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REPUBLIC OF THE PHILIPPINES

Sandiganbayan
Quezon City

FIFTH DIVISION

PEOPLE OF THE PHILIPPINES,


Plaintiff, Crim. Case No. SB-08-CRM-
0376
For: Violation of R.A. 3019
Sec. 3 (e)
- versus -
Present:

THERESA B. DELA PENA, ET AL., LAGOS, J., Chairperson


Accused. CRUZ, J. and
MENDOZA-ARCEGA, J.

Promulgated on:

()ctober 03, :LO\l- ~


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DECISION

LAGOS, J.:

Accused Dolores V. Gilongos is charged for violation of


Section 3(e) of R.A. 3019, under an Information alleging that:

That on or about and during the period from March 17,


2004 to July 7, 2004, or immediately prior or subsequent thereto,
in the Municipality of Sipocot, Province of Camarines Sur, and
within the jurisdiction of this Honorable Court, the accused,
Municipal Mayor THERESA B. DELA PENA, Bids and Awards
Committee Chairman DOROTEO C. CABINGAN, BAC Vice-
Chairman EMMAEDEN A. BALONZO,BAC Members ZENAIDAC.
SABANDO, DONATO C. ABENDANIO, JR., REBECCA A.
ROYALES,MIGUELCADA,all public officers and employees of the
Municipality of Sipocot, Camarines Sur, while in the performance
of their official functions and committing the offence in relation to
their office and conspiring, confederating, conniving and
cooperating with each other, and with DOLORES V. GILONGOS
and ALLAN D. SALONGAof Diakim General Merchandise, as
supplier for the fifty three (53) units multi-cabs, with manifest
partiality, evident bad faith and/or gross inexcusable negligence
in the discharge and performance of their official and
administrative functions, did then and there willfully, unlawfully,
and criminally purchase, pay and accept by deliveries in
installment, a total of fifth three (53) re-conditioned multi-cabs
from Dolores V. Gilongos of Diakim General Merchandise, contrary
to the intention to purchase brand new units of multi-cabs, for a
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People v. Theresa B. Dela Peria, et al.
Crim. Case No. SB-08-CRM-0376
DECISION
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total of P9,964,000.00, (at P188,000.00junit) when in truth and


in fact, the total and actual cost of the said fifty three (53) units of
multi-cabs at the time of purchase was only P6,399,750 (at
P120,750.00junit) or a difference of P3,564,250.00 to the damage
and prejudice of the government.

In a Decision promulgated on June 29, 2016, this Court


acquitted her eo-accused and ruled as follows:

WHEREFORE, accused Theresa B. Dela Pena, Doroteo C.


Cabingan, Emma Eden A. Balonzo, Zenaida A. Sabando, Rebecca
A. Royales and Miguel B. Cada are all ACQUITTEDof the charge of
violation of Section 3(e) of Republic Act No. 3019.

On August 15, 2016, an alias warrant of arrest was issued


against accused Gilongos and she was arrested on November 12,
2016. She posted bail on November 14, 2016 before the RTC of
Iloilo City. On December 19, 2016, this case was pulled-out from
the archives and revived.

Accused Gilongos entered a plea of Not Guilty at her


arraignment on February 15, 2017. Preliminary Conference was
held on April 26, 2017 and based on the Amended Pre-Trial Order
dated March 7, 2011, a Pre-Trial Order was issued on June 1,
2017, stating in part that:

The prosecution and the defense likewise adopt all the


documents marked, and the testimonies of the witnesses
presented during the trial, which were made the basis of the
Decision, promulgated on June 29, 2016, acquitting accused
Theresa B. Dela Pena, Doroteo C. Cabingan, Emma Eden A.
Balonzo, Zenaida A. Sabando, Donato C. Abendanio, Jr., and
Miguel B. Cada.

On June 20, 2017, the prosecution and accused Gilongos


filed a "Joint Manifestation", which stated:

Both parties are adopting the testimonies and evidence


offered during the proceedings as regards the other accused.

The parties also adopted the memoranda previously filed by


the prosecution and the other accused to support their respective
positions.

The case was thereafter submitted for decision as to accused


Gilongos.
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People v. Theresa B. Dela Pena, et al.
Crim. Case No. SB-08-CRM-0376
DECISION
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DISCUSSION

The prosecution's theory is that accused Gilongos is guilty of


the charge herein as she conspired with all of her eo-accused, who
were public officers and employees, in the overpriced purchase of
53 units of reconditioned multi-cabs by the Municipality of Sipocot.

Specifically, accused Gilongos is alleged to be the supplier of


said reconditioned units, being the proprietor of Diakim General
Merchandise. The criminal liability of accused Gilongos, like her
eo-accused, is therefore dependent on the prosecution's being able
to prove beyond reasonable doubt that the vehicles were overpriced
by Diakim General Merchandise and that the government incurred
undue injury because of the alleged overprice.

