invoked within the given
time periods contained in current Supreme Court resolutions
and circulars, and the time periods that will be promulgated by
the Office of the Ombudsman, the defense has the burden of
proving that the right was justifiably invoked. If the delay
occurs beyond the given time period and the right is invoked,
the prosecution has the burden of justifying the delay.

If the defense has the burden of proof, it must prove first,

whether the case is motivated by malice or clearly only
politically motivated and is attended by utter lack of evidence,
and second, that the defense did not contribute to the delay.

Once the burden of proof shifts to the prosecution, the

prosecution must prove first, that it followed the prescribed
procedure in the conduct of preliminary investigation and in the
prosecution of the case; second, that the complexity of the issues
and the volume of evidence made the delay inevitable;
and third, that no prejudice was suffered by the accused as a
result of the delay.

Fourth, determination of the length of delay is never

mechanical. Courts must consider the entire context of the case,
from the amount of evidence to be weighed to the simplicity or
complexity of the issues raised.

An exception to this rule is if there is an allegation that

the prosecution of the case was solely motivated by malice, such
as when the case is politically motivated or when there is
continued prosecution despite utter lack of evidence. Malicious
intent may be gauged from the behavior of the prosecution
throughout the proceedings. If malicious prosecution is properly
alleged and substantially proven, the case would automatically
be dismissed without need of further analysis of the delay.

Another exception would be the waiver of the

accused to the right to speedy disposition of cases or the
right to speedy trial. If it can be proven that the accused
acquiesced to the delay, the constitutional right can no
longer be invoked.

In all cases of dismissals due to inordinate delay, the

causes of the delays must be properly laid out and discussed by
the relevant court.
CA-G.R. SP NO. 151611 Page 10 of 20
DECISION

Fifth, the right to speedy disposition of cases or the

right to speedy trial must be timely raised. The
respondent or the accused must file the appropriate
motion upon the lapse of the statutory or procedural
periods. Otherwise, they are deemed to have waived
their right to speedy disposition of cases.” (Emphasis
Ours; Italics in the Original; Citation Omitted)

In Cagang,17 the Supreme Court En Banc, citing Dela Peña

v. Sandiganbayan18 and Alvizo v. Sandiganbayan,19 noted that
failure to timely invoke the right to speedy disposition of cases
could indicate acquiescence to the delay that could amount to
laches and a waiver of the right if the accused/respondent was
fully aware that the investigation was still ongoing over a
considerable length of time, and yet exerted no effort to have the
pending case resolved. Cagang thus ruled that the private
counsels' failure to protect the interests of their clients or the
accused's/respondent's lack of interest in the speedy prosecution of
their case should not prejudice the prosecution.

In this case, the records reveal that the Complaint20 against

petitioners was filed on April 27, 2011, and yet the petitioners
invoked their right to a speedy disposition of cases for the first
time in their February 2017 motions for reconsideration, 21 or after
the September 19, 2016 Ombudsman Decision, finding them
administratively liable had already been issued. Prior to this
adverse ruling, petitioners neither invoked or raised the speedy
disposition of the administrative case against them as an issue
nor did they file any manifestation or motion to hasten the
resolution of the case of which they were aware was still pending.
Under the cited guidelines in Binay, petitioners are deemed to
have waived their right to a speedy disposition of cases.

Recently, the Supreme Court, citing precedents, stressed

that when and how an accused asserts his right deserves strong
evidentiary value in determining whether the accused is being
deprived of the right to speedy trial:
17
Supra.
18
Supra.
19
G.R. No. 101689, March 17, 1993, (Per J. Regalado, En Banc).
20
Rollo, pp. 67-86.
21
Note: Javier's February 10, 2017 Motion for Partial Reconsideration; Tumamao's February 10, 2017
Urgent Motion for Partial Reconsideration; Javier and Tumamao's February 13, 2017 Supplemental
Joint Motion for Reconsideration; and Javier and Tumamao's February 22, 2017 Motion for
Reconsideration are not properly annexed and/or attached to the Rollo of this case.
CA-G.R. SP NO. 151611 Page 11 of 20
DECISION

