Graft Case vs Drilon

7/27/2019 Graft Case vs Drilon

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OFFICE OF THE OMBUDSMANOmbudsman Building, Agham Road

North Triangle, Diliman, Quezon City 1101

MANIIEL P. MEJORADA,Complainant,-versus-rroN. FRANKLIN M. DRTLON,Senate President, Republic of the Philippines,EDILBERTO D. TAYAO,Regional Director,Department of Public Works and Highways @PWH) Region 6,LEA N. DELFINADO,Chairman, Bids and Awards Committee DPWH Region 6MARILOU G. ZAMORA,MARILYN H. CELTL,DANILO M. PENOY,JOSE AL V. FRUTO,LUVISMINDA H. NARCISO,Members, Bids and Awards Committee, DPWH, Region 6x---- ----xHON. CONCHITA CARPIO-MORALESOmbudsmanOffice of the OmbudsmanOmbudsman Bldg., Agham RoadDiliman, Quezon CityMadam:

COMPI-AINTThe undersigned respectfi;lly files this COMPLAINT against the above-captioned publicofficials in connection with the anomalous implementation of the "Improvement/completionof the E. Trenas Boulevard Along Iloilo River (From Benigrro Aquino Jr. Avenue toCarpenters Bridge) Iloilo City" project which was funded from the Priority DevelopmentAssistance Fund (PDAF) of Senator Franklin M. Drilon in September 2012 in the amount ofThirteen Million Five Hundred Thousand Pesos (P13,500,000.00).The acts of respondents in the procurement and implementation of this contract show therewas conspiracy to defraud the government and causing the misappropriation of millions of


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pesos from this PDAF release in violation of the following laws and commission of specificoffenses:

Republic Act No. 3019, or the Anti-Graft and Comrpt Practices Act, particularlySection 3,pangraphs (a), (e) and (g) in relation to;Republic Act No. 9184, or the Government Procurement Reform Act and its RevisedImplementing Rules and Regulations;C. Dishonesty;D. Grave Misconduct;E. Falsification of public documents;F. Malversation of public funds.

Complainant is a Filipino crtizen, married, of legal age, and a resident of No. 2 Kasoy St.,Block 11, Villa San Lorenzo Subdivision,Lapaz,Iloilo City where he can be served withsunmonses and orders of this Honorable Office.Respondent Franklin M. Drilon can be served with summonses and orders at his office in theSenate of the Philippines, GSIS Bldg., Financial Center, Roxas Boulevard, Pasay City,Philippines.The other respondents are officials and employees of DPWH Region 6, andmay be servedwith summonses and orders at DPWH Region 6, Fort San Pedro, Iloilo city.In support of this Complaint, I have attached my affidavit and its annexes. Also attached is aCertificate of Non-Forum Shopping.Iloilo City for Manila, Philippines, September 10,2013.

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A.B.


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Republic of the Philippines )City of Iloilo ) S.S.X---- ------X

AFFIDAVITI, MANUEL P. MEJORADA, of legal age, Filipino, married and a resident of No. 2 KasoySt., Block 11, Villa San Lorenzo Subd., Lapaz,Iloilo City, after having been duly sworn inaccordance with law, do hereby depose and say:1. I am the Executive Editor of The News Today (TNT) Libre, a daily newspaper

published in Iloilo City, and a blogger for a blog "Mejorada's Point of View" onWordPress.com, and it was in this capacity as an investigative journalist that I came toknow the facts and circumstances about the anomalous procurement andimplementation of a "pork barrel" project involving P13,500,000.00 in public funds inIloilo City.2. I am executing this affidavit in support of a CRIMINAL and ADMINISTRATIVECOMPLAINT based on my personal knowledge relative to this anomaly against:a. Senate President Franklin M. Drilon;b. DPWH Regional Office No. 6 Regional Director Edilberlo Tayao;c. DPWH Regional Office No. 6 Bids and Awards Committee which underlook

the procurement of a contract known as "Improvement/completion of E.Trenas Boulevard Along Iloilo River (From Benigno Aquino Jr. Ave. toCarpenters Bridge) commencing on September 27,2012, namely:i. Lea Delfinado, Chairmanii. Marilou G. Zamoraiii. Marilyn H. Celiziv. Danilo M. Penoyv. Jose Al V. Frutovi. Luvisminda H. Narciso3. In the prosecution of the funding, procurement and implementation of the above-cited

projects, respondents, conspiring with one another, feloniously and criminallycommitted acts in violation of and constitute criminal/administrative offenses:a. Republic Act No. 3019, or the Anti-Graft and Corrupt Practices Act,particularly Section 3, paragraphs (a), (e) and (g) in relation to;b. Republic Act No. 9184, or the Government Procurement Reform Act and its

Revised Implementing Rules and Regulations;c. Dishonesty;d. Grave Misconduct;e. Falsification of public documents;f. Malversation of public funds.


