HERNANDO, J.:
That on or about January 15, 2001, and for some time prior or subsequent thereto, in the Municipality of Janiuay Province of Iloilo, Philippines, and within the jurisdiction of this Honorable Court, above-named accused FRANKIE H. LOCSIN, CARLOS C. MORENO, JR., RAMON T. TIRADOR, LUZVIMINDA P. FIGUEROA and RICARDO S. MINURTIO, all public officers, being then the Municipal Mayor, Municipal Accountant, Municipal Budget Officer, Municipal Treasurer and Representative of the Municipal Mayor in the Committee on Awards, respectively, all of the Municipality of Janiuay, Iloilo, in such capacity and committing the offense in relation to and in discharge of their official and administrative functions, conniving, confederating together and mutually helping with each other and with RODRIGO S. VILLANUEVA, President and General Manager of AM-Europharma Corporation, a private individual, with deliberate intent, manifest partiality and evident bad faith; did then and there willfully, unlawfully and criminally award the contract for the purchase of medicines and in fact bought such medicines in the amount of THIRTEEN MILLION ONE HUNDRED NINETY-ONE THOUSAND TWO HUNDRED TWENTY THREE (P13,191,223.00) PESOS, from AM-Europharma Corporation, notwithstanding the fact that on said date the accreditation of AM-Europharma Corporation was still suspended by the Department of Health (DOH), hence should have been disqualified to participate in the bidding, that AM-Europharma Corporation is owned and controlled by said accused Rodrigo S. Villanueva, who at the same time is the sole proprietor of Mallix Drug Center, a supplier who was awarded the contract for the supply of medicines in the amount of ONE MILLION SEVEN HUNDRED FORTY-FOUR THOUSAND NINE HUNDRED TWENTY-SIX PESOS (PHP 1,744,926.00) in the same public bidding and that the public bidding was conducted without the presence of any provincial or municipal auditor or its (sic) duly authorized representative, thus accused public officers, in the course of the performance of their official/administrative functions, had given AM-Europharma Corporation/accused Rodrigo S. Villanueva, unwarranted benefit, advantage or preference in the discharge of their official/administrative functions to the detriment and prejudice of the other companies and public service.Petitioner pleaded "not guilty" to the charge.[7]
CONTRARY TO LAW.[6]
WHEREFORE, judgment is hereby rendered finding accused FRANKIE H. LOCSIN, CARLOS C. MORENO, JR., RAMON T. TIRADOR, LUZVIMINDA P. FIGUEROA, RICARDO S. MINURTIO and RODRIGO S. VILLANUEVA GUILTY beyond reasonable doubt as charged in the Information and sentencing each of them to suffer the indeterminate penalty of six (6) years and one (1) month as minimum to ten (10) years as maximum, and to suffer perpetual disqualification from public office, and to proportionately pay the cost.The Sandiganbayan found that all the accused conspired with each other and were guilty of violation of Section 3(e) of RA 3019 for awarding the contracts for the purchase of medicines to the business entities of petitioner, Europharma, and Mallix Drug, with deliberate intent, manifest partiality and evident bad faith, thereby giving petitioner unwarranted benefit, advantage, or preference. The signatures of the committee members' in the Minutes of Meeting, the undue haste in the delivery of the medical supplies, and the speed by which the payments were made, even without the required 10% performance bond, and the irregularities found in the qualification and accreditation of Europharma and Mallix Drug, reveal the manifest partiality and evident bad faith of the public officials charged and that of the petitioner.[32] As regards petitioner, the Sandiganbayan found him to have conspired with the accused public officials in the perpetuation of the crime charged based on his conduct prior, during, and after the bidding that took place.[33]
For failure of the prosecution to present evidence to establish damage or injury and/or the amount thereof suffered by the government as a result of the said procurement of medicines, no civil liability is assessed against the herein accused.
