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Republic of the Philippines

OFFICE OF THE OMBUDSMAN


Office of the Deputy Ombudsman for Luzon
Agham Rd., Diliman, Quezon City 1104

WILFREDO B. REYES
Complainant, Docket No: OMB-L-A-17-0303
-versus- For: Conduct Prejudicial to the Best
ADELA L. REBOLLIDO, ET AL., Interest of the Service; Dishonesty;
Respondent Grave Misconduct
x -------------------------------x

HON. MARGIE G. FERNANDEZ-CALPATURA


Director, Preliminary Investigation, Administrative
Adjudication and Prosecution Bureau - C
By Authority of the Deputy Ombudsman for Luzon

Your Honor,

I, ADELA L. REBOLLIDO, respondent, respectfully SUBMIT this POSITION


PAPER as COMPLIANCE with the Order dated 25 August 2017, which undersigned received
on September 28, 2017 directing parties to submit VERIFIED POSITION PAPERS to support
their claims, state, that:

POSITION PAPER
STATEMENT OF FACTS

Stripped of unessential details, and avoiding repetition of submissions of facts


in other pleadings, the FACTS of this case are:

1. On 22 March 2017, Wilfredo B. Reyes filed his complaint against herein


public respondent and Mr. Guillermo L. Sylianteng.

2. In his complaint, complainant alleged the following:

a. On October 16, 2014, at 14:00 P.M. the BAC of the Municipal


Government of Paoay, Ilocos Norte, together with respondent
Rebollido, conducted a rigged bidding for the Printing Services and
Delivery of Accountable Forms for Use at the Municipal Treasurers
Office, Municipal Government of Paoay, Ilocos Norte, with an
approved budget for the contract (ABC) of P79, 285.00.

b. In this pre-determined bidding, Ready Form, Inc., thru Mr.


Guillermo L. Sylianteng, Jr., callously submitted a bid offer of
P79,285.00 (same amount with the ABC) and, thereafter, for such a
bid price, a contract was awarded on October 21, 2014.
3. Aside from this instant case, complainant have filed at least another ten
(10) cases before the Honorable Ombudsman of Luzon;

4. However, under the verification section of all his complaints, including this
very complaint, complainant falsified the JURAT thereof. As evidenced by
the letter (marked as Annex A) of Atty. ROGELIO J. BOLIVAR, the latter
denied having notarized the complaint nor having met the complainant;

5. Not only did complainant falsified the verification of all his complainant
but likewise falsified his address,1766 BPTHAI 1, 1630 Ibayo Tipas, Taguig
City, as mentioned therein;

6. Copy of the counter-affidavit of the public respondent which was sent


through registered mails (marked as Annex B) was returned due to the
reason that he has MOVED OUT. Moreover, there is a couple of registered
mails (marked as Annex C) sent to him by the private respondent through
his temporary postal address which were returned due to the same reason
that he has MOVED OUT;

ISSUES

1. Whether or not public respondent is guilty and should be held liable for
violating Republic Act No. 9184 in relation to Republic Act No. 3019;
2. Whether or not public respondent is guilty and should be held liable for
violating Section 21 of Republic Act No. 10155 and Government
Procurement Policy Board (GPPB) Resolution NO. 05-2010, as amended
by GPPB Resolution NO. 04-2011;
3. Whether or not public respondent is guilty and should be held liable of
conduct prejudicial to the best interest of the service;
4. Whether or not public respondent is guilty and should be held liable for
dishonesty and grave misconduct; and
5. Whether or not public respondent should be preventively suspended.

ARGUMENTS/DISCUSSION

There is no violation of Republic Act No. 9184

in relation to Republic Act No. 3019.

Respondent DENIES engaging in machinations, conspiracy or receiving


undue favor from respondent GUILLERMO L. SYLIANTENG, JR. (private
respondent) since all of Municipalitys procurement subject of the complaint was
made through advertised public bidding or in accordance with the IRR of
RA 9184. In fact, the respondent has never met Mr. Guillermo L. Sylianteng Jr.

Based on the complainants own evidences , the bid notices attached to


the complaint, the Municipality issued public Invitation to Bids, as such, the
complainant or BFI or any accredited bidders could have participated in the
public bidding as there was no bar for them to do so.

Since the complainant and his firm, BFI failed to join the public bidding
they cannot make claims that the biddings were rigged. Not having had any
knowledge of the events which transpired during the procurement process they
cannot assail the same. Their claims of irregularities are therefore mere fantasy
and speculations.

Under such transparent circumstances there is no way for public respondent and
the private respondent to connive or conspire since both were never privy to the bids of
other potential bidders. All the bids received by the Municipality would be opened
simultaneously and in front of the other bidders hence conspiracy and undue favor
cannot exist.

Respondent DENIES that the Municipality engaged in splitting simply because


splitting is resorted to in order to bypass public bidding. In all these cases cited by
Reyes, the procurement which RFI participated in, was through public bidding or in
accordance with RA 9184 hence an accusation of splitting cannot be, because the
Municipalitys procurement on Accountable Forms is done once in a year.

In fact, in the contract made by Municipality to RFI, RFIs prices through


biddings were substantially lower than that of the Recognized Government
Printers NPO and the APO Production Unit (APO).

RFIs prices for Municipality of Paoay Official Receipt AF 51C P 98.00/pad as


seen from the PO. The NPO and APO prices are P110.00/pad and P125/pad (Annexes
D, E and F, respectively). Thus, an allegation of disadvantage to the government cannot
hold water.

MOREOVER, THE COA HAS ALREADY AUDITED THE RFIS TRANSACTION


with the Municipality and have not disallowed nor no adverse findings on this
transaction, hence the municipality could not have suffered damage, an essential
element of a violation of RA 9184 and RA 3019, by paying a lower cost with free delivery
of its forms.

Clearly, the complaint is bereft of merit and in fact criminal. Its inception and
execution was committed with the precision of a recidivist thief taking advantage of
night while violating Section 35 and 36 of RA 6770 for being an unwarranted, false,
vexatious, malicious, and perjured pleading and therefore should be immediately
DISMISSED.

