Respondents..
X_________________________________
X
MOTION FOR PREVENTIVE SUSPENSION
OF RESPONDENT BUREAU OF CUSTOMS
COMMISSIONER ALBERTO D. LINA
COMPLAINANT OMNIPRIME MARKETING, INC. through
counsel, and unto this Honorable Office, most respectfully
states that:
1. On 2 July 2015, Complainant filed with this Honorable Office
a Complaint-Affidavit charging Respondents Lina, Aguas, and
Parayno, Jr. for violation of Section 3(e) of the Anti-Graft and
Corrupt Practices Act, Republic Act 3019; Section 65 (5) of
RA 9184; and Republic Act No. 7080, otherwise known as the
Anti-Plunder Act, specifically Section 2. To the Complainant,
the acts or omissions of Respondents complained of are
5.2.
The charge against Respondent Lina involves
dishonesty, oppression or grave misconduct or neglect
in the performance of duty; and
5.3.
Respondents continued stay
prejudice the case filed against him.
in
office
may
10.
In issuing the writ of preliminary injunction the
presiding judge then found that the Joint Venture, of which
Complainant is the local counterpart, suffered injustice out
of the sudden cancellation following years long and rigorous
bidding process for its qualification6
11.
Fourth, the cancellation of the bidding process was
made without any justifiable basis. Respondent Linas 6 May
2015 letter requesting the discontinuance and abandonment
of the procurement for the PNSW 2 Project for the reason
that he has to conduct a review of the project was clearly
based on flimsy grounds, and not because there was a
significant change in the physical & economic conditions that
warranted the cancellation of the PNSW2 Project for being
no longer economically, financially, or technically feasible.
5 See page 15, Annex B, Omnibus Order dated 24 August 2015, Civil
Case No. 15-134333.
6 See page 15, Annex B, Omnibus Order dated 24 August 2015, Civil
Case No. 15-134333.
12.
Referring to the testimony of Customs OIC Deputy
Commissioner Angelica Sarmiento of the Bureau of Customs
Management Information System and Technology Group
(MISTG)7 Civil Case No. 15-134333 entitled Joint Venture of
Omniprime Marketing, Inc., and Intrasoft International, Inc.
versus DBM Procurement Service, et al, Petition for
Certiorari and Mandamus pending before Branch 47 of the
Manila Regional Trial Court, it becomes apparent that there
was no factual and technical basis or justification in the
cancellation of the procurement for the PNSW 2 project
where Complainants Joint Venture has emerged as the
Highest Rated Bid.
13.
The MISTG, the office within the Bureau of Customs
which primarily supervises the current operating system of
the said Bureau, was created by Executive Order No. 463
with the following function:
Section 3. Functions. The MISTG shall upgrade the
present information technology group where it will have a
more strategic position within the Bureau of Customs
organization setup and provide a functional structure which
will encompass the functions which are seen as vital in the
attainment of the vision of a modernized trade facilitating
and globally competitive Bureau of Customs.8
14.
The testimony of Customs OIC Deputy Commissioner
Angelica Sarmiento in Civil Case No. 15-134333 clearly
shows that there were no other matters left undiscussed in
the contract negotiation for the procurement in the NSW 2
Project. In fact, if the procurement of the project PNSW 2
with Complainants Joint Venture were not cancelled, it would
not have taken long before the contract for the procurement
were finalized. Hence:
ATTY. BUTUYAN
Now, were there any other issues that were not
agreed upon during the contract negotiation?
WITNESS
I did not agree to the parking slot being
requested by the short listed bidder.
ATTY. BUTUYAN
7 Created under Executive Order No. 463.
8 EXECUTIVE ORDER NO. 463, 3.
To the what?
WITNESS
ATTY. BUTUYAN
Parties?
WITNESS
Parking slot.
ATTY. BUTUYAN
Just the parking slot?