“x x x Whether and how a defendant asserts his right is closely

related to the other factors we have mentioned. The strength of
his efforts will be affected by the length of the delay, to some
extent by the reason for the delay, and most particularly by the
personal prejudice, which is not always readily identifiable, that
he experiences. The more serious the deprivation, the more
likely a defendant is to complain. The defendant's assertion of
his speedy trial right, then, is entitled to strong evidentiary
weight in determining whether the defendant is being deprived
of the right. We emphasize that failure to assert the right will
make it difficult for a defendant to prove that he was denied a
speedy trial.”22

Our conclusions above are not dissonant with the Supreme

Court's June 10, 2020 Decision23 in G.R. No. 237997 ordering the
dismissal of Criminal Case No. SB-17-CRM-1781 due to
inordinate delay.

First, administrative cases are independent and distinct

from criminal actions although both actions may have arisen from
the same acts or omissions. In criminal cases, the right to a speedy
trial of the accused is a constitutional guarantee, thus the
resolution of pending criminal cases is continuous, expedited and
given priority in the court's business. Given the differences in the
quantum of evidence required, the procedures actually observed,
the sanctions imposed, as well as the objective of the two
proceedings, the findings and conclusions in one should not
necessarily be binding on the other.24

Indeed, there is a hornbook doctrinal distinction that

undergirds the parallel findings of administrative liability and
criminal acquittal on reasonable doubt for charges arising from
the same facts.25 The Supreme Court explains:

“In a last ditch effort to escape administrative liability for

the complained acts, petitioner invoked his acquittal in the
allied criminal cases for Violation of Section 3 (e) of RA 3019 and
Malversation of Public Funds under Article 217 of the Revised
Penal Code. However, the Court holds that such acquittal on the
basis of insufficiency of evidence which engendered reasonable
22
Salcedo v. The Honorable Third Division of the Sandiganbayan, G.R. No. 223869-960, February 13,
2019, (Per J. Peralta, Third Division).
23
Rollo, 665-675.
24
Flores v. People, G.R. No. 222861, April 23, 2018, (Per J. Gesmundo, Third Division).
25
Hon. Primo C. Miro v. Carpio, G.R. No. 170697, April 30, 2010 ( Per J. Carpio, Second Division).
CA-G.R. SP NO. 151611 Page 12 of 20
DECISION

doubt, cannot work in petitioner's favor. An administrative case

is, as a rule, independent from criminal proceedings. As such,
the dismissal of a criminal case on the ground of insufficiency of
evidence or the acquittal of an accused who is also a respondent
in an administrative case does not necessarily preclude the
administrative proceeding nor carry with it relief from
administrative liability. This is because the quantum of proof
required in administrative proceedings is merely substantial
evidence, unlike in criminal cases which require proof beyond
reasonable doubt or that degree of proof which produces
conviction in an unprejudiced mind.”26
(Citations omitted)

There is, thus, no basis for petitioners to plead that the

outcome of the present petition should not differ from the
disposition dismissing the criminal case against petitioners
involving the same facts and transaction.

Second, the surrounding circumstances in the alleged delay

in the disposition of OMB-C-A-11-0431-G and Criminal Case No.
SB-17-CRM-1781 are markedly different.

In G.R. No. 237997, the Supreme Court found that while the
Task Force Abono of the Ombudsman filed the Complaint on July
4, 2011 against the public officers involved, including Javier and
Tumamao, it was only on September 19, 2016, or more than five
(5) years later, when the Special Panel on Fertilizer Fund Scam of
the Ombudsman issued its Resolution, finding probable cause to
indict Javier and Tumamao for violation of Section 3(e) of RA No.
3019. The Ombudsman approved the Resolution on November 22,
2016, and the Information against Javier and Tumamao dated
June 14, 2017 was filed in Criminal Case No. SB-17-CRM-1781
only on October 3, 2017. On November 24, 2017 and prior to their
arraignment, Javier and Tumamao moved for the quashal of the
June 14, 2017 Information. These findings led the Supreme Court
to rule that there was unexplained and inordinate delay in the
preliminary investigation of the criminal action, the filing of the
indictment and the Information, and that in the course of the
proceedings, Javier and Tumamao timely asserted their right to
speedy disposition of cases. All these warranted the dismissal of
Criminal Case No. SB-17-CRM-1781.
26
Sabio v . Field Investigation Office, Office of the Ombudsman, G.R. No. 229882, February 13, 2018 (En
Banc, Per Curiam).
CA-G.R. SP NO. 151611 Page 13 of 20
DECISION

