Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 192591 June 29, 2011

EFREN L. ALVAREZ, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

VILLARAMA, JR., J.:

Before us is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as
amended, seeking to reverse and set aside the Decision 1 dated November 16, 2009 and Resolution2
dated June 9, 2010 of the Sandiganbayan’s Fourth Division finding the petitioner guilty beyond
reasonable doubt of violation of Section 3(e) of Republic Act (R.A.) No. 3019, otherwise known as
the Anti-Graft and Corrupt Practices Act.

Petitioner Efren L. Alvarez, at the time of the subject transaction, was the Mayor of the Municipality
(now Science City) of Muñoz, Nueva Ecija. In July 1995, the Sangguniang Bayan (SB) of Muñoz
under Resolution No. 136, S-95 invited Mr. Jess Garcia, President of the Australian-Professional,
Inc. (API) in connection with the municipal government’s plan to construct a four-storey shopping
mall ("Wag-wag Shopping Mall"), a project included in its Multi-Development Plan. Subsequently, it
approved the adoption of the project under the Build-Operate-Transfer (BOT) arrangement in the
amount of P240 million, to be constructed on a 4,000-square-meter property of the municipal
government which is located at the back of the Municipal Hall. API submitted its proposal on
November 7, 1995.3

On February 9, 1996, an Invitation for proposals to be submitted within thirty (30) days, was
published in Pinoy tabloid. On April 12, 1996, the Pre-qualification, Bids and Awards Committee
(PBAC) recommended the approval of the proposal submitted by the lone bidder, API. On April 15,
1996, the SB passed a resolution authorizing petitioner to enter into a Memorandum of Agreement
(MOA) with API for the project. Consequently, on September 12, 1996, petitioner signed the MOA
with API, represented by its President Jesus V. Garcia, for the construction of the Wag-Wag
Shopping Mall under the BOT scheme whereby API undertook to finish the construction within 730
calendar days.4

On February 14, 1997, the groundbreaking ceremony was held at the site once occupied by
government structures which included the old Motor Pool, the old Health Center and a semi-concrete
one-storey building that housed the Department of Agriculture, BIR Assessor, old Post Office,
Commission on Elections and Department of Social Welfare and Development. These structures
were demolished at the instance of petitioner to give way to the construction project. Thereafter, API
proceeded with excavation on the area (3-meter deep) and a billboard was put up informing the
public about the project and its contractor. However, no mall was constructed as API stopped work
within just a few months.
On August 10, 2006, petitioner was charged before the Sandiganbayan for violation of Section 3(e)
of R.A. No. 3019 (SB-06-CRM-0389), under the following Information:

That on or about 12 September 1996, and sometime prior or subsequent thereto, in the then
Municipality (now Science City) of Muñoz, Nueva Ecija, and within the jurisdiction of this Honorable
Court, the above-named accused EFREN L. ALVAREZ, a high ranking public official, being then the
Mayor of Muñoz, Nueva Ecija, taking advantage of his official position and while in the discharge of
his official or administrative functions, and committing the offense in relation to his office, acting with
evident bad faith or gross inexcusable negligence or manifest partiality did then and there willfully,
unlawfully and criminally give the Australian-Professional Incorporated (API) unwarranted benefits,
advantage or preference, by awarding to the latter the contract for the construction of Wag-Wag
Shopping Mall in the amount of Two Hundred Forty Million Pesos (Php 240,000,000.00) under a
Buil[d]-Operate-Transfer Agreement, notwithstanding the fact that API was and is not a duly-licensed
construction company as per records of the Philippine Construction Accreditation Board (PCAB),
which construction license is a pre-requisite for API to engage in construction of works for the said
municipal government and that API does not have the experience and financial qualifications to
undertake such costly project among others, to the damage and prejudice of the public service.

CONTRARY TO LAW.5

On September 22, 2006, petitioner was duly arraigned, pleading not guilty to the charge.

At the trial, petitioner testified that during his term as Mayor of Muñoz, the municipal government
planned to borrow money from GSIS to finance the proposed Wag-Wag Shopping Mall project. He
learned about API when then Vice-Mayor Romeo Ruiz and other SB members showed him a copy of
publication/advertisement in the Manila Bulletin and Business Bulletin showing that API was then
building similar BOT projects for construction of shopping malls in Lemery, Batangas (P150 million)
and in Calamba, Laguna (P300 million). Because it will not entail government funds and is an
alternative to availment of GSIS loan, petitioner appointed Vice-Mayor Ruiz and other SB members
to study the matter. A resolution was subsequently passed by the SB inviting API for detailed
information on their mall projects. Thereafter, the SB approved the construction of Wag-Wag
Shopping Mall under BOT scheme, which was favorably endorsed by the Municipal Development
Council. A public hearing was also conducted by Municipal Engineer Armando E. Miranda. On
November 8, 1995, the municipal government received the "unsolicited proposal" of API for the
construction of Wag-Wag Shopping Mall. For three weeks, an Invitation to Bid was published in the
Pinoy tabloid. But it was the lone bidder, API, whose proposal was eventually recommended by the
PBAC and approved by the SB.6

Petitioner emphasized that not a single centavo was spent by the municipal government for the
Wag-Wag Shopping Mall project. It was an unsolicited proposal under the BOT law. API was
required to submit pre-qualification statements containing, among others, their accomplished
projects. Eventually the SB passed a resolution authorizing him to enter into the MOA with API. The
municipal government issued the notice of award to API on September 16, 1996 in which it required
the contractor to post notices prior to the start of the project and to submit other requirements such
as performance bond. However, API did not comply as its counsel, Atty. Lydia Y. Marciano said
these are not required under the BOT law (R.A. No. 7718) since there will be no government
undertaking, equity or subsidy in the project. After securing an environmental clearance certificate
from DENR, the groundbreaking ceremony was held on February 1, 1997. API, as promised, paid
P500,000.00 as disturbance or relocation fee considering that the municipal government has caused
the demolition of old buildings at the site. A certification 7 of such payment was issued by City
Treasurer Luzviminda P. De Leon and City Accountant June Franklyn A. Fernandez on February 5,
2007. The materials were then utilized for the construction of the new motor pool and new City
Library. Thereafter, API began excavating an area of 30 x 30 meters (1,000 sq. ms.), about 3 meters
deep. However, only the sales office was constructed. The project was not completed and API gave
as excuse the 1997 financial crisis. They wrote a letter to Mr. Garcia reminding him of the 730-days
completion period but then he was nowhere to be found and did not answer the letter. Hence, the SB
authorized him to file a case against API, and later also granted him authority to enter into a
compromise agreement in Civil Case No. 161-SD 98). Their compromise agreement was approved
but they could not find a copy anymore because the Regional Trial Court at Balok, Sto. Domingo,
Nueva Ecija where the settlement was done, was burned down. 8