The respondent was impleaded only to allow the Honorable Office to acquire
jurisdiction over the private respondent. The complaint is cruel. In DOJ vs. Liwag [2] the
Supreme Court ruled:

When one is hailed before an investigate body on


specific charges, the very act of filing said complaint for
preliminary investigation immediately exposes the
Respondent and his family to anxiety, humiliation and
expense.

It is clear therefore that this harassment complaint, which main target for
whatever reason is the private complainant, was treacherously filed by impleading
myself, without consideration for the anxiety and humiliation as well as expense
I will incur simply to satisfy the true complainants lust for revenge against private
respondent.

However, the respondent, as BAC CHAIRMAN will explain the legal basis for
making procurements in accordance with RA 9184 as well as to explain why this
complaint should be discarded for being perjured the respondent proceeds thus:

The Complaint violates the Rules of Court


and the Constitutional Right of the Respondents.

The complaints use of a temporary postal address is an act of treachery, deceit


and malice serving the sole purpose of evading criminal liabilities. By indicating an
address from which Reyes may disappear or abandon at will, WHICH IN FACT HE HAS
NOW DONE, complainant uses the cloak of anonymity to spew his venom from afar and
cause damage to the business and reputation of innocent persons including the private
respondent at minimal risk of being exposed to consequent redress.

Section 3, Rule 6 of the Revised Rules of Court requires that a Complaint specify
the name and RESIDENCES of the parties thus:

Section 3. Complaint. The complaint is the pleading alleging the


plaintiff's cause or causes of action. The names and residences of the
plaintiff and defendant must be stated in the complaint xxx.

Section 14(2) of Article III of the 1987 Philippine Constitution providing for the
right to confrontation, viz:

Section 14. x x x
(2) In all criminal prosecutions, the accused shall be presumed
innocent until the contrary is proved, and shall enjoy the right to be heard
by himself and counsel, to be informed of the nature and cause of the
accusation against him, to have a speedy, impartial, and public trial, to
meet the witnesses face to face, and to have compulsory process to secure
the attendance of witnesses and the production of evidence in his behalf.
xxxx

Section 3, Rule 46 in relation to Section 1, Rule 65 of the Rules of Court requires


further than in case of Certiorari against any adverse ruling the Honorable Court, the
petition must contain the actual addresses of all the petitioners and the
respondents, thus:

SEC. 3. Contents and filing of petition; effect of non-compliance


with requirements. The petition shall contain the full names and actual
addresses of all the petitioners and respondents, a concise statement of
the matters involved, the factual background of the case, and the grounds
relied upon for the relief prayed for.

Therefore, the reason for the temporary postal address is clear. Complainant
intends to avoid the expected reciprocal legal action for this malicious complaint. In fact,
the complainant already abandoned his temporary postal address leaving
respondent without opportunity to take reciprocal action for his barratry.

THERE IS NO VIOLATION OF RA 9184.

Complainant has used Notices posted on the PhilGeps as evidences. Hence, he


acknowledges that the procurement undertaken by the Municipality complied with RA
9184 in all respects. Then how could RA 9184 have been violated?

The acts which constitute a violation of RA 9184 for public officials are enumerated
under Sections 65.1, 65.3, of the IRR of RA 9184 thus:

Section 65. Offenses and Penalties

65.1. Without prejudice to the provisions of R.A. 3019 and other


penal laws, public officers who commit any of the following acts shall
suffer the penalty of imprisonment of not less than six (6) years and one
(1) day, but not more than fifteen (15) years:

a) Opening any sealed bid including but not limited to Bids that
may have been submitted through the electronic system and any and all
documents required to be sealed or divulging their contents, prior to the
appointed time for the public opening of Bids or other documents.

b) Delaying, without justifiable cause, the screening for eligibility,


opening of bids, evaluation and post evaluation of bids, and awarding of
contracts beyond the prescribed periods of action provided for in this IRR.

c) Unduly influencing or exerting undue pressure on any member


of the BAC or any officer or employee of the procuring entity to take a
particular action which favors, or tends to favor a particular bidder.

d) Splitting of contracts which exceed procedural purchase limits to


avoid competitive bidding or to circumvent the limits of approving or
procurement authority.

e) Abuse by the Head of the Procuring Entity of his power to reject


any and all bids as mentioned under Section 41 of the Act and this IRR,
with manifest preference to any bidder who is closely related to him in
accordance with Section 47 of the Act and this IRR.
65.3. Private individuals who commit any of the following acts, and
any public officer conspiring with them, shall upon conviction, suffer
the penalty of imprisonment of not less than six (6) years and one (1) day
but not more than fifteen (15) years:

a) Submitting eligibility requirements of whatever kind and nature


that contain false information or falsified documents calculated to
influence the outcome of the eligibility screening process or conceal such
information in the eligibility requirements when the information will lead
to a declaration of ineligibility from participating in public bidding.

b) Submitting Bidding Documents of whatever kind and nature that


contain false information or falsified documents or conceal such
information in the Bidding Documents, in order to influence the outcome
of the public bidding.

c) Participating in a public bidding using the name of another or


allowing another to use ones name for the purpose of participating in a
public bidding.

d) Withdrawing a bid, after it shall have qualified as the Lowest


Calculated Bid/Highest Rated Bid, or refusing to accept an award, without
just cause or for the purpose of forcing the procuring entity to award the
contract to another bidder. This shall include the non-submission within
the prescribed time, or delaying the submission of requirements such as,
but not limited to, performance security, preparatory to the final award of
the contract.

None of the above violations were committed by the public respondent. As a


matter of fact, complainant did not even allege any of the above violations as being
committed by the respondent. Hence, the inclusion of the private respondent is clearly
malicious and vexatious intended only to harass her.

NO VIOLATIONS OF GAA PROVISIONS (DILG MC 32-2012


GPPB RESOLUTION NO. 05-2010)

General Appropriations Acts are all National Budgets addressed only to


NATIONAL GOVERNMENT AGENCIES. The GAAs are not addressed to nor cover or
govern private parties including the Municipality or any bidders under RA 9184 as well as
Local or Regional Governments.

