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HomeFront PageBreaking NewsOmbudsman clears Palawan Governor; Sandiganbayan drops charges

Ombudsman clears Palawan Governor; Sandiganbayan drops charges

The Second Division of the Sandiganbayan granted last April 5, 2019 the Motion for Leave to Admit Amended Information filed by the Office of the Special Prosecutor of the Office of the Ombudsman in Criminal Case No. SB-18-CRM-0547, entitled: "People of the Philippines vs. Francisco Mendez, et. al.," dropping from the case three of the accused, namely: Jose Chaves Alvarez, former businessman and now incumbent Palawan Governor, Lorenzo H. Jamora, former chairman of the Local Water Utilities Administration, and Gaspar D. Gonzales, Jr. , former General Manager of the Cagayan de Oro City Water District.

Earlier, in a Memorandum on Reinvestigation, recommended for approval by Special Prosecutor Edilberto G. Sandoval on March 26, 2019, and approved by Ombudsman Samuel R. Martires on March 28, 2019, the charges against Alvarez, Jamora, and Gonzales were dismissed for insufficiency of evidence.

This is an anti-graft case for alleged violation of Sec. 3 (e) of R.A. 3019 by certain members of the Board of Directors of the Cagayan de Oro Ci ty Water Distric t, when they awarded the pioneering Bulk Water Supply Project in Cagayan de Oro City to a corporat e entity known as Rio Verde Water Consortium, Inc., whose Board was then chaired by erstwhile businessman Alvarez.

The formal complaint in this case was filed in 2016, or 12 years after the award of the project in 2004, and 9 years after its completion in 2007. Its sole basis was the alleged findings of a special audit investigation that was comp leted within a period of barely ten days.

To this day, the water treatment plant that cost Rio Verde Water Consortium, Inc. more than a billion pesos to constr uct from 2004 to 2007 continues to benefit the ever increasing residents of Cagayan de Oro City and its environs by supplying their water requirements.

On the questioned bidding and award of the contract to undertake the Cagayan de Oro City Bulk Water Supply Agreement, the Office of the Ombudsman found that the observations of both the Ombudsman Field Investigation Unit and the Commission on Audit lack documentary support. No record was found showing a detailed evaluati on or post qualification resul ts, and no record was likewise found showing that the project proponent, Rio Verde Water Consortium, Inc., was notified of the results of such post qualification, as prescribed under Section 34.4 of the IRR-A of R.A. No. 9184. The same findings, the Office of the Ombudsman said, "cannot be said with certainty that the actions or inactions or lack of documentation on the actions/inactions of the BAC support the conclusion that the Board of Directors of the Cagayan de Oro City Water District disregarded the recommendation of the Bids and Awards Committee or pre-empted the BAC from completing its bidding evaluation."

The Office of the Ombudsman underscored that the award of the Bulk Water Supply Project contract to Rio Verde Water Consortium, Inc. prior to its registration as a consortium, does not suffice to establish irregularity because even the IRR-A of R.A. No. 9184 allows the participation of a Joint Venture or a group of two or more entities that intend to be jointly and severally responsible or liable for a particular contract.

It was further stressed by the Office of the Ombudsman that no apparent transgression can be discerned from the ruling of the Board of Directors of the Cagayan de Oro City Water District that the formation by Rio Verde Water Corporation of a consortium qualified it to participate and offer tenders or bids for the Bulk Water Supply Project. The collat ill a as regards the submission of the 3-year audited financial statements of the consortium's member corporation still falls within the eligibility requirements under the BAC checklist.

In particular, the Office of the Ombudsman held that "t here is no overt act on the part of Alvarez indicating that he sought a favor from, or exerted pressure on the Board of Directors. He is not expected to call the attention of the [Board of Directors of the Cagayan de Oro City Water District] regarding the strict provisions of the procurement law. On the contrary, the Board of Directors is expected to know and fully implement the law under which they operate and manage the affairs of the Cagayan de Oro City Water District.

On the allegations that substantial amendments were made on the Bulk Water Supply Contract, the Office of the Ombudsman noted that the concern of the Cagayan de Oro City Water District pertained only to the increase in the water price billed by Rio Verde Water Consortium, Inc. but there is not enough basis to form a conclusion as to whether any criminal liability may arise from the said circumstances because the entire facts have not been proffered or substantiated. Not even a copy of the model contract was included in the records. The records show that the issue of water price adjustment was already discussed even prior to the signing of the Bulk Water Supply Agreement, and the said agreement itself provides that the same may be amended, supplemented and modified from time to time. Also, there is no evidence to show that any benefit had actually redounded to Rio Verde Water Consortium, Inc., considering that its billing for the increased water price does not appear to have been paid.

Finally, the Office of the Ombudsman held that the changes in the take­ off point and other amendments/supplements to the Bulk Water Supply Agreement do not support a finding of probable cause for the said offense. Absent any evidence to the contrary, the continuing 'negotiations' on the 'disputable' provisions of the Bulk Water Supply Agreement are presumed to result in a satisfactory agreement between the parties.

This case was initiated by an anonymous lette r-complaint, dated October 23, 2008, from a certain "Juan dela Cruz," who later turned out to be a former lawyer of the Cagayan de Oro City Water District. Curiously, however, a similar complaint was filed in 2016 by a certain Michelle D. Fox, a resident of San Vicente, Palawan, who contested the Mayoralty of San Vicente town, but lost by an overwhelming margin to the daughter of Alvarez, who is now the incumbent mayor of the said town.
 

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