On cross-examination, petitioner claimed that had the municipal government then borrowed funds
from the GSIS, they envisioned annual return of P5 million from a P40 million loan for a modest mall
(but for an area of 4,000 square meters, the loan would have to be P80 million). For a period of 8
years, the municipality would have an income of P40 million and the GSIS can be paid. As to the
contractor’s financial capability, it presented a credit line of P150 million to P250 million for
Australian-Professionals Realty, Inc. (APRI). Petitioner clarified that API and APRI were one and the
same entity having the same board of directors, but when asked if he verified this from the Securities
and Exchange Commission (SEC), he answered in the negative. Petitioner asserted that it was the
Vice-Mayor who is accountable for this project as he headed the working panel. As to whether API
was a licensed contractor, he admitted that he did not verify this before awarding the BOT contract
involving an infrastructure project. He insisted that the Wag-Wag Shopping Mall Project, being an
unsolicited proposal under BOT law, is exempt from the pre-qualification requirement although they
still conducted it. As far as he knows, the project proponent in this case is the Municipality of Muñoz.
However, petitioner admitted that he is not familiar with the BOT law. He also admitted that the
Invitation published stated a shorter period of submission of proposal (30 days instead of 60 days
provided under the BOT law) and that he just signed the said notice without consulting their legal
counsel.9

On November 16, 2009, the Sandiganbayan rendered judgment convicting the petitioner after finding
that: (1) petitioner railroaded the project; (2) there was no competitive bidding; (3) the contractor was
totally unqualified to undertake the project; and (4) the provisions of the BOT law and relevant rules
and regulations were disregarded and not followed. The said court also found that the municipal
government suffered damage and prejudice with the resulting loss of several of its buildings and
offices, and having deployed its resources including equipment, personnel and financial outlay for
fuel and repairs in the demolition of the said structures. Damage suffered by the municipal
government was quantified at P4.8 million, or 2% of the total project cost of P240 million,
representing the amount of liquidated damages due under the performance security had the same
been posted by the contractor as required by law. As to the allegation of conspiracy, the
Sandiganbayan held that such was adequately shown by the evidence, noting that this is one case
where the Ombudsman should have included the entire Municipal Council in the information for the
latter had conspired if not abetted all the actions of the petitioner in his dealings with API to the
damage and prejudice of the municipality.

The dispositive portion of the decision reads:

ACCORDINGLY, accused Efren L. Alvarez is found guilty beyond reasonable doubt for [sic] violation
of Section 3 (e) of Republic Act No. 3019 and is sentenced to suffer in prison the penalty of 6 years
and 1 month to 10 years. He also has to suffer perpetual disqualification from holding any public
office and to indemnify the City Government of Muñoz (now Science), Nueva Ecija the amount of
Four Million Eight Hundred Thousand Pesos (Php 4,800,000.00) less the Five Hundred Thousand
Pesos (Php 500,000.00) API earlier paid the municipality as damages.

Costs against the accused.

SO ORDERED.10

The Sandiganbayan likewise denied petitioner’s motion for reconsideration. It ruled that upon
examination of Section 4-A of R.A. No. 6957 as amended by R.A. No. 7718, it was clear that
petitioner, with manifest partiality and gross inexcusable negligence, failed to comply with the
requirements and procedures for competitive bidding in unsolicited proposals. It also reiterated that
API was a contractor and not a mere project proponent; hence, the license requirement applies to it.
Petitioner’s defense that he merely executed the resolutions of the SB was also rejected because as
Chief Executive of the Municipality of Muñoz, it was his duty to protect the credits, rights and
properties of the municipality and to exercise efficient, effective and economical governance for the
general welfare of the municipality and its inhabitants under Section 444, R.A. No. 7160 (Local
Government Code of 1991). Significant acts of the petitioner also showed that he opted to enter into
the contract with API despite reckless disregard of the law.

Hence, this petition raising the following issues:

1. Whether or not the Honorable Sandiganbayan failed to observe the requirement of

proof beyond reasonable doubt in convicting the Accused-Petitioner;

2. Whether or not the Honorable Sandiganbayan failed to appreciate the legal intent
of the BOT project;

3. Whether or not the Honorable Sandiganbayan utterly failed to appreciate that the
BOT was a lawful project of the Sangguniang Bayan and not the project of the Mayor
Accused-Petitioner herein; and

4. Whether or not the Honorable Sandiganbayan utterly failed to appreciate that

there was no damage on the then Municipality of Muñoz as contemplated by law, to
warrant the conviction of the Accused-Petitioner. 11

We deny the petition.

Petitioner was charged with violation of Section 3(e) of R.A. No. 3019. To be convicted under the
said provision, the following elements must be established:

1. The accused must be a public officer discharging administrative, judicial or official

functions;

2. He must have acted with manifest partiality, evident bad faith or inexcusable
negligence; and

3. That his action caused any undue injury to any party, including the government, or
giving any private party unwarranted benefits, advantage or preference in the
discharge of his functions.12

In this case, the information alleged that while being a public official and in the discharge of his
official functions and taking advantage of such position, petitioner "acting with evident bad faith or
gross inexcusable negligence or manifest partiality" unlawfully gave API "unwarranted benefits,
advantage or preference" by awarding to it the contract for the construction of the Wag-Wag
Shopping Mall under the BOT scheme despite the fact that it was not a licensed contractor and
"does not have the experience and financial qualifications to undertake such costly project, among
others, to the damage and prejudice of the public service."

Petitioner argues that he cannot be held liable under Section 3(e) of R.A. No. 3019 since the
Municipality of Muñoz did not disburse any money and the buildings demolished on the site of
construction have been found to be a nuisance and declared structurally unsafe, as per notice
issued by the Municipal Building Official. He points out that in fact, a demolition permit has been
issued upon his application in behalf of the municipal government. API also paid P500,000.00
demolition/relocation fee.

We disagree.