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FACTS AND CIRCUMSTAI{CES1 . On Septemb er 17 ,20l2,the Department of Budget and Management issued Special

Allotment Release Order (SARO) No. BMB-A-12-T000004324 authorizing therelease of fundS iN thE AMOUNT Of THIRTEEN MILLION FIVE HI.INDREDTHOUSAND PESOS (P13,500,000.00) to the Department of Public Works andHighways (DPWH), Region VI "to cover the implementation of a priorityinfrastructure listed in Annex 'A"' thereof (Copy of SARO is attached to this affidavitas Annex "A").a. On the face of this document could be found markings, of which states that it

was received in the Office of Director, CFMS (which stands for Comptrollerand Financial Management Section) of the DPWH Central Office throughwhich it was released, with the date "september 27,2A12" appearing thereon.b. There is also a handwritten annotation on the lower left bottom of the pageshowing the name, "Sen. Franklin M' Drilon"'

2. On September 28, 20L2,CFMS Director III Aristeo O. Reyes dispatched aMemorandum to "The Regional Director, DPWH, Regional Office No. VI, Iloilo City"fumishing the latter the original SARO aforecited (Copy of which is attached asAnnex o'B" of this comPlaint).3. DpWH Regional Office No. VI issued an "Invitation to Bid" for three (3) projects, oneof which was entitled "Improvement/completion of the E. Trenas Boulevard Along theIloilo River (From Benigno Aquino Jr. Avenue to Carpenters Bridge)" and was givenContract I.D. No. 12GO0049 with an approved budget for the contract (ABC) in theamount of P10,1 l0,640.l4with the posting period indicated therein as'oSeptembet2lto 28,2012- (Annex "C" of this affodavit).a. This "Invitation to Bid" was posted on the website of the Philippine

Government Electronic Procurements System (PhilGEPS) for a period of seven(7) days as required by RA 9184 and its Revised Implementing Rules andRegulations (Annex "D" of this affidavit).4. The Bids and Awards Committee (BAC) composed of respondent Lea Delfinado as

Chairman, and Marilolu G. Zamora, Marilyn H. Celiz, Danilo M. Penoy, Jose Al V.Fruto, and Luvisminda H. Narciso as Members, held the pre-bidding conference onOctober 4,2012 as per schedule indicated in the "Invitation to Bid".5. Subsequent to the pre-bid conference, the BAC issued two bid bulletins: one datedOctober 5,2012 (Annex "E") and another dated October 9,2012 (Annex "F").a. In the Bid Bulletin dated October S,z}l2,respondent Delfinado issued an

amendment to the Approved Budget for the Contract and set the amount toP13,092,802.58.b. In the Bid Bulletin dated October 9,2012, respondent Delfinado changed theApproved Budget for the Contract to P13,092,238.67.c. Respondent Delfinado did not cite any resolution or document as basis for theissuance of the Bid Supplement/Bulletin.6. The dropping and opening of bids took place on October 16,2072, and on October 19,

20l2,the BAC adopted a Resolution recommending the award of the contract to thewinning bidder, Roprim Construction, for the contract price of P12,354,554.60 (Annex"G" of this affidavit).7 . On October 22,2012, respondent Tayao, in his capacity as HOPE (Head of Procuring

Entity), issued a NOTICE OF AWARD to Mr. Ronnie Primaylon, Proprietor of

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Roprim construction, to undertake the contract, to which the contractor signified hisacceptance by affixing his signature below the name of respondent Tayao (Annex'oH"of this affidavit).8. The Contract Agreement covering the project' described as the..Improvement/compl"tion of the E. Trenas Boulevard Along Iloilo River (BetweenBenigno Aquino Ave. to carpenters Bridge),

was signed by DPWH Regional OfficeNo. 6 as the procuring entrty, representediy Luvisminda H. Narciso, Engineer v andcontractor Ronnie Primaylon (Annex "I")'g.RespondentTayaoissuedonoctoberzg,I}lzaNoTICEToPROCEED(attachedasAnnex..J") to the contractor, Ronnie P. Primaylon, informing him that the contractwork for the project is effective November 5'2072'

