Philippine Supreme Court Resolutions

G.R. No. 196698-99 - (Office of the Ombudsman v. Jesusa Joyce N. Cirunay, et al.) - We resolve the Petition filed under Rule 45 of the Rules of Court by the Office of the Ombudsman from the 13 January 2011 Decision and 5 April 2011 Resolution of the Court of Appeals in CA-G.R. SP No. 107680.^[1] 

The Ombudsman's Ruling 

In its Decision promulgated 27 February 2006,^[2] the Preliminary investigation and Administrative Adjudication Bureau of the Office of the Ombudsman (OMB) found respondents guilty of grave misconduct, for which it imposed the corresponding penalty of dismissal from the service with cancellation of eligibility, forfeiture of retirement benefits, and perpetual disqualification from reemployment in the government service. The Bids and Awards Committee (BAC) of the Bureau of Food and Drugs (BFAD), mistakenly issued a Notice of Award to complainant Link Worth, Inc. for the company to supply BFAD with three (3) units of multimedia LCD projectors totaling P297,000.^[3]  BFAD later refused to accept Link Worth's tender of its performance bond, claiming that as per BAC Resolution^[4] dated 10 July 2003, it was Gakken Phils, Inc., not Link Worth, that won the award.

Petitioner OMB ruled that the acts of respondent BAC members were not mere errors, but fraudulent calculations that gave undue preference to Gakken Phils. Inc., because 1) Link Worth was informed of the error only four months after the erroneous Notice; 2) the claim that a BFAD staff member mistakenly instructed a typist to address the Notice of Award to Link Worth instead of the true awardee, Gakken, was incredible; 3) the Resolution lacked the necessary attachments, and 4) the Resolution was a mere afterthought to cover up the unwarranted benefits given to Gakken by respondents.^[5]

The CA Ruling 

The Court of Appeals (CA) reversed the findings of the Ombudsman and gave credence to the admission made by Johnny Gutierrez that he may have mistakenly instructed the typist to prepare the Notice for "Link Worth International, Inc." instead of "Gakken Philippines, Inc." Gutierrez stated in his Affidavit that due to the many reports on his table, only the name of Link Worth had "immediately registered in his mind,"^[6] and that he only gave the completed Notice a cursory glance. The CA concluded that these factual circumstances were insufficient to support a finding of grave misconduct which would have warranted dismissal from the service.

Our Ruling 

We deny the Petition.

After a thorough review of the records of the case, we see no reason to reverse or modify the findings of the CA. In its Petition, the OMB argues that the delay of four months on the part of respondents in presenting the BAC Resolution to Link Worth showed a fraudulent intent to favor Gakken, to the prejudice of Link Worth. It agreed with Link Worth that the explanation provided by Johnny Gutierrez could not reduce to a mere typographical error the wrongful issuance of the Notice of Award.^[7] Link Worth finds it incredible that the typographical error occurred as to the addressee, but not in the notice itself; since the specifications indicated "Mitsubishi" projectors (the brand proposed by Link Worth), and not "Plus" projectors (the brand proposed by Gakken).^[8]

It is well-settled that in a petition for review under Rule 45 of the Rules of Court, only questions of law may be raised. It is not the Court's function to reexamine the respective sets of evidence submitted by the parties.^[9]  However, factual findings may be questioned if, among other exceptions, the findings of the Court of Appeals are contrary to those of the lower court and/or administrative agency.^[10]  This exception is applicable to the present case.

Findings of fact by the OMB when supported by substantial evidence are conclusive. Conversely, therefore, when its findings of fact are not adequately supported by substantial evidence, they shall not be binding upon the courts.^[11] The OMB believes Link Worth's assertion that it probably won the public bidding, but respondents colluded lo award the contract to Gakken. This ruling was based solely on the delay in informing Link Worth about the issuance of the BAC Resolution of 10 July 2003. The CA rightly rejected this finding, stating that the delay alone cannot meet the quantum of substantial evidence required in administrative cases.

In the first place, herein respondents were not signatories of the erroneous Notice of Award. They had no participation in its preparation, and thus, cannot be faulted for its issuance, irrespective of whether such issuance was a badge of fraud or merely a typographical error. The Notice of Award pertained to two previous public biddings held on 25 October and 14 November 2002. Both were unsuccessful, because the amounts of the bids exceeded the available funds.^[12] Complainant Link Worth did not even participate in the first bidding, while its offer exceeded the amount indicated in the Terms and Conditions for the second bidding.^[13]cralaw

No actual evidence exists to connect the erroneous notice to the subsequent Resolution or to characterize the latter as a "mere afterthought," purportedly to cover up an anomaly. The CA found no irregularities in the Resolution, and petitioner admits that there is no doubt as to its contents. Section 35 (2) of Republic Act 9184, "An Act Providing for the Modernization, Standardization and Regulation of Procurement Activities of the Government and for Other Purposes," states that in the case of two failed biddings, the BAC may resort to negotiated procurement after the second failed bidding. Thus, the BAC was well within its authority to proceed with negotiated procurement.

