OFFICE OF THE OMBUDSMAN
REPUBLIC OF THE PHILIPPINES
OMBUDSMAN BUILDING
AGHAM ROAD
QUEZON CITY 1101
OMNIPRIME MARKETING, INC.,
through its Authorized Representative,
Annabelle A. Margaroli,
Complainant,
- versus HON. ALBERTO D. LINA, incumbent
Commissioner of the Bureau of
Customs, PRIMO “DONDI” AGUAS,
former Deputy Commissioner of the
Bureau of Customs, GUILLERMO
PARAYNO, JR., former Commissioner
of the Bureau of Customs and President
of E-Konek Pilipinas,
Case No. IC-OC-150990
For: Plunder & Grant
and Corruption and
abuse of power of the
Head of Procuring
Entity under R.A. No.
9184
Respondents..
X_________________________________X
MOTION FOR PREVENTIVE SUSPENSION
OF RESPONDENT BUREAU OF CUSTOMS COMMISSIONER
ALBERTO D. LINA
COMPLAINANT OMNIPRIME MARKETING, INC. through
counsel, and unto this Honorable Office, most respectfully states that:
1.
On 2 July 2015, Complainant filed with this Honorable
Office a Complaint-Affidavit charging Respondents Lina, Aguas, and
Parayno, Jr. for violation of Section 3(e) of the Anti-Graft and
Corrupt Practices Act, Republic Act 3019; Section 65 (5) of RA 9184;
and Republic Act No. 7080, otherwise known as the Anti-Plunder
Act, specifically Section 2. To the Complainant, the acts or omissions
of Respondents complained of are contrary to law, oppressive, unfair,
unreasonable, and devoid of justification, thus subject to the
disciplinary authority of this Honorable Office.1
2.
In particular, Complainant decried Respondent Lina’s
manifest partiality, crystal clear conflict of interest, and bad faith
when the cancellation of the NSW 2 Project unduly benefited losing
bidder E-Konek Pilipinas, where Respondent Parayno is the
President and where Respondent Lina himself holds a 96.47 % stake,
and gravely prejudiced the Joint Venture of Omniprime Marketing
Inc. and Intrasoft International, Inc., which has been declared as the
Highest Rated Bid and with whom the DBM Procurement Service
Bids and Awards Committee have already negotiated.
3.
Under the Ombudsman Act, Republic Act No. 6770:
“Section 24. Preventive Suspension. -- The Ombudsman or his
Deputy may preventively suspend any officer or employee under
his authority pending investigation, if in his judgment the evidence
of guilt is strong, and (a) the charge against such officer or
employee involves dishonesty, oppression or grave misconduct
or neglect in the performance of duty; (b) the charges would
warrant removal from the service; or (c) the respondent's continued
stay in office may prejudice the case filed against him. xxx xxx” 2
(Emphasis supplied.)
4.
The purpose of a preventive suspension order issued by
the Ombudsman or the Deputy Ombudsman cannot be gainsaid. It is
aimed at inhibiting “that official from using his office to intimidate or
influence witnesses or to tamper with records that might be vital to the
prosecution of the case against him.”3
5.
Complainant submits that Respondent Bureau of
Customs Commissioner Alberto D. Lina should be preventively
suspended on the following grounds:
5.1.
Evidence of Respondent Lina’s guilt is strong;
5.2. The charge against Respondent Lina involves
dishonesty, oppression or grave misconduct or neglect in the
performance of duty; and
REPUBLIC ACT NO. 6770, § 19 & 21.
REPUBLIC ACT NO. 6770, § 24.
3 Garcia vs. Mojica, G.R. No. 139043 , September 10, 1999, 314 SCRA 207 (1999)
1
2
5.3. Respondent’s continued
prejudice the case filed against him.
stay
in
office
may
6.