Local governments are autonomous from the National Government and governed
by the Local Government Code through issuances of their respective Sanggunian(s) for
all their budgetary and administrative requirements and by RA 9184 in all their
procurement.
The Municipality, an LGU, more so the private respondent, could not have
violated a Provision of any GAA since the GAAs do not govern the Municipality or private
respondent.

Even without a PCOO Clearance, reliance on GPPB Resolution No. 05-2010, an


irregular implementation made by GPPB of a GAA provision, particularly Section 29
of the GAA of 2010 and DILG MC 32-2012 which is a mere reiteration of Resolution
No. 05-2010 is specious. The Resolution cannot apply to local and regional governments
being derivatives of the GAA nor does it govern the private respondent.

What is worse, the complainant concealed this fact, perjured, committed Forum
Shopping and Estafa when insisting on GPPB Resolution No. 05-2010 and DILG MC 32-
20102 fully aware that its sole basis, Section 29 of the GAA of 2010 was EXPRESSLY
INVALIDATED by the Court of Appeals in CA GR CV NO. 96075. As NPO
subcontractor he knew this as a fact since the NPO was made a necessary party to
the Court Orders invalidating Section 29 of the GAA and thus the DILG and GPPB
circulars.

The Annex of RESOLUTION No. 05-2010


does not include Paoay Accountable Forms.

Even assuming that Resolution No. 05-2010 was valid, the list of accountable
forms which it annexed (as shown in the Complaint) allegedly required to be procured
from Government Printers did not include the personalized and specialized
Municipality of Paoay accountable forms. There is no basis for the complaint at all.

PUBLIC RESPONDENTS, COULD NOT HAVE


GRANTED UNDUE FAVOR TO RFI.

To top off the complainants ridiculous complaint they impleaded public


respondent for conducting a bidding in accordance with law. Under such transparent
circumstances, public respondent nor the BAC could have acted to favor RFI since they
had no control over the other bids.

Corollary thereto, the private respondent had no reason nor benefit to influence
public respondent in any manner, because public respondent could do nothing to favor
RFI into winning the bidding.

THERE IS NO VIOLATION OF RA 3019 (e), (f) or (g) by RESPONDENTS.

In numerous jurisprudences the Supreme Court has ruled that a charge for
a violation of Section 3 of RA 9184 requires concrete and tangible proof of
quantifiable damage in actual Pesos and Centavos. The complainant failed to prove
or even allege quantifiable damage to government or to himself. In fact, there was no
damage but full advantage which the Municipality derived from its procurement from
RFI. RFIs prices for the Municipality of Paoay Official Receipt AF 51 is P98.00/pad as
seen from the NOA. The NPO and APO prices are P110/pad and P125/pad. Thus, the
municipality could not have suffered undue damage by paying a lower cost with free
delivery of its forms.
Section 3 (e), (f) and (g) of RA 3019 define the Corrupt Practices of Public
Officers and not that of private individuals like the private respondent and reads
as follows:

-x-x-x-

(e) Causing any undue injury to any party, including the Government,
or giving any private party any unwarranted benefits, advantage or
preference in the discharge of his official administrative or judicial functions
through manifest partiality, evident bad faith or gross inexcusable
negligence. Xxx

(f) Neglecting or refusing, after due demand or request, without


sufficient justification, to act within a reasonable time on any matter pending
before him for the purpose of obtaining, directly or indirectly, from any
person interested in the matter some pecuniary or material benefit or
advantage, xxx

(g) Entering, on behalf of the Government, into any contract or


transaction manifestly and grossly disadvantageous to the same xxx

Clearly the said provisions of RA 3019 refer to acts and omissions of public
officials not the private respondent. Herein respondent cannot also fathom how
public respondents could have caused undue injury to any party, including the
Government, or giving any private party any unwarranted benefits, advantage or
preference in the discharge of official administrative or judicial functions through
manifest partiality, evident bad faith or gross inexcusable negligence by merely
conducting a public bidding.

Public respondent could not have Neglected or refused, after due demand or
request, without sufficient justification, to act within a reasonable time on any matter
pending before her nor could he have entered on behalf of the Government, into any
contract or transaction manifestly and grossly disadvantageous to the same because,
the complainant had no transaction or request before public respondent which should
have been acted upon.

The BIDDINGS WERE ATTENDED BY COA & NGOs

The competitive public bidding done by the municipality were witnessed by


representative of the Commission on Audit and two (2) representatives of accredited
NGOs. Respondent therefore puzzled why Mr. Reyes can claim irregularity when in fact
the procurement made from RFI was COA supervised.

COMPLAINANT VIOLATED RA 6770 AND


SHOULD BE PROSECUTED BY THE OMBUDSMAN.
Both the private respondent as well as PUBLIC RESPONDENT were maliciously
and deliberately impleaded by the complainant through the use of deception in
creating his false identity, and by perjuring about the circumstances of the
Municipalitys procurement process, thus he criminally violated both Section 35 and
Section 36 of RA 6770 or the Ombudsman Law thus:

Section 35. Malicious Prosecution. Any person who, actuated


by malice or gross bad faith, files a completely unwarranted or false
complaint against any government official or employee shall be subject to
a penalty of one (1) month and one (1) day to six (6) months imprisonment
and a fine not exceeding five thousand pesos(P5,000.00).
Section 36. Penalties for Obstruction. Any person who
willfully obstructs or hinders the proper exercise of the functions of the
Office of the Ombudsman or who willfully misleads or attempts to mislead
the Ombudsman, his Deputies and the Special Prosecutor in replying to
their inquiries shall be punished by a fine of not exceeding five thousand
pesos (P5,000.00).

It is the complainant and his handlers therefore that should be investigated by


the Honorable Office and charged before the Sandiganbayan for multiple violations of
RA 6770.

ISSUES RESOLVED BY COURT

To address the issues on the procurement of accountable forms made by LGUs


and Regional Governments, the procurement of accountable forms in accordance with RA
9184 is a non-issue resolved with finality by both the Supreme Court and the Court of
Appeals where the CA also expressly invalidated Section 29 of the GAA of 2010 ( and
succeeding GAA provisions) the sole basis of Resolution No. 05-2010/MC 32-2012.

