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ADMINISTRATIVE ORDERS
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ADMINISTRATIVE ORDER NO. 286 -
EXONERATING REGIONAL DIRECTOR JOSE C. PENDOZA OF THE DEPARTMENT OF
PUBLIC WORKS AND HIGHWAYS
This refers to the administrative case
filed by former Undersecretary Jose F. Mabanta of the Department of
Public Works and Highways (DPWH) against Mr. Jose C. Pendoza, Regional
Director of the DPWH Region III Office, for dishonesty, falsification
of official documents, grave misconduct, neglect of duty and conduct
prejudicial to the best interest of the service in connection with the
alleged irregularities in the construction of the P13 Million Ninoy
Aquino By-Way Project.
The charges stemmed from the criminal complaint filed in March 1989 by
the DPWH Fact-Finding Committee with the Office of the Ombudsman
against Regional Director Pendoza and other DPWH officials stationed at
Region III involved in the Ninoy Aquino By-Way Project for violation of
the provisions of Republic Act No. 3019 (Anti-Graft and Corrupt
Practices Act) and Article 208 of the Revised Penal Code. The said
criminal complaint recited that respondent Pendoza, "despite his
knowledge of the irregularities being committed in the execution of the
project, allowed or tolerated infractions of the law, giving
unwarranted benefits to the private contractors to the damage and
prejudice of the government."
The same criminal complaint specifically alleged that Regional Director
Pendoza allowed the use of substandard materials in the implementation
of the Ninoy Aquino By-Way Project and tolerated non-compliance with
the specifications prescribed by the Standard Specification for
Highways and Bridges, otherwise known as the Red Book.
To support the charges against Regional Director Pendoza, the DPWH
Fact-Finding Committee submitted the respective affidavits of Engr.
Stephen David, General Construction Foreman Mely Ramoneda and Project
Engineer Dante Sarmiento; the Report dated 3 February 1989 submitted by
Engrs. Felino Tria, Nestor de Leon, Vicente Miranda and Carlos Baluyot
on their investigation of the alleged substandard construction of the
concreting of the Ninoy Aquino By-Way; the Report dated 7 February 1989
of Director Jose Espiritu of the Bureau of Research and Standards and
Interim Director Edmundo Mir of the Bureau of Construction on the
results of the core testing and evaluation; and the Report on
Evaluation of Strength and Concrete Cores.
In his counter-affidavit, Regional Director Pendoza denied all the
charges and claimed that he followed all the established DPWH
procedures and acted in accordance with the results of the tests
conducted by his subordinates at the time of the construction.
On 27 December 1989, this Office referred the administrative charges
against Regional Director Pendoza to the Secretary of Justice for
formal J investigation and recommendation.
On 27 March 1992, the Secretary of Justice forwarded to this Office the
report and recommendation of the Investigating Committee he
constituted, together with the entire records of the case.
In its Report dated 10 January 1992, the Investigating Committee states
that the evidence presented during the proceedings disprove the charge
that "despite respondent Pendoza's knowledge of the irregularities,
being committed in the execution of the projects, he allowed or
tolerated infractions of the law, giving unwarranted benefits to the
private contractors to the damage and prejudice of the government."
According to the Investigating Committee, the Ninoy Aquino By-Way
Project had been properly awarded to the Panday Pira Construction after
a public bidding and the assertion that the said construction company
was a mere dummy of other people in collusion with respondent Pendoza
had not been established by competent evidence.
The 10 January 1992 Report contains the following relevant findings:
"The project fully complied with the requirements set by standard
specifications for highways and bridges of the DPWH. The evidence
presented by the respondent clearly proved that the construction was
done in accordance with pre-set standards of the DPWH and as
established by the test employed to determine the strength of the
concrete, called the flexural test (Exhibit 5 up to 5-J). The results
of the flexural test show that the samples of the paving concrete all
met the standard strength of 525 pounds per square inch (psi) or were
within [the] required 15% allowance, as provided in Ministry Order No.
12 issued on February 27, 1984 (Exhibit 6).
