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ADMINISTRATIVE ORDERS
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ADMINISTRATIVE ORDER NO. 93 -
IMPOSING THE PENALTY OF DISMISSAL FROM THE SERVICE WITH FORFEITURE OF
BENEFITS ON RODOLFO C. NAYGA, PRESIDENT OF ISABELA STATE UNIVERSITY,
ECHAGUE, ISABELA
This refers to the administrative case
against Rodolfo C. Nayga, President of the Isabela State University
(ISU), Echague, Isabela.
Pursuant to Executive Order No. 151, series of 1994, as amended, the
Presidential Commission against Graft and Corruption (PCAGC), being the
Presidential arm tasked to investigate charges of graft and corruption
against Presidential appointees, took cognizance of the case and
subsequently conducted a hearing. Thereafter, the PCAGC submitted its
report, styled as "Resolution".
As gathered from the PCAGC report and the records, the following are
the relevant facts:
At the core of the case are the contracts for soil poisoning and
termite extermination in certain buildings in the University comp
awarded by the ISU in favor of Quadro A Marketing on October 16, and
20, 1992 and January 2 and 5, 1993, for a total contract price of
P581,000.00, more or less. Respondent Rodolfo C. Nayga ("Nayga" or
"respondent", hereinafter), as the complaint would suggest, was alleged
to be at the forefront of all major decisions in carrying out the
transaction/s in question. Nayga's participation allegedly consisted
primarily of knowingly approving and/or signing falsified contracts in
connection with said termite extermination project. His co-respondents'
participation allegedly consisted of making it appear that the
transactions underwent public bidding when there was no such bidding;
of allowing disbursements, vis-a-vis the said contracts, and/or of
falsifying documents.
The antecedents relevant to this case show that in a resolution dated
August 12, 1993, the Isabela State University Employees and Faculty
Association (ISUEFA) charged Nayga and several other
officials/employees of ISU for graft and corruption for entering into
anomalous transactions. After investigation, the National Bureau of
Investigation (NBI), in a report dated October 8, 1993, recommended the
filing of appropriate charges against Nayga and other officials of the
ISU. The said report, augmented by other evidence, subsequently formed
part of the basis of the charges filed by the ISUEFA before the PCAGC
against Nayga for violation of Republic Act (R.A.) No. 1319 — the
Anti-Graft and Corrupt Practices Act — specifically Section . 3, par.
(e) thereof, i.e. "Causing any undue injury to any party, including the
government or giving any private party any unwarranted benefits,
advantage or preference in the discharge of his official . . .
functions through manifest partiality, evident bad faith or gross.
inexcusable negligence . . . " and par. (g), i.e. "Entering, on behalf
of the government, into any contract or transaction manifestly and
grossly disadvantageous to the same, whether or not a public officer
profited or will profit thereby".
Per its report, the NBI secured sworn statements, the relevant
statements being those of —
a).
b).
c).
There were also certifications issued by the end-users, namely:
Virgilio R. Anolin and Carmen Y. Pinzon, Dean of the College of
Agriculture and Dean of the College of Arts and Sciences, respectively,
to the effect that the whole project was completed and accepted in
accordance with existing accounting and auditing rules. These
certifications, however, were considered by the NBI as part of the
falsification scheme because the said documents were allegedly made the
basis for the disbursements on the transaction/s.
The NBI report suggested that there was practically no bidding for the
soil poisoning and termite extermination project because only two (2)
bidders actually participated, the third bidder having backed out for
the reason "not interested"; that, since there was a failure of
bidding, the proper recourse should have been an offer for the
re-bidding of the project and not the outright award thereof to Quadro
A Marketing; and that to justify the splitting of payments because of
insufficiency of funds for the project, the contracts were allegedly
falsified to support each and every disbursement made thereon.
Apart from the NBI report, complainant ISUEFA offered evidence
consisting, inter alia, of the affidavits of some of its members as
individual complainants. These affidavits contain —
1.
2.
3.
The collective defense of respondent Nayga and other ISU officials
consisted of a long narration, traversing point-by-point the
inculpatory findings contained in the NBI report aforestated. They also
submitted documentary evidence, such as the affidavits of Fernando
Ibarra, et al., recanting their sworn statements taken by the NBI and
alleging that their individual statements were taken without the
presence of counsel.
In summary, respondent claimed that on July 15, 1992, the University's
landscaping co-ordinator wrote Andres Karganilla, the University's
Director of Infrastructure, to inform him that the College of
Agriculture was infested with termites; that, after an ocular
inspection, Karganilla reported that the College of Arts and Sciences
building was also infested with termites and recommended anti-pest
treatment; that the University's Board of Regent adopted a resolution
authorizing the University President (Nayga) to hire expert service to
conduct soil treatment and termite extermination on the buildings and
to pay for the services out of available funds for the calendar year
1992, and that any remaining balance shall be paid in 1993, subject to
accounting and auditing rules; and that the Notice for the Invitation
to Bid and Bid Invitations dated July 1, 1992, were forthwith issued to
be received on or before July 16, 1993 and to be opened on July 16,
1993.
According to the respondents, the following events took place on July
16, 1993: 1) the bidders' proposal and quotations of prices were
submitted; 2) an abstract of quotation of prices was prepared by the
ISU committee on Bids and Awards, and 3) the Notice of Award to Quadro
A Marketing was issued. Moreover, the succeeding events, indicated
opposite the dates of occurrence, took place:
July 20, 1992 - Letter of Arnold Sepillos (Quadro A Mktg.) expressing
willingness to undertake the whole project depending on the
availability of funds.