SO ORDERED.[31]
I. THE HONORABLE SANDIGANBAYAN SERIOUSLY ERRED IN CONVICTING THE ACCUSED FOR SUPPOSED VIOLATIONS NOT STATED UNDER THE FATALLY AMENDED INFORMATION DATED 7 JANUARY 2009.II. THE HONORABLE SANDIGANBAYAN SERIOUSLY ERRED IN CONVICTING THE ACCUSED UNDER COA CIRCULAR NO. 92-386, WHEN IT IS NOT A PENAL LAW.III. THE HONORABLE SANDIGANBAYAN SERIOUSLY ERRED IN FINDING THAT ACCUSED MEMBERS OF THE COMMITTEE ON AWARDS RAILROADED THE PROCUREMENT OF THE SUBJECT MEDICINES, WHEN SAID ACCUSED ACTED ONLY IN ACCORDANCE WITH ITS NATURE AS AN EMERGENCY PROCUREMENT.IV. THE HONORABLE SANDIGANBAYAN SERIOUSLY ERRED IN DISREGARDING SECTION 368 OF R.A. 7160 WHICH ALLOWS EMERGENCY PURCHASES WITHOUT PUBLIC BIDDING.V. THE HONORABLE SANDIGANBAYAN SERIOUSLY ERRED WHEN IT DISREGARDED THE STATUTORY PERSONALITY OF THE LEAGUE OF MUNICIPALITIES OF THE PROVINCE OF ILOILO WHEN IT RULED THAT THE ACCUSED PUBLIC OFFICERS ACTED IN DISCHARGE OF THEIR DUTIES AS MUNICIPAL OFFICERS.VI. THE HONORABLE SANDIGANBAYAN SERIOUSLY ERRED IN ACCEPTING PHIL. PHARMAWEALTH'S FLIMSY DENIAL OF PARTICIPATION IN THE SUBJECT BIDDING WHEN AT LEAST THREE DOCUMENTS--- ONE, WHICH COULD ONLY HAVE ORIGINATED FROM PHIL. PHARMAWEALTH, ITS DOH BFAD LICENSE TO OPERATE - BELIED SUCH DENIAL.VII. THE HONORABLE SANDIGANBAYAN SERIOUSLY ERRED WHEN IT FAULTED ACCUSED PUBLIC OFFICERS FOR CONSIDERING AM EUROPHARMA AS A QUALIFIED BIDDER, WHEN AM EUROPHARMA'S RENEWAL OF LTO WAS UNDER PROCESS AND IT HAD NOT LOST ANY OF THE QUALIFICATIONS AS A DRUG MANUFACTURER.VIII. THE HONORABLE SANDIGANBAYAN SERIOUSLY ERRED WHEN IT INSISTED ON DOH ACCREDITATION AS A REQUIREMENT FOR LOCAL GOVERNMENT PROCUREMENTS FOR MEDICINES WHEN NO LEGAL BASIS SUPPORTS SUCH REQUIREMENT.IX. THE HONORABLE SANDIGANBAYAN ERRED WHEN IT PIERCED THE VEIL OR CORPORATE FICTION IN RULING THAT AM-EUROPHARMA CORPORATION AND MALLIX DRUG CENTER SHOULD HAVE BEEN CONSIDERED JUST ONE BIDDER.X. THE HONORABLE SANDIGANBAYAN SERIOUSLY ERRED WHEN IT FOUND CONSPIRACY BASED ON CIRCUMSTANTIAL EVIDENCE. THAT ARE CAPABLE OF EXCULPATORY INTERPRETATION UNDER THE EQUIPOISE DOCTRINE.[36]
Section 6. Sufficiency of complaint or information. — A complaint or information is sufficient if it states the name of the accused; the designation of the offense given by the statute: the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed.Meanwhile, Section 3(e) of RA 3019 provides:
When an offense is, committed by more than one person, all of them shall be included in the complaint or information. (6a) (Emphasis Ours)
SECTION 3. Corrupt practices of public officers. - In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:The elements of violation of Section 3(e) of RA 3019 are: (a) the accused must be a public officer discharging administrative, judicial, or official functions; (b) he/she must have acted with manifest partiality, evident bad faith or gross inexcusable negligence; and (c) his/her action caused undue injury to any party, including the government, or gave any private party unwarranted benefits, advantage or preference in the discharge of his functions.[43]
x x x x
(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. x x x (Emphasis Ours)[42]
[n]otwithstanding the fact that on said date the accreditation of AM-Europharma Corporation was still suspended by the Department of Health (DOH), hence should have been disqualified to participate in the bidding, that AM-Europharma Corporation is owned and controlled by said accused Rodrigo S. Villanueva, who at the same time is the sole proprietor of Mallix Drug Center, a supplier who was awarded the contract for the supply of medicines x x x.[45]Thus, the parameters set by the rules were fulfilled. The assailed Decision is clear that petitioner was found to have violated Section 3(e) of RA 3019, specifying the instances of his connivance in order to obtain unwarranted benefits, and was consequently unduly awarded the contracts for the purchase of medicines.[46]
Section 95- When Public Bidding Deemed a Failure - For purposes of these rules and regulations, public bidding(s) is deemed to have failed under any of the following circumstances:The citation is a direct reference to how petitioner and his co-accused public officers violated Section 3(e) of RA 3019. The accused public officers' noncompliance with the COA Circular, and their willful omission to declare that the bidding that took place was a "failed bidding" were badges of "manifest partiality" and "giving of unwarranted benefits" to the petitioner, whose acquiescence to the award constituted the offense charged.
