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December 24, 2008

COA DECISION NO. 2008-130

ADM. CASE NO 2008-04

FOR: SIMPLE MISCONDUCT

IN RE: ADMINISTRATION CASEvs. _______________________,respondent.

DECISION

FACTS OF THE CASE

________________, State Auditor III, Audit Team Leader, Audit Team I-Masbate, Cluster III-Southern Luzon,

Local Government Sector (LGS), COA Regional Office No. V, stands administratively charged of Simple

Misconduct for reimbursing from the City Government of Masbate the amount of P40,000.00 for the

purchase of one (1) unit photocopier, in violation of Republic Act (R.A.) No. 9184and Paragraph VIII (4) of

COA Resolution No. 86-50 dated 01 October 1986.

In his answer dated 27 May 2008, respondent expressly waived his right to a formal investigation and

categorically admitted the allegation in the letter-charge. He explained that, as of year 2004, there was

only one (1) unit of photocopier that was being used by the six (6) audit teams under the LGS-Masbate,

which was owned by the Provincial Government of Masbate and assigned at the Office of the Provincial

Auditor. Due to the alleged volume of documents and reports requiring reproduction, such as the Annual

Audit Reports (AARs) and the Barangay Annual Operation Reports (BAOR), there was a need for an

additional unit of photocopier. He said that an appeal was made to the City Mayor of Masbate for an

appropriation in the procurement of said additional unit of photocopier, which the latter allegedly granted

but which procurement was deferred until after the local elections in May 2004. During the courtesy call

on the Mayor, after having been re-elected for another term, he allegedly assured the respondent that the

funding for the requested additional photocopier will be available in the last quarter of 2004. Reiterating

the urgency of the procurement, an offer was allegedly made to the City Mayor that the LGS-Masbate City

will advance the purchase price thereof by pooling the resources of the staff, subject to reimbursement

by the City Government when the funds are made available in the last quarter of 2004. Allegedly

agreeing to the offer, the City Mayor directed the General Services Office (GSO) to purchase the

requested photocopier. Thus, the Supply Officer II, GSO, proceeded to Legazpi City on 15 July 2004 to buy

the said photocopier. Upon the purported instruction of the said Supply Officer, the sales clerk wrote the

name of the respondent over and above the name of LGU-Masbate City. Subsequently, when the funds for

the procurement of the photocopier were available, the GSO prepared the disbursement voucher in the

amount of P40,000.00, covering the purchase price advanced by the LGS-Masbate, under the name of the

respondent as payee. Respondent further averred that the procurement of the photocopier neither

prejudiced the interest of the government since the price paid therefor was the lowest in the market nor

did it impair the independence of the LGS-Masbate. Finally, the respondent emphasized that the City

Government of Masbate created the Bids and Awards Committee (BAC) in compliance with R.A. No. 9184

only on 10 August 2004, while the subject photocopier was purchased on 15 July 2004.

ISSUE

The issue is whether or not the respondent is guilty as charged.

DISCUSSION

Concededly, the purchase of the photocopier falls squarely within the definition of procurement under

R.A. No. 9184which, as provided in Section 10 of Article IV thereof, requires that all procurement shall be

done through competitive bidding, except when the alternative methods of procurement under Article

XVI thereof may validly be recorded to.

As indicated in the Purchase Order, the photocopier was procured not through competitive bidding, but

through shopping. This alternative form of procurement is defined as "a method of procurement of goods

whereby the procuring entity simply requests for the submission of price quotations for readily available

off-the-shelf goods or ordinary/regular equipment to be procured directly from suppliers of known

qualifications." The law enumerates two instances when shopping may be resorted to, namely: first,

when there is an unforeseen contingency requiring immediate purchase, provided that the amount shall

not exceed fifty thousand pesos (P50.000.00); and second, procurement of ordinary or regular office

supplies and equipment not available in the procurement service involving an amount not exceeding two

hundred fifty thousand pesos (P250,000.00), provided that the procurement does not result in the

splitting of contracts and that at least three (3) price quotations from bona fide suppliers shall be

obtained.

_____________ contended that the photocopier was purchased due to the necessity to facilitate the

preparation and submission of AARs and BAORs. However, respondent did not present any evidence to

lend veracity to this claim. It is worth recalling that, in the case of AARs, Section 43 of Presidential Decree(P.D.) No. 1445 states that a report for each calendar year shall be submitted on the last working day of

February following the close of the year. On the other hand, in the case of BAORs, Section 334 of the Local

Government Code states that "Representatives of the Commission on Audit shall audit such accounts

annually or as often as may be necessary and make a report of the audit to the sangguniang panlungsod

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or sanggun ang ayan, as e case may e. rom e a oresa prov s ons, s no e a e s an

the BAORs are prepared annually or as often as may be necessary.

Granting that there was necessity for the immediate purchase of the photocopier, the same is not a

sufficient ground to depart from the general rule of government procurement requiring competitive

bidding. The law provides well-established conditions before the alternative mode of procurement may

be utilized. As discussed above, shopping is allowed in two (2) instances, which, however were not

present in the instant case. __________ failed to prove that there was an unforeseen contingency

requiring the immediate purchase of the photocopier. Likewise, he failed to satisfy the condition that the

photocopier is not available in the Procurement Service and that at least three (3) quotations from bona

fidesuppliers were obtained.

