COMPLAINT-AFFIDAVIT

I, XXXXXXXXXXXXXXXX of legal age, married, and a resident at

XXXXXXXXXXXXXXXXXXXXX after having been duly sworn to in
accordance with law, do hereby depose and state that:

The Parties

1. Complainant is the owner-proprietor of XXXXXXXXXXXXXXXXX with

business address at XXXXXXXXXXXXXXXX, where he may be served
with summons, orders and other legal processes of this Honorable office.

2. Respondent XXXXXXXXX is XXXXXXXXXXXX President with salary

grade 29, with office address at XXXXXXXXXXX where she may be
served with summons, orders and other legal processes of this Honorable
office.

3. Respondent XXXXXXXXXXXX is the Director for the Infrastructure

Development Service XXXXXXXXXX, with salary grade 11 and with
office address at XXXXXXXXXXXXXXX where she may be served with
summons, orders and legal processes of this Honorable office.

The Antecedents
4. Sometime on 2015, as a contractor for infrastructure, I won in the bidding
involving two projects conducted by XXXXXXXXX which were for the
construction of (i) the Science and Technology R & D Building (Phase 3)
and (ii) the Engineering Building (Phase 14).

5. On 10 September 2015, I received a Notice of Award for the construction of

the Science and Technology R & D Building (Phase 3) and the Notice of
Award for the Engineering Building (Phase 14) was received on 04
December 2015

6. It was indicated therein that the contract price for the Science and
Technology Building was Nine Million, Nine Hundred Seventy-Five
Thousand, Two Hundred Fifty-Six and 87/100 (9,975,256,087.00) while
the contract price for the Engineering Building was Five Million Nine
Hundred Eighty Thousand Four Hundred Ninety Six Pesos & 26/100
(5,980,496,026.00).

7. Subsequently, Contracts of Agreement were duly executed between me and

XXXXXXXXXXXXX dated 14 September 2015 and 08 December 2015
providing therein the terms and conditions for the afore-mentioned
construction projects. Photographic copies of the contracts are hereto
attached and marked as ANNEXES “ A” and “B” and form part hereof.
8. For the construction of Science and Technology Building (Phase 3), Samar
State University, undertook the obligation to pay me the following:

(i) One Million, Four Hundred Ninety-Six Thousand, Two Hundred

Eighty-Eight & 53/100 representing the Mobilization Fund upon
signing of the Contract;

(ii) Two Million One Hundred Nineteen Thousand, Seven Hundred Forty-
Two Pesos & 08/100 for the first 25% of the accomplishment, from
the contract price;

(iii) Two Million One Hundred Nineteen Thousand, Seven Hundred Forty-
Two Pesos & 08/100 for the first 50% of the accomplishment, from
the contract price;

(iv) Two Million One Hundred Nineteen Thousand, Seven Hundred Forty-
Two Pesos & 08/100 for the first 75% of the accomplishment, from
the contract price;

(v) One Million, Two Hundred Seventy-One Thousand, Eight Hundred

Forty-Five Pesos & 84/100, for the first 90% of the accomplishment,
from the contract price; and

(vi) Eight Hundred Forty-Seven Thousand, Eight Hundred Ninety-Six &

84/100 to be paid at the time and in the manner provided in the
Instruction to Bidders.

9. For the construction of the Engineering Building (Phase 14),

XXXXXXXXXXXXX also undertook the obligation to pay the following:

(i) Eight Hundred Ninety-Seven Thousand, Seventy-Four Pesos &

44/100 representing the Mobilization Fund upon signing of the
Contract;

(ii) One Million Two Hundred Seventy Thousand, Eight Hundred Fifty-
Five Pesos & 46/100 for the first 25% of the accomplishment, from
the contract price;

(iii) One Million Two Hundred Seventy Thousand, Eight Hundred Fifty-
Five Pesos & 46/100 for the first 50% of the accomplishment, from
the contract price;

(iv) One Million Two Hundred Seventy Thousand, Eight Hundred Fifty-
Five Pesos & 46/100 for the first 75% of the accomplishment, from
the contract price;
 (v) Seven Hundred Sixty-Two Thousand, Five Hundred Thirteen &
26/100, for the first 90% of the accomplishment, from the contract
price; and

(vi) Five Hundred Eight Thousand, Three Hundred Forty-Two & 18/100
to be paid at the time and in the manner provided in the Instruction to
Bidders for the Engineering Building.

