COMMENTARY: The changing of the guards

jan 20-26, 2011

 There is something in the case of Cebu City’s 4 boardmembers led by Gabriel Quisumbing versus Governor Gwendolyn Garcia, as stated in the Supreme Court decision in G.R. 175527 dated December 8, 2008. If there is something in it, it is foremost relevance and similarity of the situation to the issue relating the changing of the guards of the Davao del Norte’s Capitol.

Last Monday’s session, several boardmembers questioned, riled and slammed provincial administrator Rufo Peligro, Bids and Awards Committee (BAC) chairman Samson Sanchez and one Rolando de la Cruz, branch manager of the Christian Investigation and Security Services (CISA) for snubbing the Sangguniang Panlalawigan’s invitation for them to appear to shed light about the new security services in the Capitol. By the earlier circumstances surrounding the security services contract won by CISA, there is more urgency on the part of the SP to pry on from the invited officials about the contract and administrative actions and decisions of the merely appointed officials that obviously, per chronology of events and reasons they offered, bypassed the provincial board and the vice governor of the Province of Davao del Norte.

Before this recent snubbing there was already this bypassing of prior authority of the province’s legislative department, chief of all Vice Gov. Victorio “Baby” Suaybaguio Jr, who was the acting governor at the time when the bidding and awarding for security services was awarded to Christian Investigation and Security Agency (CISA), which is now strictly guarding the Mankilam Capitol. In last Monday session’s riling, Boardmember Hernanie Duco was more particular: he was aghast over the thought that all throughout his 9 years of being a boardmember before his current term, it was only last Monday that he saw the august body of the SP being snubbed, and he called for a joint executive and legislative meeting to avert a “civil war between the executive and the legislative.” We fear more than Duco’s offer of metaphor as there is valid ground to pursue a legal case springing out from the sudden executive decision, nay some say administrative maneuvering, to implement the procurement of the security services of CISA while the legislative department was largely not involved, unknowing of it.

The similarity of the situation of Cebu’s case vis-à-vis Davao del Norte’s case is that both contest over whether there is that need to secure prior authorization of the provincial board before the governor would enter into contracts committing the province to monetary obligations. Both cases drag the same pertinent provisions of Republic Act No. 7160, or the Local Government Code, which requires the chief executive to secure first prior authorization from the sanggunian, as well as Republic Act No. 9184, or the Government Procurement Reform Act, which the triumvirate of Peligro, Sanchez and provincial legal officer Jennifer Namoc referred to as “new law” and from where they invoked, in the case of CISA, prior SP authorization is no longer needed by the reason that the purchase of security services had already been part and parcel in the approved annual budget of the province for 2011.

It is fortunate that a non-lawyer Boardmember Alan Dujali obtained from his research the Supreme Court ruling on Quisumbing et al vs. Garcia of Cebu City. And reading from the ruling, at least three issues are relevant to Davao del Norte’s case, to wit:

First, the ruling said that there is no need for prior authorization from the sanggunian in the purchase of goods and services, if it is already a subsisting expenditure item such as current operating expenditures and capital outlays with sufficient project details. For this, even if in our layman’s view, we find that indeed the expenditure item for the salaries and wages of persons securing the Capitol is deemed to be subsisting but put in the light of CISA’s contract, the object of the item already differs because not all of the budget would go to the pockets of those guarding since the owner of CISA now shares a profit of it. Verily, there is adulteration in here and both expenditure items under the rather generic budgetary term, security services, cannot be of the same dog, while they have indeed different collars.

Second: Is the budget new? For which the ruling says that when it is new, there should be prior authorization of the sanggunian, but only on a case-to-case basis. If it is generic like “roads and bridges” and not specific, the ruling says there’s a need for a covering authorization from the SP. Further, if the payment of goods and services from local government funds is under specified conditions or for specific purposes, well, the Highest Court says, okay guys, go ahead without the SP’s prior approval of the contract.

But is the budgetary item, security services incorporated in the approved annual budget, that specific? To us laymen, this question of the Supreme Court ruling is “Yes and No.” “Yes”, because the P8 million in the annual budget is the agency’s estimate of worth of the security services for the year 2011. But “No”, because it does not specifically named which security firm would be using the budget by sudden privatization of the Capitol’s security services. And “No” still because there was no specific project proposal then presented by the executive department to the legislative department, as there was only a verbal announcement of the governor in November that he wanted to privatize the security services of the Capitol. For one, there was no mention of how many would be affected from the scheme. Which makes the transaction new and ergo, the governor needs to seek prior authorization from the SP.