In contrast, the Ombudsman had already issued on

September 19, 2016 the assailed Decision in OMB-C-A-11-0431-G
finding petitioners administratively liable, and it was only in the
light of the adverse administrative ruling that petitioners raised
the issue of inordinate delay and asserted their right to speedy
disposition of cases for the first time when they filed their motions
for reconsideration. Thus, as discussed above, by their inaction
and lack of vigilance, petitioners had waived their right to the
speedy disposition of the administrative case against them.

Substantial evidence against

Javier and Tumamao exists.

The quantum of proof in an administrative disciplinary case

is substantial evidence.27 Substantial evidence is met where there
is reasonable ground to believe that the respondent is responsible
for the misconduct and his participation therein renders him
unworthy of the trust and confidence demanded by his position. 28
Substantial evidence need not be overwhelming or even
preponderant, much less beyond reasonable doubt.29

From the proceedings before the Ombudsman, the following

were established: (a) Feshan's license to operate as importer-
distributor of fertilizers had expired on March 5, 2003, and had
not been renewed, when the LGU-Isabela transacted with it on
March 19, 2004; (b) there was no bidding conducted for the
questionable purchase from Feshan contrary to the express
requirements of R.A. No. 9184 [Government Procurement Reform
Act]; (c) Tumamao and Javier's adherence to a specific brand of
foliar fertilizer, i.e., “Bio Nature Liquid Organic Fertilizer” to
justify a negotiated purchase with Feshan as purported exclusive
distributor is misleading if not fraudulent as there were other
suitable and cheaper suppliers of foliar fertilizer; (d) the liquid
fertilizers purchased by LGU-Isabela and supplied by Feshan
were grossly overpriced by as much as PhP9,475,794.00; and
(f) Tumamao and Javier failed to fulfill their duties as Provincial
27
Government Service Insurance System v. Mayordomo, G.R. No. 191218, May 31, 2011, (Per J.
Mendoza, En Banc).
28
Casimiro v. Tandog, G.R. No. 146137, June 8, 2005, (Per J. Chico-Nazario, Second Division), citing
Reyno v. Manila Electric Company, G.R. No. 148105, July_22, 2004, (Per J. Sandoval-Guttierrez, Third
Division).
29
Floralde v. Court of Appeals, G.R. No. 123048, August 8, 2000, (Per J. Pardo, En Banc).
CA-G.R. SP NO. 151611 Page 14 of 20
DECISION

Agriculturist and Provincial Accountant, respectively, thus

causing undue injury to LGU-Isabela by not ensuring that the
documents covering the transaction were complete and regular
before approving the disbursment of public funds.

Verily, the evidence is substantial and sufficient to support

reasonable belief that Tumamao and Javier conspired, or at least
failed to faithfully perform the duties of their office, thus,
permitting the fraudulent misdeed by others.