10.After the signing of the Contract Agreement, I received a Notice to Proceed

dated 14 September 2015 with an effectivity date of 15 September 2015 for
the Science and Technology Building and a similar Notice to Proceed dated
09 December 2015 for the Engineering Building. Copies of the Notices to
Proceed are hereto attached and marked as ANNEXES “C” and “D” and
form as integral part.

11.Immediately upon receipt of the Notices to Proceed, the construction works

commenced consistent with the Program of Work indicated in the contract.
In fact, after the 25%, 50% and 75% work accomplishments, Samar State
University disbursed the following amount for payment of the Science &
Technology construction work:

(i) 1,496,288.53, representing the 15% mobilization fund;

(ii) 2,119.742.08, for the 25% work accomplishment;
(iii) 2,119.742.08, for the 25% work accomplishment, representing for the
50% work accomplishment; and
(iv) 2,119.742.08, for the 75% work accomplishment

12.XXXXXXXXXXXXXX likewise issued checks corresponding payments

for the Engineering Building (Phase IV) in the following amount:

(i) 827,704.44 representing the 15% mobilization fund;

(ii) 1,270,855.46 representing 25% accomplishment;
(iii) 1,270,855.46 for 50% accomplishment);
(iv) 1,270,855.46 for 75% accomplishment);
The Material Facts
13.As early as 10 August 2016, complainant requests from the respondents to
conduct final inspection and a 100% billing for the two projects. However,
subject twin requests were never given due course by the respondents.
Xerographic copies of the twin requests are hereto attached marked as
Annex “E” and series and form part hereof.

14.On 02 September 2016, a subsequent request for an immediate evaluation

and thorough inspection of all projects, including the projects subjects of this
controversy was made. Such request remained unattended and were never
given due course, which gave rise to an inordinate drawback on my financial
status. The expenses were already taken out of my buffer fund, and I had
 financial obligations with suppliers of construction materials consumed
during the construction works of the said projects.

15.Hence, on 20 October 2016, another request for site inspection and a 100%
billing was subsequently sent by the complainant to the respondents. Copies
of the request for site inspection including the request for 100% billing is
hereto attached and marked as ANNEXES “F” and series and form an
integral part hereof.

16.It was only then that Respondent President XXXX acted upon our request by
endorsing the same to Vice-President XXXXon 21 October 2016. A copy of
the 1st Endorsement for both projects are attached and marked as ANNEXES
“G” and series and form part hereof.

17.On 26 October 2016, Vice-President xxxxx referred the matter to respondent

xxxxxx requesting the latter to conduct the necessary inspection on the said
projects. A xerographic copy of the 2nd endorsements are hereto attached,
marked as ANNEX “H” and series and form an integral part hereof.

18.From the date of the 2nd endorsement, and instead of taking action on our
billing, respondent xxxxxxx employed all malicious means and maneuvers
to fabricate issues on delays perhaps wanting to free themselves from the
liability of paying their obligations. Such ploy were clearly manifested
through the following undertakings:

(i) Conduct of inspection without representation from my business entity

and without the presence of the other members of the monitoring and
evaluation committee;

(ii) Attempting to serve ante-dated letters to substantiate their allegations

on delay.

19.It may be noteworthy to mention that the Inspection Report submitted by

Respondent xxxxxxx which only she herself undertook in a whimsical
manner contained punch list of the inspection matters which were either not
within the scope or work, or outside of the construction work. Nonetheless,
the same were faithfully addressed to.

20.On 27 December 2016, respondent xxxxx attempted to hand over three (3)
letters dated: i) September 26, 2016; ii) October 28, 2016; and iii)
November 9, 2016 stating among others that construction work was delayed
for 172 calendar days, 204 calendar days and 236 calendar days,
respectively, to one of my office staff namely xxxxxx while she at the SSU
campus.
21.Respondent xxxxxx, in fact, instructed xxxxxxx, my office staff to write
down and indicate the dates of receipt to correspond to the respective dates
of the letters. However, my office staff refused to comply with said
instructions, and instead indicated the actual date of receipt on the said
letters.