Petitioner does not deny that in a product demonstration by both Gakken and Link Worth held before the Office of the Deputy Director, the Policy Planning and Advocacy Division, and the Supply Section of BFAD, the end users preferred Gakken's products to those of Link Worth.^[14] It is worthy to note that during the pendency of the investigation of this case, the Commission on Audit issued a Certification that the subject transaction was found to be in order during its post audit.^[15]

Petitioner admits that misconduct and dishonesty were merely "inferred from the circumstances obtaining in this case.�^[16] However, substantial evidence is more than a mere scintilla of evidence. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if other minds equally reasonable might conceivably opine otherwise. In administrative cases, the burden is on the complainant to prove by substantial evidence the allegations in the complaint.^[17] While substantial evidence does not necessarily import preponderance of evidence as is required in an ordinary civil case, or evidence beyond reasonable doubt as is required in criminal cases, it should be enough for a reasonable mind to support a conclusion. ^[18] 

Government officials are presumed to have regularly performed their functions; and strong evidence is necessary to rebut this presumption.^[19] That there was an interim of four months from the time Link Worth received the erroneous notice to the time it was informed of the existence of the Resolution falls far short of the evidentiary requirement for administrative liability. The delay harped on by Link Worth was a delay in informing Link Worth specifically, and not any delay that had a direct relation to the BAC's performance of its duties that would amount to maladministration or willful, intentional neglect. A representative from Link Worth was informed of the failure of the second bidding. There is nothing in the Procurement Law, R.A. 9184, that requires the BAC to apprise losing bidders of the results of the negotiated procurement or sets a period for the BAC's compliance. Even if we adopt wholesale the factual findings of petitioner, they simply do not prove any wrongdoing that would warrant dismissal from service.

Misconduct in office has been authoritatively defined as follows: 

Misconduct such as affects his performance of his duties as an officer and not such only as affects his character as a private individual... 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.^[20]

It is differentiated from grave or serious misconduct in this manner: 

"[S]ufficient cause" must exist in the judgment of the Supreme Court involving "serious misconduct." The adjective is "serious"; that is, important, weighty, momentous, and not trifling. The noun is "misconduct"; that is, a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by the public officer.^[21]

Misconduct is an intentional wrongdoing or a deliberate violation of a rule of law or standard of behavior, especially by a government official. Misconduct is grave where the elements of corruption, clear intent to violate the law, or flagrant disregard of an established rule are present. Otherwise, misconduct is only simple.^[22] Thus, the inescapable conclusion is that there was no substantial evidence to hold respondents guilty of misconduct, much less grave misconduct.

There being no reversible error attributable to the appellate court, its findings are affirmed and the present Petition is denied.cralaw

WHEREFORE, the 13 January 2011 Decision of the Court of Appeals in CA-G.R. SP No. 107680 is hereby AFFIRMED.

Very truly yours, 

MA. LUISA L. LAUREA
Division Clerk of Court

By:

(Sgd.) TERESITA AQUINO TUAZON
Deputy Division Clerk of Court

Endnotes:

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^[1] Penned by Associate Justice Manuel M. Barrios, and concurred in by Associate Justices Juan Q Enriquez, Jr., and Rosmari D. Carandang.

^[2] Docketed as Case No. C-A-04-0125-C, penned by Graft Investigation and Prosecution Officer II Cherry T. Bautista-Bolo, approved by Acting Ombudsman Orlando C. Casimiro. 

^[3] Rollo, p. 72. 

^[4] Issued by the Bids and Awards Committee constituted for the year 2003, composed of respondents Jesusa Joyce N. Cirunay, as chairperson, Leonida M. Castillo, Marle B. Koffa, Nemia T. Getes and Emilio L. Polig, Jr. as members. 

^[5] Rollo, p. 77. 

^[6] Dated 4 June 2004, pp. 106-107, cited in the rollo, p. 109. 

^[7] Rollo, p. 39. 

^[8] Id. at 36. 

^[9] De los Reyes v. Flores, G.R. No. 168726, March 5, 2010, 614 SCRA 270. 

^[10] Marcelo v. Bungabung, G.R. No. 175201, 23 April 2008, 552 SCRA 589. 

^[11] Id. 

^[12] Rollo, p. 101. 

^[13] Id. at 89. 

^[14] Id. at 104. 

^[15] Id. 

^[16] Petition, p.15; rollo, p. 44. 

^[17] Montemayor v. Bundalian, 453 Phil. 158, 167 (2003). 

^[18] People v. Cai�gat, 426 Phil. 782, 792 (2002). 

^[19] Autencio v. City Administrator Ma�ara and the City of Cotabato, 19 January 2005, 449 SCRA 46. 

^[20] Supra note 10. 

^[21] Id. 

^[22] Imperial, Jr. v. Government Service Insurance System, G.R. No. 191224, 4 October 2011.