Ombudsman orders relief of DPWH Bicol director

NAGA CITY --- The Office of the Ombudsman has ordered the implementation of the 6-months preventive suspension of Department of Public Works and Highways (DPWH) regional director Virgilio C. Eduarte and four other officials in connection with a complaint for grave misconduct, serious dishonesty and conduct prejudicial to the interest of the service docketed as OMV-V-A-18-0555, an Ombudsman letter to DPWH Sec. Mark A. Villar dated Jan. 2, 2020 showed.

Pilarita T. Lapitan, assistant Ombudsman, requested Villar to inform the Ombudsman as to the “action taken by the DPWH pertinent to the implementation of the preventive suspension or if the same has no been implemented, the reason for such failure.”

Lapitan reminded Villar that under Sec. 27 of Republic Act (RA) No. 6770 or the Ombudsman Act, “all provisionary orders of the Office of the Ombudsman are immediately effective and executory.”

She added that under Sec. 15(3) of the same law, “the refusal by any officer without just cause to comply with an order of the Ombudsman to remove, suspend, demote, fine, censure, or prosecute an officer or employee who is at fault or who neglects to perform an act or discharge a duty required by law shall be a ground for disciplinary action against said officer.”

Based on documents obtained by Bicol Mail, then DPWH Region 8 assistant director Eduarte, Attorney IV Eulogio L. Laboga, Quality Assurance and Hydrology Division chief Brenilda B. Mendoza, Equipment Management Division chief Romy M. Gumban, and Road Heightening and Tide Embankment chief Serafin S. Lago, were ordered suspended for six months without pay by Deputy Ombudsman for the Visayas Paul Elmer M. Clemente.

The preventive suspension order issued Feb. 1, 2019 was approved by Ombudsman Samuel R. Martires.

The Ombudsman suspension order against Eduarte and his co-respondents, as far as the former is concerned, stemmed from Eduarte’s role as chairman of the Bids and Awards Committee (BAC) of DPWH Region VIII.

The complainant, Edgar A. Tiu, owner and general manager of B.M. Marketing, a construction company, alleged that his firm was unlawfully disqualified by respondents in a public bidding conducted by the DPWH Region 8 based in Baras, Palo, Leyte on Dec. 21, 2106.

The bidding was for the construction of storm surge protector, road heightening and tide embankment with an approved budget for the contract (ABC) of P 264,218,720.97.

The BAC declared the bid documents submitted by B.M Marketing as complete and have passed the pre-qualification requirements. It also declared the construction firm as the lowest complying bidder with a bid offer of P216,269,130.57 compared to the other complying bidder whose bid price was P254,178,403.48.

After the post qualification evaluation, BAC chairman Eduarte in a letter to the complainant dated Dec. 28, 2016, required the latter to present the certificates of registration (CR) and official receipts (OR) issued by the Land Transportation Office (LTO) within three working days from receipt of the letter for the brand new construction equipment of B.M. Marketing consisting of two units of mixer, one unit of truck mounted crane, and one unit of prime mover/tractor truck, which were covered by commercial invoices and in the actual possession of the construction firm.

Respondent Eduarte issued a post disqualification order to B.M. Marketing on Jan. 9, 2017 for having failed in the technical requirement as to “availability, commitment, capacities, and operating condition of equipment units owned/leased/ under purchase for the contract.”

The complainant filed a motion for reconsideration, which was favorably acted by the BAC on Jan. 23, 2017. However, it gave the former until Jan. 31, 2017 to submit the LTO documents, otherwise the BAC said that failure to submit the same would result in automatic disqualification.

On Feb. 1, 2017, the respondents who were members of the BAC, issued a resolution declaring B.M. Marketing as post disqualified.

The complainant wrote a letter to Eduarte on Feb. 6, 2017 seeking a reconsideration of the disqualification citing that under the implementing rules and regulation of Republic Act No. 9184 or the Government Procurement Reform Act, the bidder is even allowed to submit a lease/purchase agreement for equipment.

On Feb. 15, 2017, respondents denied with finality the complainant’s letter of reconsideration for failure to submit the required LTO papers.

In its order imposing the 6-months preventive suspension order against Eduarte and his co-respondents, Ombudsman Clemente wrote that B.M. Marketing’s “actual possession of construction vehicles/equipment, coupled with commercial receipts, should persuade any reasonable mind that the possessor thereof is the owner of the same.”

Clemente cited the Supreme Court decision in Perez vs Mendoza, G.R No. L-22006, 28 July 1975, which states that “possession is an indicum of ownership of the thing possessed and to the possessor goes the presumption that he holds the thing under the claim of ownership.”

The suspension order also asked “why respondents unilaterally amended the checklist in the post qualification process by making it mandatory for B.M. Marketing to submit the LTO CRs and ORs of the 4 pledged vehicles/equipment,” which were not required under Item 3.iii of the Checklist of Bid Requirements.

Clemente also said that Eduarte and the other respondents violated the non-discretionary nature of the checklist when they amended the criterion of “availability of equipment” to “ownership of equipment.”

The Ombudsman official noted that the government lost P37,909,272.91, the difference between the bid prices of B.M Marketing and Premium Megastructures Inc., through the arbitrary act of the respondents in changing the non-discretionary criterion of availability of equipment to ownership of equipment.

This act constituted grave misconduct and as the evidence of guilt is strong, the respondents are placed under preventive suspension for six months, Clemente’s order said.

Bicol Mail tried but failed to get the reaction of Eduarte on the Ombudsman letter to Villar. As of this writing, the Office of the Ombudsman is still awaiting the answer of Villar to its query.