Republic of the Philippines SANDIGANBAYAN Quezon City ‘SIXTH DIVISION PEOPLE OF THE SB-17-CRM-2082 PHILIPPINES, Plaintiff, For: Violation of Section 3 (e) of Republic Act (R.A.) No. 3019 ANNAL PRESENT: GONZALES-KWAN, ARSENIO VALDENOR FERNANDEZ, SI,J. Chairperson SALAMIDA' ESPERANZA ——MIKANDA, & GORMATE COTIN, MA. NENITA SALAMIDA, ECLEO, FELIPE DARANG PADUAL, DANILO. GAGARINO COLANDOG, and GILBERTO NAING LABICANE?, Accused, DECISION MIRANDA, J Accused ANNALIZA — PROJIMO__ GONZALES-KWAN (Gonzales-Kwan), ARSENIO VALDENOR SALAMIDA Galamiéa), ESPERANZA GORMATE COTIN (Cotin), MA. NENITA SALAMIDA ECLEO (Ecleo), FELIPE DARANG PADUAL (Padual), DANILO otDECISION Paget ep Ae Ps Gn ka GAGARINO COLANDOG (Colandog), and GILBERTO NAING LABICANE (Labicane) were charged with Violation of Section 3 (@) of RA. ‘No. 3019 per Information dated September 22, 2017, as follows: ‘SB-17-CRM-2082 That on or about 23 January 2017 or sometime prioe or subsequent thereto in the Municipality of Guiuan, Province ‘of Faster Samar, Philippines, and within the jurisdiction of this Honorable Court, accused ANNALIZA PRIMO GONZALES-KWAN, a high-ranking public officer, being the Municipal Mayor ofthe Municipality of Guiuan,Esstem Samar, ARSENIO." VALDENOR SALAMIDA, ESPERANZA GORMATE COTIN, MA. NENITA SALAMIDA ECLEO, FELIPE DARANG) PADUAL, DANILO GAGARINO COLANDOG and GILBERTO NAING LABICANE, public officers being the Municipal EngineeriChairman, Bids and Awards Commitee (BAC), Municipal Budget OrticetViee-Chairman, BAC, Municipal Planning Development OfliceriMember, BAC, respectively, all of the Municipality of Guiuan, Eastern Samar. such capacities, while in the performance of their administrative andioe official functions, commiting. the ‘rime in relation o office, taking advantage of ther oficial Positions, conspiring and confederating with one another, ‘acting in evident bad faith, enanitest partiality andor eros iexcusable nepligence, did then and there willl, unlasflly and criminally give dhe Integrated Energy and Resource. Systems, Ine. (ERS!) unwarranted. benefits, nivaniage of prcterence by awarding andlor causing the ward to TERS! the contract of supply of one (1) unit Femanwfactured firetruck inthe amount of Php2,100,000.00, without conducting a competitive public bidding. and by’ resorting. to the altemative mode of negotiated procurement without sufficient justification and compliance with the procedures under Republic Act. No. 9184 (Government Procurement Reform Act), thereby ensuring the award ofthe said contact to TERSI, and by Facilitating the payment thereor despite their irregularities and ts non-eitlement to said payment for not having gone through the legal process of bidding, to the damage and prajudice of public interest. 7 9Decision ages Fee Aim jinn van On October 27, 2017, accused Gonzales-Kwan posted ‘Court could issue a warrant for her arrest il before the On October 30, 2017, the Court issued a warrant of arrest against aveused Salamida, Cotin, Feleo, Padual, Colandog and Labicane:* On even date, the Court also issued a Hold Departure Order against the same accused, including accused Gonzales-Kwan” (On November 7, 2017, accused Gonzales-Kwan sought the quashal of the information on the ground of inordinate delay.* On November 21, 2017, accused Salamida, Cotin, Eeleo, Padual, and Colandog also sought the ‘quashal of the information based on the same ground” ‘On November 10, 2017, accused Gonzales-Kwan was arraigned with the assistance of eounse! de porte. She pleaded “not guilty” tothe offense charged. ‘On November 17, 2017, accused Salamida, Cotin, Feleo, Padual and Colandog posted bail for thei provisional liberty. (On April 5, 2018, the Court denied the quashal of the information.” ‘The order of denial became final on July 6, 2018.!* ‘On August 3, 2018, accused Salamida, Cotin, Feleo, Padual and Colandog were arraigned with assistance of counsel de parte. They pleaded not guilty" to the offense charged." On October 15, 2018, the Court issued its pre-trial order."” The Prosecution and Defense listed their documentary exhibits and names of esses, They likewise stipulated on the: 1) Identity of aceused Gonzales- Kwan, Salamida, Cotin, Ecleo, Padual and Colandog; 2) Jurisdiction of the ‘Cour over their persons and over the offense charged; 3) Positions of accused ret paiement eee arene “Rice tay ia es SirDECISION Pagers op ea Pn Gna. Gonzales-Kwan, Salamida, Cotin, Eeleo, Padual and Colandog at the time ‘material tothe case, as charged in the Information; and 4) On January 30, 2007, the Sangguniang Bayan of Guiuan, Eastern Samar issued Resolution No. 07s. of 2007 authorizing “accused Gonzales-Kwan to enter into ‘negotiated contract forthe purchase of one unit of remanufactured fire tuck, ‘The return of warrant of arrest submitted by the Guiuan Municipal Police Station showed that accused Labicane died on December 5, 2015 ‘fore the Information was file in cour. Thereafter, ial against accused Gonzales-Kwan, Salamida, Cotin, cleo, Padual and Colandog ensued. EVIDENCE FOR THE PROSE ION The Prosecution presented four witnesses: 1) Rectito A. Melquiades (Melquiades), 2) Alejandro P. Borden (Borden); 3) Juanita G. Opeia (Opetia) and 4) Teresa A. Macapanas (Macapanas). MELQUIADES ‘The testimony of Melquiades was dispensed with after the partes stipulate that” 1) He is Secretary to the Sangguniang Bayan of Guiuan, Easter Samar; 2) He issued a certified true copy of Resolution No. 07 sof 2007: 3) He can attest the existence, due execution and authenticity of Resolution No, 07s, of 2007; and 4) He can identify his Judicial Affidavit dated October 15, 2018, his signature thereon and the atached document thereto BORDEN Borden testified through his Afi 2014 and identified the documents attached wvit-Complaint dated March 25, He alleged 1) He was Graft Investigation Officer II of the Office of the Ombudsman and representative ofthe Field Investigation Office, 4 XHDecision : rae S045 Visayas at the time of the execution of Afidavit-Complaint dated March 25, 2014; 2) He filed a eriminal case for Violation of Section 3 (e) of R.A. No. 3019 against accused Gonzales-Kwan, Salamids, Cotin, cleo, Padual, Colaidog, and Labicane for failure to conduct public bidding and non-compliance with the requirements of negotiated procurement in the purchase of one unit of a remanufactured firetruck by the Municipality of Guiuan, Eastern 3) Based on his investigation, the BAC of Guiuan, Eastern Samar hhad no sufficient basis to recommend the resort to negotiated procurement; 4) Payment for the fire truck amounting to One Million Nine ‘Hundred Eighty-Five Thousand Four Hundred Fifty-Four Pesos and Fifty-Five Centavos (Php1,985,454.55) was approved by accused Gonzales-Kwan being the Municipal Mayor and HoPE. of Guiuan, Faster Samar; 5) The negotiated procurement was questionable because the date ff the notice of award was issued earlier than the BAC recommendation; and 16) He attached a copy ofthe Disbursement Voucher (DV)No. 101~ (02-07 -028 dated February 1, 2007, Official Receipt (OR) No. 818 dated February 2, 2007, Bid Form dated January 18, 2007, BAC Resolution No. 01022007 dated January 23, 2007, and Notice of Award dated January 19, 2017 1 support the allegations in the affdavit-complaint. On eross-examination, Borden testified: 1) The copy ofthe DV dated February 1, 2007, OR No. 818 dated February 2, 2007, Bid Form dated January 18, 2007, Notice of ‘Award dated January 19, 2017, and BAC Resolution No. (01022007 dated January 23, 2007 submitted to him during the fact-finding investigation were either certified true copies oF certified machine copies ofthe original” 2) He was notable to verify ifthe signatures appearing on the said documents were original or were stamped only.*" 3) During his investigation, he came across a copy of Sangguniang Bayan Resolution No, 07 s, of 2007 but he never included it as part ofthe attachments to his affidavit-eomplaint 4) He considered the mistake in the date of the notice of award as merely typographical and & ayDecsios agers ov Amin Pine Galera a 5) He no longer asked accused Salamida, then BAC Chairperson, to explain the reasons ofthe two filed biddings because he was convineed that the law was violated in the negotiated procurement® ‘Upon clarification by the Court, Borden answered 1) Negotiated procurement may only be resorted to if there is presence of imminent danger to life and property, wich inthis ase, there was none: and 2) The type of subpoena that he sent tothe BAC and the Office of the Municipal Accountant was duces tec ordering them to bring clear, legible and certified tee copies of documents and records pertinent tothe negotiated procurement. On re-direct examination, Borden clarified thatthe typing of “20107” as year of issuance of the notice of award was typographical because the allegations pertaining to the negotiated procurement and the signature of the representative of Integrated Energy and Resource Systems, Ine. (IERSI) correctly indicated the year “2007".” ‘OPENA ‘The testimony of Opefia was dispensed with after the parties stipulated that” 1) She was an employee of the Commission on Audit (COA) fiom 1985 to 2018; 2) She was Stete Auditor II/Audit Team Leader of COA Local Government Sector (LGS) ~ Local Government Unit (LGU), Guiuan, Eastern Samar from 2005 10 2010; 3) As State Auditor Ill/Audit Team Leader of COA LGS-LGU, she issued a certified machine copy of DV No. 101-02-07-028 dated February 1, 2007", Obligation Request No. 101-06-12-2694 dated December 24, 2006”, undated Obligation Request No. 101-07-02-303"* undated Purchase Request No, 1011-07-02- 027, BAC Resolution No, 01022007 dated January 23, 2007",Pepe Rem jin Gna St undated Purchase Onder No. 07.02-027, OR No, 818 dated February 2, 2007”, Check No. 58127 date Febuary 1, 2007, undated Sales Invoice No. $-1641, undated Acceptance and Inspection Report, undated Memorandum Receipt of Semi- Expendable and Non-Expendable Supplies of Property, and [Negotiated Contact dated February 22007"; and 4) She can attest the existence, due execution and authenticity of these document MACAPANAS Macapanas testified through her Judicial Affidavit dated October 26, 2018." She alleged 1) She has been a member of the BAC Secretariat of Guiuan, Easter Samar since February 5, 2018; and 2) She is familia withthe signature of former BAC Secretariat ‘Chairperson Erao Macapagao (Macapagso) because she handled and updated his 201 file several times when she was still With the Human Resources Department ofthe Municipality ‘The Prosecution was allowed to propound additional questions 10 Macapanas, She said that she is also familiar with the signature of accused ‘Cotin, who is the incumbent BAC Chairperson, and thatthe signature in the Certification dated October 5, 2018" was Cotin's.