Tumamao prepared and requested for the purchase of the

15,333 bottles of Bio Nature Liquid Organic Fertilizer from
Feshan through direct contracting despite the latter's lack of
authority to act as distributor and the availability of equally
suitable fertilizer of the same kind from other sources. It is
uncontroverted that Feshan's license to operate as importer-
distributor of fertilizers had expired on March 5, 2003, yet
Tumamao chose to exclusively purchase liquid fertilizers with the
former on March 19, 2004. This is in direct contravention with
Section 8(a) of Presidential Decree No. 1144,30 which reads:

“SECTION 8. Prohibitions Governing Sale and Use of

Fertilizers and Pesticides. It shall be unlawful for any handler of
pesticides, fertilizer, and other agricultural chemicals or for any
farmers, planter or end-user of the same as the case may be:

a) To engage in any form of production, importation,

distribution, storage, and sale in commercial quantities
without securing from the FPA a license therefor;” (Emphasis
Ours)

At Tumamao's instance, the LGU-Isabela resorted to direct

contracting with Feshan without the benefit of public bidding by
direct negotiated purchase. Section 10, Article IV, in relation to
Section 5, paragraphs (n) and (o), Article I, of R.A. No. 9184
mandates, among others, that all acquisition of goods by any
branch, department, office, agency, or instrumentality of the
government, and local government units shall be done through
competitive bidding. This is in consonance with the law's policy
and principle of promoting transparency in the procurement
process, implementation of procurement contracts, and
30
Creating the Fertilizer and Pesticide Authority and Abolishing the Fertilizer Industry Authority.
CA-G.R. SP NO. 151611 Page 15 of 20
DECISION

competitiveness by extending equal opportunity to enable private

contracting parties who are eligible and qualified to participate in
public bidding.31

Alternative methods of procurement, however, are allowed

under R.A. No. 9184 which would enable dispensing with the
requirement of open, public and competitive bidding, 32 but only in
highly exceptional cases and under the conditions set forth in
Article XVI thereof. One of these alternative modes of
procurement is Direct Contracting, otherwise known as Single
Source Procurement. Tumamao justified direct contracting with
Feshan by claiming that the latter was the “exclusive distributor”
of the Bio Nature Liquid Organic Fertilizer, and this was allowed
under Section 50(c) of R.A. No. 9184, thus:

“Section 50. Direct Contracting. - Direct Contracting may

be resorted to only in any of the following conditions:

xxx

c. Those sold by an exclusive dealer or manufacturer,

which does not have sub-dealers selling at lower
prices and for which no suitable substitute can be
obtained at more advantageous terms to the
government.”

From the wording of the above-mentioned section, direct

contracting is however only allowed when three (3) requisites
concur: (a) the product is sold by an exclusive dealer or
manufacturer; (b) the product has no sub-dealers selling at lower
prices; and (c) there are no suitable substitute of the product that
can be obtained at a more advantageous term to the government.

Here, the third requisite is lacking. It is undisputed that

using the COA Report on the Audit of the PhP728Million GMA
Farm Input Fund33 as reference, the unit price of Bio Nature
Liquid Organic Fertilizer, per canvass, is PhP120.00 per bottle
only as compared to the PhP750.00 per bottle/liter purchased by
the LGU-Isabela from Feshan. Even after considering the 10%
31
De Guzman v. Office of the Ombudsman, G.R. No. 229256, November 22, 2017, (Per J. Velasco, Jr.,
Third Division).
32
Capalla v. COMELEC, G.R. Nos. 201112, 201121, 201127, 201413 (Resolution), October 23, 2012,
(Per J. Peralta, En Banc).
33
Rollo, pp. 523-571.
CA-G.R. SP NO. 151611 Page 16 of 20
DECISION

tolerable allowance under COA Circular No. 85-55-A, there was

still an overprice of PhP9,475,794.00 for the 15,333 bottles of
liquid fertilizers, thus:

15,333 bottles/kilos x PhP750.00 --------------- PhP11,499,750.00

15,333 bottles/kilos x PhP120.00 x 10%
(Tolerable Allowance) ------ PhP2,023,956.00
Total Amount of Overpricing PhP9,475,794.0034

Tumamao's specification of a specific brand, i.e., Bio Nature

Liquid Organic Fertilizer, from Feshan violated Section 18 35 of
R.A. No. 9184, which prohibits reference to brand names. In
addition, Bio Nature Liquid Organic Fertilizer was not among the
recommended fertilizers under the Tipid Abono Program of the
Department of Agriculture.36