This Court has clarified that the use of the disjunctive word "or" connotes that either act of (a)
"causing any undue injury to any party, including the Government"; and (b) "giving any private party
any unwarranted benefits, advantage or preference," qualifies as a violation of Section 3(e) of R.A.
No. 3019, as amended.13 The use of the disjunctive "or" connotes that the two modes need not be
present at the same time. In other words, the presence of one would suffice for conviction. 14

As we explained in Bautista v. Sandiganbayan 15:

Indeed, Sec. 3, par. (e), RA 3019, as amended, provides as one of its elements that the public
officer should have acted by causing any undue injury to any party, including the government, or by
giving any private party unwarranted benefits, advantage or preference in the discharge of his
functions. The use of the disjunctive term "or" connotes that either act qualifies as a violation of Sec.
3, par. (e), or as aptly held in Santiago, as two (2) different modes of committing the offense. This
does not, however, indicate that each mode constitutes a distinct offense, but rather, that an
accused may be charged under either mode or under both.16 (Underscoring supplied.)

The Court En Banc likewise held in Fonacier v. Sandiganbayan 17 that proof of the extent or quantum
of damage is not essential. It is sufficient that the injury suffered or benefits received can be
perceived to be substantial enough and not merely negligible. 18 Under the second mode of the crime
defined in Section 3(e) of R.A. No. 3019 therefore, damage is not required. In order to be found
guilty under the second mode, it suffices that the accused has given unjustified favor or benefit to
another, in the exercise of his official, administrative or judicial functions. 19

The third element of Section 3(e) of R.A. No. 3019 may be committed in three ways, i.e., through
manifest partiality, evident bad faith or gross inexcusable negligence. Proof of any of these three in
connection with the prohibited acts mentioned in Section 3(e) of R.A. No. 3019 is enough to
convict.20 Damage or injury caused by petitioner’s acts though alleged in the information, thus need
not be proven for as long as the act of giving any private party unwarranted benefits, advantage or
preference either through manifest partiality, evident bad faith or gross inexcusable negligence was
satisfactorily established. Contrary to petitioner’s assertion, the prosecution was able to successfully
demonstrate that he acted with manifest partiality and gross inexcusable negligence in awarding the
BOT contract to an unlicensed and financially unqualified private entity.

R.A. No. 6957 as amended by R.A. No. 7718, requires that a BOT project be awarded to the bidder
who has satisfied the minimum requirements, and met the technical, financial, organizational and
legal standards provided in the BOT Law. Section 5 of said law provides:

SEC. 5. Public Bidding of Projects. - x x x

In the case of a build-operate-and-transfer arrangement, the contract shall be awarded to the bidder
who, having satisfied the minimum financial, technical, organizational and legal standards required
by this Act, has submitted the lowest bid and most favorable terms for the project, based on the
present value of its proposed tolls, fees, rentals and charges over a fixed term for the facility to be
constructed, rehabilitated, operated and maintained according to the prescribed minimum design
and performance standards, plans and specifications. x x x (Emphasis supplied.)

Foremost of these minimum legal standards is the license accreditation of a contractor required
under R.A. No. 4566 otherwise known as the Contractors’ License Law. The Philippine Licensing
Board for Contractors created under said law is mandated to ensure that prospective contractors
possess "at least two years of experience in the construction industry, and knowledge of the
building, safety, health and lien laws of the Republic of the Philippines and the rudimentary
administrative principles of the contracting business" which it deems necessary "for the safety of the
contracting business of the public." 21 In fact, a contractor must show that he is licensed by the board
before his bid will be considered.22 As a general rule therefore, the prospective contractor for
government infrastructure projects must have been duly licensed as such pursuant to R.A. No. 4566.
API not being a licensed contractor as per the Certification 23 issued by Philippine Contractors
Accreditation Board (PCAB) board secretary Aaron C. Tablazon, is thus not qualified to participate in
the bidding and much less be awarded the BOT project for the construction of Wag-Wag Shopping
Mall.

Petitioner claimed that there was compliance with the law saying that API was not a contractor but a
mere project proponent, for which a license is not a requisite to undertake BOT projects. But the
Sandiganbayan correctly rejected this theory as the clear terms of the MOA itself confirm that API
itself undertook to construct the Wag-Wag Shopping Mall, thus:

TERMS AND CONDITIONS

I. THE PROJECT SITE

1. The FIRST PARTY [Municipality of Muñoz] shall make available unto the
SECOND PARTY a FOUR THOUSAND (4,000) SQUARE METERS lot
located at Muñoz, Nueva Ecija where the SECOND PARTY [API] shall build
for the FIRST PARTY a commercial building in accordance with this
Memorandum of Agreement, RA 6957 AND RA 7718 as well as RA 7160
otherwise known as the Local Government Code of 1991.

II. PLANS AND SPECIFICATIONS

1. The commercial building, to be known as the WAG-WAG SHOPPING

MALL, shall be constructed by the SECOND PARTY strictly in accordance
with plans, specifications, engineering and construction designs prepared by
the SECOND PARTY and duly reviewed and approved by the FIRST
PARTY. x x x

xxxx

III. CONSTRUCTION

xxxx
 3. The FIRST PARTY shall issue a written Notice to Proceed in favor of the
SECOND PARTY. The SECOND PARTY, shall mobilize within 60 days from
clearing of the site for official groundbreaking.

4. The SECOND PARTY hereby warrants that it shall finish the construction
of the WAG-WAG SHOPPING MALL within SEVEN HUNDRED THIRTY
(730) CALENDAR DAYS counted from the date of the official
groundbreaking.

xxxx

6. x x x Compliance with all existing laws, rules and regulations regarding the
construction of the project shall be [the] responsibility of the SECOND
PARTY itself to save and hold the FIRST PARTY harmless from any and all
liabilities in respect thereto or arising from violations thereof.

IV. BUILD-OPERATE-AND-TRANSFER SCHEME

1. The WAG-WAG SHOPPING MALL be constructed by the SECOND

PARTY for the FIRST PARTY in accordance with this Memorandum of
Agreement and with the Build-Operate-and-Transfer Scheme outlined RA
6957 and RA 7718. This Agreement is of course subject to the provisions of
RA 7160 and other pertinent laws.

x x x x24

Section 2 of R.A. No. 6957 as amended by R.A. No. 7718, defined the terms "Contractor" and
"Project Proponent" as follows:

(k) Project Proponent - The private sector entity which shall have contractual
responsibility for the project and which shall have an adequate financial base to
implement said project consisting of equity and firm commitments from reputable
financial institutions to provide, upon award, sufficient credit lines to cover the total
estimated cost of the project.