10. As part of the uiaaing documents for the contract, the DPWH Regional Office No' 6alsopreparedandapproveddocumentsknownasthelNDlVlDUALPROGRAMoFwoRKandAPPRoVEDBUDGETFORTHECONTRACTshowingthebreakdownof the cost estimates and the basis for the ABC (Annexes "K" and "L" respectively ofthis ComPlaint)' ----i^+^ ^rll.Annexes'oK"and"L"above-mentionedshowthatthiscontractconsistsoftwomarncomponents:a. ComPletion Works;b. Manual Irrigation SYstem;

12.TheDBMwebsiteonthePriorityDevelopmentAssistanceFund(PDAF)releasesforrespondent Senate President Franklin M' Drilon shows that he earmarked the amountof Pl3,500,000 from his 2012 allocation to the.'ConstructiorVlmprovement/Completion of the E' Trenas Boulevard Along IloiloRiver".\F

\C'< 13. My knowledge and conclusions about this anomalous contract are drawn fromdocumentslobtainedfrombothofficialandunofficialsources,thelnternetandinterviews with officials and employees of DPWH, including respondent Tayao andDelfinado. As former Provincial Administrator of Iloilo Province, I am familiar withthe provisions of Republic Act No. 9184 and its Revised Implementing Rules andRegulations, having served as member of the Bids and

Awards committee of theProvince of Iloilo for several years'

14. I also know for a fact that the development of the E. Trenas Boulevard Along IloiloRiver (From Benigno Aquino Jr. Ave. - carpenters Bridge) is the pet project ofrespondent DRILON in Iloilo CitY'a. ln a press releasel issued by the Public Relations and Information Bureau

(PRIB) of the senate of the Philippines dated August 17,2012, respondentDRILON was credited as having "put together" the fund of P70 million for theconstructiorr/development/implementationoftheproject.

15. The first lead into this anomaly was provided by a goverlrment source who mentionedthat respondent DRILON released P13.5 million to DPWH Regional office No' 6 onSeptember:rT,20l2.ItwasthedateofthePDAFreleasethatdrewnoticeandaroused

, Annex,,M,,of the affidavit, which is a print out of the Press Release from www'senate'gov'ph dated August 17'


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suspicion. Why would respondent DRILON release such a big amount of money for aproject that had been completed and inaugurated?

16. I tried to obtain a copy of the Special Allotment Release Order (SARO) for the Pl3.5million from the DBM Regional Office No. 6. I was informed that no copy wasavailable in the files of the DBM Regional Office No. 6 because the document wasdirectly transmitted to the DPWH Central Office in Manila'

17. After making a few inquiries, I came to talk with a DPWH engineer with knowledgeabout the project. He agreed to talk to me on condition that his name be keptconfidential. He disclosed that the contract involved the construction of two (2) cisterntanks and a network of PVC pipes for the watering of the plants in the Esplanade. Thisconversation took place in the morning of August 27 ,2013 '

18. In a Google search on the Internet, I came across a document purporting to be an"Invitation to Bid" for this project, with the publication dates stated as "September 2l'28,2012-. The approved budget for the contract (gA.BC) appearing on the same wasP1 0.1 10.640. 14. (Underscoring for emphasis)

19. At around 2 o' clock p.m., AugustZ7,2013, I made a phone call to the office ofrespondent Tayao but was informed by his secretary that he was in Manila. She said Icould direct my inquiries to respondent Delfinado, who is the Assistant RegionalDirector. Respondent Delfinado took my call. She told me the information I neededcould be obtained from Kathy Nomananap in the secretariat of the Bids and AwardsCommittee. I made a phone call to Ms. Nomananap. She said she was in a pre-bidconference and could not act on my request for information. She promised to get backto me later in the afternoon. At about 4:30 p.m. on August 27,2013,I spoke to Ms.Nomananap again, and she gave me information on the contract amount and the nameof the contractor.

20. I knew something was amiss at once. The approved budget for the contract appearingin the Invitation to Bid was P10,110,640.14. The contract amount disclosed by Ms.Nomananap was P12,35 4,554.60. Having occupied the position as ProvincialAdministrator of Iloilo Province, I was familiar with Republic Act No. 9184, and Iknew a winning bid cannot be above the ABC.

21. So I decided to investigate deeper. The next day, August28,2013, at around 10 o'clock a.m.,I went to the DPWH Regional Office No. 6 offices in Fort San Pedro,Iloilo City to ask for documents pertaining to the project. Specifically, I went to theBids and Awards Committee (BAC) secretariat. I was told that the secretariat head,Kathy Nomananap, was in a meeting. I had to wait for about an hour. When Ms.Nomananap retumed to her desk, I told her the purpose of my visit. She said that Ishould see Assistant Regional Director Lea Delfinado, one of the respondents. Prior tothat, as I was waiting for Ms. Nomananap, I went to the Office of the RegionalDirector to file my official request for these documents. The secretary received myletter request, a photocopy of which is attached as Annex "N".