In his November 17, 2011 Counter-Affidavit,37 Tumamao

admitted that he cautioned Isabela Provincial Vice Governor
Santiago Respecio that the initial offer by Feshan of
PhP1,500.00/bottle of Bio Nature Liquid Organic Fertilizer is
exorbitant. Upon further negotiation, Feshan reduced the price to
PhP750.00/bottle, or one half (1/2) of the quoted price. 38 As
correctly underscored by the Ombudsman, the sharp reduction in
price was a red flag that should have forwarned Tumamao that
Feshan was peddling an over-priced product. As LGU-Isabela's
Provincial Agriculturist, Tumamao ought to know, or ought to
have exerted efforts, to find other suitable substitutes of the same
or similar product at more advantageous terms. If Tumamao did
not directly contract with Feshan and instead complied with the
requirement for open competitive bidding under R.A. No. 9184,
the LGU-Isabela would have purchased a suitable substitute
liquid fertilizer at PhP120.00/bottle and prevented the
government's financial loss of PhP9,475,794.00. As stressed in
Lagoc v. Malaga,39 a competitive public bidding aims to protect
the public interest by giving the public the best possible
advantages through open competition and thus avoid or preclude
34
Rollo, p. 78.
35
Section 18. Reference to Brand Names.- Specifications for the Procurement of Goods shall be based on
relevant characteristics and/or performance requirements. Reference to brand names shall not be
allowed.
36
Rollo, pp. 571-572.
37
Ibid., pp. 573-584.
38
Ibid., p. 579.
39
G.R. Nos. 184875 and 184890, July 9, 2014, (Per J. Villarama, Jr., First Division).
CA-G.R. SP NO. 151611 Page 17 of 20
DECISION

suspicion of anomalies and sweetheart deals in the execution of

public contracts.

Javier, on his part, signed the Disbursement Voucher

certifying that the supporting documents for the transaction were
complete despite the glaring irregularities. Section 474 (b)(5) of
the Local Government Code mandates Provincial Accountants to
“[r]eview supporting documents before preparation of vouchers to
determine completeness of requirements”. By his act of signing
the same, Javier certified that the expenses/advances thereon
were necessary, lawful and incurred under his direct supervision.
By making such certification, Javier attests to the transactions’
legality and regularity, which signifies that he had checked all the
supporting documents before affixing his signature. If he had
indeed exercised reasonable diligence, Javier would have
discovered Feshan's lack of authority to operate as distributor of
fertilizers and the unjustified resort to direct contracting.

As the Provincial Accountant, Javier cannot claim that his

act of signing the subject Disbursement Voucher is merely
ministerial and the performance of the duties of her position does
not require judgment or discretion. In Umipig v. People,40 the
Supreme Court has already clarified that in accordance with COA
Circular No. 92-389, part of the duties of a signatory to a DV is to
raise reasonable questions on the funding, legality, regularity,
necessity or economy of the expenditure or transaction.

In this case, there is every reason to apply the rule that

findings of fact by administrative agencies are generally accorded
great respect, if not finality, by the courts by reason of the special
knowledge and expertise of said administrative agencies over
matters falling under their jurisdiction.41 This Court finds that the
Ombudsman's findings are consistent with the evidence. As such,
the Ombudsman's findings of fact are binding upon this Court
there being no showing that its conclusions were arrived at
arbitrarily or in disregard of the evidence on record.

40
G.R. Nos. 171359, 171755, 171776, July 18, 2012 (Per J. Villarama, Jr., First Division).
41
Cabalit v. Commission on Audit, G.R. Nos. 180236, 180341, and 180342, January 17, 2012, (Per J.
Villarama, Jr., En Banc); Dadubo v. Civil Service Commission, G.R. No. 106498, June 28, 1993, (Per J.
Cruz, En Banc).
CA-G.R. SP NO. 151611 Page 18 of 20
DECISION

Administrative Liability.

