1hyp Investigation Report On The p690 Million BSF, June 26, 2010

COMMISSION ON INVESTIGATORS
ELECTIONS
PANEL
OF
BALLOT SECRECY FOLDER INVESTIGATION REPORT

[Procurement Anomaly Findings]
Ferdinand Rafanan Adolfo Ibanez Divina Blas-Perez
0628 2010
INVESTIGATION REPORT ON THE P690 MILLION BALLOT SECRECY FOLDER

June 28, 2010
BY THE PANEL OF INVESTIGATORS1: 1. ATTY. FERDINAND T. RAFANAN, Director IV, Law Department 2. ATTY. ADOLFO A. IBANEZ, Director IV, Personnel Department 3. ATTY. DIVINA E. BLAS-PEREZ, Director III, Election & Barangay Affairs Department
I.BACKGROUND
The BALLOT SECRECY FOLDER (BSF) is an ordinary office folder, 14.5 inches long and 9 inches wide, where one can put
A JUST KING GIVES STABILITY TO HIS NATION, BUT ONE WHO DEMANDS BRIBES DESTROYS IT. Proverbs 29:4
some papers inside, but which is marked in front with the words BALLOT SECRECY FOLDER with a Comelec logo at the middle top, intended for the voter to cover his ballot while voting on election day. CHAIRMAN MELO: We need something to cover it. It can be a piece of paper; it can be a banana leaf. (PARTIAL TRANSCRIPT OF STENOGRAPHIC NOTES OF THE SPECIAL EN BANC MEETING HELD ON APRIL 5, 2010, PANEL 45) In many elections, this is the folder that we have been using. Except for the specific markings, the folder is available at any bookstore.
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The Panels staff consists of Head Executive Assistant Corazon Danao, EA II Buena Grace C. Miranda, EA II Romulo Rabaino, EA II Aggy Christine Glindo, Noel Daya, Ryan Alburo, and Dorothy Anne Angco.
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For the May 2004 presidential elections, the winning bidder was Grand C Graphics for 3,000,000 pieces at P5 per piece for a total amount of P15,000,000. For the May 2007 national and local elections, the winning bidder was Lamco Paper Products Co., Inc. for 3,060,000 pieces at P3.33 per piece for a total amount of P10,189,800. For the barangay elections in October 2007, the winning bidder was Holy Family Printing Corp. for 3,000,000 pieces at P3.12 per piece for a total amount of P9,360,000. There was bidding for the Ballot Secrecy Folder in every election.
Surprisingly,
there
was
no
bidding for the BSF for use in the May 10, 2010 automated elections! As a result, we almost used a folder double in length, different material, with the same markings, but more than a hundred times the cost at P380 per piece for a total price of SIX HUNDRED THOUSAND pieces. EIGHTY-NINE PESOS OTC PAPER SUPPLYS BSF
MILLION SEVEN HUNDRED (P689,700,000) for 1,815,000
A graphic presentation of the unit cost and total price of the ballot secrecy folders in four (4) consecutive elections is shown below:
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ELECTION MAY 2004 MAY 2007 OCT. 2007 MAY 2010
UNIT COST P5.00 P3.33 P3.12 P7.48
QUANTITY 3,000,000 3,060,000 3,000,000 1,815,000 1,815,000
PURPOSE COVER BALLOT COVER BALLOT COVER BALLOT COVER BALLOT COVER BALLOT
TOTAL PRICE P15,000,000 P10,189,800 P9,360,000 P13,576,200 P689,700,00 0
MAY 2010 P380.00 CANCELLED
II. CHRONOLOGY OF EVENTS

On March 15, 2010, Atty. Melchor Magdamo of the Office of Chairman Jose Melo sent an email2 to Dr. Arwin Serrano of the Parish Pastoral Council. He wrote: The Commission on Elections (COMELEC) is also another favourite hunting ground of large scale corruption. Its Executive Director, Jose Marundan Tolentino, does not seem to care about redeeming his name or at least deodorizing the stench of his stinking reputation. Recently, he orchestrated another scam by persuading the COMELEC en banc to approve a tailorfitted design for a ballot secrecy folder. On 17 February 2010, the En Banc promulgated Resolution3 10-0251, therein approving Tolentinos design and directing the Bids & Awards Committee (BAC) to take appropriate action without mentioning the price.
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X x x sometime in the second week of March 2010, a certain Emily G. Cam Bacoto came with documents showing that Tolentinos secrecy folder is the sole participant in a lightning speed bidless bidding at a Goliath price of 380 pesos per folder for an astronomical budget of 689 million pesos! That can qualify in the Guinness World Records as the most expensive folder in human history! (PANEL 28) One week later, or on March 22, 2010, the recipient of the email, Dr. Arwin Serrano, went to the Office of Atty. Ferdinand T. Rafanan, Director of the Law Department and presented said letter which at that time was still unsigned. Director Rafanan asked Atty. Magdamo to appear at his office and right away the latter arrived and signed his email. That same morning, Dr. Arwin Serrano himself, in reaction to the email, also wrote a letter in his own handwriting addressed to Director Rafanan, stating among other things, as follows: Im writing this letter to express my sentiment regarding the approval of the contract for Ballot Secrecy Folder (Resolution No. 8795) which was awarded to OTC Paper Supply for the 1,815,000 pieces of ballot secrecy folder for use in the May 10, 2010 National and Local Elections at a price of P380.00 per piece. My personal view is that it is not advantageous to Comelec, the bidding procedure is not in accordance to the GPRA and the amount is too much for an item that will be used one-time only. I would like to express my objection and would like to request for an evaluation and re-examination so that we could have a Ballot Secrecy Folder that was bidded properly and the ceiling price would be at a more acceptable amount. I would like to comment also on the material and some specifications that we could do with hard carton and it could be non-expandable. (PANEL 31)
Acting on these two letters, Director Rafanan wrote Memorandum No. 10-12764 dated March 23, 2010 addressed to Chairman Jose Melo. Said Memorandum was received by the Chairmans office on March 26, 2010. It states: I am enclosing the letter of Dr. Arwin Serrano5, Parish Pastoral Council for Responsible Voting representative in the COMELEC
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Bids and Awards Committee dated March 22, 2010. He wrote as follows: I am writing this letter to express my sentiment regarding the approval of the Contract for Ballot Secrecy Folder (Resolution No. 8795) which was awarded to OTC Paper Supply for the 1, 815, 000 pieces of ballot secrecy folder for use in the May 10, 2010 National and Local Elections at a price of Php380.00 per piece. I join Dr. Arwin Serrano in the shock at the obviously exorbitant price of Php380.00 per piece of folder. Could it be that this is just a typographical error in placing the decimal point so that the real price is only Php3.80, or three pesos and eighty centavos? He is curious that nowhere in the quoted Bids and Awards Committee Resolution 85-2010 is the amount in words written and neither does Resolution No. 8795 dated March 15, 2010 show the amount in words. This is very critical and suspicious considering that the amount translates to Php 689,700,000.00. Please consider also the allegations in his letter that the indelible ink can be easily removed by zonrox. I make this Memorandum because I still believe that preparations for the coming May 2010 Automated Elections are in good faith, untainted by any possible graft and corruption. (PANEL 32)
Meantime, PURCHASE ORDER6 NO. 10-03-020BAC dated March 23, 2010 covering the said Ballot Secrecy Folders, indicating mode of procurement as "public bidding", for P689,700,000 remained unsigned by Chairman Jose Melo. On March 29, 2010, Director Ferdinand T. Rafanan, then at the airport on his way to Bangkok, Thailand to attend an international seminar on Electoral Justice, issued Memorandum No. 10-14317 dated March 29, 2010. In said memorandum, he recommended that "the purchase of 1,815,000 BSF (Ballot Secrecy Folder) at P380 per piece be cancelled". He also recommended "that ordinary ballot secrecy folders with the same specifications used in the past elections with a size of 9.5 inches (width) by 28 inches (length) with the Comelec seal and marking 'Ballot Secrecy Folder' be purchased"8.
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He finally recommended that "the right side of the folder where the ballot will be placed by the voter needs only to be a little bit thicker and harder to allow the heavy weight when shading."
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Said Memorandum was supported by a Memorandum for the Commission En Banc dated March 29, 20109 signed by General Gurrea, Renato Garcia, Atty. Melchor Magdamo, and Ramon Aquino (all in the staff of Chairman Jose Melo). They found merit in, and recommended approval of the aforesaid recommendations of Director Rafanan for cancellation of the purchase of the Ballot Secrecy Folder from OTC Paper Supply.