° (On eross-examination, Macapanas testified: 1) She did not personally see Macapagao sign the certification stamped on the Bid Form dated January 18, 2007 and on the Notice of Award dated January 19, 20175" 2) When she was assigned atthe Office ofthe City Mayor, she also became familiar with the documents coming in and out the offices” and Sai Be yDECISION agents op Ae Ps Gna 3) When confonted with @ copy of the Notice of Award dated January 19, 2017, she noticed thatthe signed initials of accused Gonzales-Kwan was not hers, and that the date was erroneously typed as “19 January 20107." ‘The Prosecution offered the following documentary exhibits" which were admitted by the Cour” (a z 2 riginal copy of AMfdavitComplaint dated March | 25,2014 i cerlfed copy of Bid Form dated January 18, 2007, Schedule of Requirement, General Conditions of onset, Special Conditions of Contract__| cerlfied copy of Notice of Award dated January 19, 2017 c centied copy of DV No, 10L02-07-028 ded February 1, 2007 M cenfiod copy of Obligation Request No, 10-06-12 2604 dated December 24,2006 i certified copy of undated Obligation Request No. TO1-0-0239030 o ‘tified copy of undated Purchase Request No. 101 0702-027 P ceriled, copy of BAC Resolution No, 01022007 dtd January 28,2007 Q certified copy of undated Purchase Order No. 07-02- on R celfed copy of OR No. 818 dated February 2, 2007 s ‘erlfed copy of Check No. $5127 dated Febriary 1, 2007 _ T ‘celled copy of undated Sales Invoice No, S-1641 v ‘cette copy of undated Acceptance and Inspection Report v celled copy of undated Memorandum Receipt of Semi-Expendable and Non-Expendable Supplies of Property — W ‘certified copy of Sangguniang Bayan Resolution No 07s. of 2007 _ _ x | centtiel copy of Negotiated Contac daied February |. 2007 < Fool Oro Eien ied March 4 2019p 218271, Vol. 2, Rcd ieDESO amet eu Page 90s [CEJ snr ori Cin a Ossi 5, (On April 27,2019, the Defense sought leave of court to file a demurrer to evidence” On July 1, 2019, the Court denied leave of cour. On July 8, 2019, the Defense sought a reconsideration of the Cou’s denial On August 13, 2019, the Court denied with finality the motions of the Defense seeking leave of cour to file a demurrer o evidence. EVIDENCE FOR THE DEFENSE Accused Gonzales-Kwan, Salamida and Cotin opted to testify and rebut the allegations against them. The Defense also presented three additional witnesses: 1) Melquiades; 2) Macapanas; and 3) Adrian B. Bernardo (Bemardo), MELQUIADES ‘The testimony of Melquiades was dispensed with after the parties stipulated that 1) He has been the Secretary to the Sangguniang Bayan of Guiuan, Easter Samar since January 1993; 2) He isueda certified irue copy of Resolution No. 07 s.of 2007 and ‘Minutes ofthe Regular Session held on January 30,2007; 3) He received a communication from the BAC, through accused Gonzales-Kwan, requesting authority from Sangguniang Bayan to center into a negotiated contract with IESRI; and 4) He can identify attachments and supporting papers to the ‘communication that he received from the BAC. See eae eee omen er eta eter to Evidence dated Api 2,201 ied by acued Goals Kwan, 9p 319-190, Vo.2 Rested Sessa ed Ags 1.20199. 12 Vo 3. Rese. Ons dtdSotemer 08 aS Voi 3 Reed, * Ret este ss psec x Peso when Mele edo Oca 5Fpl Aral Pj Cans Kwan ‘coTIN ‘Accused Cotin testified through her Judicial Affidavit dated September 16,2019." She alleged: 1) She was the Vice-Chairperson of the BAC of Guiuan, Eastern Samar at the time of the negotiated procurement; 2) She was notified about the investigation onthe alleged illegality inthe negotiated procurement when the BAC received a subpoena duces fecum from the Office ofthe Ombudsman; 3) She assisted inthe preparation of the documents submitted to the Office of the Ombudsman; 4) The BAC conducted «wo public biddings in the negotiated procurement. The fist bidding was held on December 18, 2006 while the second bidding was conducted on January 23, 2007; 5) The frst bidding failed because of lack of responsive bids based on the Minutes of Bid Opening dated December 18, 2006; 6) The Invitation to Apply for Eligibility and To Bid (IAEB) for the second bidding was published a the Philippine Government Electronic Procurement System (PhilGEPS) website but the second bidding again led because of lack of responsive bids; 7) The BAC paccod a resolution revonsmending the resort to negotiated procurement because ofthe two filed biddings; 8) Aer passing the resolution, the BAC conducted a Bid Negotiation ‘Conference on January 25,2007; 9) As Vice-Chairperson, she submitted al pertinent bidding documents to the Municipal Accountant for the payment ofthe fire ruck; 10) She also submitted copies of the same bidding documents to the ‘Accounting Office and the COA; 11) The COA did not issue a notice of disallowance in the negotiated procurement; and 12) The fire ruck was delivered and is presently used by Municipality. On cross-examination, accused Cotin testified: 1) She isthe incumbent Budget Officer of the Municipaity:** 2) She served as Vice-Chairperson of the BAC of the Municipality for at Teast six years” 3) The list of suppliers that she drew up before the second bidding was not among the documents submitted to the Office of the Ombudsman: andep Ain eG Ran 4) She cannot recall having a copy ofthe minutes ofthe second bidding"! (On re-direct, accused Cotin claified thatthe BAC did not issue a notice ‘of award because it as not made through public bidding The BAC instead prepared a purchase order forthe negotiated procurement. (On re-cross, accused Cotin sad thatthe purchase order inthe nevotiated procurement was published ata conspicuous place in the Municipality Meanwhile, the Court ordered accused Gonzales-Kwan, Salamida, Cotin, leo, Padual and Colandog, being incumbent public officials to show ‘cause why they should not be suspended pendente lite in accordance with Section 13 of RA. No. 3019. On November 25, 2019, accused Gonzales-Kwan, Salamida, Cotin, cleo, Padual and Colandog were preventively suspended by the Court for & period of ninety days." Records show that the orders of preventive suspension ofall the accused were implemented by the Department of Interior ‘and Local Government. SALAMIDA, Accused Salamida testified thru his Judicial Affidavit dated September 16,2019." He allege: 1) He was the Chairperson of the BAC of Guiuan, Eastern Samar at the time of the negotiated procurement; 2) When the BAC received a subpoena duces feeum from the Office of the Ombudsman, he sent the leter dated July 8, 2013 informing the investigating officer of the failure of bidding and resort to negotiated procurement; 3) There were two failed biddings because no responsive bids were submited in both instances, 4) Pertinent bidding documents were submitted to the municipal accountant to evaluate if there were irregularities warranting. @ possible disallowance; 5) The municipal accountant found no irregularity in the bidding {documents ofthe negotiated procurement; 26HRope tem jis Gonan kn a = 6) The BAC, through accused Gonzales-Kwan, sought authority from Sangguniang Bayan to enter into 8 negotiated contract with IERSI; 1) The BAC complied with the provisions of R.A. No. 9184 with respect to the preparation of bidding documents and payment of fire truck; 8) The COA did not issue a notice of disallowance in the neyotiated procurement; and 9) The fre truck is still being used by the Municipality ‘On eross-examination, accused Salamida testified: 1) Heis the incumbent Municipal Engineer ofthe Municipality 2) He served as Chairperson of the BAC of the Municipality fr ten years! 3) He knew former BAC Secretariat Chairperson Macapagao to be the oficial eustodian of bidding documents and other procurement records ofthe Municipality” 4) No notice of award was issued inthe negotiated procurement" 5) He cannot remember submiting a copy of thelist of suppliers in the negotiated procurement to the Office ofthe Ombudsman:” and 6) edocs not have a.copy ofthe sinutes of bid opening ofthe second Udi on Jenny 23,2006." On re-drect, accused Salamida suid tha the BAC posted a copy of the bidding documents ata conspicuous place in the Municipality. He, however, ‘ean no longer remember wha these documents were.” MACAPANAS ‘Macapanas testified thru her judicial Affidavit dated October 24,2019. She alleged 1) She is the incumbent BAC Secretariat Chairperson of Guiuan, Easter Samar, 2) As Chairperson, she isthe custodian of the documents, records of ‘meetings and conferences, and other important files of the BAC from 2014 up tothe present; 3) The records and files from 2013 downwards were either destroyed ‘or lst during Typhoon Yolanda in November 2013;4) She can identify the photocopy ofthe Minutes of Bid Opening dated December 18, 2006 and the Minutes of Bid Negotiation dated January 25,2007; '5) She cannot, however, provide the original copy of these documents ‘because they were part of those records that were destroyed or lost during Typhoor. Yolanda; and (6) The fire truck is stil being used by the Municipality (On eross-exami ion, Macapanas said that 1) She has been the BAC Secretariat Chairperson since 2017: 2) She was first appointed tothe position by former Mayor Cristopher Gonzales and later by accused Gonzales-Kwan;” and 3) The copy ofthe Minutes of Bid Opening dated December 18, 2006 and the Minutes of Bie Negotiation dated January 25,2007 were not ‘among the records tumed over to her in 2017.” On redirect examination, Macapanas said that she obtained a photocopy of the Minutes of Bid Opening dated December 18, 2006 and the Minutes of Bid Negotiation dated January 25, 2007 from the Sangguniang Bayan of the Municipality BERNARDO ‘Bemardo testified thru his Counter-Affidavt dated July 29, 2014." He alleged: 1) The BAC recommended the negotiated procurement as an emergency response to the imminent danger to life and property caused by fire; 2) The negotiated procurement was approved by the Sangguniang Bayan through the authority issued tothe Municipal Mayor to enter Into a negotiated contact with IERSI; 3) The Notice of Award dated January 19, 2017 was highly suspicious because of the mistake in the date and address of the muniei and the forged signature of accused Gonzales-Kwan, 4) The notice of award in the negotiated procurement was not issued prior to the BAC recommendation; 5) The 2007 Annual Report of the COA found no iregularty in the negotiated procurement; and velitprecision age 40048 Fer fel Poi Goa. 6) This complaint i nothing but pure political harassment filed against the accused because of political rivalries in connection with the May 2007 local election. Upon leave of court, Bernardo was propounded additional questions. He answered: 1) He was the Municipal Accountant atthe time of the negotiated procurement 2) As Municipal Accountant, he was tasked o check the completeness Of the documents for every wansaction and to make the proper charging ofthe expense based on te alloted budget! 