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ADMINISTRATIVE ORDERS
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ADMINISTRATIVE ORDER NO. 230 -
IMPOSING THE PENALTY OF DISMISSAL FROM THE SERVICE WITH FORFEITURE OF
BENEFITS UNDER THE LAW OF EDDA VILLA LUNA-HENSON, ADMINISTRATOR,
INTRAMUROS ADMINISTRATION
This is an administrative case filed by the
Concerned Employees of Intramuros Administration against the
Administrator of Intramuros (IA), Mrs, Edda V. Henson for the following
acts:
1)
2)
3)
4)
In its Resolution, the Presidential Commission Against Graft and
Corruption (Commission) found respondent Henson guilty of the charges
for violation of pars. (a) & (e) of Sec. 3 of RA 3019 by
allowing herself to be persuaded, induced, or influenced to commit a
violation of rules and regulations and by giving a private party
unwarranted benefits, advantage or preference in the discharge of her
official administrative function through manifest partiality.
After a careful perusal of the records of the case, the findings of the
Commission are AFFIRMED in toto, the same having been supported by
substantial evidence.
The findings with respect to the four (4) charges are, as follows:
(1)
Respondent admits having entered into negotiated contracts with Brand
Asia, one for the video documentary worth P2,000,000 entered into in
November, 1992 and the other one for print collaterals entered into in
June, 1993 for P6,017,000 in violation of the COA rules and
regulations. She argues, however, that the contracts fall within the
exceptions provided under Sec. 1 of Executive Order No. 301 dated
July 26, 1987, that the contracts awards to Brand Asia underwent a
rigid selection process; and that the acceptance of proposal from six
(6) advertising agencies was with the knowledge and approval of the
Department of Tourism (DOT).
This Office takes notice of the following findings of the Commission
relative to this matter:
"It is of record that the Commission has required respondent to submit
copies of the contracts negotiated with Brand Asia and related
documents. This was not complied with despite two (2) directives from
the Commission. While the Commission is aware that Executive Order No.
301 gives a Department Head the discretion to determine when a
negotiated contract is most advantageous to the government, such
discretion however, is either sound or subject to abuse. In the latter
case, it can even be violative of certain laws or regulations. By her
non-compliance with the directives of the Commission, respondent
deprived the Commission of the opportunity to determine from the
contract documents if her exercise of discretion was sound or not.
Relying alone on her allegation in her counter-affidavit and on her
oral testimony, the Commission finds that respondent failed to
successfully traverse the charges, as shown by the following:
"First, beyond saying that there were six (6) agencies whose proposals
were considered, respondent, even if required in the course of the
proceedings, did not present evidence on the proposals of the other
advertising agencies, including that of the awardee. Secondly,
respondent failed to prove that any of the enumerated situations in
Sec. 1 of Executive Order No. 301 abovequoted existed to justify and
allow negotiated contract as an exception to public bidding. On this
matter, respondent argues that the agency lacked the necessary
expertise to appreciate the project if bidded, and further, that the
negotiated contract was approved by the Department of Tourism. The
Commission notes that aside from these reasons advanced by respondent,
there is no direct evidence presented by her to support the claim that
the negotiation was more advantageous than public bidding. Clearly,
therefore, the defense of respondent lacks merit.
"In this connection, complainants likewise charge that it was the
daughter of respondent who personally presented the proposal of Brand
Asia to IA and subsequently resigned from said firm after the proposal
was closed with IA; and that the Administrator (respondent Edda Henson)
was the one who viewed the proposal of Brand Asia.
"During the hearing of the case on May 23, 1995, respondent admitted
that her daughter, Maria Elvina Henson, worked as a trainee under
probation with Brand Asia. She was then assigned at the Accounts
Department headed by its Director Desiree Chua Co. Brand Asia's
proposal was presented by its Creative Director Corazon Sarmiento and
said Accounts Director Desiree Chua Co. (par. 3.3, Affidavit of
respondent, p. 42 records). It would thus appear that Maria Elvina
Henson has a working relationship with Desiree Chua Co. Such fact is
indicative of a tie-up where unwarranted benefit was given to a
proponent by virtue of a mother-daughter relationship, albeit an
indirect one. Answering the clarificatory questions propounded by the
Commission during the hearing of the case, respondent admitted that it
is possible that Brand Asia acquired information relative to the needs
of IA for the production of the video documentary and printed
collateral materials from her daughter who, as above stated was working
at the time with Brand Asia. Even as a trainee under probation, she had
access to material information from both IA and Brand Asia.”
2)
Both IA and Brand Asia were aware that advertising agencies are not
commercial printing houses and therefore not expected to print for
themselves the related posters and collateral materials, such
that, at the time of negotiation it would have been established that
Brand Asia can supply only the concept and ideas in promoting
Intramuros but not the required printing job. Thus, the printing of the
materials should have been subjected to public bidding considering that
the transaction involves disbursement of public funds and therefore,
subject to the rules on bidding. As correctly pointed out by the
Commission:
"The possibility of contracting with other printers or publishing
houses at a lower price for the same quantity and quality of materials
was foreclosed arbitrarily because of the sub-contract scheme
undertaken by Brand Asia. . . . The reason advanced by respondent that
the unity of the concept and design must be ensured is not proof of
advantage to government. The same cannot be used to obviate or
circumvent the requirement of the law. What the law prohibits directly,
it also prohibits indirectly.”
3)
The charge not having been established by evidence, the same was
dismissed by the Commission.
4)
Despite the directives of the Commission for the submission of alleged
settlement agreement between IA and Barbara's Restaurant for the
arrears amounting to P753,158.00, not P1 million as claimed by the
complainant, respondent failed to submit the same. The Commission,
however, observes that failure to collect is not necessarily a corrupt
act.
In fine, the Commission's findings are summarized as follows:
"It must be stressed that respondent, despite repeated directives, did
not submit copies of the contracts and relevant documents which were
the very subjects of the proceedings. She also refused to submit
certain documents specified in the Orders of the Commission, e.g., the
proposal of the six (6) agencies which were allegedly considered
resulting in the final award to Brand Asia, and logbooks of the
Property Custodian of IA. She likewise defied the orders of the
Commission by her refusal to submit documents showing payments made to
Brand Asia, and the alleged settlement agreement with Barbara's
Restaurant.
"It is basic that the non-production by respondent of documents in her
custody, unless justified, gives to the presumption of suppression of
evidence adverse to her (Sec. 3, Rule 130, Rule of Court). Respondent
offered no justification for her non-compliance with the aforesaid
orders of the Commission. The Commission therefore presumes that if
produced, the documents would have been adverse to respondent. From
what can be gleaned from the evidence adduced, the Commission
finds that respondent violated the rules and regulations on public
bidding, specifically Sec. 1 of Executive Order No. 301 aforequoted. It
has been established that there was no public bidding on the award to
Brand Asia as required by law. The evidence is clear that respondent
allowed herself to be persuaded, induced or influenced to commit such
violation. It is also clear that respondent gave Brand Asia unwarranted
benefits, advantage or preference, through manifest partiality, when it
awarded the said two (2) contracts to said agency, to the prejudice of
five (5) other proponents."
IN VIEW OF THE FOREGOING, and as recommended by the Presidential
Commission Against Graft and Corruption, respondent Edda V. Henson,
Administrator, Intramuros Administration is hereby DISMISSED from the
service with forfeiture of benefits under the law for violation of
Sec. 3, par (a) and (e) of RA 3019.
SO-ORDERED.
Done in the City of Manila,
this 30th day of November, in the year of Our Lord, nineteen hundred
and ninety five.
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