Surprisingly, on the following day, there was a letter from Henry Young of OTC Paper Supply dated March 30, 2010 (PANEL NO. 37) addressed to Chairman Melo indicating, in an unsolicited and anticipated selfdefense, the "comparative" cost analysis of its own ballot secrecy folder. The fact, however, is that there was nothing at all in said letter to show comparison with any price from any other supplier.
The Commission En Banc treated the matter on March 30, 2010. A partial transcript of stenographic notes of the regular en banc hearing on the BSF on that day shows the following: Executive Director Tolentino: "x x and I don't think he is questioning the procedure, it's just the price. Comm. Velasco: 700! Almost 10% of the total amount of automation! Automation is 7B and this one is 700. Most cumbersome. x x x. E. D. Tolentino: "negotiate for a lower price but not to cancel it kasi nag notice of award most probably nag order na iyan, and the only reason hindi nakaka-deliver is because of the requirement that the purchase order must first be issued before delivery." (PANEL 40)
The discussion went further as follows: COMM. SARMIENTO: Ang total amount ay P689,700,000 di pa kasama yong delivery. Now ang concern natin ito ay gagamitin isang araw lang baka maging issue sa atin ito, napakalaking amount, oo, umabot ng 700 lumalabas iyung 380 baka Jun masyadong malaki x x x CHAIRMAN MELO: Baka isang gamit lang iyan ano, that in the eyes of the public it's just a folder to keep your choice a
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secret but you are spending so big an amount iyon ang ano, baka pag suspetsahan tayong lahat. Ayon! So what is the desire of the ano? COMM. YUSOPH: We have to cancel it, we might be criticized for that, that would be another fertilizer scam. COMM. TAGLE: Baka ma headline tayo. COMM. SARMIENTO: I am sure 703 lang yon eh ito 689 plus delivery baka lalo pang, mga 700 yan. COMM. LARRAZABAL: recommendation. The BAC was the one who made the
CHAIRMAN MELO: At saka hindi bidding ito eh. COMM. TAGLE: Ah hindi, direct. COMM. SARMIENTO: Procurement without public bidding. So Chair I would join Comm. Yusoph Chair and Comm. Nick . . . Cancellation. (PANEL 40) The Commission En Banc again tackled the problem in its next meeting on March 31, 2010. The partial transcript of stenographic notes shows that Chairman Jose Melo thinks the specifications of the BSF came from the Committee on Specifications, not from a friend. Commissioner Nicodemo Ferrer thinks there was a comparison of prices. Executive Director Jun Tolentino confirms the BSF stocks are already in the Customs. Bids and Awards Committee (BAC) Chair Ma. Leah Alarkon says the contract award for the procurement of the ballot boxes was a precedent for the BSF award by reason of patent application.
The transcript reveals the following discussion: ALARKON: For comparison sabi ko nga iyung Filefix ng dineliberate ng TWG . . . Ng paper P320 tatlo ang canvass price namin noon: P500, P400, P330. Ganito kalaki iyon ating, dalawang long matigas rin po. Iyung secrecy folder natin halos pareho rin ang materyales. Kung sinabi na may comparison ang price actually kung iyong Filefix nga na sinabi na ng TWG na P320 na pinakamura, ito dalawang long P380. So for comparison ng price, so sa tingin namin ang sabi lang namin kung i-aatras ng Commission ang ano is whatever expenses they had under the law we should pay. x x x
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ALARKON: Sir tapos tinatanong kasi application for patent, application lang daw so bakit hindi naman pala siya regular patent. Tapos sabi ko ang premise na ginamit namin noon pareho ng ballot box iyung provider natin application for patent lang yon na inaward natin sa kanila kahit na certification lang ng IPO office na ano lang, so kung may precedent na kung bakit ganito ang procedure natin, na sinunod natin. x x x CHAIRMAN MELO: Sino ang nag ano ng design na iyan? ALARKON: Meron po tayong Committee na nag e-specs ng kung ano ang bagay sa needs natin. CHAIRMAN MELO: Oh, ayon ang anohin mo, that the design did not come from us. It came from ano nga lang. ALARKON: Meron tayong . . . CHAIRMAN MELO: Kanya we had to approve it. There must be proper staff work, hindi tayo tayo lang nagsasabi ng ganyan. ALARKON: And the process order way back January 19 pa po. CHAIRMAN MELO: Kaya i-emphasize mo sa report mo hindi tayo oy ito kaibigan ko ito itong design niya. No, it was done by staff work, nagcanvass sila what's the best ano nga lang, what's the best design di ba? COMM FERRER: May specs that . . . and in comparison of prices x x x CHAIRMAN MELO: Pero dapat ipakita natin dito that we were all the time, these were all staff work di tayo ang naglagay niyan. There was a team which looked at the design and they said and they have it approved by us, etc, etc. (PARTIAL TRANSCRIPT OF STENOGRAPHIC NOTES OF REGULAR EN BANC HEARING ON THE BSF DATED MARCH 31, 2010, PANEL 42). On the same day (March 31, 2010), the Commission En Banc promulgated COMELEC RESOLUTION NO. 10-0442 dated March 31, 2010 "IN THE MATTER OF THE MEMORANDUM OF THE LAW DEPARTMENT ON THE PRICING OF 1,815,000 PIECES OF BALLOT SECRECY FOLDER FOR USE IN CONNECTION WITH THE MAY 10, 2010 ELECTIONS10. It quoted Director Rafanan's memorandum dated March 23, 2010, and required him "to be present during the next en banc meeting on April 06, 2010 in order to elucidate on matters raised in his instant Memorandum".
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Before the April 6, 2010 hearing however, there was one more hearing on the BSF on April 5, 2010, where Exec. Dir. Tolentino presented documents for discount of P250 million. It transpired as follows:
COMM. LARRAZABAL: Chair, the specifications are over and beyond, are over and above that required . . . CHAIRMAN MELO: Required needs, and that the specifications and the kind of secrecy folders are beyond the ordinary needs. COMM. SARMIENTO: Di natin naperceive to be exorbitant. Wala na ito. EXEC. DIR. TOLENTINO: Inapprove ninyo yan eh, babalik at babalik sa inyo yan Sir! COMM. FERRER: But you . . . ! (pointing to the support staff) CHAIRMAN MELO: We are not afraid of that. That's why we denied it. We are recalling them. COMM. LARRAZABAL: Over and above. CHAIRMAN MELO: Ako I'm not afraid. That error . . . that's why we are correcting it x x x EXEC. DIR. TOLENTINO: make . . . Sir but still we need a folder just to Sa akin, bad.