3) The documents submitted 9 him peraining 1 the negotiated procurement were complete” and 4) The issuance ofa notice of award was no longer necessary because the purchase of the fire trick was made through negotiated procurement. On cross-examination, Bemardo testified: 1) He has no personal knowledge of the alleged two failed public biddings in the negotiated procurement 2) He likewise has no personal knowledge ofthe alleged bases ofthe BAC in recommending the resort to negotiated procurement. and 3) The copy of BAC Resolution No, 01022007 dated January 23, 2007 was the only document attached to the DV at the time it was submited to him for review"? GONZALES-KWAN GGonzales-Kwan testified thr her Judicial AMiavit dated October 29, 20198 and Counter-Affidavit dated July 29, 2014. She alleged: 1) She isthe incumbent mayor of Guiuan, Easter Samar, 2) She served inthe same capacity from 2004 to 2013; pt ke t7 S\ y3) The Notice of Award dated January 19, 2017 was not part of the bidding documents in the negotiated procurement, 4) Her signature in the Notice of Award dated January 1 forged: 5) She sought the assistance of the Philippine National Police (PNP) to conduct a comparative examination of her real signature and alleged signature in the Notice of Award dated January 19, 2017; and 6) The PNP, however, was unable to conduct the examination because the original copy’ of the Notice of Award dated January 19, 2017 «cannot be produced, 2017 was On eross-examination, Gonzales-Kwan testified: 1) She also signs official documents using her initials” 2) The initials appearing inthe undated Purchase Order No. 07-02- 027, DV No. 101-02-07-028 dated February 1, 2007, OR No. 818. dated February 2, 2007, and Check No, 35127 dated February 1, 2007 were hers 3) The Municipality avwirded the contract to IERSI through the Negotiated Contract dated February 2,2007:" and 4) Before she signed the Negotiated Contract dateel February 2.2007, she checked the completeness of bidding. documents and their compliance with the requirements of R.A. No, 9184" Accused Salamida, Cotin, Ecleo, Padual and Colandog offered the following documentary exhibits” which were admitted by the Court” ib ‘Desedpiion a Trand sub-markings | photocopy of BAC Resolution No. 01022007 dated _ | January 23,2007 Zand sub-markings | photocopy of the Minutes of the Regular Session of Sangguniang Bayan and sub-markings | photocopy of Excerpt of the Minutes ofthe Meeting L | for the Opening of Bids on December 18, 2006 ‘and sib-marking | photocopy of the Minutes of Bid Negotiation dated | asuary 25,2007 _ and sub-markings | photocopy of PhilGEPS sereen capture of the [AEB | forthe second bidding i TEE oe a Feb 5.20 703891 Val 3 Rc‘Gand sub-markings | photocopy of Sangguniang Bayan Resolution No. 07 s.0f 2007 Accused Gonzales-Kwan offered the following documentary exhibits" Which were admitted by the Cour” photocopy of BAC Resolution No, 01022007 dated | nary 23, 2007 photocopy of Sangguniang Bayan Resoiuion No, OT of 207 [photocopy of te ‘Photocopy of Excerpt ofthe Minutes ofthe Meeting forthe Opening of Bids on December 18,2006 ‘Kwan | photocopy of PIGEPS” screen capure ofthe JAEB forthe second bidding (On August 15, 2020, counsel for accused Salamida informed the Court ‘of his death. Upon confirmation by the Prosecution, through submission of accused Salamida’s Cerificate of Death, the Court dismissed the case ag him.” REBUTTAL, DENCE ‘The Prosecution presented its lone rebuttal witness, Reina F. Bailon GBaiton). BAILON Bailon testified thru er Judicial Affidavit dated March 8, 2021". She alleged! 1) She has been Information Technology (IT) Officer at the Procurement Service of the PhIIGEPS since January 2016; 2) She was tasked by then Director Rosa Maria M. Clemente (Clemente) to gather and secure information and/or documents requested inthe subpoena issued by the Office of the Ombudsman sometime February 2020; Ofer fice debra 7.20, 40-50, Vl 3, eas {Aes hosts dd Mach 2 20 pp 2-0, Vl 3 Rear “Nw othe cen ts Spm 2 p60, Vs Res. “Mesa he Peg al Dest 1,302 V3 Reco SF a 4Decision ae Pep Ae Pin Gna 3) The subpoena pertained t0 the negotiated procurement by the ‘Municipality of the remanufactured firetruck i the year 2007; and 4) Based on the data from e-GP Division of ther office, [AEB No. 343285 forthe alleged second bidding conducted by the BAC was ‘not published atthe PhiIGEPS website 1) A procurement opportunity forthe purchase of a remanufactured fire truck was created at the PhiIGEPS website," and 2) She relied on the data submitted by the E-GP division pertaining to the negotiated procurement." Upon clarification by the Court, Bailon stated 1) The status of LAEB No. 45285 for the alleged second bidding was preparation”, which means it was not published" 2) For the LAEB to be published at the website, there is a“post” bution that needs to be clicked asa final step!" 3) The ereators not notified, through e-mail, ofthe suecessful posting of notices; and 4)'The notice of award of contract and the award itselt must be Published atthe PhilGEPS website™ The Prosecution offered the following documentary exhibits on rebuttal!” which were admitted by the Cour: Exhibit Description DD and sub-marking original copy of leter dated July 8, 2013 [EE and sub-marking | certified copy of AEB No, 345285 FF and sub-marking original copy of the Attestation and Ce __| dated February 6, 2020 jb-marking [original copy ofl Sra 6.2020] ed Fi hanes ‘SSSR Hae a cea Heecision age oc4s Fp al Pn Gn kan at FINDINGS OF FACTS ‘As found by the Court, the Fats of the case are The Municipality of Guiuan, Eastern Samar, through accused Gonzales-Kwan, entered into a Negotiated Contract dated February 2, 2007 With IERSI for the procurement of a remanufitured fie truck. The Municipality paid Phpl,985,454.85 to IERSI for the fire truck.'"° The procurement was authorized by the Sangguniang Bayan, through its Resolution No, 07 s. of 2007." ‘The procurement was not, however, made through competitive public bidding.""" The BAC, through accused Salamida, Cotin, Ecleo, Padual, ‘Colandog and Labicane, recommended the altemative mode of negotiated procurement. They claimed that negotiated procurement was justified because ‘of tivo failed public biddings and the imminent threat to life and property caused by fire in the Municipality. "” It was later found that accused ‘Gonzales-Kwan issued @ Notice of Award dated January 19, 2017 10 TERS! four day's before the required BAC recommendation, '" Notice of Awan dated January 19, 2017, nonetheless, contained errors in the date of issuance, address of the Municipality in the letter head, and the name of TERS." ‘Accused Gonzales-Kwan claimed thatthe Notice of Award dated January 19, 2017 bears her forged signature." DISCUSSION AND RULING ‘After a thorough review ofthe documentary and testimonial evidence ‘on record, as well as the stipulations hetween the Prosecution and the Defense, the Court finds accused Cotin, Feleo, Padual and Colandog GUILTY of Violation of Section 3 (e) of R\A. No. 3019. The Prosecution’s evidence is, however, INSUFFICIENT to convict accused Gonzales-Kwan of the same crime. The case against accused Salamida and Labieane is DISMISSED by reason of death "Es Wore Pc: ESN Gnd Raa fi he Det, fa vo Anni PGonakr an ao sb 29,2019, 9p, 2-901 V3, Resa #7 MV tkFee Ara oiler Accused Gonzales-Kwan, Salamida, Cotin, Feleo, Padual, Colandog, and Labjcane were charged with Violation of Section 3 (e) of R.A. No. 3019, ‘which provides: See. 3 Corrupt practices by public offers. —In aadlton 10 acts or omissions of public officers already penalized by existing law, the following shall constiute corrupt practice of any public oficer and are hereby declared tobe unre (0) causing any undue injury 10 any party, including the Government, o giving any private party any unwarranted benefits, advantage or preference in the discharge of his oficial, administrative or judicial finctons through ‘manifest partiality, evident bad faith or gros inexcusable negligence. This provision shall apply 10 offers and enplovees of offices of government corporations charged withthe grant of licenses or permits or other concessions. ‘The elements ofthis erime are |. Aceused must be a public officer discharging administrative, judicial, or official function: 2. Acoused must have acted with manifest partiality, evident bad faith, or gross inexcusable negligence; and 3, Accused caused any undue injury to any party, including the government, or gave any private party unwarranted benefits, advantage, or preference inthe discharge of his functions.” The Prosecution asserts that accused Gonzales-Kwan, Salamida, Cotin, Ecleo, Padual, Colandog and Labicane acted with evident bad faith, manifest partiality and/or gross inexcusable negligence in the nezotited procurement, ‘The Prosecution particularly claims that public bidding was not conducted, and thatthe requisites for negotiated procurement were not followed. is: os 123, Deeb 2, 206 ing San Pepe RN 1617, Mah 22, tg Cave Sundgonhoon GR Nos TSN. Oar 4, 300 an Si Sitar GR No. S497 Ore Bo ieoptim Gna ‘The Defense, on the other hand, argues that the notice of award in the negotiated procurement was falsified. Accused Gonzales-Kwan states that her signature in the Notice of Award dated January 19,2017 was not hers. For their part, accused Salamida, Cotin, Feleo, Padual, and Colandog state that ‘negotiated procurement was justified by law, and that its requisites were strictly followed by the BAC. The first element is present. Accused Gonzales-Kwan, Salamida, —Cotin, Ecleo, Padual, Colandog and Labicane were public officers discharging official functions at the ‘ime of the negotiated procurement. Accused occupied the following positions at the Municipality atthe time of the negotiated procurement. 