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Monthly Archives: July 2012

BAC Secretariat as a separate unit

It has long been proposed that the Bids and Awards Committee (BAC) Secretariat be created and permanently function as the administrative support unit of the BAC. Unlike the BAC, which has a fixed term of one (1) year from date of appointment, extendable at the discretion of the Head of Procuring Entity (HOPE), the BAC Secretariat’s term is very much open ended.

If the BAC Secretariat was formed out of attending members for a very long time, there are a lot of disadvantages, namely:

  1. The members do not have personal attachment and dedication to the job especially when they are also expected to report and accomplish tasks from their mother units;
  2. There is no single office space that members could interact at a daily basis discussing the operation of the BAC Secretariat as an independent unit;
  3. The BAC Secretariat is not entitled of the benefits of having its own budget for personal services, operating expenses and capital outlays;
  4. Custody and succession of documents are jeopardized if the BAC Secretariat’s structure is not professionalized;  and,
  5. Either the function in the BAC Secretariat or the original function of its member, is sacrificed in case of work conflict -or even worse, both.

The only negative feedback we can possibly hear from BAC Secretariat members opposing the creation of a separate organic office is that they will no longer be entitled to claim for honoraria unlike when they are in “attending function”. But on the other hand and by doing it, we can separate those who are into service an those who are just into remuneration.

The risks are too high and an established system cannot be in place unless the foundation is laid. Now, there is that question “what will happen to the General Services Office(GSO)?”. It is either they join the BAC Secretariat, or a particular unit under GSO is assigned as the BAC Secretariat. Which way is it, merger between the GSO and BAC Secretariat is the next logical thing. The option of establishing a BAC Secretariat composing of “attending members” should be at a transition basis and not as a permanent option.

[Note: This article was first published in a local newspaper Operation: Expose” earlier this year.]

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Posted by on July 31, 2012 in Government Procurement

 

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Surigao Mineral Reservation Board vs. Cloribel, [G.R. No. L-27072 July 31 1968]

FACTS:

Surigao Mineral Reservation Board issued an Invitation to Bid for the exploration and development of mineral deposits in a certain portion in the Province of Surigao. It was joined by two (2) bidders. After evaluation, both were disqualified and their subsequent motions denied. One of the (failed) bidder filed a petition at the Court of First Instance of Manila seeking relief. After the petitioners here (respondents in the said case) answered the petition, Judge Gaudencio Cloribel of CFI issued a restraining order to petitioners here (respondent in the petition to Judge Cloribel) to avert from their action in the bidding process. Petitioners here seek a writ of preliminary injunction to the Supreme Court on the assailed action of Judge Cloribel due to his alleged grave abuse of discretion on the subject matter.

ISSUE:

Whether or not Judge Cloribel had committed a grave abuse of discretion amounting to excess of jurisdiction.

HELD:

YES. Costs against the respondent.

RATIO:

There is no “cause of action” as a basis of the judge to issue the restraining order. Invitation to Bid is not an “offer” from which deemed “accepted” by the other party in their submission of bids. In fact, there is still no contract unless the bid is determined to be the most advantageous offer to the government. What was accepted by the bidder was the condition, inter alia, that “the government reserves the right to reject any and all bids, waive any defect of form or accept such bid as may be deemed advantageous to it”. As a consequence, the bidder (one of respondent here) is in estoppel to object or to assail the exercise of the said “right” by the petitioner as the Board.

 
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Posted by on July 31, 2012 in Case Digests, Political Law

 

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Beltran Jr. vs. Abad, 132 SCRA 453 (BM 139)

FACTS:

Mr. Elmo S. Abad was a successful examinee of the 1978 bar examinations. His subsequent practice of law was questioned and complained by the President of Philippine Trial Lawyers’ Association, Inc. Respondent explained that:

–      He had already paid for the Bar Admission Fee;

–      He was notified of the oath-taking by the Supreme Court and signed the Lawyer’s Oath by one clerk in the Office of the Bar Confidante;

–      He participated Annual General Meeting of IBP Quezon City, and paid his statement dues and was included as a voting member for officers and directors – also conferred to him a certificate of Membership in Good Standing from IBP QC Chapter;

–      The Supreme Court never issued any order in the striking of his name in the roll of attorneys, and paid his dues and PTR;

ISSUE:

Whether or not the respondent is guilty of contempt of court.

HELD:

YES. Respondent was sentenced fine and imprisonment for twenty five (25) days.

RATIO:

Respondent should know that the circumstances which he narrated do not constitute his admission to the Philippine Bar and the right (or privilege) to practice law thereafter. He should know that two essential requisites for becoming a lawyer still had to be performed, namely: his lawyer’s oath to be administered by this Court and his signature in the Roll of Attorneys.