CHAIRMAN MELO: We need something to cover it. It can be a piece of paper; it can be a banana leaf. X x x EXEC. DIR. TOLENTINO: Sir in fairness naman to the BAC, the quantity that they caused to be procured came from the Allocation Committee, hindi naman sila magpapa procure Sir ng basta bastang walang basis. So it was based on the submission of the Allocation Committee which I even think was approved by the En Banc. That's why iyon ang pinabili nila x x x EXEC DIR. TOLENTINO: Ang sunod naman Sir is iyong the conclusion that the price of P380 is exorbitant. Just like the statement of Dr. Serrano and Ferdie, there was no statement or study11 made to show that this is indeed exorbitant. It's just a subjective . . . CHAIRMAN MELO: Ako akala ko P3.80. x x x EXEC. DIR. TOLENTINO: Sir, at 10:20 Sir, Dir. Alarkon submitted to my office a transmittal of the offer of OTC Paper na
11
There was a canvass of prices made by Head Executive Assistant Corazon Danao during the Investigation
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nanalo dyan Sir, because if we recall last En Banc meeting, di ba sinabi mahal ang presyo so you asked for price reduction. CHAIRMAN MELO: Oh, that was last Wednesday. EXEC. DIR. TOLENTINO: That was before the Holy Week. So may memo dito si Leah dated today transmitting the offer of OTC dated today also. Ang sinasabi nila that binigyan sila ng discount of P137.74 per piece. CHAIRMAN MELO: 137. EXEC. DIR. TOLENTINO: .74 per piece. Which translates to a total discount of 250 million. (PANEL 45)
The Comelec En Banc then promulgated RESOLUTION NO. 8814 dated April 5, 2010 "IN THE MATTER OF THE CANCELLATION OF THE CONTRACT FOR THE SUPPLY AND DELIVERY OF 1,815,000 PCS OF THE BALLOT SECRECY FOLDER FOR THE MAY 10, 2010 NATIONAL AND LOCAL ELECTIONS"12. It declared as follows: This pertains to Comelec Resolution No. 8795 dated March 15, 2010 awarding13 the contract for the supply and delivery of ONE MILLION EIGHT HUNDRED FIFTEEN THOUSAND (1,815,000) pieces of ballot secrecy folder for the use in the May 10, 2010 National and Local Elections to OTC PAPER SUPPLY. Whereas, on March 8, 2010, the Bids and Awards Committee submitted a recommendation14 to award the contract for the supply and delivery of ONE MILLION EIGHT HUNDRED FIFTEEN THOUSAND (1,815,000) pieces of ballot secrecy folder for the use in the May 10, 2010 National and Local Elections to OTC PAPER SUPPLY; WHEREAS, the Commission relying heavily on the regularity of the procedure conducted by the Bids and Awards Committee, approved the said recommendation; WHEREAS, upon closer review of Comelec Resolution No. 879515 dated March 15, 2010, it was discovered that the Bids and Awards Committee recommendation was a product of incomplete staff work for the reason that the total number of ballot secrecy folders recommended to be purchased (1,815,000)
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exceeds the total number of ballot secrecy folders that may actually be used during the elections; WHEREAS, upon review, the computation used by the Bids and Awards Committee was based on twenty-two (22) ballot secrecy folders per precinct multiplied by eighty two thousand five hundred (82,500) clustered precincts considering that the actual total clustered precincts are only seventy six thousand three hundred forty (76,340); WHEREAS, the Commission was insufficiently informed of such computation; WHEREAS, it was also discovered after re-deliberation that the purchase price of THREE HUNDRED EIGHTY PESOS (Php 380.00) per ballot secrecy folder is extravagant beyond the ordinary needs of the Commission; WHEREAS, Chairman Jose A.R. Melo has declined to sign the Purchase Order16; WHEREFORE, the Commission, by virtue of the powers vested in it by the Constitution, RESOLVED, as it RESOLVES to recall the award to OTC PAPER SUPPLY. (PANEL 46)
The cancellation is also based on the following provisions of RA 9184: SEC. 41. Reservation Clause. - The Head of the Agency reserves the right to reject any and all Bids, declare a failure of bidding, or not award the contract in the following situations: (a) If there is prima facie evidence of collusion between appropriate public officers or employees of the Procuring Entity, or between the BAC and any of the bidders, or if the collusion is between or among the bidders themselves, or between a bidder and a third party, including any act which restricts, suppresses or nullifies or tends to restrict, suppress or nullify competition; (b) If the BAC is found to have failed in following the prescribed bidding procedures; or (c) For any justifiable and reasonable ground where the award of the contract will not redound to the benefit of the government as defined in the IRR. On the same day, the Bids & Awards Committee, apparently expecting the cancellation of the award, promulgated BAC RESOLUTION NO. 992010 on April 5, 2010 (PROCUREMENT REPORT ON THE SUPPLY AND
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DELIVERY OF THE 1,815,000 PIECES BALLOT SECRECY FOLDERS FOR THE MAY 10, 2010 NATIONAL AND LOCAL ELECTIONS), in self-defense. reads as follows: WHEREAS, the BAC recommended the said award on the following basis: 1. Comelec Minute Resolution No. 10-025117, dated 17 February 2010, directed the procurement of 1,815, 000 pieces of Ballot Secrecy Folders, the approved design and specifications provided in the same directive, are: XXXXX 2. On 27 February 2010, OTC Paper Supply submitted its proposal18 to supply said folders at the rate of Php 380.00 per piece. It also submitted proof of its claim of copyright over approved design and specifications. Said supplier submitted a Certification issued by the Intellectual Property Office of the Philippines wherein it is stated that the date of their application for patent is 10 February 2010. 3. There being no alternative supplier from which to compare the offer considering the claim for patent, the canvass price19 submitted by the ASD in the procurement of Document Binders was used as reference, copy of the said quotations are herein attached. The Binders, made of modified density fiberboard, and more or less half the size of the required Ballot Secrecy Folders, is priced at Php 320.00. 4. Adopting the same procedure20 used in the procurement of the Ballot Box, wherein the supplier SMARTMATIC International also had an application for copyright, the BAC submitted its recommendation on the basis of Section 50 of Revised Implementing Rules and Regulations of Republic Act No. 9184 which provides for the alternative mode of procurement of DIRECT CONTRACTING, to wit: Direct Contracting or Single Source Procurement is a method of procurement of goods that does not require elaborate Bidding Documents. The supplier is simply asked to submit a price quotation or a pro-forma invoice together with the conditions of sale. The offer may be accepted immediately or after some negotiations. xxx procurement of goods of proprietary nature which can be obtained only from a proprietary source, i.e. when patents, trade secrets, and copyrights prohibit others from manufacturing the same item xxx. It
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Requested by BAC Chair Alarkon for document binders on February 9, 2010 but she officially learned about application for patent of folder only on February 27, 2010.
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Act of the same BAC headed by Atty. Alarkon
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WHEREAS, on basis of the approved design and specifications by the Commission en Banc and the claim of copyright by the provider, using the foregoing provision of law, the BAC recommended the award of the said contract. WHEREFORE, in view of the foregoing, the BAC hereby submits this summary report for purposes of record. SIGNED, by the undersigned Chairman, Vice-Chairman and all its Members, this 5th April 2010, in the City of Manila, Philippines. (PANEL 57E) Paragraph 3 above of BAC RESOLUTION NO. 99-2010 refers to a "Request for Price Quotation" for "outer document holder/binder", not for a Ballot Secrecy Folder. The specifications are therefore different from those of a BSF. There are 3 such forms attached to the BAC RESOLUTION, apparently filled out and signed by Faustino F. Dan, Jr. of Best Forms on February 24, 2010, by Emily C. Bacoto of Filefix, undated, and by Mary Dawn D. Sy of Ernest Printing Corp. on March 3, 2010. All alleged requests are unsigned by Director Rey Doma or any employee of the ASD, and without any transmittal memo shown by the BAC.
On the same day, April 5, 2010, the BAC issued a 2nd defensive resolution: BAC RESOLUTION NO. 101-2010 dated April 5, 2010, declaring: "Wherefore, in view of the foregoing, the BAC, most respectfully deems that the Honorable Commission En Banc, was fully informed of the basis on the requested allocation and the BAC regularly performed its duties in accordance with the requirements provided by law." premises for this conclusion are as follows:
WHEREAS, the Commission En Banc, on 5 April 2010, promulgated Resolution No. 8814, stating among others that: 1. Upon closer review of Comelec Resolution No. 8795 dated March 15, 2010, it was discovered that the Bids and Awards Committee recommendation was a product of incomplete staff work for the reason that the total number of ballot secrecy folders recommended to be purchased (1,815,000) exceeds the total number of ballot secrecy folders that may actually be used during elections; 2. The Commission was insufficiently informed of such computation; WHEREAS, the Commission, in Minute Resolution Number 10-0066, promulgated on 19 January 2010, provided for the Adjusted Quantity Requirements of Election Forms and Supplies for the May 10, 2010 National and Local Election and approving therein the recommendations of Engineer Vergil Juan S. Soriano, Chairman,
Its
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Allocation Committee, providing among others for the quantity requirements of the Ballot Secrecy Folders, (page 2 of approved quantity requirements of the allocation of election forms and supplies), copy of which is herein attached as Annex A; WHEREAS, the Bids and Awards Committee (BAC), after submitting a request, was furnished by the ASD copy of the approved and signed purchase request of the Allocation Committee, the end-user of the aforesaid procurement, for purposes of completing the preparation of the Bid Documents, copy of said Purchase Request is herein attached as Annex B; WHEREFORE, in view of the foregoing, the BAC, most respectfully deems that the Honorable Commission en Banc, was fully informed of the basis on the requested allocation and the BAC regularly performed its duties in accordance with the requirements provided by law. SIGNED by the undersigned Chairman, and its Members, this 5 April 2010, in the City of Manila, Philippines. (PANEL 47)
Then in the En Banc meeting on April 6, 2010, it was decided that we use ordinary ballot secrecy folders for the May 10, 2010 elections. It transpired as follows: BAC CHAIR ALARKON: Kung kailangan po Your Honor ng alternative dapat meron po ulit ibibigay po sa amin na basis for buying. CHAIRMAN MELO: Ano, ano? COMM. SARMIENTO: Basis for buying. ALARKON: Basis for buying katulad po nung sa resolution po dati, na nagbigay po ng specs. So di ba sabi po ninyo na, ng en banc yesterday, we will find, we will look for alternative . . . yong parameters . . . CHAIRMAN MELO: Ordinary folder. (PANEL 48)
On the same day, Atty. Alarkon wrote a letter dated April 6, 2010 addressed to OTC Paper Supply notifying it that the Notice of Award "is hereby recalled21." It was received by Henry Young on April 7, 2010. Also on the same day, BAC Chair Alarkon issued a Memorandum dated April 6, 2010 addressed to the Commission En Banc thru Executive Director Jose Tolentino, transmitting BACs Board Resolution No. 10121
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2010 dated April 5, 2010, earlier quoted above, "providing for the BACs reply on En Banc Resolution No. 8814 for the procurement of ballot secrecy folders." (PANEL NO. 57E) The gist is that the BAC most respectfully deems that the Honorable Commission en Banc, was fully informed of the basis on the requested allocation x x x. BAC Chair Alarkon also issued a memorandum to Director James Jimenez dated April 6, 2010, transmitting to him copy of the BACs report "for purposes of record and information." (PANEL NO. 57B)
Still on the same day, the Comelec En Banc promulgated COMELEC MINUTE RESOLUTION 10-0455 dated April 6, 2010 "IN THE MATTER OF CREATING A PANEL TO INVESTIGATE THE PROCUREMENT OF THE BALLOT SECRECY FOLDER" on the basis of the recommendation of the Bids and Awards Committee (BAC Resolution No. 85-2010). (PANEL NO. 50) It designated as members Director Ferdinand T. Rafanan of the Law Department, Director Adolfo A. Ibanez of the Personnel Department, and Director Divina E. Blas-Perez of the Election and Barangay Affairs Department.