(l) Contractor - Any entity accredited under Philippine laws which may or may not be
the project proponent and which shall undertake the actual construction and/or
supply of equipment for the project.

Aside from the clear language of the MOA, the attendant circumstances unmistakably showed that
API is both the project proponent and contractor of the BOT project, as it was the one who submitted
the proposal and bid to the SB, through its President executed the MOA with petitioner, deployed
manpower and equipment for the clearing of the site, conducted groundbreaking, performed
excavation and initial construction works, and took responsibility for the stoppage and non-
completion of the project when it entered into a compromise with the Municipality of Muñoz. It is to
be noted that even as project proponent, API failed to meet the minimum financial standard
considering that it has no adequate financial base to implement the Wag-Wag Shopping Mall project.
API’s paid-up capital was only P2.5 million, while its stand-by credit line issued by Brilliant Star
Capital Lending Co., Inc. was only for the amount of P150 million, way below the P240 million total
project cost.
While API’s proposal passed through the pre-qualification stage, it failed to submit, except for the
SEC registration certificate, a complete set of documents required for a BOT project, in accordance
with the BOT Law Implementing Rules and Regulations (IRR):

Sec. 5.4. Pre-qualification Requirements. - To pre-qualify, a project proponent must comply with
the following requirements:

a. Legal Requirements

i. For projects to be implemented under the BOT scheme whose operations require a
public utility franchise, the project proponent and the facility operator must be a
Filipino or, if a corporation, must be duly registered with the Securities and Exchange
Commission (SEC) and owned up to at least sixty percent (60%) by Filipinos.

xxxx

v. If the contractor to be engaged by the project proponent to undertake the

construction works of the project under bidding needs to be pre-identified as
prescribed in the published Invitation to Pre-qualify and Bid and is a Filipino, it must
be duly licensed and accredited by the Philippine Contractors Accreditation
Board (PCAB). However, if the contractor is a foreigner, PCAB registration will not
be required at pre-qualification stage, rather it will be one of the contract milestones.

b. Experience or Track Record: The proponent-applicant must possess adequate

experience in terms of the following:

i. Firm Experience: By itself or through the member-firms in case of a joint

venture/consortium or through a contractor(s) which the project proponent may have
engaged for the project, the project proponent and/or its contractor(s) must have
successfully undertaken a project(s) similar or related to the subject
infrastructure/development project to be bid. The individual firms and/or their
contractor(s) may individually specialize on any or several phases of the project(s). A
joint venture/consortium proponent shall be evaluated based on the individual or
collective experience of the member-firms of the joint venture/consortium and of the
contractor(s) that it has engaged for the project.

xxxx

vi. Key Personnel Experience: The key personnel of the proponent and/or its
contractor(s) must have sufficient experience in the relevant aspect of schemes
similar or related to the subject project, as specified by the Agency/LGU.

e. Financial Capability: The project proponent must have adequate capability to

sustain the financing requirements for the detailed engineering design,
construction and/or operation and maintenance phases of the project, as the case
may be. For purposes of pre-qualification, this capability shall be measured in terms
of:

(i) proof of the ability of the project proponent and/or the consortium to provide a
minimum amount of equity to the project measured in terms of the net worth of the
 company or in the case of joint ventures or consortia the combined net worth of
members or a set-aside deposit equivalent to the minimum equity required, and

(ii) a letter testimonial from reputable banks attesting that the project proponent
and/or members of the consortium are banking with them, and that they are in good
financial standing. The government Agency/LGU concerned shall determine on a
project-to-project basis, and before pre-qualification, the minimum amount of equity
needed. In addition, the Agency/LGU will inform the proponents of the minimum
debt-equity ratio required by the monetary authority for projects to be financed by
foreign loans.

x x x x (Emphasis supplied.)

We have held that the Implementing Rules provide for the unyielding standards the PBAC should
apply to determine the financial capability of a bidder for pre-qualification purposes: (i) proof of the
ability of the project proponent and/or the consortium to provide a minimum amount of equity to the
project and (ii) a letter testimonial from reputable banks attesting that the project proponent and/or
members of the consortium are banking with them, that they are in good financial standing, and that
they have adequate resources. The evident intent of these standards is to protect the integrity and
insure the viability of the project by seeing to it that the proponent has the financial capability to carry
it out.25 Unfortunately, none of these requirements was submitted by API during the pre-qualification
stage.

Petitioner assails the Sandiganbayan for allegedly failing to appreciate the legal intent of the BOT
Law which allows contracts on a negotiated basis for unsolicited proposals like the Wag-Wag
Shopping Mall project. It asserts that the procedure and requirements for bidding have been
complied with when the Municipality of Muñoz caused the publication of the invitation to submit
comparative bids for the BOT project was published in Pinoy, a newspaper of general circulation for
three consecutive weeks. Since no comparative bid/proposal was received within sixty (60) days, the
BOT project was rightfully awarded to API, the original proponent.

The contention fails.

Unsolicited proposals refer to project proposals submitted by the private sector to undertake
infrastructure or development projects which may be entered into by a government agency or local
government unit.26 Section 4-a of R.A. No. 6957 as amended by R.A. No. 7718 governs unsolicited
proposals:

SEC. 4-A. Unsolicited Proposals. -- Unsolicited proposals for projects may be accepted by any
government agency or local government unit on a negotiated basis: Provided, That, all the following
conditions are met: (1) such projects involved a new concept or technology and/or are not part of the
list of priority projects, (2) no direct government guarantee, subsidy or equity is required, and (3) the
government agency or local government unit has invited by publication, for three (3) consecutive
weeks, in a newspaper of general circulation, comparative or competitive proposals, and no other
proposal is received for a period of sixty (60) working days: Provided, further, That in the event
another proponent submits a lower price proposal, the original proponent shall have the right to
match that price within thirty (30) working days.

