Ombudsman dismisses 3rd case vs Celso on IBT PDF Print E-mail
Tuesday, 09 July 2013 11:35

The Office of the Ombudsman in Davao has dismissed for lack of jurisdiction, the anti-graft charges filed against former Mayor and now District I Congressman Celso Lobregat by the R.U. Aquino Construction and Development Corp. and RCDG Construction Corp. joint venture pertaining to the Integrated Bus Terminal.

Docketed as Case No. OMB-M-C-09-0382-1 is the third case against the former mayor and other duly established agencies or bodies and individuals that the Ombudman has dismissed in two weeks’ time. The case filed is for alleged violation of Section 3(E) of Republic Act No. 3019 otherwise known as the Anti-Graft and Corrupt Practices Act on the issue on whether the notice to recall and cancel award issued by the former mayor recalling and cancelling the notice of award issued to the RU Aquino/RCDG joint venture is valid.

The Ombudsman, in a 13-page decision issued January 24, 2013 said the “office has no authority to resolve the issue” stressing that the implementing rules and regulations (IRR) of RA 9184 also known as the Government Procurement Reform Act (GPRA) provides mechanisms relative to protests concerning procurements.

The case stemmed from the notice to recall and cancel award dated August 10, 2009 issued by then Mayor Lobregat, the head of the procuring entity. The notice was protested to by the RU/RCDG joint venture by filing a position paper praying for the reinstatement of the notice of award but which was denied by the then mayor.

The Ombudsman opined that the denial by Lobregat of the  joint venture’s prayer for reinstatement of the Notice of Award is final and that the remedy available to the joint venture , as provided under the IRR is to raise the matter before the Regional Trail Court (RTC) under Rule 65 on certiorari and not before the anti-graft body.

“The filing of this case before this office is a collateral attack on the validity of the questioned recall and cancellation made by Mayor Lobregat, which the JOINT VENTURE wants to be invalidated. While in this case, the JOINT VENTURE charges Mayor Lobregat for violation of the Anti-Graft Law, this Office could not determine whether Mayor Lobregat violated the Anti-Graft Law without first resolving the validity of the assailed Notice to Recall and Cancel Award, which is not proper because in accordance with the procedure laid down by the IRR of the GPRA, it is the RTC which has authority to initially pass upon the issue,” the Ombudsman decision read.

On October 1, 2009, the RU Aquino/RCDG joint venture filed before the RTC in the city a Special Civil Action for Certiorari Mandamus and Permanent Injunction with Application for a Temporary Restraining Order and/ or Writ of Preliminary Injunction against former Mayor Lobregat nad the members of the Bids and Awards Committee and the City of Zamboanga.

The Ombudsman added: “The Special Civil Action, in fact, seeks to nullify and set aside the Notice to Recall and Cancel Award dated 10 August 2009 issued y Mayor Lobregat. Hence, the very issue in the Special Civil Action and the issue in this criminal case are identical, i.e. whether the Notice to Recall and Cancel Award issued by Mayor Lobregat is valid, which this office has no jurisdiction to resolve”.

The decision was penned by Graft Investigation and Prosecution Officer III Samuel Naungayan and reviewed by Director IV Maria Corazon Arancon, Assistant Ombudsman Rodolfo Elman and Deputy Ombudsman for Mindanao   Humphrey Monteroso and approved by Ombudsman Conchita Carpio Morales.

Last week it was also reported that the anti-graft body in a decision penned December 6, 2012 also dismissed two charges—graft and corruption and grave misconduct and conduct prejudicial to the best interest of the service filed by Selwyn Lao and Virgilio Enriquez of Dimsum, Manila, Inc. against former Mayor Lobregat and 25 others.

In a 40-page decision, the Ombudsman said the respondents cannot be held administratively liable for the charges as they “did not act with manifest partiality, evident bad faith or gross inexcusable negligence”.

“Concomitantly, respondents not having acted with corruption, clear intent to violate the law or flagrant disregard of established rule, they cannot be held administratively liable for grave misconduct and conduct prejudicial to the best interest of the service”, the decision said.

The two cases— Case 09-0321-G for violations of section 3 (e) of Republic Act 3019 and RA 9184 and Case 09-0326-G for grave misconduct and conduct prejudicial to the best interest stemmed from the city’s decision to declare the Aquino/RCDG Joint Venture as winner in the bidding for the closely to P180 million IBT project held in January 2009. The complainants are the construction and project engineer of Dimson, Manila Inc. (DIMSON), a losing bidder.

Meanwhile, pending before the RTC at present is the Special Civil Action case filed by the RU Aquino/RCDG joint venture that seeks to nullify and set aside the Notice to Recall and Cancel Award issued by the former mayor on August 10, 2009. And pending before the Court of Appeals is the City Government-initiated case questioning the RTC order enjoining the city to stop implementing the almost P180M IBT project in Divisoria. — Sheila Covarrubias