First, the unwarranted benefits which the cancellation of
the bidding procedure for the NSW 2 Project upon his assumption as
Customs Commissioner bestows upon his very own E-Konek
Pilipinas, a losing bidder in such procurement, is patently abject. EKonek Pilipinas, a corporation 96.47 percent of the shareholdings of
which is held by Respondent Lina himself, stand to benefit from the
continuous use of the current customs electronic or mobile system as
a Value Added Service Provider.
Attached as Annex “A,” “A-1,” and so on is the General
Information Sheet of E-Konek Pilipinas dated 23 April
2015. The 3rd page thereof or Annex A-3 thereof shows
that Respondent Parayno Jr. is the President of E-Konek
Pilipinas, while page 4 or Annex A-4 thereof indicates
that Respondent Lina holds 96.47 percent of said E-Konek
Pilipinas.
7.
Second, the cancellation of the bidding procedure, which
has already reached contract negotiation stage unduly prolonged
until Respondent Lina’s assumption of office, is a stumbling block to
the integration of the Customs system into the ASEAN Single
Window, in nonobservance of the Philippines’ international
obligations to the ASEAN. 4 The cancellation also deprives the
Filipino people of a much deserved transparent, efficient, and graft
and corruption-free customs service.
8.
Third, the cancellation of the bidding for the PNSW 2
Project was oppressive and has done injustice to Complainant’s Joint
Venture whose rights as a bidder were clear and apparent. It is
notable that in Civil Case No. 15-134333 entitled “Joint Venture of
Omniprime Marketing, Inc., and Intrasoft International, Inc. versus DBM
Procurement Service, et al,” Petition for Certiorari and Mandamus
pending before Branch 47 of the Manila Regional Trial Court, a writ
of preliminary injunction issued on 24 August 2015 therefore
establishing the clear legal right of the Joint Venture to which
Complainant belongs, the violation of such right by Respondent Lina,
and the grave irreparable damage suffered by the Joint Venture.
“Agreement to Establish and Implement the ASEAN Single Window Kuala Lumpur,
9 December 2005,” Available at http://www.asean.org/communities/aseaneconomic-community/item/agreement-to-establish-and-implement-the-aseansingle-window-kuala-lumpur-9-december-2005-2, last accessed on 25 August 2015.
4
Attached as Annex B to this Motion is a copy of the
Omnibus Order dated 24 August 2015 granting the
application for a writ of injunction against the Bureau of
Customs, represented by herein Respondent Lina, inter
alia.
9.
The lower court added in its Omnibus Order dated 24
August 2015 that:
“… the Court finds sufficiently meritorious just to maintain the
status quo prior to the questioned acts of cancelling the
procurement process, as well as for the purpose of giving
temporary relief to petitioner whose rights as bidder now appear,
from the evidence so far presented by both of the parties, to have
been unduly and unfairly violated by the sudden cancellation of
the subject procurement process for
PNSW2 project…”
(Emphasis supplied)5
10. In issuing the writ of preliminary injunction the presiding
judge then found that the Joint Venture, of which Complainant is the
local counterpart, suffered injustice “out of the sudden cancellation
following years long and rigorous bidding process for its qualification…”6
11. Fourth, the cancellation of the bidding process was made
without any justifiable basis. Respondent Lina’s 6 May 2015 letter
requesting the discontinuance and abandonment of the procurement
for the PNSW 2 Project for the reason that he has to conduct a review
of the project was clearly based on flimsy grounds, and not because
there was a significant change in the physical & economic conditions
that warranted the cancellation of the PNSW2 Project for being “no
longer economically, financially, or technically feasible.”
12. Referring to the testimony of Customs OIC Deputy
Commissioner Angelica Sarmiento of the Bureau of Customs
Management Information System and Technology Group (MISTG)7
Civil Case No. 15-134333 entitled “Joint Venture of Omniprime
Marketing, Inc., and Intrasoft International, Inc. versus DBM Procurement
Service, et al,” Petition for Certiorari and Mandamus pending before
Branch 47 of the Manila Regional Trial Court, it becomes apparent
that there was no factual and technical basis or justification in the
See page 15, Annex B, Omnibus Order dated 24 August 2015, Civil Case No. 15134333.