We note that it was the SB which invited the API to provide information on the construction of a
shopping mall project under the BOT scheme. It cannot be said thus that the development project
originated from the proponent/contractor. Nonetheless, even if the proposal is deemed unsolicited,
still the requirements of the law have not been complied with.
The IRR specified the requirement of publication of the invitation for submission of proposals, as
follows:

SEC. 10.11. Invitation for Comparative Proposals. - The Agency/LGU shall publish the invitation for
comparative or competitive proposals only after ICC/Local Sanggunian issues a no objection
clearance of the draft contract. The invitation for comparative or competitive proposals should be
published at least once every week for three (3) weeks in at least one (1) newspaper of general
circulation. It shall indicate the time, which should not be earlier than the last date of
publication, and place where tender/bidding documents could be obtained. It shall likewise
explicitly specify a time of sixty (60) working days reckoned from the date of issuance of the
tender/bidding documents upon which proposals shall be received. Beyond said deadline, no
proposals shall be accepted. A pre-bid conference shall be conducted ten (10) working days after
the issuance of the tender/bidding documents. (Emphasis supplied.)

The above provision highlighted other violations in the bidding procedure for the subject BOT
project. First, there was no prior approval by the Investment Coordinating Committee of the National
Economic Development Authority (ICC-NEDA) of the Wag-Wag Shopping Mall project. Under the
BOT Law, local projects to be implemented by the local government units concerned costing above
P200 million shall be submitted for confirmation to the ICC-NEDA.27 Such requisite approval shall be
applied for and should be secured by the head of the LGU prior to the call for bids for the project. 28
Second, the law requires publication in a newspaper of general circulation. To be a newspaper of
general circulation, it is enough that it is published for the dissemination of local news and general
information, that it has a bona fide subscription list of paying subscribers, and that it is published at
regular intervals. Over and above all these, the newspaper must be available to the public in
general, and not just to a select few chosen by the publisher. 29 Petitioner did not submit in evidence
the affidavit of the publisher attesting to Pinoy tabloid as such newspaper of general circulation. And
third, even assuming that Pinoy was indeed a newspaper of general circulation, the invitation
published indicated a shorter period of submission of comparative proposals, only thirty (30) days
instead of the prescribed sixty (60) days counted from the date of issuance of tender documents.

There is likewise no showing that API complied with the submission of a complete proposal required
under the IRR:

SEC. 10.5 Submission of a Complete Proposal. - For a proposal to be considered by the

Agency/LGU, the proponent has to submit a complete proposal which shall include a feasibility
study, company profile as outlined in Annex A, and the basic contractual terms and conditions on
the obligations of the proponent and the government. The Agency/LGU shall acknowledge receipt of
the proposal and advice the proponent whether the proposal is complete or incomplete. If
incomplete, it shall indicate what information is lacking or necessary. (Emphasis supplied.)

As correctly pointed out by the Sandiganbayan, API’s proposal showed that it lacked the above
requirements as it did not include a company profile and the basic contractual terms and conditions
on the obligations of the proponent/contractor and the government. Had such company profile been
required of API, the municipal government could have been apprised of the fact that said
contractor/proponent had been in existence for only three months at that time and had not yet
completed a project, although APRI, which actually undertook the Calamba and Lemery shopping
centers also under BOT scheme, is allegedly the same entity as API which have the same set of
incorporators and directors. But more important, the municipality could have realized earlier, on the
basis of financial statements and experience in construction included in the company profile, that
API could not possibly comply with the huge financial outlay for the Wag-Wag Shopping Mall project.
It could have also noted the fact that the aforesaid BOT shopping centers in Lemery and Calamba
being implemented by APRI at that time were not yet finished or completed. In any event, such
existing BOT contract of APRI with another LGU neither justified non-compliance by API with the
submission of a complete proposal for the Wag-Wag Shopping Mall project for a competent
evaluation by the PBAC.

Indeed, contrary to petitioner’s stance, the process of unsolicited proposals does involve public
bidding where, in the end, the government is free to choose the bid or proposal most advantageous
to it.30 Thus we held in Asia’s Emerging Dragon Corporation v. DOTC31:

The protestation by AEDC of our characterization of the process on unsolicited proposal as public
bidding is specious.

We call attention to the following relevant sections of Rule 10 of the IRR specifically on Unsolicited
Proposals:

Sec. 10.9. Negotiation With the Original Proponent. - Immediately after ICC/Local Sanggunian’s
clearance of the project, the Agency/LGU shall proceed with the in-depth negotiation of the project
scope, implementation arrangements and concession agreement, all of which will be used in the
Terms of Reference for the solicitation of comparative proposals. The Agency/LGU and the
proponent are given ninety (90) days upon receipt of ICC’s approval of the project to conclude
negotiations. The Agency/LGU and the original proponent shall negotiate in good faith. However,
should there be unresolvable differences during the negotiations, the Agency/LGU shall have the
option to reject the proposal and bid out the project. On the other hand, if the negotiation is
successfully concluded, the original proponent shall then be required to reformat and resubmit
its proposal in accordance with the requirements of the Terms of Reference to facilitate
comparison with the comparative proposals. The Agency/LGU shall validate the reformatted
proposal if it meets the requirements of the TOR prior to the issuance of the invitation for
comparative proposals.

Sec. 10.10. Tender Documents. - The qualification and tender documents shall be prepared
along the lines specified under Rules 4 and 5 hereof. The concession agreement that will be part
of the tender documents will be considered final and non-negotiable by the challengers. Proprietary
information shall, however, be respected, protected and treated with utmost confidentiality. As such,
it shall not form part of the bidding/tender and related documents.

xxxx

After the concerned government agency or local government unit (LGU) has received, evaluated,
and approved the pursuance of the project subject of the unsolicited proposal, the subsequent steps
are fundamentally similar to the bidding process conducted for ordinary government projects.