There is NO VIOLATION of Section 29 of the GAA of 2010, (Resolution No. 05-2010


and DILG MC 2012-32) as it is EXPRESSLY INVALIDATED.

Complainant, perjured and misled the Honorable Office by deliberately failing to


inform the Office that the issues on the validity of issuances relying on Section 29 of
the GAA of 2010 has already been RESOLVED by Court in favor of RA 9184 as
procurement method for accountable forms.

A. BANDA VS. ERMITA [GR NO. 166620, April 20, 2010]

In an En Banc Ruling on a Certiorari filed by NPO officials against the Office of


the President seeking the High Court to declare invalid Executive Order No. 378 s. 2004
(marked as Annex G) removed NPOs exclusive jurisdiction over the printing of all
government standard and accountable forms (Section 1 of EO 378). In Banda, the High
Court ruled:

Petitioners contention that the issuance of Executive Order No. 378


is an invalid exercise of legislative power on the part of the president has
no legal leg to stand on.
In all, Executive Order No. 378, which purports to institute necessary
reforms in government in order to improve and upgrade efficiency in the
delivery of public services by redefining the functions of the NPO and limiting
its funding to its own income and to transform it into a self-reliant agency
able to compete with the private sector, is well within the prerogative of
President Arroyo under her continuing delegated legislative power to
reorganize her own office. As pointed out in the separate concurring
opinion of our learned colleague, Associate Justice Antonio T. Carpio, the
objective behind Executive Order No. 378 is wholly consistent with the state
policy contained in Republic Act No. 9184 or the Government Procurement
Reform Act to encourage competitiveness by extending equal opportunity to
private contracting parties who are eligible and qualified.(underlining ours)
Said ruling is now part of jurisprudence on the procurement of accountable
forms acknowledged by the GPPB in its Website and affirms the removal of NPOs
exclusivity over the printing of accountable forms and requires it to compete with private
printers in accordance with RA 9184.
B. TRIPRINT CORPORATION vs. LTO, NPO [CA GR CV No. 96075,
May 11, 2014]

Dissatisfied with Banda, the NPO and its private printer subcontractor Triprint
Corporation, as Petitioners filed a Civil Case for DECLARATORY RELIEF questioning
the Land Transportation Offices procurement of accountable forms through public
bidding in accordance with RA 9184 before Branch 213 of the Mandaluyong Regional
Trial Court (Civil Case No. MC-10-4337) contending that Memorandum Circular No.
180 s. 2009 and Section 29 of the GAA of 2010 should be the Rule on the Procurement
of accountable forms as exception to RA 9184.

The Regional Trial Court on June 25, 2010 Ruled in its Decision that:

COURT DEFINES ISSUES

To simplify this issue, it is proper to determine whether the LTO is


required to procure accountable forms from the NPO by virtue of Memo. Cir.
180 and Section 29 of Republic Act No. 9770 (RA 9770) or through
public bidding open to all parties in accordance with RA 9184.

RULING: REPEAL OF EO 285


BY EO 378 AND RA 9184.

It should also be noted that there is no exception made in RA 9184


or EO 378 that would exclude accountable forms with money value or
specialized accountable forms. EO 378s provisions repealed MO 38 and EO
285srant to NPO exclusivity the same being a later issuance to said MO 38
and EO 285.
In addition, given the sequence of issuances, it is clear that RA 9184
repealed also the exclusivity granted to the NPO and its authority to
subcontract.(underlining ours)

RULING: ON NPO SUBCONTRACT BIDDINGS

As a result, the premises for the authority of NPO to conduct public


bidding and to accredit and subcontract printing jobs of government forms
as well as the exclusivity over such printing jobs except for election
paraphernalia is now inexistent. Also, the premise of the prior waiver
required under Memo. Cir. 180 is likewise repealed since the GAA of
2009 which embodied said provision has already expired

RULING: ON PROCUREMENT METHOD


OF ACCOUNTABLE FORMS

In relation to this petition, the procuring entity for LTOs printing


needs which is for use in transacting public businesses and used for its
day-to-day operations is solely vested and depends with the LTO,
through its BAC since Sections. 5 and 10 of RA 9184 requires that
all procurement must be conducted solely through the respective
BAC of the procuring entity. Hence, the LTO should in accordance
with RA 9184 make its procurement through its BAC. (underlining
ours)

Upon the NPOs Motion for Reconsideration the Court Ruled on October 5, 2010
thus:
OCTOBER 5, 2010 ORDER (ON MR OF NPO)

RULING: LEGAL PROCEDURE FOR


PROCUREMENT OF ALL ACCOUNTABLE FORMS

as previously articulated by this court, RA 9184 is the sole


law governing all types of government procurement including that
of all types of accountable forms. Said law made no distinction as
to the type of accountable forms and said law has not been repealed
nor amended in any manner. Being the procurement law, all
government agencies and the transacting public are bound to adhere
to its Implementing rules and regulations (IRR) in making
procurements for the government. (underlining ours)

RULING: INVALIDITY OF EXECUTIVE ISSUANCES


IN AMENDING RA 9184

This court opines that any executive ordinance or issuance cannot


amend said law. Stated otherwise, MC 180 and EO 378 cannot amend RA
9184 since to amend the law or its IRR, a legislative act is needed. Hence
petitioner Triprints reliance in its arguments on the validity of executive
issuances in amending RA 9184 is misplaced and has no
basis.xxx.(underlining ours)

RULING: EXPRESS REPEAL OF SEC. 29


OF GAA 2010 AND GAAs amending RA 9184
To continue, respondent LTO is correct when it countered that a
provision of the GAA cannot repeal a law which is in accordance in
the pronouncement in Philippine Constitutional Association v.
Enriquez that a provision in an appropriation act cannot be used to
repeal or amend other laws.

Finally, as properly observed by respondent LTO, the Sec. 90 of


the GAA of 2010 repealed the exclusivity granted to government
printers through Sec. 29 of the same GAA by statutory construction
hence, petitioner Triprints arguments of NPOs rights based on a
provision of the GAA is invalid. (underlining ours)

Therefore, as early as October 5, 2010 when the Regional Trial Court rendered
its Final Decision the Courts Order remained in force until such a time as it was
reversed or affirmed, as has happened on May 11, 2014. The Entry of Judgment in CA
GR CV No. 96075 and the referred to Court Orders it affirmed in Civil Case MC 10-
4337 is attached. (Annex H, I and J, respectively).