"The core test applied by the Inspectorate Team of the DPWH to the
drilled samples extracted from the pavement cannot be relied upon in
testing the flexural strength of concrete pavements in the light of
conclusive technical studies and evaluations which prove that there is
absolutely no correlation between flexural strength measured in the
beams and compressive strength measured on the cores as applied to
concrete pavements in the Philippines (Exhibits 7, 7-A, 7-A-1, 7-A-2,
7-A-3, 7-B and 7-B-1).
"Moreover, the core test is unreliable in testing [the] strength of
concrete pavements in view of the sensitivity of the pavement while it
is subjected to prolonged and unnecessary vibrations by the core boring
machine. As a matter of fact, the strength of the pavement is
effectively lessened in the course of the boring.
"In fact, it is the report of the Inspectorate Team itself which
militates against and gravely affects the credibility of the claim of
complainant when it failed to recommend the condemnation of the project
as completed. As it appears on record, the recommendations were 1) for
the necessity of an explanation from the implementing agency for
further clarification due to [the] discrepancy of the test results, 2)
to re-do the work on the deficiency shoulders on certain section which
fails to conform with the approved plans and specifications, and 3) the
10% retention should not be released to take care of the discrepancies
and the future defects.
"On the other hand, the evidence shows that the By-Way as built is
longer by 328.28 linear meters (L.M.) than the specified length of
7,730.00 L.M. The 14 transversal cracks along the By-Way have been
described as hairline cracks which have not progressed even as it was
[sic] severely jarred by the big earthquake of 1990. The width of the
weakened plane of 3/4" instead of 1/4" has not been shown to affect the
strength of the concrete even as the use of formed groove is allowed by
the standards set. The shoulder defects have been repaired by the
contractor. The design mix or cement factor was 9.1 bags/cu. meter at
42.7 kilogram/bag which is over and above the standard of 9.1 bags/cu.
meter at 40 kilograms/bag. The deficiency in [the] thickness of the
pavement of 118.43 square meter is a very negligible percentage (0.24%)
of the whole project which is 48,000 square meter in area, considering
that it is very difficult to obtain a 100% accuracy in thickness. The
inspection conducted established the fact that the elevation of the
By-Way is higher than what was required in the plans."
The Investigating Committee asserts that the acts of respondent Pendoza
do not constitute dishonesty, absence of integrity or bad faith and do
not manifest any disposition on his part to deceive or defraud. The
said Committee also finds no sufficient evidence to fault respondent
Pendoza with the commission of grave misconduct.
Anent the charge that respondent Pendoza falsified official documents,
the Investigating Committee claims absence of competent evidence to
substantiate the same. Proof submitted indicated that respondent
Pendoza affixed his signature on the documents after his subordinates
involved in the project had affixed theirs certifying to the
correctness of the facts stated in the documents involved.
Respondent Pendoza has also been charged with neglect of duty and
conduct prejudicial to the best interest of the services for his
alleged failure to discharge his responsibilities in accordance with
the legal standards required of a public officer or employee. These
charges proceed from respondent Pendoza's alleged failure to take the
appropriate course of action on the complaint of Engr. Stephen David
that irregularities were being committed in the construction of the
Ninoy Aquino By-Way.
Testimonial evidence on record indicates that when Engr. David informed
respondent Pendoza of the alleged irregularities, the respondent
immediately reacted and told him: "Huwag kang umalis doon. Patupad mo
ang plans and specifications. Ako ang malilintikan kay Cory."
Respondent Pendoza's reaction manifests that he had neither
participation in nor prior knowledge of the alleged irregularities.
Otherwise, he would have easily brushed off Engr. David's information
and deflected the latter's attention to other matters. However, the
respondent in fact admonished and enjoined Engr. David to impose his
(David's) authority and to perform his duty to see to the
implementation of the project in accordance with the plans and
specifications.
Mention should be made that no evidence was presented which would show
that Engr. David undertook the specific responsibility respondent
Pendoza directed him to assume. As Inspector of the project, Engr.