Dishonesty is defined as the concealment or distortion of

truth in a matter of fact relevant to one's office or connected with
the performance of his duty. 42 It implies a disposition to lie, cheat,
deceive, or defraud; untrustworthiness; lack of integrity; lack of
honesty, probity, or integrity in principle; and lack of fairness and
straightforwardness.43

Grave Misconduct is defined as the transgression of some

established and definite rule of action, more particularly, unlawful
behavior or gross negligence by a public officer coupled with the
elements of corruption, willful intent to violate the law or to
disregard established rules.44 Corruption, as an element of grave
misconduct, consists in the official or employee's act of unlawfully
or wrongfully using his position to gain benefit for one's self. 45

Conduct Prejudicial to the Best Interest of the Service deals

with a demeanor of a public officer which “tarnished the image
and integrity of his/her public office”.46 Prejudice to the service is
not only through wrongful disbursement of public funds or loss of
public property. Greater damage comes with the public's
perception of corruption and incompetence in the government. 47

Taken together, all the circumstances, as found by the

Ombudsman, show that Tumamao and Javier committed acts of
Dishonesty, Grave Misconduct, and Conduct Prejudicial to the
Best Interest of the Service for failing to observe the due care and
vigilance expected of them in the discharge of their respective
duties causing serious damage to the government and the public
in general.

As a final word, the object sought when a public officer or

employee is disciplined is not the punishment of that officer or
42
Alfonso v. Office of the President, G.R. No. 150091, April 2, 2007, (Per J. Carpio Morales, Second
Division).
43
Concerned Citizen v. Gabral, Jr., A.M. No. P-05-2098, December 15, 2005, (Per J. Chico-Nazario,
Second Division); Office of the Court Administrator v. Ibay, A.M. P-02-1649, November 29, 2002, (Per
J. Sandoval-Guttierrez, Third Division).
44
Office of the Ombudsman v. Apolonio, G.R. No. 165132, March 7, 2012, (Per J. Brion, Second
Division), as cited Fajardo v. Corral, G.R. No. 212641, July 5, 2017, (Per J. Tijam, Third Division).
45
Seville v. Commission of Audit, G.R. No. 177657, November 20, 2012, (Per J. Abad, En Banc).
46
Largo v. Court of Appeals, G.R. No. 177244, November 20, 2007, (Per J. Ynares-Santiago, En Banc).
47
Japson v. Civil Service Commission, G.R. No. 189479, April 12, 2011, (Per J. Nachura, En Banc).
CA-G.R. SP NO. 151611 Page 19 of 20
DECISION

employee, but the improvement of the public service and the

preservation of the public's faith and confidence in the
government.48 The Constitution stresses that a public office is a
public trust and public officers must at all times be accountable to
the people, serve them with utmost responsibility, integrity,
loyalty, and efficiency, act with patriotism and justice, and lead
modest lives. These constitutionally-enshrined principles, oft-
repeated in our case law, are not mere rhetorical flourishes or
idealistic sentiments. They should be taken as working standards
by all in the public service.49

WHEREFORE, premises considered, this petition

is_DENIED. The Decision dated September_19,_2016 and the
Joint Order dated March 3, 2017 of the Office of the Ombudsman
are AFFIRMED.

SO ORDERED.

PABLITO A. PEREZ
Associate Justice

WE CONCUR:

MARLENE B. GONZALES-SISON
Associate Justice

RAYMOND REYNOLD REYES LAUIGAN

Associate Justice

48
Civil Service Commission v. Cortez, G.R. No. 155732, June 3, 2004, (Per Curiam, En Banc), citing
Bautista v. Negado, G.R. No. L-14319, May_26, 1960, (Per J. Guttierrez David, En Banc).
49
Civil Service Commission v. Cortez, supra.
CA-G.R. SP NO. 151611 Page 20 of 20
DECISION

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, it is

hereby certified that the conclusions in the above Decision were
reached in consultation before the case was assigned to the writer
of the opinion of the Court.

MARLENE B. GONZALES-SISON
Associate Justice
Chairperson, Eighth (8th) Division