A decision rendered in a case for Declaratory Relief which is final and executory
is governed by the Doctrine of Stare Decisis and is immovable and immutable and defines
the rights and obligations of parties, in this case that of procuring entities making the
procurement of all types of accountable forms and the transacting public and applies to
all future cases involving the same or similar issues, which is that a GAA provision
(including that of 2016 and any future GAA provision) or an executive issuance cannot
serve to amend RA 9184 and prohibits re-litigation.

All parties seeking to still controvert the Orders contained in the dispositive
portion or fallo of CA GR CV No. 96075 are estopped since the Decision in CA GR CV
No. 96085 is now final and conclusive not only as to every matter which was offered
and received to sustain or defeat the claim or demand but as to any other admissible
matter which must have been offered for that purpose
A GAA/EXECUTIVE ISSUANCE CANNOT
AMEND LOCAL GOVERNMENT CODE (RA 7160)

a. LEYNES v COA.
Aside from doctrine established in CA GR CV No. 96075, the jurisprudence
issued in Judge Tomas Leynes v COA [2] where the Court ruled that executive issuances,
(MC 180) and/or any GAA provision cannot apply to Local Government LGU
procurements thus:

It is elementary in statutory construction that an administrative


circular cannot supersede, abrogate, modify or nullify a statute. A statute is
superior to an administrative circular, thus the latter cannot repeal or amend
it. In the present case, NCC No. 67, being a mere administrative circular,
cannot repeal a substantive law like RA 7160.
It is also an elementary principle in statutory construction that
repeal of statutes by implication is not favored, unless it is manifest that
the legislature so intended.In the absence, therefore, of any clear
repeal we cannot presume such intention on the part of the legislature.

Moreover, the presumption against implied repeal becomes stronger


when, as in this case, one law is special and the other is general. The
principle is expressed in the maxim generalia specialibus non derogant,
a general law does not nullify a specific or special law. The reason for this
is that the legislature, in passing a law of special character, considers and
makes special provisions for the particular circumstances dealt with by the
special law. This being so, the legislature, by adopting a general law
containing provisions repugnant to those of the special law and without
making any mention of its intention to amend or modify such special law,
cannot be deemed to have intended an amendment, repeal or modification
of the latter.
In this case, RA 7160 (the LGC of 1991) is a special law which
exclusively deals with local government units (LGUs), outlining their
powers and functions in consonance with the constitutionally
mandated policy of local autonomy. RA 7645 (the GAA of 1993), on
the other hand, was a general law which outlined the share in the
national fund of all branches of the national government. RA 7645
therefore, being a general law, could not have, by mere implication,
repealed RA 7160. Rather, RA 7160 should be taken as the exception
to RA 7645 in the absence of circumstances warranting a contrary
conclusion. (underlining ours)

b. PIMENTEL v AGUIRRE

In Pimentel vs. Aguirre [3] the Supreme Court again explained why an executive
orders or issuance cannot operate to govern LGUs thus:

The Constitution vests the President with the power of supervision,


not control, over local government units (LGUs)..
-x-x-x-x-x-x-
In contrast, the heads of political subdivisions are elected by the
people. Their sovereign powers emanate from the electorate, to whom they
are directly accountable. By constitutional fiat, they are subject to the
Presidents supervision only, not control, so long as their acts are exercised
within the sphere of their legitimate powers. By the same token, the
President may not withhold or alter any authority or power given them by
the Constitution and the law. (underlining supplied)
c. DBM v. LEONES.

Again, in DBM vs. Leones [4] the Court ruled that GAAs, or National Budgets do
not operate to govern Local and Regional Government Units since these local
governments are autonomous vis the operations of the National Government.

Although the Philippines is a unitary State, the present Constitution


(as in the past) accommodates within the system the operation of local
government units with enhanced administrative autonomy and autonomous
regions with limited political autonomy. Subject to the Presidents power of
general supervision and exercising delegated powers, these units and
regions operate much like the national government, with their own executive
and legislative branches, financed by locally generated and nationally
allocated funds disbursed through budgetary ordinances passed by
their local legislative councils.(underlining ours)

Thus, imposing provisions of the National Budgets or GAAs on LGUs is clearly


prohibited under Res Judicata.

d. DOCTRINE OF INAPPROPRIATE PROVISIONS.


Moreover, the legal maxim enunciated in G.R. No. 113105, G.R. No. 113174, G.R.
NO. 113766 and G.R. NO. 113888, all of which had the COA as respondent elucidates
why GAAs cannot apply to LGUs thus:

"Cognizant of the legislative practice of inserting "inappropriate


provisions, including conditions, restrictions and limitations, to items in
appropriations bills, the 1987 Constitution mandates in Article VI, Section
25(2) that:

"No provision or enactment shall be embraced in the general


appropriations bill unless it relates specifically to some particular
appropriation therein. Any such provision or enactment shall be limited
in its operation to the appropriation to which it relates"

As the Constitution is explicit that the provision which Congress


can include in an appropriations bill must "relate specifically to some
particular appropriation therein" and "be limited in its operation to
the appropriation to which it relates," it follows that any provision which
does not relate to any particular item, or which extends in its operation
beyond an item of appropriation, is considered "an inappropriate provision"
which can be vetoed separately from an item. Also to be included in the
category of "inappropriate provisions" are unconstitutional
provisions and provisions which are intended to amend other laws,
because clearly these kind of laws have no place in an appropriations bill.
These are matters of general legislation more appropriately dealt with in
separate enactments. Former Justice Irene Cortes, as Amicus Curiae,
commented that Congress cannot by law establish conditions for and
regulate the exercise of powers of the President given by the Constitution for
that would be an unconstitutional intrusion into executive prerogative.