22.Having failed in their malicious intent and with zealousness to further taint
and tarnish my reputation, respondent xxxxxx succeeded in furnishing me
another set of the same ante-dated letters in another occasion. Thus, on 31
December 2016, thru xxxxx , who once went on an OJT with my business
enterprise, using her position and influence in the said University,
respondent xxxxxxxx compelled xxxxxxxx to receive the letters, despite the
fact that xxxxxxxx has no authority to receive any communications or
documents for and in my behalf. xxxxxxx likewise instructed xxxxxxxx the
very same instructions she gave to xxxxxxxxxx. However, instead of filling
up the portion of the date of receipt, xxxxxxx, left the portion blank. The
blank portion were later filled up by xxxxxxx with dates that would make it
appear that I received said letters corresponding to the dates of the letters.
XXXXXXXXX, however, indicated later that he actually received such
documents only on December 31, 2016.

23.This incident came to my knowledge because XXXXXXX and XXXXXXX

reported to me. Such ploy on the part of XXXXX is an act of
misrepresentation that would warrant administrative, if not criminal
sanctions for someone who is in the government service. In fact, it prompted
me to write respondent XXXXX in protest of the highly unorthodox conduct
of respondent XXXX. In that letter, I demanded an immediate disposition
and resolution on the request for final inspection and 100% billing, which
were also the subject matters of the letters dated 10 August 2016 and 20
October 2016. A copy of said letter dated January 4, 2017 is hereto
attached, together with the annexes therein and marked as ANNEX “I” and
series.

24.Due to the exchange of communications between me and respondent Uy and

in her vehement scheme to destroy my integrity, it further motivated her to
deny the request for final inspection and 100% billing.

25.On 17 January 2017, by way of a 3rd endorsement, Respondent Engr. xxxxxx

submitted to Vice President xxxxxxxxan Inspection Report alleging the
following:

(i) 93% accomplishment and a delay of 278 days for the Science &
Technology building;
(ii) 90% accomplishment and a delay of 303 days for the Engineering
Building
26.The 3rd endorsement submitted by respondent xxxxxxxxx likewise
recommended for Contract Termination citing R.A 9184 as their legal basis.
Copies of the 3rd endorsements and the inspection reports dated 16 January
and 17 January 2017 are hereto attached, marked as ANNEXES “J” and
series and form as integral part hereof.

27.Respondent President Cardoso affirmed the findings of the 3rd endorsement

and to perhaps absolve herself of any culpability in relation with her duties
as the chief head of the Procuring Entity endorsed the same to Vice-
President xxxxx.

28.Vice President xxxxx, in turn endorsed the matter to herein Complainant. A

copy of the 5th endorsements dated 27 January 2017 and released on 31
January 2017 are hereto attached, marked as ANNEX “K” and series and
form part hereof. Attached to the said endorsement was a Notice to
Terminate Contract, directing me to “show cause” within 7 calendar days
from receipt of said notice to justify why the contract should not be
terminated. Copies of the 5th endorsements, and the Notice to Terminate
Contract are hereto attached, marked as ANNEX “L” and series and form
part hereof.

29.From the collaborative decisions of the respondents, it could be inferred that

indeed there is an unequivocal intent on their part not to release anymore any
fund intended for the projects. They were acting in cohorts with such
malicious intent.

30.From the foregoing narration of facts, respondents clearly violated Section 5

of RA 6713 on Duties of Public Officials and Employees where it is
mandated that “In the performance of their duties, all public officials and
employees are under obligation to:

(a) Act promptly on letters and requests. - All public officials and
employees shall, within fifteen (15) working days from receipt thereof,
respond to letters, telegrams or other means of communications sent
by the public. The reply must contain the action taken on the request.”

31.As stated supra, it took respondents more than almost four months from 10
August 2016, or until 31 January 2017, before my request was acted upon by
them.