The three principles of public bidding are: the offer to the public, an opportunity for competition, and
a basis for an exact comparison of bids, all of which are present in Sec. 10.9 to Sec. 10.16 of the
IRR. First, the project is offered to the public through the publication of the invitation for comparative
proposals. Second, the challengers are given the opportunity to compete for the project through the
submission of their tender/bid documents. And third, the exact comparison of the bids is ensured by
using the same requirements/qualifications/criteria for the original proponent and the challengers, to
wit: the proposals of the original proponent and the challengers must all be in accordance with the
requirements of the Terms of Reference (TOR) for the project; the original proponent and the
challengers are required to post bid bonds equal in amount and form; and the qualifications of the
original proponent and the challengers shall be evaluated by the concerned agency/LGU using the
same evaluation criteria. (Additional emphasis supplied.)
In this case, the only attempt made to comply with the bidding requirements is the publication of the
invitation which, as already mentioned, was even defective. As noted by the Sandiganbayan, there
was no in-depth negotiation as to the project scope, implementation and arrangements and
concession agreement, which are supposed to be used in the Terms of Reference (TOR). Such
TOR would have provided the interested competitors the basis for their proposed cost, and its
absence in this case is an indication that any possible competing proposal was intentionally avoided
or altogether eliminated. The essence of competition in public bidding is that the bidders are placed
on equal footing.32 In the award of government contracts, the law requires a competitive public
bidding. This is reasonable because "[a] competitive public bidding aims to protect the public interest
by giving the public the best possible advantages thru open competition. It is a mechanism that
enables the government agency to avoid or preclude anomalies in the execution of public
contracts."33

Despite API’s obvious lack of financial qualification and absence of basic terms and conditions in the
submitted proposal, petitioner who chaired the PBAC, recommended the approval of API’s proposal
just forty-five (45) days after the last publication of the invitation for comparative proposals, and
subsequently requested the SB to pass a resolution authorizing him to enter into a MOA with API as
the lone bidder for the project. It was only in the MOA that the details of the construction, terms and
conditions of the parties’ obligations, were laid down at the time API was already awarded the
project. Even the MOA provisions remain vague as to the parameters of the project, which the
Sandiganbayan found as placing API "at an arbitrary position where it can do as it pleases without
being accountable to the municipality in any way whatsoever." True enough, when API failed to
execute the construction works and abandoned the project, the municipality found itself at extreme
disadvantage without recourse to a performance security that API likewise failed to submit.

Petitioner as the local chief executive failed to ensure that API which was awarded the BOT contract,
will submit such other requirements specified under the IRR:

Sec. 11.7. Conditions for Approval of Contract. - The Head of Agency/LGU shall ensure that all of
the following conditions have been complied with before approving the contract:

a. Submission of the required performance security as prescribed under Section 12.7 hereof;

b. Proof of sufficient equity from the investors and firm commitments from reputable financial
institution to provide sufficient credit lines to cover the total estimated cost of the project;

c. ICC clearance of the contract on a no-objection basis;

Failure by the winning project proponent to submit the requirements prescribed under items a, b and
c above within the time period specified by the concerned Agency/LGU in the Notice of Award or
failure to execute the contract within the specified time shall result in the disqualification of the
bidder, as well as the forfeiture of the bid security of the bidder.

xxxx

Sec. 12.7. Performance Guarantee for Construction Works. - To guarantee the faithful
performance by the project proponent of its obligations under the contract including the
prosecution of the construction works related to the project, the project proponent shall post in
favor of the Agency/LGU concerned, within the time and under the terms prescribed under the
project contract, a performance security in the form of cash, manager’s check, cashier’s check,
bank draft or guarantee confirmed by a local bank (in the case of foreign bidders bonded by a
foreign bank), letter of credit issued by a reputable bank, surety bond callable on demand issued by
the Government Service Insurance System (GSIS) or by surety or insurance companies duly
accredited by the Office of the Insurance Commissioner, or a combination thereof, in accordance
with the following schedules:

a. Cash, manager’s check, cashier’s check, irrevocable letter of credit, bank draft – a
minimum of two percent (2%) of the total Project Cost.

b. Bank Guarantee – a minimum of five percent (5%) of the total Project Cost.

c. Surety Bond – a minimum of ten percent (10%) of the total Project Cost.
(Emphasis supplied.)

In the Notice of Award dated September 16, 1996, petitioner directed API to submit the above
requirements. However, API’s counsel, Atty. Lydia Y. Marciano, wrote in reply that such
requirements do not apply because API’s project does not involve any government undertaking. API
at that point should have been disqualified and its bid security forfeited, pursuant to Section 11.7 of
the IRR. Yet, API was allowed to proceed with the execution of the project albeit only the site
clearing, excavation and construction of a sales office were accomplished.

Under the facts established, it is clear that petitioner gave unwarranted benefits, advantage or
preference to API considering that said proponent/contractor was not financially and technically
qualified for the BOT project awarded to it, and without complying with the requirements of bidding
and contract approval for BOT projects under existing laws, rules and regulations.

The word "unwarranted" means lacking adequate or official support; unjustified; unauthorized or
without justification or adequate reason. "Advantage" means a more favorable or improved position
or condition; benefit, profit or gain of any kind; benefit from some course of action. "Preference"
signifies priority or higher evaluation or desirability; choice or estimation above another. 34 As to
"partiality," "bad faith," and "gross inexcusable negligence," we have explained the meaning of these
terms, as follows:

"Partiality" is synonymous with "bias" which "excites a disposition to see and report matters as they
are wished for rather than as they are." "Bad faith does not simply connote bad judgment or
negligence; it imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong;
a breach of sworn duty through some motive or intent or ill will; it partakes of the nature of fraud."
"Gross negligence has been so defined as negligence characterized by the want of even slight care,
acting or omitting to act in a situation where there is a duty to act, not inadvertently but wilfully and
intentionally with a conscious indifference to consequences in so far as other persons may be
affected. It is the omission of that care which even inattentive and thoughtless men never fail to take
on their own property."35

We sustain and affirm the Sandiganbayan in holding that petitioner violated Section 3(e) of R.A. No.
3019, and that he cannot shield himself from criminal liability simply because the SB passed the
necessary resolutions adopting the BOT project and authorizing him to enter into the MOA. We find
no error or grave abuse in its ruling, which we herein quote:

It is apparent that the unwarranted benefit in this case lies in the very fact that API was allowed to
present its proposal without compliance of [sic] the requirements provided under the relevant laws
and rules. To begin with, the municipal government never conducted a public bidding prior to the
execution of the contract. The project was immediately awarded to the API without delay and without
any rival proponents, when it was not qualified to participate in the first place. The legality and
propriety of the agreement executed with the contractor is totally absent based on the testimonies of
both the prosecution and the defense.