The doctrine of "inappropriate provision" was well elucidated in


Henry v. Edwards, thus:

"Just as the President may not use his item-veto to usurp


constitutional powers conferred on the legislature, neither can the
legislature deprive the Governor of the constitutional powers conferred
on him as chief executive officer of the state by including in a general
appropriation bill matters more properly enacted in separate
legislation." (underlining ours)

e. PHICONSA v ENRIQUEZ and COA


In the Philconsa vs. Enriquez and COA [5], the Court ruled against a provision
inserted in the GAA purported to amend PD 1597, the Court ruled ". Again we state:
a provision in an appropriations act cannot be used to repeal or amend other laws,
(underlining ours)

EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS

Even assuming arguendo that GPPB Resolution No. 05-2010 (marked as Annex
K)/DILG MC 32-2012 is valid, still its Primary Whereas Provision show it relies solely
on Section 29 of the GAA of 2010 which reads:

Section 29. Printing and Publication Expenditures.


Departments, bureaus, offices, or agencies are hereby given the option
to engage the services of private printers xxxx.
Section 29 of the GAA of 2010 clearly directs that Departments, Bureaus,
Offices or Agencies make their procurement of accountable forms through recognized
government printers. Nowhere in the proviso does it direct that the printing
requirements of LGUs, should likewise be coursed through RPGs. In fact, all the GAAs
until this date show that its application for RGPs are limited to National Government.

Applying the statutory principle of ejusdem generis directly to all GAAs, it is


clear that the GAA cover only the National Government. Expressio Unius Est Exclusio
Alterius. Hence res judicata in Leynes prohibits including that specifically excluded by
law and Stare Decisis as well as its own mandate under Section 63 of RA 9184 prohibits
GPPB from implementing GAAs.

LGUs required to abide by RA 9184


In relation to the subject matter at hand and CA GR CV No. 96075, it must be
noted that Section 4 of RA 9184 (the law) applies to all procurement of any branch,
agency, department, bureau, office or instrumentality of the Philippine government,
including government-owned and/or controlled corporations (GOCCs), government
financial institutions, state universities and colleges (SUCs) and LGUs . Section 4
mandates thus:

SEC. 4. Scope and Application. This Act shall apply to the


Procurement of Infrastructure Projects, Goods, and Consulting Services,
regardless of source of funds, xxx including government-owned and/or
controlled corporations and local government units, xxx.(underlining
ours)
RA 9184 is specific in requiring LGUs method of procurement for accountable
forms (Goods) be conducted in accordance with Section 4 of RA 9184 its IRR alone while
the GAA only requires Departments, Agencies, Offices and Bureaus to abide by it.

Moreover, under Section 63 of RA 9184, the GPPB is limited by its mandate to


implementing RA 9184 and therefore it cannot enforce any other law including GAAs.
Worse, the GPPB cannot moto propio amend the WORD OF THE LAW (GAA) by changing
the words of the law from Departments, Offices, Bureaus and Agencies to Procuring
Entities to cover what is not covered under law.
THE DEPARTMENT OF FINANCE APPROVED LGU
PROCUREMENT OF ACCOUNTABLE FORM THRU RA 9184.
Aside from following the prescribed procedure established in the Stare Decisis
Decision embodied in CA GR CV NO. 96075, the respondents are also guided by the
instructions of the Department of Finance Department Order No. 1-09 (Annex L)
dated January 6, 2009; Department of Finance, Local Finance Circular No. 1-09 dated
January 29, 009(Annex M) and Bureau of Local Government Finance Memorandum
Circular No. 09-2009 dated March 12, 2009(Annex N).

Department of Finance Department Order No. 1-09 allows the printing of


customized LGU accountable forms from private printing service providers. BLGF Local
Finance Circular No. 1-09 provides the Guidelines in the eligibility/pre-qualification of
private printers for LGU accountable forms while BLGF Memorandum Circular No. 09-
2009 espouses the February 20, 2009 Legal Opinion rendered by the Office of the
President which affirms that NPO cannot subcontract printing jobs and must compete
with private printers for such printing requirements.

In a subsequent Legal Opinion rendered also by the Office of the President dated
May 25, 2009 the Office of the President affirmed that MO 38 which is the basis of MC
180 has been repealed by RA 9184.

THE OFFICE OF THE PRESIDENTs PROVIDES NPO WAIVER


AND ACCREDITATION IS ILLEGAL.

Any waiver provision required under the GAA of 2014-2017 and under GPPBs
Resolution has been determined by the Office of the President to be illegal and irregular
as early as February 24, 2009 (Annex O) and May 25, 2009 (Annex P) when the
OP issued Legal Opinions addressed to the BLGF. We quote the OP May 25, 2009
Opinion thus:

NPO claims that the it can still continue its sub-contract bidding
function because Memorandum Order (MO) No.38 s Nov 19,1998 (MC 180)
was not expressly repealed by executive order (EO) No.378, s. October
25,2004: that there exist no in consistency between the provision of the
two (2) orders; and to high light this point, it cited Sec. 27 0f RA 9401,
GAA FY 2017 and 2008 stressing on its provision xxx provide that in the
printing of accountable forms, a prior waiver from the national printing
office shall be secured.

The office holds that the provision of MO 38 (MC 180) granting NPO
to sub-contract bidding due to its incapacity are diametrically opposed to
the provision of EO no.378 on the matter. It is incongruous For NPO to
accredited its competitors.
-x-x-x-x-x-

Further, said provision (prior waiver) is considered an inappropriate


provision which has no place in an appropriation bill. A general
appropriation act is a special(sic) and temporary statute and therefore
cannot repeal a general(sic) and permanent statue [Phil Const. Assn. vs.
Enrique 235 SCRA 506(1994)]

Furthermore, RA No 9184 (Govt. Procurement Reform Act)


consolidated the procurement processes of government contract. It
substituted existing laws, rules and regulation on the matter. Hence,
RA No. 9184 operates to repeal MO 38 [Mecano vs. COA, 216, SCRA
500 (1992)]
NPOs position paper therefore is specious and has no basis in law.
Again, the waiver provision embodied in the GAA existed as early as 2007 and
the issue of its requirement/implementation has already been determined and expressly
invalidated by the Office of the President as early as 2009 and later in CA GR CV No.
96075. Therefore, its imposition is sans any legal basis.