2) Salama’ - | Chaitperson 3) Cotin™ | Municipal Budget Officer and BAC | Chairperson [@ Bateo™ Municipal Planning Development a Officer and BAC Member 3) Padual ‘Administrative Officer and BAC ee Member 6) Colandog™™ ‘Market Supervisor IV-and BAC Member 7 Labieane = Draftsman Il and BAC Member Accused Gonzales-Kwan, Salamida, Cotin, Eeleo, Padual, Colandog ‘and Labicane were public officers discharging administrative and official functions at that time 4) pe Tal Orie Ot 15,2018, 9.715, Vo 2, Ress ttFee Ae in Gn. R.A, No, 9184 and its Implementing Rules and Regulations (IRR-A) were ‘not complied with Public bidding as » method of government procurement is governed by the principles of transparency, competitiveness, simplicity and accountability. ‘These principles permeate the provisions of R.A. No. 9184 from the procurement process tothe implementation of awarded contracts." Competitive public bidding is the general rule in all government procurements and the altemative methods of procurement are mere exceptions.” Ie therefore becomes necessary for the accused to show why an alternative mode of procurement was resorted fo. Ii incumbent upon a party who invokes coverage under the exception to a general rule to prove the fulfilment ofits requisites." This rule is akin to the maxim in criminal law that whenever @ person accused of the commission of a crime claims to be within a statutory exception, i is more logical and convenient that the person to aver and prove the fact than that the prosecutor should anticipate such defense and deny it. Thus, in this ease, accused must present evidence that the requisites of negotiated procurement were complied with, Accused Salamida, Cotin, Felao, Padual and Colandog admit that they have dispensed with the requirement of public bidding." They, however, justify resort to negotiated procurement on two grounds: (I) failure of public bidding; and (2) emergency procurement." The negotiated procurement was approved by accused Gonzales-Kwan being the HoPE,2 In negotiated procurement, the Procuring Entity directly negotiates a contract with a technically, legally and financially capable supplier, contractor ‘or consultant. Section $3 ofthe IRR-A lays down the specific grounds when ‘a negotiated procurement may be availed of, and Section 54 of the same rule provides for additional requirements that must be complied with by the procuring entity, ro wit: SECTION $3, Negotiated Procurement [Negotiated Procurement is @ method of procurement of goods, infrastructure projects and consulting services ‘whereby the procuring entity diretly negotiates a contract Sl‘lA jin Gaze Kon, a “ witha technically, legally and fnancilly capable supplier. Contractor orconsuliant only in the following eases: 4) Where there has been failure of public bidding for the second time as provided in Section 35 ofthe Act ard this TRA 1) Incase of imminent danger to life or property during ‘state of calamiy, or when time is ofthe essence frising from natwral or man-made calamities or ‘other causes where immediate action i necessary to prevent damage to or lass of fe ar proper. oF 10 ‘restore vital puble series, Infrastructure feltes ‘and other public ilies. In the case of Ingrastructare projects, the procuring entity has the option to wudertake the projet through negotiared Procurement or, by adminsiration or, 00 high ‘Security risk areas, through the AFP: SECTION $4. Terms and Conditions for the use of ‘Alternative Methods Se ee 542. In addition 10 the specific terms, condtions, limitations and restrictions on the application of ‘each ofthe alternative methods speifed in Seetions 45 to. SH of this IRReA, the following shall also onply 4a) For item (a) of Section 49, all the ‘supplies or consultants appearing inthe Tis specified inthe same section shall be invited 1B) For ftem (a) of Section 53, the ‘procuring entity shall draw up a Uist of at least three (3) suppliers, contractors, ‘or consultants in good standing which will be invited to submit bids and ‘negotiate with the bidder who submited the lowest calculated bid or highest ‘rated bid whichever i applicable. If the “offer of the bidder who submitted the lowest calculated bid or highest rated bid, whichever is applicable, is not responsive tothe orginal specifications ‘and ABC, negotiation shall be made in ascending order starting from the Towest offer. The bidder whose bid is found to be responsive to the originalDecision Page 0t45 Pope Am jin ka specifications and ABC. shall be considered for award. In all cases, the ‘award of contact shall Be posted at the GEPS” website, website of the procuring entity, if any, and in ‘conspleuous place within the premises “of the procuring entity. In this case, the negotiated procurement failed to comply with the conditions and procedure set forth by the R.A. No. 9184 and its IRR-A. TThere was no sufficient proof of two failed biddings. Section 35 of the IRR-A enumerates the instances when the BAC may declare a failure of bidding in a procurement, vz SECTION 35, Paiture of Bidding 35.1. The BAC shall declare the bidding a failure and ‘conduct a re-bidding with readvertisoment and/or posting, ‘as provided fr in Section 21 ofthe Act and this IRR-A, afer lave evaluation of the terme, conditions and specifications of the fist bidding when: 4) No prospective bidder submits an LOL oF mo bids are received: All prospective bidders are declared Intgibe; 6) All bids fl to comply with al the bid requirements (or fail post-quaification, or. inthe case of consling services, here is no succesful negotiation: or 4) The bidder with the Lowest Caleuated Responsive Bid Highest Rated Responsive Bid refuses, without Justifiable cause 1 accept the award of contract and ‘no award is made in accordance with Section 40 of| the At an this TRRA, 35,2, The BAC shall mod the terms, conditions and specifications in the fest bidding documents, when necessary, to change the scope of work or to adjust the procuring entity's cost estimates or specifications However, the ABC shall be maintained. All bidders who have inal ‘responded tothe Invitation to Applyfor Eligibility and to Bid ‘and have been declared eligible inthe ist bidding shall be allowed o submit new bids, The BAC shall observe the same ‘process an set the new periods according to the same rules allowed during the fist bidding or lyprcision rage 240045 Fpl Ama Pj Gare Kan. 35.3, Should there ocewr «second failure of Bidding. the ‘procuring entity concerned may enter into a negotiated procurement, as provided jor in Section 33 ofthe ct and ‘hi IRA. Hore, on December 18, 2006, accused Salamida, Cotin, Ecleo, Padual, Colandog and Labicane irst declared a failure of bidding in the procurement because there were no bidders." Under the rules, the BAC is required to ‘observe the same process and to set new periods according to the same rules followed during the first bidding. Accused Salamis and Cotin testified that the second public bidding was conducted on January 23, 2007 and tat i failed for the second time.!* They, however, failed to substantiate this claim, First. No proof was shown that the IAEB for the second bidding was advertised at least once in @ newspaper of general nationwide circulation, centinuously posted at the website ofthe Municipality and atthe PhilGEPS for seven calendar days, and posted at a conspicuous place in the municipal building for seven calendar days."* Accused Cotin claimed that the [AEB for the second bidding was published atthe PhilGEPS."" This was belied by IT Ofticer Bailon who testified that [AEB No, 345285 was not published and made available for viewing at the PhilGEPS website."® The BAC is respoasible for ensuring thatthe IAEB is advertised and posted in accordance with law. Here, aceused Salamida, Cotin, Eeleo, Padual, Colandog and Labicane, a8 BAC members, filed ‘Second. No proof was shown that pre-bid conference was held by the BAC to discuss or modify, if necessary, the terms and conditions and specifications of the procurement." The law and rules require that the minutes of the pre-bid conference be recorded by the BAC Secretarial, and made available tothe participants not later than three calendar day’ after the pre-bid conference. The pre-bi conference is held after the seven-day advertisement and posting of IAEB. In this case, no copy ofthe minutes of pre-bid conference \was submitted by the Defense. The conduct a pre-bid conference forthe second bidding was not even alleged or inentioned by the Defense when it was their tum to present evidence. ‘Third. No proof was shown that the BAC received and opened bids for the procurement, and that no bidder submited a responsive bid forthe second time, Accused Salamida and Cotin claimed that the BAC conducted the second bidding on January 23, 2007 but no proof of this was presented. On even dat Ss fel AA of aera Can ded Spar 16,2019. 684, Vo 3, Rao: ail ‘Afni Aes V Saad Sepa 2 pp. 9110, 3 Reads ra Ai of ra Ca te epee 16,201 p88, V3, Red Sia fay Nt 4Decision ageasotts ope Ae Pi Gone a the BAC declared a failure Of bidding and recommended negotiated procurement." Consequently, on January 25, 2007, the BAC opened the bid ‘negotiation for the procurement where IERST was declared the lone bidder." IL, The existence of “emergeney" was not sufficiently established. Accused Gonzales-Kwan, Sslamida, Cotin, Feleo, Padual and Colandog, categorized the procurement as an “emergency”. They justified negotiated procurement claiming that the acquisition of fire ruck was a “vital public service” tothe constituents ofthe Municipality To reiterate, aceused BAC members carry the burden of proving the existence of circumstances under Section $3 (b), IRR of R.A. No. 9184 on ‘emergency procurement. They must establish: (1) there is imminent danger to life or property during a state of calamity; or (2) time is ofthe essence arising from natural or man-made calamities; or 3) other causes, where immediate action is necessary to prevent damage to or loss of life or property, orto restore vital public services, infmastructure facilities and other public utilities." Accused Salamida, Cotin, Ecleo, Padual and Colandog failed to do so, In Office ofthe Ombudeman ». De Guzman’, the Supreme Court said that emergency procurements under Section $3 (b) pertain to situations beyond the Procuring Entty's control. Ic speaks of “imminent danger...during a state ‘of calamity...natural or man-made calamities [and] other causes where immediate