This Court also considers these particular acts significant. First. From the testimony of then Vice-
Mayor Ruiz, Jesus V. Garcia, the president of API, attended the SB session after paying a courtesy
call to the Accused who was then the Mayor. Second. It was the Accused who signed and posted
the Invitation to Bid (Exhibit N) giving proponents 30 days to submit their proposals. Third. The
Accused is the head of the Pre-Qualification Bids and Awards Committee which according to him
recommended the approval of API’s proposal. This was the reason he used in requesting authority
from the SB to grant him the authority to contract with API. Fourth. The Accused requested the SB to
give him authority to enter into an agreement with API through a resolution (Exhibit S)[.] Fifth. It was
the Accused who invited the SB members to go to the Mayor’s office to witness the signing of the
Memorandum of Agreement between the municipality and API.36

As the local chief executive, petitioner is not only expected to know the proper procedure in the
bidding and award of infrastructure contracts such as BOT projects, he is also duty bound to follow
the same and his failure to discharge this duty constitutes gross and inexcusable negligence. 37

Petitioner further assails the Sandiganbayan in not considering the previous dismissal of the criminal
complaint filed by Alberto Castañeda against petitioner also involving the Wag-Wag Shopping Mall
project. The Sandiganbayan pointed out that said case (OMB-1-97-1885) was dismissed by the
Office of the Deputy Ombudsman for Luzon on March 26, 1999 at the time the construction works
were supposedly only temporarily stopped by API, while in this case it is already apparent that the
latter abandoned the project and reneged on its obligation.

We find nothing illegal in the reversal by the Ombudsman upon review of the September 9, 2002
resolution of the Office of the Deputy Ombudsman for Luzon which recommended the dismissal of
the complaint-affidavit filed by Domiciano R. Laurena IV upon the ground that a similar criminal
complaint filed by Castañeda had been dismissed in OMB-1-97-1885. The Office of the Ombudsman
Chief Legal Counsel granted the petition for review filed by complainant Laurena IV and
recommended that petitioner be indicted before the Sandiganbayan for violation of Section 3(e) of
R.A. No. 3019. It pointed out that the dismissal of OMB-1-97-1885 was premised on the authority of
a local legislature to accept unsolicited proposals and enter into a BOT project under R.A. No. 6957
as amended by R.A. No. 7718, and the lack of any showing of undue injury to the Municipality of
Muñoz as a result of the temporary work stoppage. However, the issue of lack of API’s construction
license was never brought out in the earlier case while in the present case, the PCAB attested to the
fact that API is not a licensed contractor and petitioner’s approval of API’s proposal is a clear badge
of giving unwarranted benefit, preference or advantage through manifest partiality, evident bad faith,
or at the very least, gross inexcusable negligence. The OMB found that petitioner could have easily
discovered such fact with basic prudence considering that a P240-million infrastructure was
involved, but apparently he threw all caution to the wind and relied solely on the self-serving
representation of API that it possesses the requisite contractor’s license. 38 This ruling of the OMB
Chief Legal Counsel was affirmed upon review by the Special Prosecutor and approved by
Ombudsman Merceditas N. Gutierrez on August 4, 2006. 39

It may be recalled that on motion of petitioner, the Ombudsman even conducted a reinvestigation of
the case pursuant to the January 15, 2007 directive of the Sandiganbayan. In a memorandum 40
dated March 5, 2007, then Special Prosecutor Dennis M. Villa-Ignacio approved the finding of
probable cause against the petitioner and the recommendation that the information already filed in
this case, for which petitioner had already been arraigned, be maintained. Petitioner cannot claim
denial of his right to due process, as he had been given ample opportunity to present evidence on
his defense in the proceedings before the Ombudsman and Sandiganbayan.
No grave abuse of discretion was committed by the Ombudsman in reversing the previous dismissal
of a similar criminal complaint against the petitioner involving the anomalous award of the BOT
contract to API. Indeed, the Ombudsman is not precluded from ordering another review of a
complaint, for he or she may revoke, repeal or abrogate the acts or previous rulings of a
predecessor in office. Thus we held in Trinidad v. Office of the Ombudsman 41:

Petitioner’s arguments – that res judicata applies since the Office of the Ombudsman twice found no
sufficient basis to indict him in similar cases earlier filed against him, and that the Agan cases cannot
be a supervening event or evidence per se to warrant a reinvestigation on the same set of facts and
circumstances – do not lie.

Res judicata is a doctrine of civil law and thus has no bearing on criminal proceedings.

But even if petitioner’s argument were to be expanded to contemplate "res judicata in prison grey" or
the criminal law concept of double jeopardy, this Court still finds it inapplicable to bar the
reinvestigation conducted by the Office of the Ombudsman. For the dismissal of a case during
preliminary investigation does not constitute double jeopardy, preliminary investigation not being part
of the trial.

Insisting that the case should be barred by the prior Joint Resolution of the Ombudsman, petitioner
posits that repeated investigations are oppressive since he as respondent and other respondents
would be made to suffer interminable prosecution since resolutions dismissing complaints would
perpetually be subject to reopening at any time and by any party. Petitioner particularly points out
that no new evidence was presented at the reinvestigation.

Petitioner’s position fails to impress.

The Ombudsman is not precluded from ordering another review of a complaint, for he or she may
revoke, repeal or abrogate the acts or previous rulings of a predecessor in office. And Roxas v. Hon.
Vasquez teaches that new matters or evidence are not prerequisites for a reinvestigation, which is
simply a chance for the prosecutor, or in this case the Office of the Ombudsman, to review and re-
evaluate its findings and the evidence already submitted. (Emphasis supplied.)

As to the propriety of damages awarded by the Sandiganbayan, we find that the same is proper and
justified. The term "undue injury" in the context of Section 3(e) of the Anti-Graft and Corrupt
1avvphi1

Practices Act punishing the act of "causing undue injury to any party," has a meaning akin to that
civil law concept of "actual damage." Actual damage, in the context of these definitions, is akin to
that in civil law.42

Article 2199 of the Civil Code provides that except as provided by law or by stipulation, one is
entitled to an adequate compensation only for such pecuniary loss suffered by a party as he has
duly proved. Liquidated damages, on the other hand, are those agreed upon by the parties to a
contract, to be paid in case of a breach thereof.43

For approved BOT contracts, it is mandatory that a performance security be posted by the
contractor/proponent in favor of the LGU in the form of cash, manager’s check, cashier’s check,
irrevocable letter of credit or bank draft in the minimum amount of 2% of the total project cost. 44 In
case the default occurred during the project construction stage, the LGU shall likewise forfeit the
performance security of the erring project proponent/contractor. 45 The IRR thus provides:
SEC. 12.13. Liquidated Damages. - Where the project proponent of a project fails to satisfactorily
complete the work within the construction period prescribed in the contract, including any extension
or grace period duly granted, and is thereby in default under the contract, the project proponent shall
pay the Agency/LGU concerned liquidated damages, as may be agreed upon under the contract by
the parties. The parties shall agree on the amount and schedule of payment of the liquidated
damages. The performance security may be forfeited to answer for any liquidated damages due to
the Agency/LGU. The amount of liquidated damages due for every calendar day of delay will be
determined by the Agency/LGU. In no case however shall the delay exceed twenty percent (20%) of
the approved construction time stipulated in the contract plus any time extension duly granted. In
such an event the Agency/LGU concerned shall rescind the contract, forfeit the proponent’s
performance security and proceed with the procedures prescribed under Section 12.19. b.