COA POSITION-COA REGIONAL DIRECTORS


AFFIRM CA GR CV NO. 96075

COA Regional Director I, Director Lynn Sicangco, now Region III COA Regional
Director affirms (Annex Q) that:

xxx Again, let us reiterate our response to you that in the


procurement process, the Bids and Awards Committee (BAC) is responsible
for ensuring that the Procuring Entity abides by the standards set forth in
R.A. 9184 and its implementing rules and regulations. To enhance the
transparency of the process, in addition to the COA representative, two
others from the private sectors sit as observers in the proceedings. The
role of COA Representative at the time of bidding was only as a witness to
insure documentary integrity and not to insist to Management as where to
procure goods or services xxx (underlining ours)

COA Regional Director II, Director Pelilia Veloso writes (Annex R) to state that:

In relation thereto, please be informed that this Office is bound to


observe the laws, rule and regulation on matters brought before it, including
the decisions of the Supreme Court which forms part if the land, and the
decisions of the Court of appeals which has attained finality.
Rest assure that this Office will apply strictly the decision of the
Court of Appeals in CA GR CV No. 96075

COA Regional Director X, Director Celso Vocal, affirms in his April 6, 2017
indorsement (Annex S) to the COA General Counsel that he agrees GAA or Executive
issuances cannot amend RA 9184 thus:

After a careful evaluation of the pertinent papers/communications,


taken together with the earlier submissions of Mr. Sylianteng Jr., we are of
the considered view that there is enough legal ground in support of the view
that indeed the NPO no longer has exclusive jurisdiction over the printing
service requirement of government standard and accountable
forms.(underlining ours)
No other current COA regional director has insisted on implementing GAA
provisions or executive issuances in writing at this time.

GPPB Resolution No. 12-2014.

It is surprising that the complainant withheld from the Honorable Office GPPB
Resolution No. 12-2014, May, 2014. The Resolutions whereas provision of reads:

Whereas, the GPPB received various concerns on the procurement of


printing services for accountable forms, and sensitive, high volume
requirements, including delay in the delivery of forms, documents, and
papers for printing and reports on subcontracting activities being
undertaken by RGPs (NPO and APO) in violation of GPPB Resolution No.
05-2010 dated 29 October 2010.

Thereafter the GPPB recommended that:

RECOMMEND to the Department of Budget and Management that


the Proposed General Appropriations Act (GAA) for the year 2015 should
include a provision that the Printing of Accountable Forms and
Sensitive, High Quality Volume requirements be subjected to
competitive bidding, or other applicable procurement processes and
procedures embodied in RA 9184 and its Implementing Rules and
Regulations, including relevant issuances of the GPPB (underlining ours)

The GPPBs recommendation comes after the Court of Appeals issued it Order
declaring the GPPBs basis for GPPB Resolution No. 05-2010 irregular or illegal.

NPO ADMITS SUBMISSION TO CA GR CV NO. 96075.


To conclude, if any party claims a right to file this complaint it is the NPO because
it is its rights, if any, that may have been violated. However, quoting from the widely
circulated letter made by the NPO in 2015 which even the Municipality received, the
NPO admits loss of exclusivity by virtue of GPPB Resolution No. 05-2010, GAA
provisions and executive issuances (MC 180) and instead invokes the rescinded and
invalidated Executive Order No. 285 [6] as mandate thus:

In fine, since EO 378, MC 180 and GAA provision cannot


amend any law for that matter (since it needs a legislative act to
amend the law), it is understood that Executive Order No. 285
stands. (sic) It is noteworthy to mention that EO 285 was issued during the
Revolutionary Government when then President Corazon Aquino had the
legislative power to enact laws.
EO 285 was invalidated by the Supreme Court in Banda vs. Ermita where the
Court ruled EO 285, was an Administrative Order not a Law which can be amended by
the President.

This is the reason why the PCOO no longer issues exemptions to government
agencies. The PCOO is no longer authorized to do so with the annulment of Resolution
No. 05-2010 by the Court and the declaration that the Philippine Information Agency
(nee PCOO) which is the PCOOs predecessor REFRAINS from issuing Guidelines for the
Printing of Accountable Forms since the procurement of accountable is solely the
responsibility of the BAC of the Procuring Entity.

THERE IS NEVERY ANY IRREGULARITY

By following the DOF instructions, the BLGF instructions, the Court Orders
issued by the Supreme Court in the Banda Case and the Court of Appeals in CA GR CV
NO. 96075 as well as abiding the Legal Opinion of the Office of the President and that
of COA Regional Directors how can it be said that the procurement of accountable forms
made by the Municipality in full accordance with RA 9184 is irregular.

Public respondent is NOT guilty and should NOT be held liable of conduct
prejudicial to the best interest of the service, dishonesty and grave
misconduct;

With all the foregoing discussions, public respondent, then, cannot be held liable for
conduct prejudicial to the best interest of the service, dishonesty and grave misconduct.
Misconduct is a transgression of some established and definite rule of action, more
particularly, unlawful behavior or gross negligence by a public officer. [See Civil Service
Commission v. Ledesma, 508 Phil. 569, 579 (2005)] In grave misconduct, as distinguished from
simple misconduct, the elements of corruption, clear intent to violate the law or flagrant disregard
of established rules, must be manifest and established by substantial evidence. Complainant with
mere allegation, did not and failed to establish by substantial evidence to prove that public
respondent acted with grave misconduct, dishonesty or conduct prejudicial to the best interest of
the service.
Grave misconduct necessarily includes the lesser offense of simple misconduct. Thus, a
person charged with grave misconduct may be held liable for simple misconduct if the misconduct
does not involve any of the elements to qualify the misconduct as grave.
We point out that to constitute an administrative offense, misconduct should relate to or be
connected with the performance of the official functions and duties of a public officer . The
respondent in the present case, in several instances, performing the functions of his office, engaged
in unlawful behavior. In Manuel v. Judge Calimag, Jr. [367 Phil 162 (1999)], the Court explained
that:
x x x Misconduct in office has been authoritatively defined by Justice Tuazon in Lacson v.
Lopez in these words: Misconduct in office has a definite and well-understood legal meaning. By
uniform legal definition, it is a misconduct such as affects his performance of his duties as an
officer and not such only as affects his character as a private individual. In such cases, it has been
said at all times, it is necessary to separate the character of the man from the character of the officer
x x x It is settled that misconduct, misfeasance, or malfeasance warranting removal from office of
an officer must have direct relation to and be connected with the performance of official duties
amounting either to maladministration or willful, intentional neglect and failure to discharge the
duties of the office x x x.