action is necessary." Following the principle of ejusdem generis, where general terms are qualified by the particular terms they follow in the statute, the Supreme Court held that the phrase “other causes” should be construed to mean a situation similar to a calamity, whether natural or man- made, where inaction could result in the loss of life, destruction of properties or infrastructures, or loss of vital public services and utilities. “Emergencies”, as defined in No. 2 (e), Annex “C* of the IRR of Executive Order (E.0.) No, 262, are situations where there is imminent danger to life andlor property "as determined by the Head of, Oftice!Agency/Corporation concered. The determination by the Head of Office of the existence of an emergency is a condition sine gua non for ‘negotiated procurement tobe legally utilized. ‘The procurement was made without formal declaration of an emergency by accused Gonzales-Kwan, Chief Executive of Guiuan, Eastem Samar. The possible occurrence of fire does not constitute a “calamity” that presents an imminent danger” to the LGU's constituents. Under the circumstances, the RE erga tent cone ey 2 raeDECISION age 260648 op Ami Psi Gorka a procurement of the remanufactured fire truck, as ruled in De Guzman, is not allowed by law TIL The requisites of Negotiated Procurement were not followed. The Manual of Procedures for the Procurement of Goods requires the following steps to be undertaken in negotiated procurement: 1). The method of procurement to be used shall be indicated in the approved Annual Procurement Plan (APP). Ifthe original mode of procurement recommended in the APP was Public Bidding but eannot be ultimate pursued, the BAC, through a resolution shall justify and recommend the change in the mode of procurement to be approved by the HoPE. 2) The BAC convenes the appropriate offic conference, if necessary Is for the pre-procurement 3) The BAC, through the Secretariat, posts for information purposes the procurement opportunity, for a period of seven (7) calendar days, in: ) The PhiIGEPS; b) The website of the Procuring Entity and its electronic procurement service provider, iTany; and ©) Any conspicuous place inthe premises of the Procuring Entity For negotiated procurements in cases of imminent danger to life and property, the Procuring Entity may waive the period for posting However, the award will be posted in the aforementioned sites. 4) If the procurement is being negotiated because of two previous failures of bidding or in the case of imminent danger to life or property, the BAC, through the BAC Secretariat, issues invitations to at least thtee (3) suppliers of good standing for the latter to negotiate 4 contract, The Procuring Entity may draw these suppliers from its list of registered supplies. The procedures forthe conduct of public should be observed. However, the minimum period foreach procedure may be reduced. 5) The suppliers submit their proposals in a sealed envelope duly marked,ee Aim jin Geran 6) The BAC, with the assistance of the TWG, evaluates the price tenders ofthe bidders. The BAC shall issue a resolution recommending tothe HoPE the award of the contract to the lowest calculated and responsive bidder for approval 7) The BAC Secretariat / Procurement Unit prepares the contract, Purchase Order or Job Onder for approval of the appropriate authorities, and serves the same to the winning bidder. In this case, the BAC, through accused Salamadin, Cotin, Ecleo, Padua, ‘Colandog and Labicane, issued Resolution No. 01022007 dated January 23, 2007 declaring a failure of bidding and imminent danger to life or property, and recommending negotiated procurement to purchase the remanufactured fire ‘wuck, Apart from the BAC'S failure t comply with the conditions and requisites of two failed biddings and emergeney procurement, the BAC likewise failed to observe the procedure of negotiated procurement. First. Records do not show that a pre-procurement conference was ‘conducted by the BAC for the purpose of utilizing the mode of negotiated procurement. A pre-procurement conference is necessary, particularly for projects involving an Approved Budget for the Contract (ABC) of more than Two Million Pesos (Php2,000,000,00), 19 determine the readiness oF the procuring entity to procure goods and services in terms of the legal, technical and financial requirements of the project. !® More specifically, a pre- procurement conference ensures that the procurement will proceed accordance with the Project Procurement Management Plan (PPMP) and APP, confirms the availability of appropriations and programmed budget forthe contract, and reviews al relevant documents in relation to their adherence to the law.” The BAC calls forthe conduct of pre-procurement conference. Here, no proof was presented that accused Salamadin, Cotin, Feleo, Padual, Colandog and Labieane called and conducted a pre-procurement conference for the purchase of the remanufactured fie tuck. Second. There is likewise no proof that the procurement opportunity through negotiated procurement was posted for seven consecutive days using the methods provided by law. The posting requirement was clearly not followed 'because the bid negotiation was held on January 25, 2007 or two days after the BAC recommendation, Thereafter, the authority to enter into a negotiated contract was issued to accused Gonzales-Kwan on January 30, 2007 or 7 days after the BAC resolution, It ean be recalled that this is not the first time that the BAC failed to comply with the posting requirement. There was also no proof that the second bidding was posted at the PhilGEPS website, at the ‘website of the Municipality, and atthe conspicuous place in the Municipality for seven consecutive days, as required, Rebuttal witness Balon testified that Se 2 RCA PA Ne 8, Ryecision ageat ces Fee Ae Pio Gonski. the notice of award and the awaed itself were not also posted atthe PhiIGEPS website. She sad: ‘Questions from the Court: Justice SI Fernandez Q: Okay. Now; Number 2. The publication posting of procurement opportunity, Is i eorrect for me to ‘conclude that there is no such publication, here is no proof of suck publication because based on the document given to you, the bid notice of abstract, and ie states that the status is still “in preparation”? A: Yes, your honors. Q: Now, the third one isthe publication posting of ‘the Negotiated Contract, okay? My question is, is the procuring entity required fo make such ‘publication in the PhiIGEPS website? A: In the PhIGEPS website, the procurement projects should be posted from bid notice up to inward notice Up to Award Notice? Yes, Your Honors but they ean also determine the ‘mode of procurement. AS Q! Okay wait, upto the Award Notice which means deter @? As Yes, your honors, Okay. How about lester ©? This iva Negotiated Contract but what we have in the PhiIGEPS is a mode of procurement like [Negotiated Procurement but not on the contract. as ‘Okay but all Negotiated Contracts should also be ‘published in the PhiIGEPS website? Yes, your honors once procurement project has ‘been avarded. So, from bid notice once it ‘already closed and then there's an awardee so the Award Notice should be posted at the website!” p80. da May 20201, =aecision age ot48 People malin Pome Gonaler Kwa, ‘Third. Considering that the purchase of the remanufactured fire truck underwent negotiation, the BAC should have issued invitations to at least three suppliers of good standing. These suppliers are to be drawn up from thelist of | registered suppliers maintained and updated by the Municipality. Accused Cotin claimed that she made the list of suppliers for the procurement." Unfortunatly, she filed to presenta copy ofthe list to prove compliance with the procedure, Fourth. IERSI was the only supplier that submitted a proposal." As a matter of procedure and after determination i its bid was responsive, the BAC should issue another resolution recommending to the HoPE the award of contract to IERSI as the lone and responsive bidder. Here, accused Salamadin, Cotin, Fcleo, Padual and Colandog again filed to present evidence that they issued and submitted a resolution to accused Gonzales-Kwan for that purpose. Clearly, accused Salamadin, Cotin, Foleo, Padual, Colandog and Labicane failed in their responsibilities as BAC members to comply withthe requisites and procedure of negotiated procurement. The Negotiated Contract dated February 2, 2007 was signed and approved by accused Gonzales-Kwan despite non-compliance of the requisites and procedure. ‘The Court ig now left t9 determine whether non-compliance with the provisions of R.A. No. 9184 and its IRR-A constitutes a Violation of Section 3 (©)of RA, No. 3019, The second element is present. The Jaiture of the BAC to comply with the provisions of R.A. No. 9184 and its IRR-A constitutes “gross inexcusable negligence”. The evidence is not sufficient ‘evidence to prove the existence of “evident bad faith” and “manifest partiality”. A violation of Section 3 (e) of R.A. No. 3019 may be committed through “manifest partiality", ‘evident’ bad faith” andlor “gross inexcusable negligence”.'" Proof of any of these three modes in connection with the prohibited acts mentioned in the said provision is enough to convict the accused,'" These elements must, however, be clearly proven with moral certinty and beyond reasonable doubt by the Prosecution because the quantum ‘of proof cannot be satisfied by mere allegations. "ane Pope GR No DS, December 2825 Fone Songun No, 0 Pree, 1986 apA Pj Gar Ki. t 1. The Notice of Award was regularly issued without proof that it ‘as falsified oF the signature’s were forged. The existence, genuineness and authenticity of the Notice of Award dated January 19, 2017 signed and issued by accused Gonzales-Kwan to IERSI isthe center of controversy between the Prosecution and the Defense. For the Prosecution, evident bad faith, manifest paniality and/or gross inexcusable negligence attended the procurement of the remanufactured fire truck because the Notice of Award dated January 19, 2017 was issued before the issuance of BAC resolution on January 23,2007. In their defense, accused Gonzales-Kwan, Salamida, Cotin, Ecleo, Padual and Colandog asserted that they did not issue the Notice of Award dated January 19,2017, and that it was. falsified to make it appear that they favored IERSI. Accused also high! the errors in the date ofthe notice of award, the address ofthe Muni the letter head, and the name of IERSI. ‘Asa general rule, forgery