Hence, on April 9, 2010, Director Ferdinand T. Rafanan issued Panels Memorandum No. 10-156022 addressed to Director Adolfo A. Ibanez and Director Divina Blas-Perez, stating: Pursuant to En Banc Resolution No. 10-0445 In the matter of creating a panel to investigate the procurement of the Ballot Secrecy Folder, we shall convene as a Panel to discuss our procedures and tasks in the conduct of investigation in the Law Department at 10:00 am of Monday (April 12, 2010). He also issued Panel Memorandum No. 10-156123 addressed to all members of the BAC and the Head of the BAC Secretariat Atty. Jocelyn Postrado, as well as Executive Director Jose Tolentino, Jr.24, directing them to submit to the undersigned all documents pertinent to the procurement of the Ballot Secrecy Folder (BSF) leading to the issuance of Notice of Award to OTC Paper Supply. They were likewise enjoined to submit all memoranda and other documents relative thereto.
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On April 9, 2010, OTC Paper Supply, as single proprietorship of Willy Young, filed a Motion for Reconsideration25, alleging that the Commission effectively terminated an existing contract; that a valid contract exists; that on March 16, 2010, it received a Notice of Award26 for the supply and delivery of 1,815,000 pieces of ballot secrecy folder through the BAC; that it submitted a performance bond27 on March 19, 2010; and that on March 27, 2010 or ten days after receipt of the Notice of Award, the Commission by operation of law is deemed to have approved the contract. It also alleged that it has already invested a significant amount of capital in order to deliver the goods covered by the subject contract and will suffer serious financial losses if the termination thereof will not be set aside. It further alleged as follows: 7.01. Under the terms of the Notice of Award, x x x movant OTC is obliged to deliver thirty percent (30%) of the 1,815,000 ballot secrecy folder on April 7, 2010, another thirty percent (30%) on April 14, 2010 and the remaining forty percent (40%) on April 21, 2010; 7.02. On account of the proximity of the delivery dates of the goods covered by the contract, movant OTC Paper Supply, under pain of being penalized for delayed delivery under Section 68 of the Implementing Rules and Regulations, proceeded to procure the needed raw materials and to manufacture the aforesaid goods. It seeks to be compensated for the sum of money that it has used for the manufacture of ready for delivery ballot secrecy folders. Such amount of capital, financial losses, sum of money, performance bond, etc. could be the injury in RA 3019, but Henry Young, Willy Young, and OTC Paper Supply did not cooperate28 in this investigation. It filed on April 12, 2010 a Supplement to the Motion for Reconsideration29 moving that the Commission in the meantime cease and desist from purchasing ordinary folders from other supplier.
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Panel 54 Annex A to the Motion Annex B to the Motion showing Comelec receipt for the amount of P34,485,000 check Please see Panel 192 Panel 58
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III. I S S U E S
The issues found by the PANEL OF INVESTIGATORS are:
1. DID AND
THE
BAC
AND
OTHER
OFFICERS UNDER SECRECY
INVOLVED RA
IN
THE FOR
PROCUREMENT PROCESS FAITHFULLY COMPLY WITH THE RULES PROCEDURES OF MANDATED THE BALLOT 9184 PROCUREMENT FOLDER WITHOUT
PUBLIC BIDDING? SUB-ISSUE: DOES OTC PAPER SUPPLY HAVE LEGAL, FINANCIAL AND TECHNICAL ELIGIBILITY TO PROVIDE A P690 MILLION PROJECT?
2. DID HENRY YOUNG OF OTC PAPER SUPPLY, BY HIMSELF OR IN CONNIVANCE WITH THE BAC AND OTHER OFFICERS INVOLVED IN THE PROCUREMENT PROCESS, EMPLOY SCHEMES WHICH TEND TO RESTRAIN THE NATURAL RIVALRY OF THE PARTIES OR OPERATE TO STIFLE OR SUPPRESS COMPETITION AND THUS PRODUCE A RESULT DISADVANTAGEOUS TO THE PUBLIC?
3. WAS THE PRICE OF P380 PER PIECE OF THE BALLOT SECRECY FOLDER FOR A AND TOTAL MOST COST OF P689,700,000 PRICE VALID, THE APPROPRIATE, GOVERNMENT? ADVANTAGEOUS FOR
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IV. F I N D I N G S
A.
ON ISSUE NO. 1: DID THE BAC AND OTHER OFFICERS INVOLVED IN THE PROCUREMENT PROCESS FAITHFULLY COMPLY WITH THE RULES AND PROCEDURES MANDATED UNDER RA 9184 FOR PROCUREMENT OF THE BALLOT SECRECY FOLDER WITHOUT PUBLIC BIDDING?
Republic Act No. 9184, otherwise known as the Government Procurement Reform Act provides the general rule that all government procurement shall be done only through public bidding. This is the standard: SEC. 7. Procurement Planning and Budgeting Linkage. All procurement should be within the approved budget of the Procuring Entity and should be meticulously and judiciously planned by the Procuring Entity concerned. Consistent with government fiscal discipline measures, only those considered crucial to the efficient discharge of governmental functions shall be included in the Annual Procurement Plan to be specified in the IRR. No government Procurement shall be undertaken unless it is in accordance with the approved Annual Procurement Plan of the Procuring Entity. The Annual Procurement Plan shall be approved by the Head of the Procuring Entity and must be consistent with its duly approved yearly budget. The Annual Procurement Plan shall be formulated and revised only in accordance with the guidelines set forth in the IRR.
