Case Digest: Fernandez v. Ombudsman

G.R. No. 193983 : March 14, 2012




On 25 November 1994, the then Aklan Gov.Cabagnot entered into a contract with Jireh Construction, for the construction of the Alibagon-Baybay Bridge (Phase II) for a total contract price of P933,335.90to be completed within 90 calendar days from 28 November 1994 to 25 November 1995.

On 15 February 1995, petitioner Victory M. Fernandez, the provincial engineer, endorsed to Gov.Cabagnot for her approval the request of Jireh Construction for a contract time extension of 30 calendar days to complete the AB Bridge Project since the original contract period did not take into account the work stoppage caused by tide variations of the river. Thereafter, Gov.Cabagnot approved the requested 30-day extension.

Meanwhile, the provincial government of Aklan launched four government infrastructure projects. Public bidding for the Four Projects was conducted and after the submission and evaluation of the bids, the Pre-Qualification Bids and Awards Committee (PBAC) awarded the construction of the Four Projects to Jireh Construction, as the best qualified bidder with the bid most advantageous to the government.

On July 5, 1995, respondent Gov.Miraflores issued Memorandum No. 004 directing the petitioner to temporarily suspend the implementation of the AB Bridge Project and the Four Projects awarded to Jireh Construction.

After COA conducted an audit and ocular inspection of Aklan spending government projects, it found out that Jireh Construction had abandoned the construction of the AB Bridge Project and the Four Projects. All five projects were incomplete and could not be used for their designated purpose at their current state of completion.

The Summary of Actual Accomplishment and Costing as submitted and certified by Fernandez showed that the AB Bridge Project was already almost halfway completed with an accomplishment rating of 48.57%. However, the COA auditors found the AB Bridge Project to be only 22.89%completed based on the Statement of Time Elapsed and Percentage Accomplishment dated 20 December 1994. Moreover, the COA auditors found that the provincial government did not take any action against Jireh Construction. Thus, the COA auditors recommended the filing of a case for neglect of duty against the responsible government officers.

On 10 November 2003, Gov.Miraflores, filed with the Office of the Ombudsman(Visayas) an administrative complaint for gross neglect of duty against Evan L.Timtiman, as Provincial Treasurer and regular member of the PBAC. The Office of the Ombudsman likewise impleaded the other government officials including the petitioner.

The Office of the Ombudsman found Fernandez and his co-respondents administratively liable. It also found that petitioner was the one who presented documents to the PBAC showing that Jireh Construction did not have any abandoned project at the time of the bidding for the Four Projects.

On appeal, the CA found no reversible error on the part of the Ombudsman. Petitioner filed a motion for reconsideration but such was denied.

Hence, this petition.


Whether or not the petitioner is guilty of gross neglect of duty?


The petition lacks merit.

POLITICAL LAW: gross neglect of duty

In the present case,Jireh Construction started work on the AB Bridge Project on 28 November 1994. The contract provided that the bridge should be completed within 90 calendar days or specifically on 25 February 1995. However, due to some unforeseen circumstances,JirehConstruction requested for an extension of 30 calendar days to complete the project. The provincial governor promptly approved the 30-day extension. At the time of the bidding for the Four Projects, held on 24 February, 28 February, 7 March and 15 March 1995, the completion period for the AB Bridge Project had not yet expired due to the 30-day extension. The 30-day extension meant that the construction of the bridge was supposed to have been completed on 27 March 1995, twelve days after the completion of all the bidding for the Four Projects.

However, petitioner based his premise that the construction of AB Bridge Project was ongoing during the bidding of the Four Projects on two grounds: (1) the request for 30-day extension by Jireh Construction, and (2) the approval of the extension by the governor. Petitioner did not submit any other evidence to show that the construction of the AB Bridge Project took place continuously and without interruption. From 20 December 1994, the COA auditors found that no further work was made. Thus, regardless of the 30-day extension to complete the AB Bridge Project, it is clear that Jireh Construction abandoned the construction of the AB Bridge Project since 20 December 1994.

Petitioner, as the provincial engineer who oversees all the infrastructure projects of the province, has direct knowledge of the status of each projects progress. Clearly, he was in a position to inform the PBAC that Jireh Construction not only had not met the required deadline of the completion of the AB Bridge Project but also had abandoned the project, with only 22.89% completion and not the 48.57% completion that petitioner had certified. Petitioner gave a false report to the PBAC when he attested that Jireh Construction had no abandoned project at the time of the bidding of the Four Projects.

It is sufficiently evident that petitioner was grossly negligent in failing to give a complete and truthful report to the PBAC of Jireh Constructions actual progress and abandonment of the AB Bridge Project, which could have been a crucial element in awarding the Four Projects to a qualified and capable contractor. Also, petitioner had been remiss in his duties to monitor slippages of Jireh Constructions performance and to take the necessary steps to ensure minimal loss to the provincial government. Given the short time frame of 45 to 90 days for the completion of the projects, petitioner should have immediately reported the poor performance of Jireh Construction to the governor. Moreover, petitioner could have recommended the take over of the construction of the projects and the termination of the contracts to prevent further loss of funds to the province.

Gross negligence refers to 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 willfully 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. (Brucalv. Desierto, 501 Phil. 453) In cases involving public officials, there is gross negligence when a breach of duty is flagrant and palpable.

In sum, the decision of the Office of the Ombudsman, as affirmed by the CA, finding petitioner equally responsible with the members of PBAC for gross neglect of duty,is correct. Pursuant to Section 23,Rule XIV of the Omnibus Rules Implementing Book V of Executive Order No. 292 or the Administrative Code of 1987, gross negligence in the performance of duty is classified as a grave offense for which the penalty of dismissal is imposed. Section 9 of the said Rule likewise provides that the penalty of dismissal shall carry with it the cancellation of eligibility, forfeiture of leave credits and retirement benefits and disqualification from reemployment in government service.

The decision and resolution of the Court of Appeals is affirmed.