cannot be presumed and must be proved by ‘lear, positive and convincing evidence. The burden of proof lies on the party alleging forgery." In Pan Pacific Industral Sales Co, In. v. Court of Appeals!” the Supreme Court said: Xxx he who disavows the authenticity of his signature on a public document bears the responsibility to present evidence to that effect. Mere disclaimer isnot sufficient. At the very least, he should present corroborating witnesses to prove his assertion. {At best, he should present an expert witness. ‘The Defense, in this case, failed to present clear and convincing evidence to substantiate the allegation thatthe Notice of Award dated January 19, 2017 was falsified and accused Gonzales-Kwan's signature was not hers. No independent expert witness was presented to declare with authority and ‘objectivity that the questioned signature was forged. Accused Gonzales-Kwan even admitted signing official documents using, her initials." This Court cannot rule on the alleged falsity of the notice of award merely on the basis of wrong date, wrong address of the municipality and wrong name of IERSI, absent conerete proof that it was not offically issued by the Municipality, (On the contrary the Notice of Award dated January 19, 2017, being a public document! has in its favor the presumption of regularity, and that it ‘was issued in the performance of official duties. The copy of the Notice of Court of pals GR. No. 158013, Aupest 1, 2008, oy Revi Rak Ec,Drcrsion age tas ep Ae hn Gone Award dated January 19, 2017 on record was certified by then BAC Secretariat Chairperson Macapagao, whose signature was positively identified by Prosecution witness Macapanas.'*! Accused Salamida even testified that Macapagao helped in the preparation and submission of documents to the Office of the Ombudsman in 2013 being the official ‘custodian ofthe bidding documents at that time. Accused Salamids testified Cross-examination of Defense Wimess Salamida by Pros. Roda B. Rigas Q: Sir, the Subpoena Duce Tecun was addressed t0 wyouw as BAC Chairman, correct? As Yes Q: And who prepared the document submitted tothe Office of the Ombudsman- Visayas? As The BAC Secretariat, Ma'am. Q ‘Sir did you check the documents attached to the letter? Teannot remember, Ma'am. Q: So, you mentioned, Sir, that it was the BAC ‘Seeretariat who prepared the document. The BAC Seeretariat, sir, 8 Mr. Erato Macapagao, A: Yes, Ma'am. Q: How long have you known Mr. Macapagao, sir? A: When Iwas in the municpaliy : Since what year, sr? A 1985, ‘So, sir, as head of the BAC Secretariat, do you ‘agree with me that Mr. Macapagao isthe official ‘eustodian of the procurement documents. or bidding documents and other records? As Yes, Ma'am. Q: So, sir, as official custodian of the bidding documents, all documents certified by Mr. Macapagao in his official capacity as BACPepe Amaia Moje Ganev, a Secretariat Chairman are considered oficial documents, sir. Do you agree? As Yes! Moreover, the same copy ofthe notice of award bears the page number stamped by the Oifice of the Ombudsman, which is similar tothe other documentary exhibits marked, identified and offered by the Prosecution." ‘The contested copy ofthe Notice of Award i clearly an oficial document issued by the Municipality. In Bustillo v. People’, the Supreme Court emphasized: ‘The presumption of regularity of offical acts may be rebutted by affirmative evidence of irregularity or failure o perform a day. The presumption, however, prevails until it is overcome by’ no less than clear and convincing evidence tothe contrary. Thus, unless the presumption is rebutted, it becomes conclusive. Every reasonable intendment will be made in support ofthe resumption and in case of doubt as to an officer's act. being lawful or unlawful. construction should be in favor ef its lafulness 85 HL, The Prosecution failed to prove evident bad faith. “Evident bad faith” connotes not only bad judgment but also a palpably and patently fraudulent and dishonest purpose to do moral obliquity or conscious wrongdoing for some perverse motive or ill will It contemplates 4 state of mind affirmatively operating with furtive design or with some motive or self‘nterest or ill will or for ulterior purposes.'*” Simply put, it partakes ofthe nature of fraud." The presence of evident had faith requires thatthe accused acted with malicious motive or intent, or ill will I is not enough thatthe accused violated a provision of law or that the provision of Jay violated is clear, unmistakable and elementary. It must be proven that the accused acted with fraudulent intent. Again, the contested notice, of award becomes a central issue in the determination whether of not accused Gonzales-Kwan, Salamida, Cotin, a= SRR ny man ie Nins camasiuan ett ages atts cleo, Padual, Colandog and negotiated procurement, sne acted with evident bad faith in the ‘The Court finds accused Gonzales-Kwan, Salamida, Cotin, Ecleo, Padual, Colandog and Labicane guilty of “bad faith” in awarding the negotiated contract to IERSI before the actual BAC recommendation. This itregularity inthe procurement process is considered “bad judgment” on their par, accused Gonzales-Kwan being the HoPE, and the other accused being members of the BAC. As HoPE, accused Gonzales-Kwan is duty-bound to review the bidding documents and verify that the approval and award of ‘contract was favorably recommended by the BAC." The members of the BAG, on the other hand, should ensure thatthe procuring entity abides by the ‘procedure and standards set forth by the law and rules." ‘The evidence on record is, however, insufficient to prove beyond reasonable doult that there was “evident bad faith” on the pat ofthe accused in this procurement. While accused Gonzales-Kwan, Salamida, Cotin, Ecleo, Padual, Colundog and Labicane may have violated the provisions of R.A. No. 9184 and its IRR-A, there is reasonable doubt that they consciously and intentionally did soto commit feaud, to purposely commit a crime, of to gain profit for themselves so as to amount to fraud, On the contrary, accused Gonzales-Kwan, Salamida, Cotin, Ecleo, adual and Colandog, honestly, albeit mistakenly, believed that the requisites and procedures of negotiated procurement were followed inthis procurement, Accused Cotin testified that the IAEB for the second bidding was published a the PhIIGEPS website" Cotin's testimony was contradicted by ‘ehuttal witness Bailon who testified that [AEB No. 345285 was not published for viewing at the PhilGEPS website. " Upon clarification by the Cour, Bailon explained that the IAEB No, 345285 was not published because the “post” bution was not clicked after the creation of the posting opportunity ‘Questions from the Courts" Justice SI Femandez Q> Okay. And if you know, because here it says, it was created on January 10 and it was published fon January IT A: Yes, our honors.Fp Ali Pj Caen ta o 4 aS ae When you say it was published, what does it This should be the day or when the bid notice will be active, ‘So, it was published? Based on the status of the Bid Notice, it's not published since the status is “in preparation”. The status “in preparation”, okay. So, the date published, if i intended to he published, i is intend to be published? Yes, your honors. Okay, And would you know why this particular Invitation to Apply for Eligibility and to Bid was not published? Is there any indication in this document that you attached to your Judicial Affidavit which would tll us why the said document was not published? There is a process in the creation of the Bid Notice that in order for the Bid Notice to be ‘published or 10 be posted at the website, there should be another process or another button to be clicked. Another button? Yes, your honors. ‘0? ‘So, once the Bid Notice is to be created so the ‘status will be “in preparation” and then in order for this Bid Notice to be published, post button should be clicked. ‘The post button should be clicked, okay. But you think ofthis document, would you know if this document as it is printed, is already complete ‘and ready to be published meaning it's already ‘complete that when you click the button for posting, it will no longer be rejected. Yes, your honors. Is complete? Yes, your honors and all the required fields have been filed out and this can already be posted. oot age storesPope Atal Pine Gos Ka ea @ BS as SS ae BS ‘In your experience, have there been several such Invitations 10 Apply for Eligibility and to Bid hich were no published afer being created? Yes, your honors. Are you referring to other Bid Notices being published by other procuring Yes. There are procuring entities that are not familiar fon the complete process of the ereation and publication of bid notices so there are procuring femtties only know that once they have created a Bid Notice, that's already published. But in fact, there's another process. ‘So those are findings made by your office? es, your honors ‘Some other Invitation to Bid. These are the feedbacks that we have been receiving. previously thot they forgot. Some procuring entities forget to elick the post button in order for the Bid notice to be posted at the website, And when did these procedures start the posting ‘of notices or invitations to Bid in the PhilGEPS website? The process or the creation of the bid start with the Step 1 No, in what year dd these procedures start? Apologies again but I cannot recall the year, Okay, but once the button for posting is clicked, ‘would the procuring entity receive a notice from PhiIGEPS that the posting or the publication is already successfal or I's written in the page. So, there's a ramp ‘message ance they click the post buaton, (Okay, So, it's within the same program? Yes, your honors. Pagetterete cee 2: Burn omlis bing soothe sonaspoonf shoal peie As With the email notification, apologies again. I dit a he satin fa oft rte a 5 or ep mcg ire. Based on Bailon’s testimony, [AEB No. 345285 forthe second bidding ‘was ereated and intended to be published by the BAC. The “post” button was not, however, clicked as a final step to publish the IAEB for the second bidding. There was a‘lear intention on the pat of accused Salamida, Cotn, Feleo, Padual, Colandog and Labicane to comply with the posting at PhiIGEPS as required by law and rules, Although this will not justify their ‘non-compliance with the other requirements, it proves thatthe performance of their duties was not attended by evident bad faith. IIL. ° The Prosecution failed to prove manifest