Complainant failed to establish Substantial Evidence

In administrative proceedings, the quantum of proof necessary for a finding of guilt is


substantial evidence or such relevant evidence as a reasonable mind may accept as adequate to
support a conclusion. The standard of substantial evidence is satisfied when there is reasonable
ground to believe that a person is responsible for the misconduct complained of, even if such
evidence might not be overwhelming or even preponderant. This, the complainant failed to do so.

PUBLIC RESPONDENT CANNOT BE PREVENTIVELY SUSPENDED

Under Section 24 of RA 6770, it states that:

Section 24. Preventive Suspension The Ombudsman or his Deputy may


preventively suspend any officer or employee under his authority pending an
investigation, if his judgment the evidence of guilt is strong, and a) the charge against
such officer or employee involves dishonesty, oppression or grave misconduct or neglect
in the performance of duty; b) charges would warrant removal from the service; or c) the
respondents continued stay in office may prejudice the case filed against him.
The preventive suspension shall continue until the case is terminated by the
Office of the Ombudsman but not more than six (6) months, without pay, except when
the delay in the disposition of the case by the Office of the Ombudsman is due to the
fault, negligence or petition of the respondent, in which case the period of such delay
shall not be counted in computing the period of suspension herein provided.
Clearly, it is from the above that the law sets forth two conditions that must be
satisfied to justify the issuance of an order of preventive suspension pending an
investigation, to wit:
The evidence of guilt is strong; and
Either of the following circumstances co-exist with the first requirement:

a) The charge involves dishonesty, oppression or grave misconduct or neglect


in the performance of duty;
b) The charge could warrant removal from office; or
c) The respondents continued stay in office may prejudice the case filed
against him.

First and foremost, the evidence is never strong. Taking into account the integrity
of the Department of Finance instructions, the Bureau of Local Government of Finance
instruction, the Court Orders issued by the Supreme Court in the Banda Case and the
Court of Appeals in CA GR CVNo.96075 as well as abiding by the Legal Opinion of the
Office of the President and that of Commission of Audit Regional Directors, it cannot be
said that the procurement of the accountable forms made by the Municipality in
accordance with RA 9184 is irregular. Hence, not only is the element of strong evidence
of guilt lacking in the instant case but public respondent is not even guilty at all of the
offense being charged against her.
Complainant failed to present any evidence to prove the grounds or elements of
dishonesty, oppression or grave misconduct or neglect in the performance of duty on
my part. Allegations concerning the commission of any of the foregoing violations are
nowhere to be found in the complaint. Hence, the grant of the prayer for the issuance
of preventive suspension against public respondent would tantamount to denial of due
process.

Further, my continued stay in the office can never prejudice the case filed against
me. This Honorable Court should be prompted with the fact that the pieces of evidence
presented by the complainant against me were substantially sourced from the website
of PhilGEPs, a single portal which serves as the primary source of information on
government procurement.
There is no way can I prejudice the information coming from the PhilGEPs website
for she has no control of such. This Electronic Procurement System is being managed
by the Department of Budget and Management and under the direct supervision of
GPPB. It is virus-resilient and has sufficient security. It also has centralized electronic
bulletin board for posting procurement opportunities, notices, awards and reasons for
award. All procuring entities, including the Municipal Government of Paoay, are
required to post all procurement opportunities, results of bidding and related
information in the PhilGEPs bulletin board.
Inasmuch as the claims of the complainant have no basis in law and in fact, and
the grounds for the issuance of preventive suspension were not satisfied in the instant
case, the prayer for the issuance of said suspension against me should be denied.

RELIEF
IN LIGHT OF THE FOREGOING, it is respectfully prayed that the instant VERIFIED
POSITION PAPER be admitted and considered for the decision in the case pursuant to the Rules
of Procedure of the Office of the Ombudsman in Administrative Cases.
FURTHER, it is respectfully prayed that after due notice, deliberation, evaluation and
investigation by the Honorable Office, judgment be rendered DISMISSING this instant case.
Other relief and remedies justifiable under the circumstances are likewise prayed for.
IN WITNESS WHEREOF, I signed this pleading this 17th of December 2015 at Cantilan,
Surigao del Sur, Philippines.

ADELA L. REBOLLIDO
RESPONDENT
Copy furnished:

WILFREDO B. REYES
c/o 1766 BPTHAI I
1630 Ibayo Tipas, Taguig City

EXPLANATION

A copy of this position paper is being furnished to complainant not by personal service but
by registered mail due to time constraint and the distance involved.
VERIFICATION AND CERTIFICATION

I, ADELA L. REBOLLIDO, married, of legal age, Filipino citizen and resident of


Barangay 2, San Roque, Paoay, Ilocos Norte, after having been duly sworn in
accordance with law, depose and state that:

1. I am the public respondent in the above-stated case;

2. I caused the preparation of the foregoing Position Paper;

3. I have read the contents thereof and the facts stated therein are true and
correct of my personal knowledge and/or on the basis of copies of documents
and records in my possession;

4. I have not commenced any other action or proceeding involving the same
issues in the Supreme Court, the Court of Appeals, or any other tribunal or
agency;

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


pending in the Supreme Court, the Court of Appeals, or any other tribunal or
agency;

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

IN WITNESS WHEREOF, I have hereunto set my hand this 4th day of


October, 2017 at Laoag City, Philippines.

ADELA L. REBOLLIDO
Respondent

SUBSCRIBED AND SWORN to before me this 4th day of October, 2016 at


Laoag City, Philippines, exhibiting to me her ___________________________ as proof
of identity.

Doc. No. _______


Page No. _______
Book No. _______
Series of 2017.