___________ also asserted good faith as a defense. However, taking into consideration the totality of his

conduct relative to the purchase of the subject photocopier, this Commission is not convinced. He

persistently requested the photocopier from the City Mayor before and after the local elections in May

2004, voluntarily offered personal money to finance the immediate purchase of the photocopier while

waiting for its funding, decidedly signed the Purchase Request (PR) on 08 July 2004, and was the

identified payor in Official Receipt No. 30494 covering the purchase of the photocopier. Moreover, during

the purchase of the photocopier, the submission of AAR has already lapsed for more than four (4) months

contrary to his claim that the photocopier was necessary to facilitate the preparation thereof. If, indeed,

there was a need to photocopy the AARs, other measures may be undertaken for the said purpose,

without making the haste purchase of the photocopier, even in the absence of a duly-constituted BAC

and lack of available funds. In fine, the tenacity with which he pursued his course of conduct indicates

that good faith is a convenient but flimsy excuse.

Further, respondent's assertion that he will maintain his independence and objectivity as auditor is

doubtful, at least insofar as the subject purchase is concerned. After he requested the photocopier, used

personal funds to finance its immediate purchase, signed several documents related thereto, and

received the reimbursement of P40,000.00 under Check No. 32235 dated 02 December 2004, it is logical

to surmise that he will pass the transaction in audit, despite the obvious irregularity attending the same.

Otherwise, he will suffer the consequence of being named among the persons liable thereto.

Furthermore, the claim of the respondent that the price paid for the subject photocopier was the lowest

in the market is immaterial. It is apparent in the instant case that the general rule requiring competitive

bidding in government procurement is not strictly adhered to while the alternative mode of shopping is

erroneously resorted to. The law on government procurement extends equal opportunity to eligible andqualified private contracting parties to participate in public bidding with the view in the end of ensuring

that the government obtains the most advantageous price. Necessarily, this is attained by observing the

law on government procurement, not by avoiding or violating it.

Finally, misconduct has been defined as "any unlawful behavior by a public officer in relation to the

duties of his office, willful in character. The term embraces acts which the office holder had no right to

perform, acts performed improperly and failure to act in the face of an affirmative duty to act.'' These

circumstances are obtaining in the instant case as shown in the totality of his conduct relative to the

purchase of the subject photocopier. These said acts of the respondent constitute utter disregard of the

ethical standards of official conduct laid down in COA Resolution No. 86-50 dated 01 October 1986

entitled "Ordaining and Instituting a Code of Ethics for Government Auditors" as follows:

"V. GENERAL ETHICAL GUIDELINES

1. Upholding the dignity of the audit office

The government auditor shall at all times comport himself in such a manner as would

uphold the honor dignity and prestige of the public office that he holds.

2. Propriety and irreproachability of conduct

A government auditor's official conduct should be free from all appearances of impropriety

and indiscretion. His personal behavior, whether in the course of the performance of his

official duties or in his private life, should be above and beyond reproach.

VIII. INDEPENDENCE, IMPARTIALITY AND OBJECTIVITY

4. He shall endeavour preserve and protect his independence. To that end, he shall avoid or

eschew any relationship or circumstance which would likely, even subconsciously, impair

his objectivity and independent judgment as an auditor. He must avoid situations oractions that would tend to weaken his impartiality and objectivity."

Viewed from the foregoing, the ineluctable conclusion is that the respondent's acts constitute the offense

of Simple Misconduct under the Uniform Rules of Administrative Cases in the Civil Service. However, it is

worthy to mention that the herein administrative case is the third on record of the respondent in this

Commission. In COA Decision No. 2348 dated 09 June 1992, he was charged with and found guilty of

Violation of Reasonable Office Rules and Regulations. However, it being his first administrative offense,

he was accorded some measure of leniency and meted only the penalty of reprimand with a stern

warning that a repetition of the same or similar offense in the future shall be dealt with more severely. In

COA Decision No. 96-495 dated 10 September 1996, he was again charged of the offenses of Grave

Misconduct, Conduct Prejudicial to the Best Interest of the Service and Violation of Reasonable Office

Rules and Regulations, but the same were dropped for insufficiency of evidence. Nonetheless, he wasexhorted to be more careful and vigilant in the performance of his official duties.

RULING

WHEREFORE, foregoing premises, this Commission hereby finds __________, guilty of Simple Misconduct

and, as such, is meted the penalty of fine equivalent to two (2) months salary payable within sixty (60)

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days from receipt of this decision.

Let copy of this decision form part of his personal (201) file in this Commission.

(SGD.) REYNALDO A. VILLAR

Chairman

(SGD.) JUANITO G. ESPINO, JR.

Commissioner

Copy furnished:

The Assistant Commissioner

Local Government Sector

The Assistant Commissioner

Legal and Adjudication Sector

The Assistant CommissionerAdministration Sector

The Cluster Director

Cluster III-Southern Luzon

Local Government Sector

The Director

Human Resource Management Office

Administration Sector

The Section Chief

201 File Section

All of this Commission

_________________Audit Team Leader

Team I-Masbate

COA Regional Office No. V

Capitol Building, Masbate City