David had the authority to reject questionable materials or suspend the
work until any question at issue can be referred to and decided by the
Engineer (Vide Paragraph 44 [Duties of Inspectors], Part G [Control of
Work], Division II, Volume I, 1988 Standard Specifications for Public
Works and Highways).
The records also disclose that in addition to enjoining Engr. David to
impose his authority as Inspector and designating him as his own
representative in the said project, respondent Pendoza also instructed
the respective heads of the Materials and Quality Control Division and
the Construction Division as well as the Project Engineer of the Ninoy
Aquino By-Way to conduct an inquiry into the reported anomalies. These
officials assured him there were no such anomalies.
These actions of respondent Pendoza negate the charge that he tolerated
the alleged infractions of the law. He should not be faulted for
relying on the reports and assurances of his assistants, considering
that these men are presumed to be competent and responsible experts in
their respective fields of assignment. He had to trust them and rely on
them for the proper and expeditious execution of the project.
Respondent Pendoza, in his capacity as Regional Director of the DPWH
Region III Office, could not be expected to personally supervise each
and every project being implemented within the region. With his
numerous administrative and substantive functions as head of the
Regional Office, it would be physically impossible for him to proceed
to the field and to personally supervise every project. He could not
also be expected to personally inspect the mixing of cement and oversee
all the time-consuming construction details. He has the Project
Engineer, the heads of each Division and his Inspectors to do these
aspects of project implementation for him.
The Functional Chart of a typical Regional Office indicates that upon
the Assistant Regional Director rests the duty of exercising
supervision over the construction, maintenance and work supervision
functions in the region. In the case at bar, considering that the
records do not show that the Assistant Regional Director had any
participation whatsoever in the prosecution of the project, the Project
Engineer should have been charged with the supervision over the
construction, maintenance, and work supervision functions of the
project. Surprisingly, the DPWH Fact-Finding Committee did not
recommend the filing of any administrative charge against the said
official.
The allegation that the Government suffered damage lacks merit.
As a whole, the By-Way was completed satisfactorily. Although there
might have been defects, these were minor ones which were always
expected or were unavoidable. For this reason, the Government requires
a 10% retention in every contract to answer for whatever corrective
measures that have to be subsequently effected.
No proof has been presented that the Government incurred any damage as
a result of the prosecution and completion of the Ninoy Aquino By-Way.
Note should be taken that after the completion of the project, the same
was formally turned over by the contractor to the National Government,
through the Department of Public Works and Highways. Quite
interestingly, notwithstanding their knowledge of the pendency of the
case against respondent Pendoza and their assertions that there were
anomalies in the implementation of the Ninoy Aquino By-Way Project, the
complainant of record and the DPWH Fact-Finding Committee did not
initiate any action to prevent the turnover of the project to the DPWH.
This raises the presumption that the project was properly and regularly
prosecuted.
Verily, had the Ninoy Aquino By-Way been defective or had the
Government-incurred damages as a result of the alleged irregularities
attendant to the construction of the project, the DPWH would have valid
reasons to refuse acceptance of the project, to disallow payments to
the contractor and to require the contractor to replace or remedy the
defective portions and it could have resorted to other available
remedies to protect the interests of the Government. Clearly, the DPWH
saw no need for such measures. It can be said that the interest of the
Government had been safeguarded, absent any evidence to show that it
was in any manner prejudiced.
In administrative cases, there must exist moral persuasion of guilt.
Such moral persuasion proceeds from the preponderance of evidence
presented to substantiate the charges. Should such charges be without
basis in evidence having rational probative value, then the charges
must fail and the public servant indicted for such charges must be
cleared from liability therefrom. In the case at bar, the foregoing
discussion discloses the lack of substantive evidence to support the
charges and to sustain any conclusion that respondent Pendoza should be
held accountable for the acts imputed to him.
ACCORDINGLY, Regional Director Jose C. Pendoza of the Department of
Public Works and Highway is hereby EXONERATED of the charges filed
against him subject hereof.
DONE in the City of Manila,
this 2nd day of June in the year of Our Lord, nineteen hundred and
ninety-two.
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