32.While Respondents invoke the provisions of R.A 9184 in their Notice to

Terminate Contract it may be worthy to quote certain provisions in the
prescribed guidelines on termination of which provides that:
“ IV. PROCEDURES FOR TERMINATION OF
CONTRACTS

1. Verification. Upon receipt of a written report of acts

or causes which may constitute ground/s for
termination as aforementioned, or upon its own
initiative, the Implementing Unit shall, within a period
of seven (7) calendar days verify the existence of such
ground/s and cause the execution of a Verified Report,
with all relevant evidence attached.
2. Notice to Terminate. Upon recommendation by the
Implementing Unit, the Head of the Procuring Entity
shall terminate contracts only by a written notice to the
Supplier/Contractor conveying the termination of the
contract. The notice shall state:

a) that the contract is terminated for any of the

following ground(s) aforementioned, and a
statement of the acts that constitute the ground(s)
constituting the same;
b) the extent of the termination, whether in whole or
in part;
c) an instruction to the
Supplier/Contractor/Consultant to show cause as
to why the contract should not be terminated; and
d) special instructions of the Procuring Entity, if any.

3. Show Cause. Within a period of seven (7) calendar

days from the receipt of the Notice of Termination, the
Supplier/Contractor/Consultant shall submit to the
Head of the Procuring Entity a verified position paper
stating why the contract should not be terminated.

If the Supplier/Contractor/Consultant fails to show

cause after the lapse of seven (7) days, either by
inaction or by default, the Head of the Procuring
Entity shall issue an order terminating the contract.

4. Rescission of Notice of Termination. The Procuring

Entity may, at any time before receipt of the
Supplier’s/Contractor’s/Consultant’s verified position
paper to withdraw the Notice to Terminate if it is
determined that certain items or works subject of the
notice had been completed, delivered or performed
before the Supplier’s/Contractor’s/Consultant’s receipt
of the notice.

5. Decision. Within a non-extendible period of ten (10)

calendar days from receipt of the verified position
 paper, the Head of the Procuring Entity shall decide
whether or not to terminate the contract. It shall serve
a written notice to the Supplier/Contractor/Consultant
of the notice of decision. The termination shall only be
based on the ground(s) stated in the Notice to
Terminate.

33.Clearly, respondents violated certain provisions of the above-quoted rules

including the terms and conditions of the contracts.

34.Assuming, arguendo, that there was delay, the same could be imputed
against the respondent as it was due to their neglect and failure to take action
on our requests for inspections and evaluation of the projects. The Notices of
Termination, alleging the incurred delay and the negative slippage are purely
without basis. In truth and in fact, the construction works had both a 100%
accomplishment, hence, no more contracts to be terminated.

35.If indeed, there was failure to faithfully comply with my obligations under
the two contracts, respondents should have made the appropriate demand, so
as to afford me the opportunity to properly address any issue laid and to
avoid financial losses and reverses from both parties. In this regard,
respondent failed to do so.

36.Significantly and taking as basis for the work accomplishment indicated in

the inspection report, respondents had the obligation to recompense me on
the same basis.

37.For failure of respondents to comply with their obligations under the two
contracts, complainant made a final demand from the respondents for
settlement of the following amounts:

i) P 2,867,886.36 for the Science & Technology Building ; and

ii) P 1,719,392.68 for the Engineering building (Phase IV),
iii) or a total of P 4,587,279.04.

38.A copy of the final demand letter is hereto attached, marked as Annex “M”
and forms an integral part hereof.

39.Despite several demands, and the written final demand, respondents

continue to remain adamant in their refusal to settle the foregoing amount
with abuse of authority and in a whimsical and capricious manner. Until the
present, respondents failed to settle the aforesaid amount to the prejudice of
the complainant.

40.With the foregoing circumstances, herein Complainant had not only incurred
financial reverses and but also suffered sleepless nights, metal anxiety,
 wounded feelings, besmirched reputation and social humiliation within the
community of contractors and suppliers of materials.