a. When no or only one qualified bid is received on or before the schedule date of the opening of bids; or
b. When all the bids submitted are defective and/or non-complying bids or not responsive to the terms, conditions and specifications of the tender documents.[50]
The third element refers to two (2) separate acts that qualify as a violation of Section 3(e) of R.A. No. 3019. An accused may be charged with the commission of either or both. The use of the disjunctive term "or" connotes that either act qualifies as a violation of Section 3(e) of R.A. No. 3019.Following the above, We quote with approval the conclusion of the Sandiganbayan, to wit:
The first punishable act is that the accused is said to have caused undue injury to the government or any party when the latter sustains actual loss or damage, which must exist as a fact and cannot be based on speculations or conjectures. The loss or damage need not be proven with actual certainty. However, there must be "some reasonable basis by which the court can measure it." Aside from this, the loss or damage must be substantial. It must be "more than necessary, excessive, improper or illegal."
The second punishable act is that the accused is said to have given unwarranted benefits, advantage, or preference to a private party. Proof of the extent or quantum of damage is not thus essential. It is sufficient that the accused has given "unjustified favor or benefit to another." (Emphasis Ours; citations omitted)
Likewise, in Pacifico C. Velasco vs. Sandiganbayan, the Supreme Court explained that there are two (2) ways by which a public official violates Section 3 (e) of RA 3019 in the performance of his functions, namely: (a) by causing undue injury to any party, including the Government; or (b) by giving any private party any unwarranted benefits, advantage or preference. The accused may be charged under either way or under both. The term "unwarranted" has been defined lacking adequate or official support; unjustified; unauthorized (Webster, Third New International Dictionary, p. 2514); or without justification or adequate reason (Philadelphia Newspapers, Inc. v. U.S. Dept. of Justice, C.D. Pa., 405 F. Supp. 8, 12, cited in Words and Phrase, Permanent Edition, Vol. 43-A 1978, Cumulative Annual Pocket Part, p. 19). "Advantage" means a more favorable or improved position or condition; benefit or gain of any kind; benefit from course of action. "Preference" signifies priority or higher evaluation or desirability; choice or estimation above another. And in Alvarez v. People, the Supreme Court held that the use of disjunctive word "or" connotes that either act or (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 RA 3019, as amended. The use of the disjunctive "or" connotes that the modes need not be present at the same time. In other words, the presence of one would suffice for conviction.Indubitably, the Sandiganbayan did not err in finding petitioner liable under Sec. 3(e) of RA 3019 notwithstanding the absence of actual damage or injury to the government or its instrumentalities.
The presence of the first element is not disputed. Admittedly, on the date alleged in the information, the herein accused Frankie H. Locsin, Carlos C. Moreno, Jr., Ramon T. Tirador, Luzviminda P. Figueroa, and Ricardo S. Minutio are public officials by virtue of their respective positions as Municipal Mayor, Municipal Accountant, Municipal Budget Officer, Municipal Treasurer and Municipal Environment and Natural Resources Officer and Representatives of the Municipal Mayor in the Committee on Awards of the municipality of Janiuay, Iloilo. Accused Rodrigo D. Villanueva, although a private person, is charged as a conspirator of the aforesaid public officials.