Considering that both parties adopted all the documentary


and testimonial evidence that was previously offered and admitted,
on which the Decision dated June 29, 2016 was based on, without
presentation of any additional evidence, the findings of the Court in
said Decision must be maintained. That Decision clearly stated:

For having failed to distinguish a "pick-up" type from the


"paseenqer" type, the post-canvass made was necessarily flawed.
The canvassed vehicle did not reflect the same quality as the item
purchased. Perceptively, therefore, the audit team could not have
compared the price of a vehicle different from the one purchased,
and make it the final basis to overthrow the manner with which
procurement was made. Even the source of the price quotation,
Iriga Joe Motors Corp, offered different price quotations for a
"Suzuki Multi-purpose Pick-up" pegged at "P115,000.00 plus freight
and handling and a "Suzuki Multi-purpose passenger" vehicle
quoted at "P180,000.00 plus freight and handling."

Since the procured multi-cabs were testified to have


features as that of a passenger vehicle, it was prosecution witness
Maynard Ngo who himself divulged that the average price range of
a regular passenger type was "around P180,OOO.00, P185, 000. 00,
P190,000.00 to P195,000.00, " depending on the type of fabrication
to be made. But as it actually happened, it was not just Maynard
Ngo who quoted the price range of a passenger type multi-cab at
"around P180,000.00, P185,000.00, P190,000.00 to P195,000.00. "
Defense witness Bernardino Santillan III of Magna Financial
Services Group, Inc. likewise submitted, on his own accord, a
quotation for a "Suzuki 4 Stroke, 3 cylinder water cooled direct fan
gasoline" at the price of "P181,500.00" through a letter dated
November 4, 2004 when he heard that COA was in need of a
canvass. Such price quotation was previously marked as Exhibit
HH for the prosecution but was not later incorporated in
prosecution's Formal Offer of Exhibits. Obviously, the reason for
suppressing such evidence at this time was to hide its antithetical

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People v. Theresa B. Dela Pefia, et al.
Crim. Case No. SB-08-CRM-0376
DECISION
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effect on the charge of overpricing. If only appreciated for its


worth, COAwould not have reached the conclusion on overpricing.

The charge of overpricing, therefore, was grossly


unsubstantiated.

Under COA Circular No. 85-55-A dated September 8, 1985,


"[e]xcessive expenditures" covered cases of "[o]verpricing of
purchases," as follows:

Standards for "Excessive" Expenditure

The term "excessive expenditures" pertains to the variables


of Price and Quantity.

1. Price - The price is excessive if it is more than the


10% allowable price variance between the price paid for the
item bought and the price of the same item per canvass of
the auditor.

xxx xxx xxx xxx

Situational Cases of "Excessive" Expenditures - (applicable


to NLCsectors)

1. Overpricing of purchases, characterized by grossly


exaggerated or inflated quotations, in excess of the current
and prevailing market price by a 10% variance from the
purchased item are considered excessive expenditures.

If only the price quotation given by Magna Financial


Services Group, Inc. at P181,500.00 was considered, it could have
been seen that the price paid for the item bought and the price for
the same item per canvass was within the 10% allowable variance.
As State Auditor Zenaida Mariquit herself conceded to, 10% of
P181,500.00 was P18,150.00 and when added to the principal,
amounted to P198,650.00. In essence, the procured amount of
P188,000.00 per unit could not have been deemed as overpriced.

For the bid price of P188,000.00, no fault could actually be


ascribed to the accused in awarding the supply of 53 units of
multi-cabs to Diakim General Merchandise.

If at all, the burden that persistently defied the perceived


irregularity in the public bidding was its non-compliance with R.A.
9184. It has long been conceded nonetheless that the conduct of
the public bidding on March 17, 2004 for the procurement of 53
units of multi-cabs was short-sighted due to the non-application
of R.A. 9184, with all the accused pleading ignorance to its effects.
If accusations has been hurdled on the award of the contract given
to Diakim General Merchandise, being the lowest bidder, the
accused were more than ready to dignify the blunder made. After
all, the fact that no pre-procurement conference or pre-bid
conference or post-qualification evaluation was conducted could
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People v. Theresa B. Dela Pena, et al.
Crim. Case No. SB-08-CRM-0376
DECISION
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not be shielded. That this should amount to manifest partiality,


evident bad faith and/ or gross inexcusable negligence, appeared
to be a conclusion that was forthcoming.

Doubt, however, surfaced whether such manifest partiality,


evident bad faith and/ or gross inexcusable negligence led to an
undue injury against the government.