WITNESS
Yes.10
XXX XXX
XXX
ATTY. BUTUYAN
If the project was not cancelled by
Commissioner Lina, how long would have
taken for the contract to be finalized and
signed? If it was not cancelled, how long?11
WITNESS
16.
More importantly, it was unmistakably revealed that
there was no change of circumstances that would
necessarily impel the cancellation of the PNSW 2
procurement. To wit:
ATTY. BUTUYAN
Since the cancellation of the project by
Commissioner Lina has the needs of the
BOC with respect to the Philippine
National Single Window Phase 2 project
change? Has there ever been a change of
circumstances that would no longer
required the PNSW2?
WITNESS
None, sir.14
ATTY. BUTUYAN
None. Has the problems of the BOC, with
respect to the present system being use,
change or they still there?
WITNESS
17.
There is thus no dispute that a prior
factual or
technical evaluation was absent before the cancellation of
the bidding. Neither did Respondent Lina make use of any
technical recommendation in his decision to cancel the
same. Hence, there is no factual or technical justification for
the cancellation of the PNSW 2 bidding process where the
contract with Complainants Joint Venture is already being
finalized.
18.
The cancellation of the PNSW 2 bidding process, at a
time when the contract negotiations with Complainants Joint
Venture has ended and there was nothing more left to do but
to finalize the contract, will thus ultimately benefit
Respondent Lina who owns and controls the E-Konek
Pilipinas service provider of the current Bureau of Customs
operating system. Additionally, Respondent Linas very own
E-Konek Pilipinas will have a change to participate in case a
rebidding is made in the procurement for the PNSW 2.
19.
All these manifest that Respondent Lina committed acts
tantamount to oppression, grave misconduct, graft, and
corruption in the cancellation of the PNSW 2 bidding process
for his benefit and to the prejudice and damage of
Complainant.
20.
Lastly, Respondent Lina is the incumbent Customs
Commissioner and Head of the Procuring Entity in the
procurement procedure subject of the Complaint against
him, his continued stay in office will most definitely prejudice
this instant case. Said Respondents continuance in office will
pose a threat to the integrity of records involved in this case
and expose witnesses to influence.
21.
Besides that prejudice may result in Respondent Linas
continuance in office, the General Information Sheet of EKonek Pilipinas where Respondent Lina is the majority owner,
the findings of the trial court in issuing the writ of
preliminary injunction against the Bureau of Customs, and
the testimony of Customs Deputy Commissioner Angelica
Sarmiento are strong evidence sufficiently convincing to
justify the imposition of preventive suspension evidence
against Respondent Lina.
PRAYER
WHEREFORE, premises considered, it is most respectfully
prayed of this Honorable Office to ISSUE A PREVENTIVE
SUSPENSION ORDER against Respondent Alberto D. Lina,
incumbent Commissioner of the Bureau of Customs.
Other
reliefs,
just
and
equitable
circumstances, are likewise prayed for.
under
the
JOEL R. BUTUYAN
Roll No. 36911
PTR No. 4781975 / 1-30-2015 / Makati
IBP No. 01742 / Lifetime
MCLE Compliance No.IV-0011417 / Jan. 11,
2013
ROMEL R. BAGARES
Roll No. 49518
PTR No. 4781972 / 1-30-2015 / Makati
IBP No. 993980 /1-30-2015 / So. Cotabato
MCLE Compliance No.IV-0011822 / Jan. 25,
2013
EXPLANATION
Copies of the foregoing Motion were sent to the parties
via registered mail due to inadequacy of personnel, and
distance between the offices involved.
ROMEL R. BAGARES
Copy furnished:
Respondent Alberto D. Lina
Respondent Primo Aguas
Bureau of Customs, South Harbor,
Gate 3, Port Area, Manila
Respondent Guillermo Parayno,
Jr.
Unit 6D, Washington Towers, Pacific
Ave.,
Asiaworld
City
1700,
Philippines.