The Annual Procurement Plan (APP)30 of Comelec for 2010 covering the procurement of the ballot secrecy folder (breakdown of other supplies) shows "BALLOT SECRECY FOLDER: 960,000 PIECES, P4.80 ESTIMATED UNIT COST, TOTAL AMOUNT OF P4,608,000". Was this revised in accordance with the guidelines set forth in the IRR? Not at all. Hence, above cited section of RA 9184 and the guidelines set forth below were violated by the BAC and other officers involved in the
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procurement process. The Implementing Rules and Regulations of RA
9184 as amended, provides the guidelines as follows: RULE II PROCUREMENT PLANNING Section 7. Procurement Planning and Budgeting Linkage 7.1. All procurement should be within the approved budget of the procuring entity and should be meticulously and judiciously planned by the procuring entity concerned. No government procurement shall be undertaken unless it is in accordance with an approved Annual Procurement Plan (APP). In the case of projects funded from lump-sum appropriations, the head of the procuring entity shall immediately update the APP to include such projects or contracts. X x x The ABC for the contract shall be at all times consistent with the appropriations for the project authorized in the GAA and/or continuing appropriations, in the case of NGAs; the corporate budget approved by the governing boards, pursuant to E.O. 518, in the case of GOCCs; and the budget approved by the Sanggunian in the case of LGUs. 7.2. Each procuring entity shall judiciously prepare, maintain and update an APP for all its procurement, that shall include, for each individual project, a Project Procurement Management Plan (PPMP)31. The APP shall bear the approval of the head of the procuring entity or second-ranking official designated by the head of the procuring entity to act on his behalf, and must be consistent with its duly approved yearly budget. Consistent with government fiscal discipline measures, only those considered crucial to the efficient discharge of governmental functions shall be included in the APP. For purposes of this IRR-A, a procurement shall be considered crucial to the efficient discharge of governmental functions if it is required for the day-to-day operations or is in pursuit of the principal mandate of the procuring entity concerned. X x x 7.4. The preparation and updating of the PPMPs shall be the responsibility of the respective Project Management Offices (PMOs) or end-user units of the procuring entities, while the consolidation of these PPMPs into an APP shall be lodged with the BAC Secretariat of that procuring entity. These units may avail of the services of technical experts to review the individual PPMPs. 7.5. Updating of the individual PPMPs and the consolidated APP for each procuring entity shall be undertaken every six (6) months or as often as may be required by the head of the procuring entity. Implementation of any project not
31
7.3. The PPMP shall include: a) the type of contract to be employed; b) the extent/size of contract scopes/packages; c) the procurement methods to be adopted, and indicating if the procurement tasks are to be outsourced as provided in Section 53(e) of this IRR-A; d) the time schedule for each procurement activity; and e) the estimated budget for the general components of the contract e.g., civil works, goods and consultancy services. The APP shall include provisions for foreseeable emergencies based on historical records.X x x
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included in the procuring entitys APP shall not be allowed.
Prudence dictates that the BAC et al. should have scrutinized more judiciously the propriety of departing from the unit price of P4.80 as budgeted and provided for in the APP and ABC to embrace the astronomical unit price of P380 as presented by OTC Paper Supply.
Another standard or principle in government procurement which is basic and fundamental is competitive bidding. RA 9184 provides:
SEC. 10. Competitive Bidding. - All Procurement shall be done through Competitive Bidding, except as provided for in Article XVI of this Act.
Competitive bidding is required for all procurement. The Bids and Awards Committee did not follow this standard. XVI of RA 9184 which provides as follows: ARTICLE XVI, ALTERNATIVE METHODS OF PROCUREMENT SEC. 48. Alternative Methods. - Subject to the prior approval of the Head of the Procuring Entity or his duly authorized representative, and whenever justified by the conditions provided in this Act, the Procuring Entity may, in order to promote economy and efficiency, resort to any of the following alternative methods of Procurement: (a) Limited Source Bidding, otherwise known as Selective Bidding x x x (b) Direct Contracting32, otherwise known as Single Source Procurement a method of Procurement that
32
It dispensed with it.
But
competitive bidding can be dispensed with only in accordance with Article
How Can Direct Contracting be Justified? To justify the need to procure through the Direct Contracting method, the BAC should conduct a survey of the industry and determine the supply source. This survey should confirm the exclusivity of the source of goods and services to be procured. In all cases where Direct Contracting is contemplated, the survey must be conducted prior to the commencement of the procurement process. Moreover, the Procuring Entity must justify the necessity for an item that may only be procured through Direct Contracting, and it must be able to prove that there is no suitable substitute in the market that can be obtained at more advantageous terms.x x x
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does not require elaborate Bidding Documents because the supplier is simply asked to submit a price quotation or a pro-forma invoice together with the conditions of sale, which offer may be accepted immediately or after some negotiations; (c) Repeat Order x x x (d) Shopping x x x or (e) Negotiated Procurement33 a method of Procurement that may be resorted under the extraordinary circumstances provided for in Section 53 of this Act and other instances that shall be specified in the IRR, whereby the Procuring Entity directly negotiates a contract with a technically, legally and financially capable supplier, contractor or consultant. In all instances, the Procuring Entity shall ensure that the most advantageous price for the Government is obtained. X x x x SEC. 50. Direct Contracting. Direct Contracting may be resorted to only in any of the following conditions: (a) Procurement of Goods of proprietary nature, which can be obtained only from the proprietary source, i.e. when patents, trade secrets and copyrights prohibit others from manufacturing the same item; (b) When the Procurement of critical components from a specific manufacturer, supplier or distributor is a condition precedent to hold a contractor to guarantee its project performance, in accordance with the provisions of his contract; or, (c) Those sold by an exclusive dealer or manufacturer, which does not have sub-dealers selling at lower prices and for which no suitable substitute can be obtained at more advantageous terms to the Government.
The MANUAL OF PROCEDURES FOR THE PROCUREMENT OF GOODS AND SERVICES (VOL. 2), GPPB, JUNE 2006, discusses how Direct Contracting must be conducted:
33
SEC. 53. Negotiated Procurement. Negotiated Procurement shall be allowed only in the following instances: (a) In cases of two failed biddings, as provided in Section 35 hereof; (b) In case of imminent danger to life or property during a state of calamity, or when time is of the essence arising from natural or man-made calamities or other causes where immediate action is necessary to prevent damage to or loss of life or property, or to restore vital public services, infrastructure facilities and other public utilities; X X X IRR-A, SECTION 54. d) For item (b) of Section 53 of the Act and this IRR-A, the negotiation shall be made with a previous supplier, contractor or consultant of good standing of the procuring entity concerned, or a supplier, contractor or consultant of good standing situated within the vicinity where the calamity or emergency occurred. The award of contract shall be posted at the G-EPS website, website of the procuring entity, if any, and in conspicuous place within the premises of the procuring entity.
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The following steps are undertaken in conducting Direct Contracting: 1. The method of procurement to be used shall be as indicated in the approved APP. If the original mode of procurement recommended in the APP was Public Bidding but cannot be ultimately pursued, the BAC, through a resolution shall justify and recommend the change in the mode of procurement to be approved by the Head of Procuring Entity. 2. For information purposes, the BAC through the BAC Secretariat shall post the notice of direct contracting in the following: a) The PhilGEPS; b) The website of the Procuring Entity and its electronic procurement service provider, if any, and c) Any conspicuous place in the premises of the Procuring Entity. 3. The BAC, through the TWG and the BAC Secretariat, prepares the Request for Quotation, technical specifications, and draft contract in accordance with the procedures laid down in this Manual, in the IRR-A and in the PBDS. 4. The BAC, through the Secretariat, identifies the supplier from whom the goods will be procured. 5. If the pre-procurement conference is required or deemed necessary, as previously discussed in this Manual, the BAC holds such conference. If a pre-procurement conference is held, the participants should confirm the existence of conditions required by law for procurement through Direct Contracting. 6. The BAC, through Secretariat, posts for information purposes the Request for Quotation for a period of seven (7) calendar days prior to sending the request for quotation, in: a) The PhilGEPS; b) The website of the Procuring Entity and its electronic procurement service provider, if any, and c) Any conspicuous place in the premises of the Procuring Entity. 7. The BAC sends the Request for Quotation to the selected supplier. If necessary, negotiations are conducted to ensure that the Government is able to procure the goods at the most advantageous terms. 8. The BAC proceeds with contract signing and approval.
RA 9184 expressly provides that there must be prior approval of the Commission En Banc to resort to alternative methods. The purpose of resorting to alternative methods of procurement is in order to promote economy and efficiency. In all instances of alternative methods, the Procuring Entity shall ensure that the most advantageous price for the Government is obtained. In DIRECT CONTRACTING, which the BAC Page 23 of 97

adopted, the supplier is supposed to be asked to submit a price quotation or a pro-forma invoice. The BAC claims34 that the Ballot Secrecy Folder (BSF) that we must use in the May 10, 2010 elections was goods of proprietary nature, which can be obtained only from the proprietary source, which is the OTC Paper Supply, because its patents, trade secrets and copyrights prohibit others from manufacturing the same item.
Was there compliance with the legal requirements to resort to the alternative method of procurement which we call direct contracting? The legal requirements are:
1. prior approval of the Commission En Banc to resort to alternative methods; 2. to promote economy and efficiency; 3. the most advantageous price for the Government is obtained; 4. the supplier is supposed to be asked to submit a price quotation or a pro-forma invoice; 5. the Ballot Secrecy Folders (BSF) are goods of proprietary nature, which can be obtained only from the proprietary source, which is the OTC Paper Supply; 6. The supplier had patents, trade secrets and copyrights (which) prohibit others from manufacturing the same item; and 7. Survey of the industry to determine the exclusivity of the source.