partiality. “Partiaity” is synonymous to “bias” exits a disposition to see and report matters a they are wished for raer than as they ae" Partai Ihocames manifest when tis atended by’ clear notorious or plain inclination ‘or preiletion to favor one side or person rather than another”? Manifest partiality is in the nature of dodo, Hence, it must be proven thatthe accused ‘were animated by & malicious intent and consciously pursued notorious scheme to deliberately favor IERSI Notably, IERSI was selected by the BAC to supply the remanufactured fire truck because iis the only supplier that submitted a responsive proposal for negotiation." In ease of two failed biddings and in emergency eases, the [BAC is required by law to issue invitations to at least three suppliers for negotiation of contract. It can be recalled that it is the burden of the person ‘who asserts the exception to the general rule, to show compliance with the rules. Inthis ease, however, no proof was presented by the Defense that JERS} belonged to the list of suppliers in good standing and registered with the ‘Municipality. The Defense also failed to present evidence on how the BAC arrived at a decision that IERSI’s proposal was responsive to the legal, technical and financial components of the contract. In this aspect, the Court finds aecused-BAC members Salamida, Cotin, Feleo, Padual, Colandog and Labicane gully of “partiality” or “bias” toward IERSI. Sng rc, No 17 me 1,20 tig oe Simson, OR. 165DECISION paces or4s Pe Ama Ps Gone a But then again, this “partiality” does not amount to “manifest partiality” as defined and punished by R.A. No. 3019, The evidence of the Prosecution failed o establish any deceitfil or fraudulent intent or motivation behind the selection of IERSI as the supplier ofthe remanufactured firetruck. TERSI was not personally chosen by any of the accused. No evidence was presented that there were other eligible suppliers of remanufactured fre trucks that could also have submitted a proposal to the Municipality. The requirement of “notoriety” in favoring IERSI over another supplier is therefore lacking, IV. There was, however, gross inexcusable negligence in the BAC’s ‘non-compliance with R.A. No. 9184 and the IRR-A. “Gross inexcusable negligence” is negligence characterized by the want of even slight care; aeting or omitting to act in a situation where there sa duty fo act, not inadvertently but willfully and intentionally, with a conscious indifference to consequences insofar as other persons may be affected. I is the omission of that care which even inattentive and thoughtless men never {alto take on their own propery; in eases involving public officials it takes place only when breach of duty is flagrant and devious. " Gross inexcusable negligence varies from evident bad ith and manifest partiality. Evident bad faith and manifest pariality are acts committed through defo, while aross inexcusable negligence i committed by means of eu, In Martel v.People™, the Supreme Court explained Gross inexcusable negligence under Section 3 (e) of RA. No. 3019, a exlpable felony, does not require {Fraudulent intent or iwi. public fcr Is gully of ‘grass inexcusable negligence when there is @ serious treach of duty thar is commited flagrantly, palpably ‘en with willl inference. Hence a public officer who Seriously Breaches his or her duty in a blatant and ‘extremely careless manner is guilt of grass inexcusable regligonce under Section 3 (e) regardless of whether such breach af duty was done in mations intent In this case, the Court cannot close it eyes on the fact that the procurement of the remanufactured fire truck suffered a lot of procedural infirmities. As earlier discussed, the condition required for the declaration of 4 failure of bidding and emergency procurement were not sufficiently established by the Defense. The procedures in the conduct of negotiated procurement were also not complied with. Apart from this, the Notice of ‘Award dated January 19, 2017 was issued before the BAC recommendation, Sapa eae ee er 03 lv‘Taking all these procedural infirmities together, the Court is convinced that accused Salamida, Cotin, Feleo, Padual, Colandog and Labicane were “grossly” and “inexcusably” negligent in the performance oftheir duties as BAC members, ‘The BAC is responsible for ensuring thatthe Procuring Entity abides by the standards set forth by R.A. No, 9184 and the IRR." Accused Salamida held the position of BAC Chairpersonship for ten years! while accused Cotin served as BAC Vice Chairperson for atleast six years." Both of them are considered “veterans"in the field. They cannot feign ignorance of the procurement law since they have been performing the said positions fora Jong period of time already. Considering their familiarity with procurement Jays, itis expected that procurements made by the municipality under their leadership be compliant with the law and rules. Unfortunately, in this case, accused BAC members committed several irregularities inthe procurement of the remanufactured fire truck. Such breach of duty is considered “flagrant” and “devious”, Accused-BAC members Salamida, Cotin, Ecleo, Padual, Colandog and Labicane are guilty of gross inexcusable negligence in this procurement ‘The presence of conspiracy between and among accused-BAC. members Salamida, Cotin, Eeleo, Padual, Colandog and Labicane was sufficiently established. Conspiracy exists when two or more persons come to an agreement concerning the commission ofa felony and decide to commit, The elements ‘of conspiracy are: 1) two or more persons came to an agreement; and 2) the ‘exccution ofthe felony decided upon." Interms of proving its existence, conspiracy may be express or implied, [Express conspiracy requires proof of an actual agreement among all the ¢o- conspirators to commit the crime."* Implied conspiracy, on the other hand, exists when two or more persons ate shown to have aimed by their acts towards the accomplishment ofthe same unlawful object, each doing a part 0 that their combined acts, though apparently independent, were in fact ‘connected and cooperative, indicating closeness of personal association and a concurrent of sentiment." Implied conspiracy is proved through the mode and manner ofthe commission ofthe offense, or from the act ofthe accused 2 Pepe Feder, GI No 115846, Aapst 20, ‘tego: apt Git No son ay se =aFpl Ami Pj Conse Kwa. before, during and after the commission ofthe crime indubitably pointing to joint purpose, a concert of aetion and a community of interest. ‘The conspiracy between and among. accused Salamida, Cotin, Eeleo, Padual, Colandog and Labicane was learly proven by theie concerted act of fixing their signatures on BAC Resolution No, 01022007 dated January 23, 2007 recommending resort to negotiated procurement in the purchase of remanufactured fire truck". Through their concurrence to the said recommendation, accused affirmed that there were two failed biddings and the existence ofan emergency despite non-compliance with the requisites and procedure of R.A. No. 9184 and ils IRR-A. VL. Accused Gonzales-Kwan’s good faith becomes a valid defense. Accused Gonzales-Kwan claimed that she approved the award of contract to the IERSI in good faith. She said that she relied on the recommendation of the BAC to use negotiated procurement in the purchase of the remanufactured fire truck Accused Gonzales-Kwan’s averments are well-taken. The Prosecution failed t9 prove beyond reasonable doubt the existence of evident bad faith, ‘manifest partiality and/or gross inexcusable negligence in accused Gonzales” ‘Kwan's acts of issuing the notice of award, approving the award of contract, and entering into a nepotiated contract with IERSI. The mere aet of signing, and approving bidding documents, although non-compliant with procurement law, does not automatically equate to evident bad faith, manifest partiality andior gross inexcusable negligence. Accused Gonzales Kwan's actions, a8 HoPE, must be a “graf” and “corrupt” act as defined and punished by R.A. No. 3019. In Magsuel»: Sandiganbayan"®, the Supreme Court reversed the convition of Magsuci on the ground that the evidence didnot sufficiently prove that he acted in conspiracy with his coaceused, In concluding Magsucis involvement in the conspiracy, the Sandiganbayan pointed to his acts of) noting the accomplishment report and cerificaton subrtted by his co-accused; 2) signing the disbursement voucher with the usual ertfication ‘on the lawful incurence ofthe expenses tobe paid: and 3) eosigning four checks for the payment of money to his eo-aeeused. The Supreme Court, however, sad tha! the actions of Magsuci involved the very funetions he had to discharge in the performance of his official dues. There has been inimaton at all hath had foreknowledge of any imepulrty commited by either or both his co-aceused. The Supreme Cour ruled that while the accused #1Decision Page sors Pope esata Pyne Ges Kana Sirgen ‘might ive been lax and administratively remis in placing too much reliance ‘on the official reports submited by his subordinates, for conspiracy to exist, itis essential that there must be a conscious design to commit an offense Conspiracy isnot the product of negligence but of intentionality on the part of cohorts. The ruling in Magsuei finds its basis on the Arias doctrine, which ‘exempts heads of offices who, in good faith, rely toa certain extent onthe cts of their subordinates “who prepare bids, purchase supplies or enter into negotiations”. In Aras v. Sandiganbayan’™", the Supreme Court hel: xs All heads of offices have rely toa reasonable extent (om their subordinates and on the good faith of those who prepare bids, purchase supplies, or enter into negotiations. "If a department secretary entertains Important vistors, the auditor isnot ordinarily expected ‘ocall the restaurant about the amount ofthe bill question ‘each guest whether he was present at the luncheon inquire whether the correct amount of food was served. ‘and otherwise personally look into the reimbursement voucher’s accuracy, propriety, and suficieney: There has to be vome added reason why he should examine each voucher in such detail Any executive head of even small government agencies or commissions can attest to the volume of papers that must be signed. There are hundreds of documents, letters, memoranda, vouchers, and supporting paper that routinely pass through his hands. The number in bigger offices or departments is even mare appalling ‘There should be