October 1, 1992 - Notice to Sepillos to proceed with the project.
October 16, 1992 - Contract signed for
October 16, 1992 - Contract signed for
January 2, 1992 - Contract signed for
January 5, 1993 - Contract signed for
Total:
Respondents' other allegations were along the following lines:
1.
2.
College
Agriculture
Arts and Sciences
Balance for 1993
To Be Awarded
(if funds are available)
Agriculture
Arts and Sciences
3.
Based on the foregoing, Nayga and his co-respondents claimed that they
are not culpable of the charges filed against them.
At the PCAGC, the focus of inquiry centered on the question of whether
or not there was a valid public bidding, it appearing that all
subsequent transactions, e.g. contracts, certifications and
disbursements, among others, flowed therefrom. Then, to get to the core
of the problem, the PCAGC initially probed into the sworn statements
taken by the NBI in the light of the alleged violation of the affiants'
right to counsel.
After due hearing, the PCAGC discerned that the said sworn statements
deserve more credence because, at that time they were made, the
respondents-affiants were ready to tell the truth as they appeared to
do so spontaneously. The issue of recantation was considered as a
matter of defense or as an afterthought because "survival" was foremost
in the minds of respondents. The PCAGC added that, even if the said
statements are deemed inadmissible, the NBI findings, independent of
said statements, are still valid on the basis of the finding that there
were only two (2) bidders; hence, there was a failure of bidding.
According to the PCAGC, the appropriate bidding procedures should have
been adhered to strictly to obviate the possibility of fraud in the
award of contracts.
From the evidence, the PCAGC pointed out other circumstances indicative
of said violation. It referred to the virtual rigging of bids, because
on certain dates (July 15 and 16, 1992) when the bid documents were
released to certain bidders, the Bids and Award Committee already
awarded the contract to Quadro A Marketing.
The PCAGC also noted that in the pre-qualification stage, the matter of
looking into the financial capacity, expertise, availability and
accessibility of manpower and supplies, and a reasonable time frame for
inspection and for follow-up to determine the extent of infestation and
effectiveness of treatment were not taken into account. From the
PCAGC's perception, this gross omission and the precipitate contract
award to Quadro A Marketing support the NBI finding that, indeed, there
was no public bidding.
Respondents' contention that time was of the essence because termites
destroy in so short a time is untenable. As the PCAGC explained and as
borne out by the records, it took the respondents two and a half months
from July 15, or on October 1, 1992, to notify Quadro A Marketing to
proceed with the project; and still another 15 days therefrom to
execute the earlier two (2) contracts. The PCAGC added that, while the
respondents submitted a Board Resolution adopted on October 19, 1992,
authorizing management to enter into contracts on installment owing to
insufficient funds, the two (2) contracts entered into or executed on
October 16, 1992 were even ahead of the Board Resolution by three (3)
days. This, as the PCAGC aptly observed, is plain and simple
manipulation.
In view of the vital role that the documents played in the
transactions, the PCAGC carefully considered the weight, credence and
value of the aggregate evidence on both sides. Beyond the documentary
evidence presented, the PCAGC discerned lack of transparency and
openness in the transactions in question, specifically with respect to
the bidding and subsequent related financial transactions and
contracts. Finally, in the light of clear-cut instances of
irregularities in carrying out the project, including the falsification
of certain documents to support disbursement of funds, the PCAGC
decided to recommend administrative sanctions for all the respondents,
including Nayga, a Presidential appointee, with the following
observation:
"From
the evidence, it has been proved that, from the very inception of the
project (bidding, approval of the pertinent resolution, notice to
proceed) to that stage where the various contracts were executed, up to
that final point when the disbursements were made, respondent Nayga was
invariably involved. He was at the forefront of all major decisions. He
is found to have violated the provisions of the Anti-Graft and Corrupt
Practices Act, specifically Sec. 3, par. (e) thereof which provides, as
follows:
xxx
and par. (g) of said Section ,
which provides:
xxx
Because of the attendant
falsifications, his offense is basically one of dishonesty, a grave
offense where the imposable penalty is dismissal. "
After review of the facts in the light of the evidence presented, this Office is inclined to agree with the recommendation of the PCAGC. As it were, the public bidding was supposed to be held for the protection of the ISU and to secure for itself the best possible advantages by means of an open competition between and/or among bidders. The aim of a public bidding is basically to secure the lowest price, to curtail favoritism in the award, to avoid suspicion or anomalies and to foster fairness among the bidders. But, as disclosed, the facts and circumstances surrounding the transactions in question betrayed these ideals. To that extent, I concur with the PCAGC's conclusion. If there are meaningful words to express the same, these are aptly said in pertinent portions of its report, thus:
.. "it is ironic that the subject matter of the complaint is termite
extermination and soil poisoning. The dreaded termites are those who
prey on public funds and gobble them up. It is this specie of termites
that should be exterminated. As to soil poisoning, it is the University
grounds that should be scorched, not with chemicals, but with torch of
truth and justice so that the leaders that will emerge therefrom are
men and women who can impart to young minds the gift of learning and
true meaning of integrity."
WHEREFORE, all the foregoing considered, and as recommended by the Presidential Commission against Graft and Corruption, respondent Rodolfo C. Nayga is hereby found guilty as charged and is hereby DISMISSED from the service with forfeiture of benefits that may be due him, effective upon his receipt of this order.
SO ORDERED.
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