None of these requirements were complied with by the BAC. First, instead of obtaining from the Commission En Banc a prior approval to resort to
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Direct Contracting (without public bidding), Executive Director Jose Tolentino, Jr. made the Commission to believe that there would be public bidding, as follows: EXEC. DIR. TOLENTINO: Yes sir ang sa akin if we agree to this design we can say ok, agreed iyung design and then we will let the BAC take appropriate action for the procurement x x x CHAIRMAN MELO: hindi na? Ano, ano, mag papa-bid tayo niyan, o
EXEC DIR TOLENTINO: YES x x x sir ito sir, ah, we'll just direct the BAC to proceed with the procurement process and then bahala na ang BAC kung ano ang gagawin nila x x x Approve the design and then let the BAC proceed with the procurement. (PARTIAL TRANSCRIPT OF STENOGRAPHIC NOTES OF THE REGULAR EN BANC MEETING HELD ON FEBRUARY 17, 2010 AM, PANEL 20)
Moreover, the first BAC document submitted to the En Banc relative to BSF procurement appears to be the one submitted on March 5, 201035 which is BAC Resolution No. 85-2010 recommending the award of the contract to OTC Paper Supply. (PANEL NO. 23) Therein, the BAC was justifying this procurement through direct contracting without asking for, or referring at all to, a prior authorization from the Head of the Procuring Entity.
Second, economy and efficiency were not promoted. Third, the evidence does not show that the most advantageous price for the Government is obtained. It shows the contrary instead. Everybody except Executive Director Tolentino, the BAC, and the OTC Paper Supply is amazed that a material whose sole purpose is to cover ones vote while voting should cost P380 and that the total cost to the country would be P689,700,000.00! Another evidence that it is not the most advantageous price to the government is the suppliers belated offer of a big discount when it attempted through Executive Director Tolentino to save the contract on April 5, 2010, as follows:
35
Please note that as of March 5, 2010, there was no patent right yet to speak of
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EXEC DIR. TOLENTINO: Ang sunod naman Sir is iyong the conclusion that the price of P380 is exorbitant. Just like the statement of Dr. Serrano and Ferdie, there was no statement or study made to show that this is indeed exorbitant. It's just a subjective . . . CHAIRMAN MELO: Ako akala ko P3.80. x x x EXEC. DIR. TOLENTINO: Sir, at 10:20 Sir, Dir. Alarkon submitted to my office a transmittal of the offer of OTC Paper na nanalo dyan Sir, because if we recall last En Banc meeting, di ba sinabi mahal ang presyo so you asked for price reduction. CHAIRMAN MELO: Oh, that was last Wednesday. EXEC. DIR. TOLENTINO: That was before the Holy Week. So may memo dito si Leah dated today transmitting the offer of OTC dated today also. Ang sinasabi nila that binigyan sila ng discount of P137.74 per piece. CHAIRMAN MELO: 137. EXEC. DIR. TOLENTINO: .74 per piece. Which translates to a total discount of 250 million. (PARTIAL TRANSCRIPT OF STENOGRAPHIC NOTES OF THE SPECIAL EN BANC MEETING HELD ON APRIL 5, 2010, PANEL 45).
Who is the businessman in his right mind who would readily let go P250 million in the form of a discount, given in a cavalier manner, if his original offer was not atrociously overpriced?
As early as March 30, 2010 when this matter was first brought up to the Commission En Banc, Commissioner Armand Velasco already expressed astonishment at the inordinate price: E.D. TOLENTINO: "And I don't think he is questioning the procedure, it's just the price. COMM. VELASCO: 700! Almost 10% of the total amount of automation. Automation is 7B and this one is 700. Most cumbersome. X X X TOLENTINO: "Negotiate for a lower price but not to cancel it kasi nag notice of award most probably nag order na iyan, and the only reason hindi nakaka-deliver is because of the requirement that the Purchase Order must first be issued before delivery." (PARTIAL TRANSCRIPT OF STENOGRAPHIC NOTES OF REGULAR EN BANC HEARING ON THE BSF DATED MARCH 30, 2010, PANEL 38). Page 26 of 97
Fourth, no document shows that the supplier OTC Paper Supply was asked to submit a price quotation or a pro-forma invoice by Executive Director Tolentino or the BAC. On the contrary, it was OTC Paper Supply which unilaterally (unless it was asked behind the scenes to submit) submitted its price quotation in a letter dated February 27, 2010 addressed to BAC Chair Alarkon as follows: We would like to respectfully submit for your consideration our proposal for 1,815,000 pcs Plastic Ballot Secrecy Folders at Php380.00/pc with the following specifications: X X X (PANEL 22) The offer was accepted immediately not after some negotiations.
Fifth and sixth, the Ballot Secrecy Folders (BSF) are NOT goods of proprietary nature, which can be obtained only from the proprietary source, which is the OTC Paper Supply. It had no Director
copyright; it had no patent. It had no right whatsoever on March 5, 2010 which the BAC should recognize, much less protect. Certification36 dated June 8, 2010 stating: 4. Also, it must be noted that this UM application is deemed registered as of March 15, 2010 as much as no opposition or adverse information was received by our Office within the period of two (2) months from its date of publication on March 15, 2010 . . . The grand deception in this procurement culminated when the BAC issued its BAC RESOLUTION NO. 85-2010 dated March 5, 2010 recommending37 to the Comelec En Banc the award of the BSF contract to OTC Paper Supply, invoking emergency and proprietary nature as well as "the accompanying eligibility documents", as follows: WHEREAS, on 17 February 2010, the Honorable Commission en Banc issued Comelec Minute Resolution No. 10-0251 approving the design presented by Executive Director Jose M. Tolentino x x x on 27 February 2010, OTC PAPER SUPPLY submitted to the BAC its proposal x x x whose technical
36
Epifanio M. Evasco of the Bureau of Patents submitted to the Panel a
Panel 177 Panel 23
37
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specifications are very much in UNISON with the design approved x x x immediate action is necessary to restore vital public services, x x x direct contracting is applicable in case of procurement involving goods of proprietary nature which can be obtained only from a proprietary source, x x x after a careful evaluation of the proposal and the accompanying eligibility documents, as well as its application for copyright, the BAC finds that only OTC PAPER SUPPLY can supply and deliver the necessary ballot secrecy folder x x x by virtue of its claim of copyright over the design x x x WHEREFORE, x x x the BAC hereby recommends to the Honorable Commission En Banc to award the contract for the Supply and Delivery of the 1,815,000 pieces of Ballot Secrecy Folders x x x at the rate of P380.00 per piece to OTC PAPER SUPPLY; (Emphasis supplied).
Are you wondering how come OTC Paper Supply submitted a proposal whose technical specifications are very much in unison with the design presented by Exec. Dir. Tolentino and approved by the Commission En Banc? Are you wondering how come exactly the same specifications approved by the En Banc on February 11, 2010 are the specifications also which OTC Paper Supply applied for registration in the Bureau of Patents on February 10, 2010? One mastermind was orchestrating the design and specifications for approval by the Commission En Banc on February 11, 2010 and for application for registration of the same design and specifications in the Bureau of Patents on February 10, 2010. exactness (very much in unison) cannot be by coincidence. The
Seventh, there was no survey of the industry conducted by the BAC to justify direct contracting with the OTC Paper Supply. This survey should confirm the exclusivity of the source of the BSF to be procured and it must be able to prove that there is no suitable substitute in the market that can be obtained at more advantageous terms. The absence of the survey of industry to justify procurement through direct contracting is evident from the wordings of BAC Resolution No. 85-2010 recommending the award of the contract to OTC Paper Supply:
38
38
WHEREAS, after a careful evaluation of the proposal and the accompanying eligibility documents as well as its application for copyright, the BAC finds that only OTC Paper Supply can supply and deliver the necessary ballot secrecy folder for the May 10, 2010 National and Local Elections by virtue of its claim of copyright over the design of the ballot secrecy folder.
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The BAC based its decision to award the contract to OTC Paper Supply only upon three things: 1) its proposal; 2) its eligibility documents; and 3) its application for copyright. There was no mention that the BAC conducted a survey of the industry to determine the supply source of goods and the exclusivity of the source of goods to be procured. The BAC also failed to prove that there was no suitable substitute at more advantageous terms for the government.