22.Itwas around l1 o' clock a.m. when I got to the office of respondent Delfinado. Hersecretary told me she was still on the phone. I waited for about 30 minutes. As I hadanother appointment, I left. I called respondent Delfinado at around 2:30 o' clock p.m.that same day. She told me that respondent Tayao was scheduled to arrive the next day,August 29,2013.It would be better, she said, if I just wait for the next day and seerespondent Tayao personally "so that you can talk and get more information."

23.1 am narrating these circumstances to show that contrary to the governrnent's policy oftransparency, these offrcials were giving me the round-around. It was the second day

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of my efforts to obtain the documents. I had no choice but to agree to the suggestion ofrespondent Delfinado.24.Imetwith respondent Tayao at about 1l o' clock a.m. of Augtst29,2013 athis office.I saw that my request the day before was on his desk. So I told him that I was there tofollow up on the request for documents. Respondent Tayao suggested that he mightneed approval from DPWH central office for the release of the records. I remindedhim that there is a policy of transparency, and all I was requesting for were documentsin a completed project. He asked me if this was related to politics. I said "no", as I wasdoing this as an investigative journalist. He tried to stall for time, saying the requestwill be granted, but said I will just have to wait. I insisted that the files have alreadybeen retrieved two days previously by the BAC secretariat. After a few minutes ofhesitation, respondent Tayao asked me to come back in the afternoon. As I was stoodup to leave, respondent Tayao said in a soft voice, "tulungan mo naman kami (pleasehelp us).,' I replied that it's just the records I was interested about.

25.Therecords of the public bidding which I have identified and marked as annexos worereleased that afternoon, August 29,2013. These documents constitute the bulk of theannexes submitted in support of this affidavit. All are duly certified by Atty' MaryGrace Bulaquina, Attorney IV, Chief, Legal Staff, DPWH Regional Office No. 6, asauthentic reproductions of the originals. The annexes are photocopies of these certifiedtrue reproductions.

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i. This same contractor appears to be the favorite contractor of DPWHwhen it comes to projects initiated by respondent Drilon'ii. The contract is clearly the outcome of a "rigged" bidding'

28. The procuring entity represented by respondent DPWH offrcials named herein bent therules, even violated the provisions of Republic Act No. 9184 and RevisedImplementing Rules and Regulations in prosecuting the procurement process.a. The Invitation to Bid was NOT published in a national newspaper during theperiod September 21-28,2012 as the contract involved an amount above

P5,000,000.00.i. The Manila Standard Today has been designated as the officialnewspaper for DPWH legal notices and verification made through itsdigital archives showed there was no publication'ii. Respondent Tayao did not include a clipping of the publication alongwith a certification from the publisher among the documents released tome.

This failure the Invitation to Bid in a national newspaper at least once violatedSection 21.2.1(a) of the Revised IRR of RA 9184.Respondent Delfinado violated Resolution No. 07-2005 of the GovemmentProcurement Policy Board (GPPB) which provides the rules for adjusting theapproved budget for the contract when she issued bid bulletins on October 5and Octobe r 9,2}l}raising the ABC from P10,1 10,640.14 to P13,092.802.582and then to P13,092 ,238.673 respectively.Respondent Delfinado and other members of the BAC violated the RevisedIRR of RA 9184 when it failed to post the Notice of Awarda and Notice toProceed5 to the winning bidder in the PhilGEPS website within three (3) daysofits issuance.i. Print-outs of the records from the PhiIGEPS website would show that

in the section with the heading, "Award Notice List"6, there is anannotation that "No award notices found";ii. This fact is validated by a "Certification of Compliance"T duly signedby respondents CELIZ and TAYAO dated June 7, 2013, the columnsfor date of posting of the NOTICE OF AWARD, APPROVEDCONTRACT and NOTICE TO PROCEED were left blank, and thereappears an annotation in the column titled "Status of Projects" that"Award cannot be posted yet due to change in ABC as posted in the bidbulletin".1. This parlicular contract is number 21 inthe list above cited.

The Revised IRR of RA 9184 requires that before a contract is advertisedthrough an Invitation to Bid, the scopes of work should have been determinedthrough an Individual Program of Works and establish the approved budget forthe contract (ABC).