Third, if CISA’s case falls under the procurement of services, did the Acting Governor Suaybaguio ever sign even if in ministerial manner as Peligro advanced when he invoked that under the public procurement law it is the BAC which has the real and final power in the purchasing of goods and services, that even purchase orders (PO) need not be approved by the governor. Be that as this may (without thinking), but the Supreme Court ruling does tell there is a need for a Notice to Proceed to the winning bidder not later than seven (7) calendar days from the date of approval of the contract by the appropriate authority . There was never a Notice to Proceed from the sitting governor, nay Acting Gov. Suaybaguio for CISA to start securing the Capitol by January 1, 2011 unless the BAC would arrogate again to itself the power to issue the Notice to Proceed. But this is going untolerable already. Gov. Del Rosario left the province for the US on Dec. 20, 2010, returned to the country Jan. 6, 2011 and reassumed office upon his return in the province, Jan. 8, 2011. During the governor’s absence, Vice. Gov. Suaybaguio served as an acting governor and, by virtue of the local government code, all the powers of the governor is vested on the acting governor except to hire and fire Capitol employees. CISA guards started securing the Capitol Jan. 1, 2011 without the knowing of the SP about it, much less without the acting governor issuing a Notice to Proceed to CISA guards to start their posting on the very day first of the new year 2011 while he has no bidding documents and minutes of the bidding in the first place.

But the backgrounder of the awarding of the contract of CISA offers wrapping up circumstances to the relevance of the Supreme Court ruling to Davao del Norte’s case. In the chronology of the executive officials, early November last year, Gov. Del Rosario announced his intent to privatize the Capitol’s security services. On November 16, 2010 there was a publication in the Manila Bulletin of the invitation to bid as well as its posting in the PhilGEPS (Philippine Government Electronic Procurement System) website and bulletin boards in conspicuous places in the Capitol. On December 7, 2010 there was a pre-bidding conference and 8 bidders bought bidding forms at P2,000 each set.  On December 20, 2010 at 2 P.M. there was an opening of bids. On the same Dec. 20, the bids were scrutinized by the BAC which disqualified 4 of the 6 bidders for failing to fully comply with the eligibility and technical requirements. The Butuan City-based United Field Sea Watchman and Checkers Agency (UFSWCA) was adjudged the lowest bidder having the “Lowest Calculated Bid” pending submission of final documents to make it the final bid winner for having the “Lowest Calculated Responsive Bid”. CISA is the second lowest bidder. On the same Dec. 20 the BAC, sent UFSWCA to submit within three calendar days the final requirements but it failed to submit within the BAC timetable, from December 20 to December 23, which were not holidays. In the morning of December 28, Tuesday (as Monday, Dec. 27 was declared a holiday), CISA was notified to submit final requirements in view of the failure of UFSWCA, and on the same day, CISA submitted the requirements to make it the bidder having the “Lowest Calculated Responsive Bid.” When CISA submitted the requirements on the same day Dec, 28, the Technical Working Group of the BAC first scrutinized all of the requirements submitted and forwarded its positive recommendations to the BAC, which in turn declared CISA the bid winner with its bid of P6.3 million. What is the price difference between UFSWCA’s bid and CISA’s bid, we don’t know yet at press time. But what we are certain about based on our sources is that on Dec. 28, Tuesday, Dec. 29, Wednesday, and Dec. 30, Thursday, the last working day of 2010, the acting governor was never given BAC documents for him to issue a Notice to Proceed, nor was he prodded by the officials concerned to do so, and instead he was only verbally promised to be given with a chronology of events relating the bidding which did not materialize. Counting the non-holiday working days from the approval of the contract on Dec. 28, the required seven days would end by January 6, 2011 when the governor already returned in the country but has not yet actually reassumed office as he did return in the province on Jan. 8, 2011. On January 6, 2011 the vice governor was still the acting governor. During those days, from Dec. 28 to sometime, PA Peligro was reported to be “on leave but on call”. And how these circumstances bypassing and ignoring the presence of the acting vice governor form now a mystery?

Thus on the very New Year’s Day when the over 60 contractual security personnel were supposed to be celebrating with their families for the New Year that came, unfortunately, they had only a gloomy Day 1 of the Year of the Metal Rabbit as the old guards- labelled to be lax, undisciplined, having padrinos and sleeping in their posts- sadly exchanged text messages to one another that indeed the day that they feared most when they were suddenly informed on Dec. 28, 2010 about the end of their contracts had indeed come when the white wearing CISA guards like angels in white from heaven descended and snappily effected the changing of the guards of the Capitol.  – Cha Monforte

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