In this regard, the herein accused public officials are charged with evident bad faith and manifest partiality when they, in conspiracy with accused private person Rodrigo D. Villanueva, President and General Manager of AM Europharma and also the sole proprietor of Mallix Drug, awarded the contract for the purchase of medicines to, and in fact bought such medicines from, AM Europharma in the total amount of Php13,191,223.00 and Mallix Drug in the amount of PhP1,744,926.00, notwithstanding that, on the date of public bidding on January 15, 2001, the accreditation of AM Europharma was still suspended by the DOH, and hence, should have been disqualified to participate in the bidding, and despite the fact that said companies/bidders were owned and controlled by accused Rodrigo D. Villanueva, thereby giving unto AM Europharma/accused Rodrigo D. Villanueva unwarranted benefit, advantage or preference in the discharge of their official administrative functions.
x x x x
After going over the records of the case, the Court finds, and so holds that herein accused members of the municipal Committee on Awards of Janiuay, Iloilo, acted with evident bad faith and manifest partiality when they awarded the contract for the purchase of medicines to, and in fact bought said medicines in the amount of PhP13,191,223.00, from AM Europharma, a corporation owned and controlled by accused Rodrigo Villanueva, who is the sole proprietor of the other winning bidder Mallix Drug, notwithstanding the fact that AM Europharma should have been disqualified to participate in the bidding because its supplier's accreditation was still suspended by the DOH, and thereby giving to AM Europharma/accused Rodrigo Villanueva unwarranted benefit, advantage or preference in the discharge of their official/administrative functions to the detriment of the government.[59] (Emphasis Ours; citations omitted)
At the outset, it bears to reiterate the settled rule that private persons, when acting in conspiracy with public officers, may be indicted and, if found guilty, held liable for the pertinent offenses under Section 3 of R.A. 3019, in consonance with the avowed policy of the anti-graft law to repress certain acts of public officers and private persons alike constituting graft or corrupt practices act or which may lead thereto. This is the controlling doctrine as enunciated by this Court in previous cases, among which is a case involving herein private respondent.[62] (Emphasis Ours; citations omitted)It is rare, if not impossible, to find direct evidence of conspiracy. As such, guides to determine its existence are in place. Here, petitioner's participation in the bidding and his acceptance of the bid award, despite the overwhelming deficiencies in the bidding process, which he must be familiar with considering his record as a supplier of medicines, demonstrated his conspiracy with his co-accused public officers. Additionally, the following acts evidently bolster his connivance with them, thus: 1) failure of petitioner's business entities to submit their Declaration of Business Interests, thereby concealing the composition of the companies; 2) authorizing the spouses Antonio H. Gasapos and Luz M. Sarmiento-Gasapos to act as representatives of his company in clear disregard of arms-length dealing in bids; 3) failure to post the required performance bond and the immediate delivery of medicines, just a day after the award, suggest a pre-arranged and predetermined outcome of the bid; and, lastly 4) immediate processing and acceptance of payment.[63]
It is true that there is no law that prohibits his companies/corporations from participating in one and the same bidding under the principle that they are clothed with personalities separate from the person/s composing them, however, since accused Rodrigo Villanueva used the said companies as means or vehicles for the circumvention of statutes governing procurement of government supplies through competitive bidding by combining his companies in the bidding, not only to get the desired price but also in order to assure that one or both of them can get the award, such act should not be countenanced as the very purpose of a public and competitive bidding (which is to give the public/government the best possible advantage/bargain or secure the lowest possible price and curtail favoritism in the award of government contract) would be defeated. Undoubtedly, this objective of competitive bidding cannot be obtained if the only two (2) competing bidders are owned and controlled by one and the same person.Notably, petitioner was not only the general manager and the owner of the 99% capital stock of Europharma[65] but also the sole proprietor of Mallix Drug.[66] The corporate documents[67] of the entities reveal petitioner's ownership and almost absolute control over Europharma. Meanwhile, Mallix Drug has no juridical personality separate and distinct from petitioner, it being a sole proprietorship, and its business activities bind him.[68] The foregoing thus display that the two "companies" owned by petitioner which participated in the defective bidding were "alter egos" of each other and of petitioner's. The relevant portion of the petitioner's testimony is enlightening, to wit:
x x x x
It is settled that there is conspiracy when two or more persons come to an agreement concerning the commission of a felony and decide to commit it Conspiracy need not to be proved by direct evidence and may be inferred from the conduct of the accused before, during, and after the commission of the crime, which are indicative or a joint purpose, concerted action and concurrence of sentiments. In conspiracy, the act of one is the act of all. Conspiracy is present when one occurs with the criminal design of another, indicated by the performance of an overt act leading to the crime committed. It may be deduced from the mode and manner in which the offense was committed.