' Bid Bulletin dated octobe r 5,2012,listed as Annex "D"' Bid Bulletin dated octobe r 9,2o1?,listed as Annex "E"a Section 37.1.6 of the Revised lmplementing Rules and Regulationss Section 37.4.2 of the Revised lmplementing Rules and Regulationst Anne* "D" of the complaint' Annex "o" of the complaint

b.

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d. Photographs and videos of the Iloilo Esplanade that are available on theInternet show that the landscaping, with ornamental plants, for the project wascomplete when it was inaugurated.e. Photographs and videos that are posted on the Internet as of July 2012 wouldalso show that the surface of the entire 1.2-kilometer stretch had already beencovered with concrete pavers (wavy type) from end to end.f. In short, the work items "sprigging" and "concrete pavers" listed in theIndividual Program of Works were simulated work items, a convenient coverfor the misappropriation of public funds, as the supposed scopes of work werein fact already finished and completed.g. The same thing can be said for "electrical works" for which the sum ofP735,603.31 was appropriated --- everything, including lights, was done andfinished, and the expenditure is a fiction;h. The two (2) units reinforced cistern tanks are grossly overpriced even if indeedthese were undertaken;i. This is nothing but a concrete water tank with minimal structural

strength, a rectangular box buried underground to collect and storewater for irrigation Purposes;ii. That having been said, it is public knowledge that there was no moreconstruction activity of this nature after the inauguration, no diggingsthat would point to its prosecution;i. And finally, the o'crowning glory" of this anomaly is the water supply system

with a budget of P4,382,728.26;i. Photographsl0 taken on this irrigation system show blue-colored PVCpipes sticking out of the ground and connected to a lenglh of rubberblack-colored pipe that is supposed to deliver water to spaced-outoutlets;

ii. The entire Iloilo Esplanade is only 1.2 kilometers in length;iii. There is no justification for such a pipeline system for the IloiloEsplanade to cost that much, considering that the size of theplastic/rubber pipes is about 314", and the cost could not possiblyexceed P200,000.00 to put that in place, including labor.j. That this contract is largely a "ghost project" is shown by the fact that there

was hardly any mention of additional works for improvement/completion, andeven the development of a water supply system for the Iloilo Esplanade inpost-inauguration media releases.i. All references by the DPWH and the media to the project is that it cost

P70 million to develop.ii. Not a word was disseminated to the public that there was extra moneyfor it to raise its total development cost to P83.5 million.

CONCLUSION30. It is clear from the facts and circumstances that the entire procurement and

implementation of the contract was done in close coordination by and between all the

to Annex "P" of this affidavit


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respondents, undeniably a conspiracy against the public treasury of the Republic of thePhilippines and the Filipino taxpayers.a. The procurement and implementation of this contract resulted in undue injury

to the Republic of the Philippines with the misappropriation of millions ofpesos from the PDAF of respondent DRILON to personal pockets, or givingunwarranted benefits to a private party (the contractor), through manifestpartiality, evident bad faith or gross inexcusable negligence.b. The anomalous acts in the procurement for this contract resulted in theGovernment entering into a contract grossly disadvantageous to the same.c. The swift prosecution of the procurement is evidence that it was being guidedon its path by respondent DRILON, the project proponent, who at the time wasChairman of the Senate Finance Committee, possessing huge clout andinfluence over the respondent officials and personnel of the DPWH RegionalOffice No. 6, which coerced or intimidated them to violate the law;d. These offenses were committed in relation to the procurement of the aforecitedcontract in violation of Republic Act No. 9184 and its Revised ImplementingRules and Regulations, and constituted DISHONESTY, GRAVEMISCONDUCT, MALVERSATION OF PUBLIC FUNDS, ANdFALSIFICATION OF PUBLIC DOCUMENTS.

31. I am executing this affidavit to attest to the truthfulness of the foregoing facts andcircurnstances and to support the criminal and administrative complaints I am filingagainst the respondents .

Iloilo City for Manila, Philippines, Septemb ", JQ-,2013.

ORADA

Subscribed and sworn to before *r llrirTEP ,1r 0#0Jfteptember 2013.I hereby certify thatI have personally examined the affiant and that I am fully satisf,red that he voluntarilyexecuted and understood his affrdavit/complaint.

0FFICE 0F Ti-tf 3i''{,rjr-.lDS: IVISAYAS ]?$ffiffi".1$ITAUTIOI\J OFFICER]

REGIOjTAL OFFICE fiIO VI

Graft Case vs Drilon

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