6 See page 15, Annex B, Omnibus Order dated 24 August 2015, Civil Case No. 15134333.
7 Created under Executive Order No. 463.
5
cancellation of the procurement for the PNSW 2 project where
Complainant’s Joint Venture has emerged as the Highest Rated Bid.
13. The MISTG, the office within the Bureau of Customs
which primarily supervises the current operating system of the said
Bureau, was created by Executive Order No. 463 with the following
function:
Section 3. Functions. – The MISTG shall upgrade the present
information technology group where it will have a more strategic
position within the Bureau of Customs organization setup and
provide a functional structure which will encompass the functions
which are seen as vital in the attainment of the vision of a
modernized trade facilitating and globally competitive Bureau of
Customs.8
14. The testimony of Customs OIC Deputy Commissioner
Angelica Sarmiento in Civil Case No. 15-134333 clearly shows that
there were no other matters left undiscussed in the contract
negotiation for the procurement in the NSW 2 Project. In fact, if the
procurement of the project PNSW 2 with Complainant’s Joint
Venture were not cancelled, it would not have taken long before the
contract for the procurement were finalized. Hence:
“ATTY. BUTUYAN
Now, were there any other issues that were not agreed
upon during the contract negotiation?
“WITNESS
I did not agree to the parking slot being requested by the
short listed bidder.
“ATTY. BUTUYAN
To the what?
“WITNESS
To the parking slot.9
“ATTY. BUTUYAN
Parties?
“WITNESS
Parking slot.
EXECUTIVE ORDER NO. 463, § 3.
TSN, Joint Venture vs DBM et. al., Testimony of Ms. Angelica Sarmiento, August 13,
2015, page 56.
8
9
“ATTY. BUTUYAN
Just the parking slot?
“WITNESS
Yes.”10
XXX
XXX
XXX
“ATTY. BUTUYAN
If the project was not cancelled by Commissioner Lina, how
long would have taken for the contract to be finalized and
signed? If it was not cancelled, how long?11
“WITNESS
Not more than a week.”12
Attached as Annex “C” is a copy of the TSN of the
testimony of Customs Deputy Commissioner Angelica
Sarmiento.
15. Further in the testimony of said witness, it became clear
that Customs Commissioner Lina or any officer representing the
latter did not consult said OIC Deputy Commissioner, herself the
Head of the MISTG which supervises the Bureau of Customs’
operating system, on the cancellation of the PNSW 2 procurement.
Thus:
“ATTY. BUTUYAN
In relation to your answer to question number 59, the
portion were you consulted by Commissioner Lina before
he cancelled the PNSW2, and your answer was our office
MISTF was consulted but that is not my question Madam
Witness, were you yourself consulted by Commissioner
Lina?
“WITNESS
No, sir.
“ATTY. BUTUYAN
Did any BOC officer representing Commissioner Lina
consult you on the cancellation of the project
considering that you were the one drafted the Terms
of Reference and you are the highest ranking BOC
officer whose an IT expert?
Id. at page 57.
Supra note 6 at page 59.
12 Supra note 6, at page 60.
10
11
“WITNESS
No, sir.
“ATTY. BUTUYAN
How about Commissioner Lina cancelled the project
were you consulted by Commissioner Lina on the
cancellation?
“WITNESS
No, sir.”13 (Emphasis supplied.)
16. More importantly, it was unmistakably revealed that
there was no change of circumstances that would necessarily impel
the cancellation of the PNSW 2 procurement. To wit:
“ATTY. BUTUYAN
Since the cancellation of the project by Commissioner
Lina has the needs of the BOC with respect to the
Philippine National Single Window Phase 2 project
change? Has there ever been a change of
circumstances that would no longer required the
PNSW2?