He was found in violation of Rule 71 of the Rules of Court:

SEC. 3. Indirect contempt to be punished after charge and hearing – x x x:

x x x

(e) Assuming to be an attorney or an officer of a court, and acting as such without authority;

x x x

From which respondent cannot further deny.

 
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Posted by on July 31, 2012 in Case Digests, Legal Ethics

 

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People vs. Sayana (405 SCRA 203)

FACTS:

Appellant was charged with two counts of rape committed against the daughter of his common-law wife. The prosecution evidence showed that appellant forced himself upon the daughter of his eleven-year old common-law wife in their residence in Bulacan. Appellant swore that he treated the complainant as his own child and he did not have the heart to molest her. Appellant’s alibi was corroborated by his father, and their neighbor, and also by his time card, as against the allegations. Several medical examinations were conducted by different physicians with some contradictory results. It was also observed that complainant’s narration of how appellant allegedly ravished her on two occasions (of rape) were incredibly identical, as if lifted from a single script.

ISSUE:

Whether or not the appellant is entitled for acquittal.

HELD:

YES. Appellant was acquitted.

RATIO:

The explanation given by the physician who testified for the prosecution itself, plus the fact that complainant underwent several gynecological examinations before she went to the authorities discount the credibility of the latter’s testimony that she has been raped.

In rape cases, it is the primordial duty of the prosecution to present its case with clarity and persuasion to the end that conviction becomes the only logical and inevitable conclusion. Proof beyond reasonable doubt is required. Although the law does not demand absolute certainty of guilt, it nonetheless requires moral certainty to support a judgment of conviction. Where the inculpatory facts admit of several interpretations, one consistent with accused’s innocence and another with his guilt, the evidence thus adduced fails to meet the test of moral certainty and it becomes the constitutional duty of the Court to acquit the accused (doctrine of pro reo).

 
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Posted by on July 28, 2012 in Case Digests, Criminal Law

 

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U.S. vs. Ah Chong (15 Phil. 488)

FACTS:

The defendant, Ah Chong, was employed as a cook at “Officers’ quarters. On the night, the defendant, who had received for the night, was suddenly awakened by some trying to force open the door of the room. He sat up in bed and called out twice, “Who is there?” He heard no answer and was convinced by the noise at the door that it was being pushed open by someone bent upon forcing his way into the room. The defendant, fearing that the intruder was a robber or a thief, leaped to his feet and called out: “If you enter the room, I will kill you.” He was struck just above the knee by the edge of the chair and he thought that the blow had been inflicted by the person who had forced the door open, whom he supposed to be a burglar. Seizing a common kitchen knife which he kept under his pillow, the defendant struck out wildly at the intruder who, it afterwards turned out, was his roommate. The roommate eventually died.

ISSUE:

Whether or not Ah Chong is liable for the death of his roommate.

HELD:

NO. Ah Chong was acquitted.

RATIO:

The decision of the lower court was reversed. The case was a “mistake of fact” resulting to self-defense justified under Article 11(1) of the Revised Penal Code where there is (1) unlawful aggression, (2) reasonable necessity of the means employed to prevent or repel it, and (3) lack of sufficient provocation on the part of the person defending himself. Had the deceased be a robber as he thought, his actions would not be criminally liable.

Some maxims cited:

Actus non facit reum nisi mens sit rea, “the act itself does not make man guilty unless his intention were so;”

Actus me incito factus non est meus actus, “an act done by me against my will is not my act;”

 
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Posted by on July 27, 2012 in Case Digests, Criminal Law

 

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Procurement of Textbooks and Reading Materials

To bid or not to bid? That is the question.

I already have answered this question a many times but still the question never died in the hearts and minds of the skeptics.

Primary contention: “Why do we have to bid items (text books) that can be directly contracted?”

My answer is a question:  “Why can’t we bid those items?”

The reason I answered that way is because the question is not in its proper sense. It is just like asking “Which came first? The chicken or egg?” We are no more kids who lack knowledge and wisdom. We can answer the question with complete certainty that it is indeed the chicken that came first. In the case at hand, we should be able comprehend just the same.

Republic Act No. 9184 speaks in a very definite manner under Sec.10:

SEC. 10. Competitive Bidding. – All Procurement shall be done through Competitive Bidding, except as provided for in Article XVI of this Act.

What is the exception being argued upon? In case of textbooks, Sec. 50(a) and 50(c) are commonly being invoked:

SEC. 50. Direct Contracting. – Direct Contracting may be resorted to only in any of the following conditions:

(a) Procurement of Goods of proprietary nature, which can be obtained only from the proprietary source, i.e. when patents, trade secrets and copyrights prohibit others from manufacturing the same item;

x x x

(c) Those sold by an exclusive dealer or manufacturer, which does not have sub-dealers selling at lower prices and for which no suitable substitute can be obtained at more advantageous terms to the government.