other grounds than the mere signature ‘or approval appearing on a voucher 10 sustain a ‘conspiracy charge and conviction.” In Typoco v. People", the Supreme Cour discussed the application of Arias doctrine ina case where the documents signed and approved by the head of agency are falsified. The Supreme Court said that Arias doctrine can be applied only if the falsification of the documents was apparent on their face In Typoco, the evidence showed that: 1) there were alterations inthe purchase order and purchase request; 2) the dates of delivery receipt and acceptance in the sales invoice were tampered vis-i-vis the inspection and acceptance report and 3) the list of individual recipients ofthe drugs and medicines were not submitted. According to the Supreme Court, these iregularites are very apparent on the face of the documents. Had Typoco, as head of agency, Gi No HS, Domi 1988,ecision Paget Fp Amaia Psi Gee a ‘exercised the due diligence required of him, he would have easily noticed the ieregularties on the documents. ‘There was no exceptional circumstance in this ease that would ‘ordinarily arouse accused Gonzales-Kwan’s reasonable sense of suspicion that there were iregularities committed inthis procurement. On the allegation ‘of falsification, the Notice of Award dated January 19, 2017 showed nothing fon its face that it was dated and issued before the required BAC recommendation. Substantial information pertaining tothe procurement such as the date of IRS's bid January 18, 2007), subject of the procurement (one unit of remanufactured firetruck) and the contract price (Php2,000,000.00) were all correctly stated, Thus, the mistake on the date, address of the “Municipality in the leter head and even on the name of IERSI, appeared immaterial and typographical when accused Gonzales-Kwan signed and ‘approved the notice of award." Further, accused Gonzales-Kwan did not Participate inthe actual bidding process, particularly inthe alleged two failed biddings. She mainly relied on the performance of duties by her subordinates. Sulficient proof must be presented tha: 1) she had actual knowledge that no BAC resolution was issued when she signed the Notice of Award dated January 19, 2017; or 2) she was aware ofthe irregularities in the procedure ‘conducted hy the BAC. Thus, it eannot be said that accused Gonzales-Kwan taliciously awaided the contract to IERSI without following the procedure under R.A. No, 9184 and its IRR-A. The third element is. present: TERSI received unwarranted ‘advantage in the procurement of ‘the remanufactured fire truck. There is, however, insufficient proof that undue injury was ‘caused 10 the Municipality of Guiuan, Eastern Samar by reason of said procurement. 1. TERSI reccived “unwarranted advantage” from the procurement of the remanufuetured firetruck. In the prosecution oF cases involving the violation of Section 3 (@) of R.A.No. 3019, “unwarranted” has been defined as lacking adequate r official support unjustified; unauthorized or without justification or adequate reason; advantage” means a more favorable or improved postion or condition; benefit, profit or gain of any’ kind: Benefit fram some course of action; and wayDecision Page 0045 ope am ine Geran “preference” signifies priority or higher evaluation or desirability; choice or estimation above another."® Here, IERSI was given an advantage in the award of contract forthe procurement of the remanufactured fire truck, There was no evidence presented that IERStis inthe list of registered suppliers in good standing with the Municipality. There was also no proof on how the BAC arrived at a suecessfl negotiation with IERSI on the legal, technical and financial terms of the contract. These issues, coupled with the procedural infirmities committed by accused BAC members, made the award of the contract to TERSI “unwarranted” as defined by law. IERSI thus received “unwarranted advantage” by reason of accused BAC members’ gross inexcusable negligence in this procurement. T. No undue injury’ or damage was sustained by the ‘municipality in the procurement. ‘The term “undue” is defined as more than necessary, not proper, or illegal; and injury as any wrong or damage done 10 another, either in his person, rights, reputation or property, or that is, the invasion of any legally protected inteiest of anodes. Undue injty is ulvays bee interpreted “actual damage”.” A finding of “undve injury” cannot be based on flimsy ‘and non-substantial evidence or upon speculation, conjecture, or ‘guesswork. Based on records, the Municipality paid Phpl, 985,454.35 to IERSI for fone unit of remanufactured fire truck.” While accused BAC members are _uilty of several procedural infimities in the negotiated procurement, there is no evidence to suppor a finding thatthe payment forthe fire tuck is “undue”, “more than necessary” or “not proper”, or thatthe Municipality sustained an 1ctual damage” from this procurement. ‘The payment of Php1,985,454.55 is supported by municipal funds alloted forthe said purpose. Both the undated Purchase Request No. 1011-07- (02-027 and Purchase Order No, 0702-027 indicated an amount of Two Million ‘One Hundred Thousand Pesos (Php2,100,000.00) forthe purchase of one unit ‘of remanufactured fire truck. In its Resolution No. 07 s. of 2007, the ‘Sangguniang Bayan approved the purchase ofthe remanufactured fire truck and authorized accused Gonzales-Kwan to enter into @ negotiated contract for the ero People, GR. Nes, 15657715658) & 156749, December 3, 2014 fie Soft Oo 1868 Mach i eine hia, VV 17, ST. tie Sdn aie Oud. iy of LDecision Page 048 Re Ai jon Goes. same." In the undated Obligation Request No. 101-07-02-303, accused Catin also certified the existence of appropriation for the same amount and ppurpose.** In DV No. 101-02-07-028 dated February 1, 2007, Municipal ‘Accountant Bernardo in tum certified the allotment of the ‘amount of Php2, 100,000.00 forthe payment of remanufactured firetruck while Municipal ‘Treasurer Rafsel A. Macawile J certified the availability of municipal funds forthe said purpose. The negotiated procurement was covered by proper disbursement documents. Apart from this, thee is evidence to show thatthe remanufactured fire truck was delivered tothe Municipality on February 1, 2007.2 When accused Salamida and Cotin, and witness Macapanas testified in 2019, they stated that the fire truck is still being used by the Municipality 2” Clealy then, no undue injury or damage was sustained by the Municipality in the negotiated procurement. FINAL NOTE, Public office is «public trust. Public officers and employees must at all times be accountable tothe people, serve them with utmost responsibilty, iitewsty, loyalty and efficiency, act with patriotism and justice, and lead ‘modest lives” Being beholden to the Filipino people, the actions of public officer are thus subjected to a higher level of scrutiny, more so when the expenditure of public funds is involved.* ‘The rules on public bidding and on public funds disbursement are imbued with public interest” Accused Gonzales-Kwan, Salamida, Cotin, cleo, Padual, Colandog and Labicane, as public officials, have the bounded duty to work for, and protect the interest of the government. There is greater responsibility imposed upon them to ensure that the laws are faithfully complied with, 2 All (old, the Prosecution has successfully discharged its burden of proving with moral certainty the guilt of accused Selamida, Cotin, cleo, Padual, Colandog and Labicane for Violation of Section 3(e) of R.A. No. 3019, The Cou finds them uly of gross inexcusable negligence inthe procurement et. 7 Coin st Aer 16,2019 p64, V2 Ress aia gine Set tt epee 38% 1168 Yl 3 Rc aa! AstDECISION age tas Fone Nai Psi Ger n a ‘of one unit of @ remanufactured fire tuck for the Municipality of Guiuan, astem Samar. As a result, IERSI received unwarranted advantage from the said procurement. There is, however, no proof that the Municipality sustained undue injury or damage inthe aniount paid for the remanufactured firetruck, The Prosecution filed to prove accused Gorzales-Kwan’s guilt for the same crime. The evidence isnot sufficient to prove beyond reasonable doubt that she acted with evident bad faith, manifest partiality and/or gross inexcusable negligence in issuing the notice of award, approving the award of contract and entering into a negotiated contract with IERSI. ‘The death of accused Labicane before the filing of the Information and accused Salamida before final judgment extinguished their eriminal liability inasmuch as there is no longer a defendant to stand as accused." Accordingly, the Court holds that the death of aecused Labieane and Salamida results in the dismissal ofthe criminal case against therm. WHEREFORE, premises considered, judgment is hereby rendered 1) CONVICTING accuscd ESPERANZA G. COTIN, MA. NENITA, S.ECLEO, FELIPE D. PADUAL, and DANILO G. COLANDOG ofthe crime of Violation of Section 3 (c)of R.A. No. 3019. Each of them is sentenced to suffer he indeterminate penalty of imprisonment ‘of sx (6) years and one (1) month, as minimum, to eight (8) yeas, as, maximum, and the penalty of perpetual disqualification from holding public office; and 2) NO CIVIL LIABILITY may be adjudged against accused Cotin, cleo, Padual and Colandog as the actor omission from which the civil liability might arise did not exist. 3) ACQUITTING accused ANNALIZA P. GONZALES-KWAN of the crime of Violation of Section 3 (e) of R.A, No. 3019 for failure of the Prosecution to prove her guilt beyond reasonable doubt for the said offense, 4) The hold departure order issued against accused Gonzales-Kwan by’ reason of this cas is hereby LIFTED and SET ASIDE, andthe bond she posted is RELEASED subject to the usual accounting and ‘auditing procedures a ot WeFe mal Pen Gan. 5) The case against ARSENIO V. SALAMIDA and GILBERTO N. LABICANE are DISMISSED by reason of death, SO ORDERED. KARL W/AMRANDA ‘Associate Justice 1 JANET FERYANDEZ KEVIN Me uae Associate Justice Associate Justice ‘Chairperson WE CONCUR: ATTESTATION I attest that the conclusions in the above Decision were reached in consultation before the ease was assigned to the writer of the opinion of the Court's division, CERTIFICATION Pursuant to Article VIL, Section 13 of the Constitution, and the Division Chairperson's Attestation, itis hereby certified that the conclusions in the above Decision were reached in consultation before the ease was assig the writer ofthe opinion of the Court's Division. PARO M. ing Justice