Had the requirement of performance security been complied with, there is no dispute that the
Municipality of Muñoz would have been entitled to the forfeiture of performance security when API
defaulted on its obligation to execute the construction contract, at the very least in an amount
equivalent to 2% of the total project cost. Hence, said LGU is entitled to such damages which the
law mandates to be incorporated in the BOT contract, the parties being at liberty only to stipulate the
extent and amount thereof. To rule otherwise would mean a condonation of blatant disregard and
violation of the provisions of the BOT law and its implementing rules and regulations which are
designed to protect the public interest in transactions between government and private business
entities. While petitioner claims to have entered into a compromise agreement as authorized by the
SB and approved by the trial court, no evidence of such judicial compromise was submitted before
the Sandiganbayan.

WHEREFORE, the petition is DENIED. The Decision dated November 16, 2009 and Resolution
dated June 9, 2010 of the Sandiganbayan in Criminal Case No. SB-06-CRM-0389 are AFFIRMED.

With costs against the petitioner.

SO ORDERED.

MARTIN S. VILLARAMA, JR.

Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice
Chairperson

TERESITA J. LEONARDO-DE CASTRO LUCAS P. BERSAMIN

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the 1987 Constitution, I certify that the conclusions in the
above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.
RENATO C. CORONA
Chief Justice

Footnotes

1
Rollo, pp. 53-85. Penned by Associate Justice Jose R. Hernandez with Associate
Justices Gregory S. Ong and Roland B. Jurado concurring.

2
Id. at 109-117.

3
Id. at 153-155, 166-195.

4
Id. at 147-152.

5
Records (Vol. 1), pp. 1-2.

6
TSN, April 8, 2008, pp. 5-24.

7
Rollo, p. 146.

8
TSN, April 8, 2008, pp. 24-50.

9
Id. at 53-77.

10
Rollo, p. 84.

11
Id. at 20.

12
Cabrera v. Sandiganbayan, G.R. Nos. 162314-17, October 25, 2004, 441 SCRA
377, 386.

13
Santos v. People, G.R. No. 161877, March 23, 2006, 485 SCRA 185, 194-195,
citing Uy v. Sandiganbayan, G.R. No. 100334, December 5, 1991 and Santiago v.
Garchitorena, G.R. No. 109266, December 2, 1993, 228 SCRA 214, 222-223.

14
Sison v. People, G.R. Nos. 170339 & 170398-403, March 9, 2010, 614 SCRA 670,
681, citing Quibal v. Sandiganbayan (Second Division), G.R. No. 109991, May 22,
1995, 244 SCRA 224.

15
G.R. No. 136082, May 12, 2000, 332 SCRA 126, 135.

16
As cited in Cabrera v. Sandiganbayan, supra note 12.

G.R. Nos. 50691, 52263, 52766, 52821, 53350 & 53397, December 5, 1994, 238
17

SCRA 655.

18
Id. at 688. See also Soriquez v. Sandiganbayan, G.R. No. 153526, October 25,
2005, 474 SCRA 222, 230.
19
Sison v. People, supra 14 at 682.

20
Fonacier v. Sandiganbayan, supra note 18; Sison v. People, id. at 679.

21
Sec. 20, R.A. 4566.

22
Sec. 36, R.A. 4566.

23
Exhibit "H", Prosecution’s Exhibits.

24
Rollo, pp. 147-149.

25
Agan, Jr. v. Philippine International Air Terminals Co. Inc., G.R. Nos. 155001,
155547 & 155661, January 21, 2004, 420 SCRA 575, 588-589.

26
Sec. 1.3 (v), IRR of R.A. No. 6957 as amended by R.A. No. 7718.

27
Sec. 4 of R.A. No. 6957 as amended by R.A. No. 7718 provides:

SEC. 4. Priority Projects. – x x x

The list of local projects to be implemented by the local government units

concerned shall be submitted for confirmation to the municipal development
council for projects costing up to Twenty million pesos; those costing above
Twenty up to Fifty million pesos to the provincial development council; those
costing up to Fifty Million pesos to the city development council; above Fifty
million up to Two hundred million pesos to the regional development
councils; and those above Two hundred million pesos to the ICC of the
NEDA.

28
Sec. 2.3, second par., IRR.

29
Metropolitan Bank and Trust Company, Inc. v. Penafiel, G.R. No. 173976, February
27, 2009, 580 SCRA 352, 360-361, citing Perez v. Perez, G.R. No. 143768, March
28, 2005, 454 SCRA 72, 81.

Asia’s Emerging Dragon Corporation v. Department of Transportation and

30

Communications, G.R. Nos. 169914 & 174166, April 7, 2009, 584 SCRA 355, 376.

31
Id. at 373, 375. Resolution denying with finality the motions for reconsideration of
the Decision dated April 18, 2008.

32
See JG Summit Holdings, Inc. v. Court of Appeals, G.R No. 124293, September
24, 2003, 412 SCRA 10, 33.

33
Garcia v. Burgos, G.R. No. 124130, June 29, 1998, 291 SCRA 546, 576.

34
Sison v. People, supra note 14 at 681-682.

35
Id. at 680.
36
Rollo, pp. 81-82.

37
See Ong v. People, G.R. No. 176546, September 25, 2009, 601 SCRA 47, 56.

38
Records (Vol. 1), pp. 4-7.

39
Id. at 8-15.

40
Id. at 339-347.

41
G.R. No. 166038, December 4, 2007, 539 SCRA 415, 423-425.

Santos v. People, supra note 13 at 197, citing Llorente, Jr. v. Sandiganbayan, 350
42

Phil. 820, 838 (1998).

43
Art. 2226, Civil Code.

44
Sec. 12.7 (a), IRR.

45
Sec. 12.19 (b), IRR.