[G.R. Nos. 151864-65.
May 28, 2002]
PINANGAT vs. COA, et al.
EN BANC
Gentlemen:
Quoted hereunder, for your
information, is a resolution of this Court dated MAY 28 2002.
G.R. Nos. 151864-65 (Rolando P. Pinangat vs. Commission on Audit
and the Corporate Auditor of the Bangko Sentral ng Pilipinas.)
Petitioners assails the decision of
the Comission on Audit finding him manifestly negligent in the performance of
duty as an approving officer, consequently declaring petitioner solidarily
liable with Eastern Assurance Surety Corporation Declaring Petitioner
solidarily liable with Eastern Assurance Surety Corporation anf R.D. Tuazon
Construction Corporation for the refund of the amount of P210, 715.53 which the
government overpaid, for the construction of a Banko Sentral Regional Unit
Building.
On February 12, 1997, the Bangko
Sentral ng Pilipinas (BSP), through the Prequalification, Bids, and Awards
Committee (PBAC), entered in to a contract with R.D Tuazon Construction, for
the construction of the Bangko Sentral Regional Unit Building in Dagupan City
in Consideration of a total price of
P30,148,345.60. Pursuant to the
provisions of C14 of the Implementing Rules and Regulations of Presidential
Decree No. 1594 otherwise known as The Law Prescribing Policies, Guidelines,
Rules and Regulations For Government Infrastructure Program, the contracts
stipulated that 10% of the progress payments made to the R.D. Tuazon in all its
billings would be retained by BSP to cover uncorrected discovered defects and
third party liabilities, and would be released only upon final acceptance of
the project by BSP. Moreover, a performance bond in the amount of P9,044,503,68
was deposited to guarantee faithful and strict compliance with the contract and
to be co-terminus with the final acceptance of the subject contract.
It appears that R.D. Tuazon incurred
delays in the construction project.
On October 29, 1997, the Monetary
Board, in Resolution No. 1452, allowed R.D. Tuazon to complete the project even
beyond the deadline, subject to the imposition of liquidated damages, if
warranted. But despite the above stated
set-up, R.D. Tuazon failed to finish the project.
As of April 15, 1998, R.D. Tuazon
was only able to finish 54.74% of the project or a negative slippage of 45.26%
forcing BSP to take over the project and to authorize the bidding out of the
unfinished balance of the project. BSP likewise witheld the retention money
from R.D. Tuazon’s progress payments in the aggregate amount of P1,837,261.58.
Subsequently, representatives from
the Technical Division, COA Regional Office No. 1 La Union, conducted an
Accomplishment Inspection of R.D. Tuazon.
Thereafter, it was discovered that the total work accomplishment on the
project was only 47.95% contrary to the
reported 54.74% ( a discrepancy of 6.79% which was equivalent to
P2,047,977.11).
In a third Indorsement dated
December 15,1998, Auditor Dimagiba furnished petitioner Pinagat who is the
Director of the BSP Building Management Department, with a copy of the Inspection
Report and Requested immediate explanation of the noted variances.
In a memorandum dated February 8,
1999, petitioner acknowledged the contents of the report and admitted that the
variance noted by the COA Team was similar to the findings of the BSP Inventory
Team.
Consequently, in the notice of
disallowance No. 99-04-01 dated April 5, 1999, the BSP Corporate Auditor
disallowed the amount of P2,047,977.11 representing overpayment made by the BSP
to R.D. Tuazon and held petitioner together with other persons liable for the
refund of said amount.
The corporate Auditor based his
decision on the fact that has an approving officer, petitioner failed to
exercise due diligence when he did not to take the necessary measures to
protect the interest of the BSP before approving the payment even upon
knowledge of the noted variance between the actual work accomplished and the
reported work accomplishment.
Aggrieved, petitioner filed a motion
for reconsideration before the Commission on Audit which treated said motion as
an appeal.
The appeal proved to be
unavailing. Thus, the instant petition
which must likewise fail.
The Court finds in grave abuse of
discretion committed by the Commission on Audit in rendering the Assailed
decision. Section 52 Chapter 9 Book 5
of the Administrativr Code Provides:
“SEC.
52. General Liability for Lawful
Expenditures.- Expenditures of government funds or uses or government
property in violation of law or regulations shall be a personal liability of
the official or employee found to be directly responsible therefore.”
Petitioner insist that a supervisory
officer, it was not practical or humanly possible for him to carry out the
inspection and evaluation of the project personally, hence he had to rely on
his subordinates and the Project Construction Manager. Thus assuming that petitioner was negligent,
the COA should have likewise impleaded his subordinate of instead of singling
him out.
Truly, petitioner as Director of the
Building Management Department was responsible for the approval of Certificates
of the Inspection for Partial Accomplishment. Likewise, petitioner was the one
who Recommended and approved the payments to R. D. Tuazon. Hence, Petitioner should not be allowed to
pass the buck to his subordinates.
There
is no doubt as to petitioner’s negligence, as he himself admitted having
knowledge of the variance in the work accomplishment as early as February 8,
1998. Despite his knowledge, petitioner
in a memorandum dated March 20, 1998 to the PABC, still recommended payment to
R.D Tuazon when it reported a Work Accomplishment of 53.99% as of February 20,
1998 and billed the BSP the Amount of P1,014,881.43.
Thus Section 38(1), Chapter 9, Book
1 of the Administrative Code applies in the case at bar.
“SEC.
38. Liability of Superior Officers.-(1)
A Public officer shall not be civilly liable for acts done in the performance
of his official duties, unless there is a clear showing of bad faith, malice or
gross negligence.”
WHEREFORE, the
petition is DISMISSED.
Very truly yours,
Clerk of Court
(Sgd.) MA. LUISA D. VILLARAMA
Asst. Clerk of Court