SUB-ISSUE: DOES OTC PAPER SUPPLY HAVE LEGAL, FINANCIAL AND TECHNICAL ELIGIBILITY TO PROVIDE A P690 MILLION PROJECT?
It has none.
The PANEL'S MEMORANDUM NO. 10-1600 dated April 13,
2010 addressed to BAC CHAIR ALARKON requested for "DOCUMENTS SUBMITTED BY OTC PAPER SUPPLY IN ITS BID FOR THE INDELIBLE INK OR LATEST BID, SHOWING ITS LEGAL ELIGIBILITY, FINANCIAL ELIGIBILITY AND TECHNICAL ELIGIBILITY. We need this to determine its competitive capacity to provide P690,000,000 worth of supplies, among others". (PANEL NO. 67)
This was immediately followed by PANEL'S MEMORANDUM NO. 10-1600 (same number) dated April 14, 2010 addressed to BAC CHAIR ALARKON requesting for ELIGIBILITY "DOCUMENTS SUBMITTED BY OTC PAPER SUPPLY IN ITS BID FOR UV LAMPS, STAMP PADS, AND/OR OTHER BIDS, SHOWING ITS LEGAL ELIGIBILITY, FINANCIAL ELIGIBILITY AND TECHNICAL ELIGIBILITY". (PANEL NO. 67)
BAC Chair Alarkon replied and stated in her Memorandum dated April 14, 2010: "Anent your Memorandum dated April 13, 2010 requiring the BAC to submit the eligibility documents of OTC Paper Supply in its bid for the indelible ink or latest bid, please be informed that OTC Paper Supply has not participated in the aforesaid procurement." (PANEL NO. 69) Page 29 of 97
Again, the PANEL'S MEMORANDUM NO. 10-2222 (2122) dated April 26, 2010 (PANEL NO. 94) addressed to BAC Chair Alarkon and BAC Secretariat Head Postrado reiterated 3 previous memoranda (dated April 9, 13, 14, 2010) requesting for submission of the eligibility documents of OTC PAPER SUPPLY.
The PANELS MEMORANDUM No. 10-2214 dated April 29, 2010 (PANEL NO. 108) declared: Further, in your BAC Resolution No.85-201039 dated March 5, 2010, promulgated on March 15, 2010, it was clearly stated therein that: WHEREAS, after a careful evaluation of the proposal and the accompanying eligibility documents as well as its application for copyright, the BAC finds that only OTC Paper Supply can supply and deliver the necessary ballot secrecy folder for the May 10, 2010 National and Local Elections by virtue of its claim of copyright over the design of the ballot secrecy folder; No OTC PAPER SUPPLY eligibility documents can be found on the records transmitted to the PANEL OF INVESTIGATORS. This is the reason why in a series of Memoranda sent to you for compliance, the latest of which was Memorandum No.10-2222 dated April 26, 2010 copy attached, the PANEL kept on requesting for the said eligibility documents pertaining to the Ballot Secrecy Folder or if none, even for other biddings participated in by OTC PAPER SUPPLY. For the fifth time, the PANEL requests for the submission of the eligibility documents of OTC PAPER SUPPLY and explanation for your failure to submit said documents, not later than 12 noon of April 30, 2010. We note your stubborn blocking of the process of investigation.
On April 30, 2010, BAC Chair Ma. Leah Alarkon wrote a memorandum (PANEL NO. 121) stating: 2. As to the requirement of submitting the eligibility documents of OTC for subject procurement, PLEASE KNOW THAT THE ELIGIBILITY DOCUMENTS MENTIONED IN THE RESOLUTION PERTAIN TO the letter-proposal of the provider in subject procurement, the certification from the intellectual property office, and the specifications on the design of the offered Ballot Secrecy Folder, which were among those already transmitted to your good office. Aside from these, no other eligibility
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documents were submitted considering that the BAC applied the procedure provided under Section 50, of the Revised Implementing Rules and Regulations of Republic Act 9184 (RlRR, R.A. 9184), which states, to wit: Section 50. Direct Contracting or single source procurement is a method of procurement of goods that does not require ELABORATE Bidding Documents. The supplier is simply asked to submit a price quotation or a pro-forma invoice together with the conditions of sale. The offer may be accepted immediately or after some negotiations. (Emphasis supplied)
Fundamentally, as a lawyer, BAC Chair Alarkon, and the entire BAC should know that ELIGIBILITY under RA 9184 has a technical meaning/signification. It does not refer to the letter-proposal of the
provider, the certification from the Intellectual Property Office of a pending application, and the specifications on the design of the BSF.
HENCE, IT IS CLEAR THAT THE BAC AND ITS SECRETARIAT LIED TO THE COMMISSION EN BANC THROUGH BAC RESOLUTION No. 85-201040 DATED MARCH 5, 2010, AND REFUSED TO SUBMIT ANY LEGAL, FINANCIAL AND TECHNICAL ELIGIBILITY DOCUMENTS OF OTC PAPER SUPPLY, EITHER IN THE DIRECT CONTRACTING BSF PROCUREMENT OR IN THE OTHER PROCUREMENTS. IT IS ALSO CLEAR THAT OTC PAPER SUPPLY DID NOT SUBMIT ANY ELIGIBILITY DOCUMENTS FOR THE BSF.
In view thereof, the Panel, in its Memorandum No. 10-2217 dated April 30, 2010 wrote to the En Banc: Premises considered, the undersigned recommend the temporary relief of Dir. Ma. Leah Alarkon as Chairman of the BAC so as to enable us unhampered access to documents pending investigation and so that she may not use said position to hinder a thorough investigation. We also recommend the designation of Dir. Esmeralda Amora Ladra as Acting BAC Chairman. (PANEL NO. 123)
The Panel has not been informed of any action taken on said recommendation.
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OTCs legal and financial eligibility is important to show that it was eligible to provide a P690 million project and could compete with other bidders if a public bidding were held. On the other hand, if it did not have that eligibility then this is another circumstance to show connivance to enable it, bereft of the requisite eligibility, to get the direct contract without any competition or rivalry, since direct contracting does not require ELABORATE Bidding Documents. It is also another evidence of giving unwarranted preference. Rule 131, Section 3 of the Rules of Court provides the disputable presumption (e) That evidence willfully suppressed would be adverse if produced. True enough, according to Henry Young in his media interviews OTC had already incurred a P500 million peso bank loan to manufacture its expensive ballot secrecy folders. Clearly, it does not possess the financial eligibility to The suppression of carry out a P690 million peso project.
evidence to this effect is in consonance with the intent of connivance and it is one of the many spokes of circumstantial evidence proving it.
Non-submission of the required eligibility documents and/or not being eligible is a violation of Section 23 of RA 9184 which provides: SEC. 23. Eligibility Requirements for the Procurement of Goods and Infrastructure Projects. - The BAC or, under special circumstances specified in the IRR, its duly designated organic office shall determine the eligibility of prospective bidders for the procurement of Goods and Infrastructure Projects, based on the bidders compliance with the eligibility requirements within the period set forth in the Invitation to Bid. The eligibility requirements shall provide for fair and equal access to all prospective bidders. The documents submitted in satisfaction of the eligibility requirements shall be made under oath by the prospective bidder or by his duly authorized representative certifying to the correctness of the statements made and the completeness and authenticity of the documents submitted. A prospective bidder may be allowed to submit his eligibility requirements electronically. However, said bidder shall later on certify under oath as to correctness of the statements made and the completeness and authenticity of the documents submitted.