x x x x
With respect to the accused private person, namely accused Rodrigo Villanueva the owner of the AM Europharma and Mallix Drug, the Court also finds that he conspired with accused public officials Frankie H. Locsin, Carlos C. Moreno, Ramon T. Tirador, Luzviminda P. Figueroa and Ricardo Minurtio in the consummation of the subject procurement because of the fact that his companies accepted and encashed the checks as payments for the procured medicines which readily shows that he concurred in the criminal designs of the said accused public officials. While it may be true that there is no direct evidence linking him to conspiracy with the said accused public officials, the Court considers the conduct of accused Rodrigo Villanueva in authorizing the spouses Antonio H. Gasapos and Luz M. Sarmiento-Gazapos as his companies' representatives in the subject public bidding, and immediately on the following day after the award or on January 16, 2001, he caused his companies to deliver the procured medicines, and thereafter, on January 17, 2001, caused the encashment of the checks in payment thereof, indicative of a joint purpose, concerted action and concurrence of sentiments. Undeniably, by permitting his two (2) companies to participate in the subject public bidding, and immediately thereafter, became the recipient of the proceeds of the said procured medicines, clearly indicate [accused] Rodrigo Villanueva's concurrence to the conspiracy and thereby giving him unwarranted benefit, advantage, and preference.[64] (Emphasis Ours; citations omitted)
Clearly, petitioner's attempt to use the corporate fiction of Europharma as a shield from liability is not proper. Remarkably, when the corporate fiction is used as a means of perpetuating fraud or an illegal act, or as a vehicle for the evasion of an existing obligation, the circumvention of statutes, the achievement or perfection of monopoly, or generally the perpetration of knavery or crime, such as in this case, the veil with which the law covers and isolates the corporation will be lifted to allow for its consideration merely as an aggregation of individuals.[70]
PROS. SANTOS: Q. And you mentioned, sir, that your Provincial Agent or Sales Agent in this case is Ms. Luz Gazapos? A: Yes, ma'am. Q: She is also the one that represented AM Europharma during that bidding? A: Yes, ma'am. Q: And Mrs. Gazapos is the married name, am I correct? A: Yes. CHAIRPERSON: Let us clarify, Mrs. Gazapos was representing both Europharma and Mallix? Witness: To my knowledge, your Honor, I think there is another individual that should represent Europharma and Mallix Drug. CHAIRPERSON: Should represent. But who was actually representing during that time? WITNESS: Well, I am not sure who is at this moment, your Honor. CHAIRPERSON:I thought you were the proprietor of Mallix and now you are not sure? WITNESS: But I was just informed that bidding will be held in a certain province and I told them okay you prepare the necessary documents for the bidding and that's what they did. I just signed the documents for submission to the bidding areas, your Honor, after we read from the newspapers. Most probably they knew about it because it's supposed to be published in the newspapers and a lot of bidders will be joining the bidding. So, we opted probably to join the two companies. CHAIRPERSON: Did you not mention that you allowed Mallix and AM Europharma to have greater chance of winning? WITNESS: Most probably, your Honor. CHAIIRPERSON: You mentioned that earlier. WITNESS: Most probably, your Honor, it would be better. CHAIRPERSON: And both entities were represented by a single agent? WITNESS: I am not very sure. Most probably your Honor x x x x PROS. SANTOS Q: Sir, do you know a certain Antonio Gazapos, Jr.? A: Antonio Gazapos is the husband of Luz Gazapos. x x x x Q: By the way, sir, how long have you known Antonio Gazapos? A: Well, as the husband of Luz, we usually meet sometimes but he is not a regular employee of Mallix. Q: And for clarification, sir, you mentioned a while ago that Mrs. Luz Gazapos is the representative of AM Europharma, Did I hear you correct, sir? A: Right. That's right, ma'am. Q: And did you see the Bidder's Tender, sir, that were submitted in connection with this bidding? A: No. Q: But you are sure, sir, that Mrs. Luz Gazapos is your representative in AM Europharma not Mallix Drug Center? A: That's right. Q: Sir, of course, sir you have authorized Mrs. Luz Gazapos to enter in your behalf? You have authorized her, sir? A: I think so, ma'am. Q: How did you authorize her, sir, is it in writing? A: Actually, she is an employee of Europharma. Q: Employee of Europharma. And you will agree with me sir that both AM Europharma and Mallix Drug Center were awarded the purchase of these medicines in these cases, you will agree with me? A: I think so, ma'am.[69]