(emphases supplied)

At first glance, the provisions are appealing and inviting. For how can anyone bid for certain books if there is only one publisher of it that has exclusive copyright of the contents, or if there is only one exclusive dealer of such books or materials? Surely, only that exclusive publisher having the copyright can provide such books. However, careful reading of the entirety of the law will reveal the legislative intent which should be realized as the spirit of the law.

SEC. 18. Reference to Brand Names. – Specifications for the Procurement of Goods shall be based on relevant characteristics and/or performance requirements. Reference to brand names shall not be allowed.

If we will insist that certain books being offered by a publisher should be directly contracted, we are exercising unwarranted discretion where the law provides the contrary in a general rule. If we will refer to book tiles, it will be tantamount to referring to a brand name which is prohibited under the law. In an analogous example of dispensing public bidding for items of intellectual property such as inventions, the GPPB issued NPM 017-2007NPM 042-2012, and more recently NPM 052-2012 to explain the manner on how Direct Contracting can be resorted legally.

In fact, in the Supreme Court decision of Department of Budget and Management Procurement Service (DBM-PS) and the Inter-Agency Bids and Awards Committee (IABAC) Vs. Kolonwel Trading.(G.R. No. 175608, June 8, 2007), public bidding was never questioned by any publisher participating therewith. All participating publishers have strictly adhered with the requirements of R.A No. 9184. In applying the governing principles of government procurement (Sec.3, R.A. 9184):

x x x

(b) Competitiveness by extending equal opportunity to enable private contracting parties who are eligible and qualified to participate in public bidding

x x x

Article 28 of the New Civil Code is clear in preventing unfair competition and where the law cannot countenance. Democracy becomes a veritable mockery if any person or group of persons by any unjust or highhanded method may deprive others of fair chance to engage in business or to earn a living. (Report of the Code Commission, page 31)

Art. 28. Unfair competition in agricultural, commercial or industrial enterprises or in labor through the use of force, intimidation, deceit, machination or any other unjust, oppressive or highhanded method shall give rise to a right of action by the person who thereby suffers damage.

Finally, looking in the Department of Education’s take on the procurement of textbooks, we can infer from their Department Order No. 112-2009 regarding the list of supplementary materials and its guidelines. Quoting from the text of the said issuances, particularly Par.1.b.:

DepEd offices may purchase materials included in the enclosed non-exclusive list in accordance with Republic Act No. 9184, otherwise known as Government Procurement Reform Act, and its Revised IRR, and its revised Implementing Rules and Regulations (IRR). It is understood that in procuring such materials, it shall not limit the bidding opportunity to those referred to in the enclosed list but shall extend to other contracting publishers/ suppliers/ distributors who are capable of complying with Department’s requirements based on the same standard/criteria used in the evaluation of the enclosed list of supplementary and reference materials. The enclosed non-exclusive list shall be regularly updated in accordance with the evaluation standards and criteria set by the DepEd Instructional Materials Council Secretariat (IMCS); (emphasis and underscoring supplied)

The adherence to R.A 9184 was further stressed thru issuance of Department Order No.119-2009. Nowhere in the DepEd guidelines can we find a directive to adopt Direct Contracting as a generally accepted mode of procurement of text books as against Public Bidding. If DepEd is not inclined with the former, why can’t we just adopt the latter? There can only be one compound reason to my mind and I will rest my case thereafter – PERSONAL AND CONFLICTING INTEREST.

 
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Posted by on July 26, 2012 in Government Procurement

 

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Narag vs. Narag, 291 SCRA 451

FACTS:

Atty. Dominador Narag was alleged to have abandoned his family for his paramour who was once his student in tertiary level. The administrative complaint of disbarment was filed by her wife, Mrs. Julieta Narag. Respondent filed motion to dismiss because allegedly the complainant fabricated the story as well as the love letters while under extreme emotional confusion arising from jealousy. The case took an unexpected turn when another complaint was filed, the wife as again the complainant but now together with their seven children as co-signatories. After several hearings, the facts became clear, that the respondent indeed abandoned his family as against morals, based on testimonial evidences. In addition, the assailed relationship bore two children.

ISSUE:

Whether or not respondent is guilty of gross immorality and for having violated and the Code of Ethics for Lawyers culpable for disbarment.

HELD:

YES. Respondent disbarred.

RATIO:

The complainant was able to establish, by clear and convincing evidence, that the respondent breached the high and exacting moral standards set for the members of the law profession.

Good moral character is not only a condition precedent to the practice of law, but a continuing qualification for all members of the bar.

CANON 7 — A lawyer shall at all times uphold the integrity and dignity of the legal profession, and support the activities of the Integrated Bar.

Rule 7.03 — A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor should he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession.

Undoubtedly, the canons of law practice were violated.

 
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Posted by on July 25, 2012 in Case Digests, Legal Ethics

 

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