“WITNESS
None, sir.14
“ATTY. BUTUYAN
None. Has the problems of the BOC, with respect to the
present system being use, change or they still there?
“WITNESS
They still there.”15
17. There is thus no dispute that a prior factual or technical
evaluation was absent before the cancellation of the bidding. Neither
did Respondent Lina make use of any technical recommendation in
his decision to cancel the same. Hence, there is no factual or technical
justification for the cancellation of the PNSW 2 bidding process
where the contract with Complainant’s Joint Venture is already being
finalized.
18. The cancellation of the PNSW 2 bidding process, at a time
when the contract negotiations with Complainant’s Joint Venture has
ended and there was nothing more left to do but to finalize the
Supra 6, at page 58.
Id.
15 Supra note 6, at page 59.
13
14
contract, will thus ultimately benefit Respondent Lina who owns and
controls the E-Konek Pilipinas service provider of the current Bureau
of Customs operating system. Additionally, Respondent Lina’s very
own E-Konek Pilipinas will have a change to participate in case a
rebidding is made in the procurement for the PNSW 2.
19. All these manifest that Respondent Lina committed acts
tantamount to oppression, grave misconduct, graft, and corruption in
the cancellation of the PNSW 2 bidding process for his benefit and to
the prejudice and damage of Complainant.
20. Lastly, Respondent Lina is the incumbent Customs
Commissioner and Head of the Procuring Entity in the procurement
procedure subject of the Complaint against him, his continued stay in
office will most definitely prejudice this instant case. Said
Respondent’s continuance in office will pose a threat to the integrity
of records involved in this case and expose witnesses to influence.
21. Besides that prejudice may result in Respondent Lina’s
continuance in office, the General Information Sheet of E-Konek
Pilipinas where Respondent Lina is the majority owner, the findings
of the trial court in issuing the writ of preliminary injunction against
the Bureau of Customs, and the testimony of Customs Deputy
Commissioner Angelica Sarmiento are strong evidence sufficiently
convincing to justify the imposition of preventive suspension
evidence against Respondent Lina.
PRAYER
WHEREFORE, premises considered, it is most respectfully
prayed of this Honorable Office to ISSUE A PREVENTIVE
SUSPENSION ORDER against Respondent Alberto D. Lina,
incumbent Commissioner of the Bureau of Customs.
Other reliefs, just and equitable under the circumstances, are
likewise prayed for.
Makati City for Quezon City, 27 August 2015.
ROQUE & BUTUYAN LAW OFFICES
Counsel for Complainant Omniprime Marketing, Inc.,
represented by Annabelle A. Margaroli
1904 Antel Corporate Center
121 Valero St., Salcedo Village,
1227 Makati City, Philippines
+632.8873894
+632.8873893
mail@roquebutuyan.com
By:
H. HARRY L. ROQUE JR.
Roll No. 36976
PTR No. 4781976 / 1-30-2015 / Makati
IBP No. 01749 / Lifetime
MCLE Exemption No.IV-000513 / Feb. 15, 2013
JOEL R. BUTUYAN
Roll No. 36911
PTR No. 4781975 / 1-30-2015 / Makati
IBP No. 01742 / Lifetime
MCLE Compliance No.IV-0011417 / Jan. 11, 2013
ROMEL R. BAGARES
Roll No. 49518
PTR No. 4781972 / 1-30-2015 / Makati
IBP No. 993980 /1-30-2015 / So. Cotabato
MCLE Compliance No.IV-0011822 / Jan. 25, 2013
EXPLANATION
Copies of the foregoing Motion were sent to the parties via
registered mail due to inadequacy of personnel, and distance
between the offices involved.
ROMEL R. BAGARES
Copy furnished:
Respondent Alberto D. Lina
Respondent Primo Aguas
Bureau of Customs, South Harbor, Gate
3, Port Area, Manila
Respondent Guillermo Parayno, Jr.
Unit 6D, Washington Towers, Pacific
Ave., Asiaworld City 1700, Philippines.