41.The two projects subject of this controversy are not the only projects
undergone by my business enterprise with XXXXXXXXX. A previous
project, which was the Construction of Food Technology and Research
Training Center endured an almost similar situation and may be considered
as a precedent on the ploy undertaken by respondent XXXX. The Food Tech
project, and after 75% work accomplishment, respondent XXX employed all
means to disapprove the disbursement in payment of the corresponding work
accomplishment, such as submitting an inspection report without the
concurrence and in disregard of the other members of the monitoring and
evaluation committee. A copy of the said monitoring and evaluation report is
hereto attached and marked as Annex “N” and forms part hereof.

42.On 05 August 2016, complainant wrote respondent XXXXXXXXX

questioning the monitoring and inspection report endorsed by respondent Uy
wherein a copy of the same letter was furnished to the Office of the
Ombudsman.

43. On 11 November 2016, the Office of the Ombudsman (Visayas) directed

respondent XXXXXX to advise them on the actions taken thereon. Despite
such letter from the Ombudsman, respondents failed to take appropriate
measures to resolve the issue. A copy of the letter dated 05 August 2016,
including the referral letter of the Office of the Ombudsman dated 11
November 2016 are hereto attached, marked as Annex “O” and form part
hereof.

44.Faithful with his obligations under the contract despite non-payment of the
75% billing as scheduled, complainant still continued the construction
works for this particular project until the same was 100% work
accomplished and fully completed.

45.When the construction work was 100% and fully completed in the Food
Tech Project, and after incurring delay attributable to respondents,
complainant was able to collect for the 100% billing which respondents paid
after arbitrarily and whimsically deducting liquidated damages and which
liquidated damages was in the amount of ONE HUNDRED SIXTY-
SEVEN THOUSAND, EIGHT HUNDRED TWENTY-SIX & 79/100 (P
167,826.79) PESOS. A copy of the said payment is hereto attached and
marked as Annex “P” and forms part hereof.

46.It is significant to note that XXXX Finance Committee had recommended

payment of the complainant’s monetary demand, however, such demand
remained unsettled for reasons only known to the respondents.
 47. Indeed, respondents caused undue injury to complainant in the discharge of
respondents’ official administrative functions through manifest partiality,
evident bad faith or gross inexcusable negligence.

48.For failure of the respondents to settle the aforesaid demand, complainant

was compelled to file with the Regional Trial Court of XXXXXXXX a civil
suit against the respondents for collection of sum of money with damages.

49.I am executing this complaint-affidavit in order to attest the truth of the

foregoing statements and for the purpose of charging XXXXX University
President XXXXX and IDS Director XXXXXX the appropriate
criminal and administrative charges before the Office of the
Ombudsman.

IN WITNESS WHEREOF, I have hereunto set my hands this __ day of

_________2017 at Catbalogan City.

XXXXXXX
Complainant

VERIFICATION AND CERTIFICATION OF NON-FORUM

SHOPPING

I, XXXXXXXXXXXX of legal age, after having been duly sworn in accordance

with law, depose and state that:

1. I am the Complainant in the above-stated case; I caused the preparation of

the foregoing Complaint-Affidavit; I have read the contents thereof and the
facts stated therein are true and correct based on my personal knowledge
and/or on the basis of copies of documents and records in my possession;

2. Except for the civil case that I have filed with the Regional Trial Court
against the respondents for collection of sum of money with damages, I have
not commenced any other action or proceeding involving the same issues in
the Supreme Court, the Court of Appeals, or any other tribunal or agency;

3. To the best of my knowledge and belief, no such action or proceeding is

pending in the Supreme Court, the Court of Appeals, or any other tribunal or
agency except for the civil suit above-mentioned.

4. If I should thereafter learn that a similar action or proceeding has been filed
or is pending before the Supreme Court, the Court of Appeals, or any other
 tribunal or agency, I undertake to report that fact within five (5) days
therefrom to this Honorable Court.

XXXXXXXXXXXXXXX
Complainant

SUBSCRIBED AND SWORN to before me this __ day of__________

2017, at ____________________, affiants exhibiting to me his _______ issued on
__________ at ______ _______ as competent proof of his identification.

IN WITNESS WHEREOF, I have hereunto set my hand on the date and

place indicated above.
NOTARY PUBLIC
Doc. No. ____
Page No. ____
Book No. ____
Series of 2017