Undue injury in the context of Section 3 (e) of R.A. No. 3019


should be equated with that civil law concept of "actual damage."
Unlike in actions for torts, undue injury in Sec. 3 (e) could not be
presumed even after a wring or a violation of a right has been
established. Its existence must be proven as one of the elements
of the crime. In fact, the causing of undue injury, or the giving of
any unwarranted benefits, advantage or preference through
manifest partiality, evident bad faith or gross inexcusable
negligence constituted the very act punished under this section.
Thus, it was required that the undue injury be specified,
quantified and proven to the point of moral certainty.

Proof on undue injury was lacking at this instance.' The


late and staggered delivery of 53 units of multi-cabs with their
reconditioned or fabricated state, did not automatically result
in undue injury to the municipality.

First. As already adverted to, the payment of 53 units of


multi-cabs at P188,000.00 per unit did not qualify as overpriced.

Second. The acceptance of reconditioned multi-cab units


from a proprietorship known as Diakim General Merchandise
should not even take one by surprise. Diakim General
Merchandise was not shown to be an authorized dealer of brand
new motor vehicles. Prosecution witness Maynard Ngo, the owner
of Iriga Joe Motors Corp., who provided the canvass price, even
disclosed that multi-cabs sold during this time were all
reconditioned from surplus engines especially available from
Suzuki. Hence, no brand new units could be obtained. At the bid
price of P188,000.00 per unit, it was actually odd that COA
should presume the procured vehicles to be brand new units.
Here, it was simply not enough for COA to suppose that the
purchase of multi-cabs be made on brand new units. A mere
presumption of such fact was not sufficient lest the prosecution
should merely thrive on speculation and probabilities. Needless to
say, in criminal prosecution, the Court should always guided by
evidence that was tangible, verifiable and not by mere conjecture
or speculation. From where COA obtained the idea that the
municipality should have procured brand new units was not clear.

For COAto thus assume that the purported intention of the


municipality was to bid out and purchase brand new multi-cab
units reeled of speculation. While the publication of the Invitation
to Bid did not specify that the supply of 53 units of multi-cabs
should be brand new, it did not also advertise that the same be
reconditioned units. The fact remained, however, that all bidders

r
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People v. Theresa B. Dela Pena, et al.
Crim. Case No. SB-08-CRM-0376
DECISION
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who came during public bidding were not shown to be authorized


dealers of brand-new units; rather, they appeared to be surplus
dealers who could fabricate the multi-cabs units, whenever
required. The issue on the bidding for brand-new units, therefore,
should never have been brought up.

Third. COA instigated that the accused should not have


allowed the late and staggered delivery of the multi-cab units and
that liquidated damages should have been demanded. This issue
should now be academic at this point. As shown in the Judgment
dated September 6, 2006 rendered by the Regional Trial Court of
Iloilo City, Branch 39, the amount of P344,416.00 as liquidated
damages was already deducted from the Performance Bond of
Diakim General Merchandise for the delay in the delivery of the
multi-cabs. The injury, if at all, has already been
compensated.

In the end, when prosecution evidence was not solid


enough to prove all the elements of the offense charged, a
judgment of acquittal is inevitable. (Emphasis supplied)

As the other eo-accused namely Theresa B. Dela Pefia,


Doroteo C. Cabingan, Emma Eden A. Balonzo, Zenaida A. Sabando,
Rebecca A. Royales and Miguel B. Cada were all acquitted of the
charge herein for insufficiency of evidence, accused Gilongos must
likewise be exonerated. No conspiracy was established between her
and the accused public officials to prove that there was overpricing,
resulting to pecuniary loss to the government.

WHEREFORE, premises considered, the Court finds accused


Dolores V. Gilongos Not Guilty of violating Section 3 (e) of R.A.
3019 for failure of the prosecution to prove her guilt beyond
reasonable doubt, and therefore ACQUITS her of said charge.

Upon finality of this judgment, her bail bond is ordered


RELEASED subject to the usual accounting and auditing
procedures. The hold departure order issued against her is
CANCELLED.

SO ORDERED.

.sa: LAGOS
Chairperson/ Associate Justice
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People v. Theresa B. Dela Pena, et al.
Crim. Case No. SB-08-CRM-0376
DECISION
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WE CONCUR:

MA. T~~~~i#.~~~O:;ZA-ARCEGA

ATTESTATION

I attest that the conclusions in the above decision were


reached in consultation before the case was assigned to the writer
of the opinion of the Court's Division.

~~.LAGOS
Chairperson, Fifth Division

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, and


the Division Chairman's Attestation, it is certified that the
conclusions in the above Decision were reach in consultation before
the case was assigned to the writer of the opinion of the Court's
Division.

*Sitting as Special Member as per Administrative Order No. 025-2017 dated


February 1, 2017.