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The Panel gave OTC Paper Supply the opportunity to present its side. It issued PANEL'S LETTER TO HENRY YOUNG (MEMO NO.1873) dated April 17, 2010 requesting him to submit: 1. AUDITED FINANCIAL STATEMENT FOR THE YEAR 2008-2009; 2. DTI BUSINESS NAME REGISTRATION; 3. VALID AND CURRENT MAYORS PERMIT; 4. BIR REGISTRATION CERTIFICATION, WHICH CONTAINS THE TAXPAYERS IDENTIFICATION NUMBER; 6. TAX CLEARANCE CERTIFICATE ISSUED BY THE BIR MAIN OFFICE AND INCOME OR BUSINESS TAX RETURNS FILED THROUGH THE EFPS; 7. BANK LOAN CERTIFICATE OR ANY PROOF TO THE AMOUNT OF FIVE HUNDRED MILLION (500,000,000) PESOS MORE OR LESS YOU ALREADY INCURRED TO CARRY OUT THE BALLOT SECRECY FOLDER TRANSACTION AS YOU CLAIMED BEFORE THE MEDIA; 8. REASON FOR SUBMISSION ON MARCH 30, 2010 LETTER ADDRESSED TO CHAIRMAN JOSE AR MELO, SUBMITTING THE COMPARATIVE COST ANALYSIS OF YOUR PRODUCT, BALLOT SECRECY FOLDER; AND 9. CONFIRMATION ON WHETHER OR NOT YOU SUBMITTED ANY LEGAL DOCUMENTS AND FINANCIAL STATEMENTS TO THE BIDS AND AWARDS COMMITTEE (BAC) RELATIVE TO THE BALLOT SECRECY FOLDER TRANSACTION. (PANEL NO. 84)
Neither OTC Paper Supply nor Henry Young nor Willy Young responded. On June 16, 2010, we wrote another letter to Henry Young as follows: We are the Panel of Investigators designated by the Commission on Elections through En Banc Resolution No. 100455 dated April 6, 2010 to investigate the matter on the Ballot Secrecy Folders. We would like to know the exact number/quantity of the ballot of secrecy folders ready for delivery at the time of the cancellation of the Notice of Award on April 5, 2010. Kindly submit to us one (1) sample of the said ballot secrecy folders. In the interest of justice and fair play, we reiterate our request in our letter dated April 17, 2010. (PANEL NO. 188)
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OTC Paper Supply did not cooperate. The Affidavit of Service41 signed by the messenger of the Panel of Investigators, Mr. Rodolfo Espinosa shows that OTC Paper Supplys office refused to receive our letter.
Hence, it is clear that THE BAC AND OTHER OFFICERS INVOLVED IN THE PROCUREMENT PROCESS DID NOT FAITHFULLY COMPLY WITH THE RULES AND PROCEDURES MANDATED UNDER RA 9184 FOR PROCUREMENT OF THE BALLOT SECRECY FOLDER WITHOUT PUBLIC BIDDING. There was neither factual nor legal basis at all for
direct contracting. This fact violates so many provisions of RA 9184. But is there any penal provision for such violations? Yes, definitely! They all constitute the spokes of a wheel or a centripetal web whose vortex is CONNIVANCE defined in Section 65(b.4) of RA 9184 as an offense, as follows: RA 9184, SEC. 65. Offenses and Penalties. X X X (b) Private individuals who commit any of the following acts, including any public officer, who conspires with them, shall suffer the penalty of imprisonment of not less than six (6) years and one (1) day but not more than fifteen (15) years: X X X (4) When a bidder, by himself or in connivance with others, employ schemes which tend to restrain the natural rivalry of the parties or operates to stifle or suppress competition and thus produce a result disadvantageous to the public.
41
1. On June 16,2010 at around 5:30pm, I arrived at 451M. dela Cruz St., Sta. Quiteria, Caloocan City with the intent to personally serve a letter of the Panel of Investigators dated June 16,2010 address to Mr. Henry Young. However, I was told by the guard on duty that he cannot receive the letter because it is already beyond office hours and that he was not authorized to receive it. So, I decided to go back to the office and report what transpired to Director Ferdinand T. Rafanan, the Head of the Panel of Investigators. 2. On June 77,2070 at around 10:30am, I arrived again at 451 M. delaCruz St., Sta. Quiteria, Caloocan City with the same intent to personally serve and by delivering personally the same letter of the Panel of Investigators to Mr. Henry Young. I was allowed by the guard on duty, in the name of Vicente, MR, to proceed to the office to personally serve said letter to Mr. Henry Young. Outside the office where I was instructed by the guard, a lady Secretary told me that Mr. Henry Young is not around. 3. Considering that the letter is urgent in nature, I ask the Secretary, in the name of Marlin, to receive the letter but she refuses to receive and acknowledge receipt thereof. So, I served said letter by tendering it to her with the instruction to give it to Mr. Henry Young immediately. Said secretary receive the same letter but refuses to acknowledge any receipt thereof. With me, at that time, is the Mr. Antonio J. Alingod, driver of the deputized vehicle of the Comelec, who can also attest the matter. (PANEL NO. 192)
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This is treated further in the 2nd issue below.
B.
ON ISSUE NO. 2: DID HENRY YOUNG OF OTC PAPER SUPPLY, BY HIMSELF OR IN CONNIVANCE WITH THE BAC AND OTHER OFFICERS INVOLVED IN THE PROCUREMENT PROCESS, EMPLOY SCHEMES WHICH TEND TO RESTRAIN THE NATURAL RIVALRY OF THE PARTIES OR OPERATE TO STIFLE OR SUPPRESS THE PUBLIC? COMPETITION AND THUS PRODUCE A RESULT DISADVANTAGEOUS TO
The e-mail of Atty. Melchor Magdamo, then part of the staff of Chairman Jose Melo, dated March 15, 2010 and addressed to Dr. Arwin Serrano, made the following serious allegations, raising the issue of overprice as a result of tailor-fitting the design: x x x The Commission on Elections (COMELEC) is also a favorite hunting ground of large scale corruption. Its Executive Director Jose Marundan Tolentino, does not seem to care about redeeming his name or at least deodorizing the stench of his stinking reputation. Recently, he orchestrated another scam by persuading the Comelec en Banc to approve a tailor-fitted design for ballot secrecy folder. On 17 February 2010, the En Banc promulgated Resolution 10-0251, therein approving Tolentinos design and directing the Bids and Awards Committee (BAC) to take appropriate action without mentioning the price. Somehow, after the papers went along its route from the En Banc then thru the BAC then to I do not know exactly where the papers went, some time in the second week of March 2010, a certain Emily G. Cam Bacoto came with documents showing Tolentinos secrecy folder is the sole participant in a lightning speed bidless bidding at a Goliath price of 380 pesos per folder for an astronomical budget of 689 million pesos! That Page 35 of 97

can qualify in the Guinness World Records as the most expensive folder in human history! The budget for all ballot boxes for the entire Philippines is approximately only 200 million pesos. Why is the budget for secrecy folder three times larger? The budget for packing the ballots is approximately 175 million pesos. Why is the budget for ballot secrecy folder almost four times larger? During the past elections, the secrecy folder looks like any ordinary folder available in any ordinary bookstore. The market price ranges from one peso to ten pesos. Let us assume the worst at 10 pesos. Increase the length to three times the original size to accommodate a 30 inch long ballot. This means that the folder must now cost approximately 30 pesos per piece. The price is still forgiveable even if we jack up to 50 pesos or even 100 pesos. But at a behemothically monstrous 380 pesos per piece, that is ransom! X x x (PANEL 28)
Dr. Arwin Serrano, in his letter to Director Ferdinand T. Rafanan on March 22, 2010, also raised the issue on specifications, among others: I would like to express my objection and would like to request for an evaluation and re-examination so that we could have a Ballot Secrecy Folder that was bidded properly and the ceiling price would be at a more acceptable amount. I would like to comment also on the material and some specifications that we could do with hard carton and it could be non-expandable. Oh yes! Why make the folders spine expandable, with resulting higher price?
The BAC et al. learned that their specifications and design were the subject of an application for patent (actually for registration as a utility model, not patent) a day earlier by a prospective bidder OTC Paper Supply. They learned that the cost of such to-be-patented folder would be P380. Did they then try to modify the specifications and design to take them out of the coverage of the patent in order to enable the public to participate in the bidding? Or did it not occur to them to object to the patent application of what they had conceived of and approved, the same being their brainchild? Or, on the contrary, when they realized that it was the brainchild of a prospective bidder after all, did they not fear that they were plagiarizing or infringing on a copyright or patent? Or that when Exec. Dir. Tolentino was presenting OTCs specifications and Page 36 of 97

design for approval, did it not occur to him and the others that tailorfitting to the one and only product while concealing its name is just as irregular and illegal as making Reference to Brand Names which is prohibited under Section 18 of RA 9184?
Would a measurement of 25 long and 8 wide, non-plastic material be unfit to be a Ballot Secrecy Folder? Did it have to be exactly what OTC patented so that it can be fit to cover ones ballot? Did we have to choose a patented Ballot Secrecy Folder? Should we not rather avoid a patented Ballot Secrecy Folder in order to comply with the legal requirement of bidding open to the public? Is there a deliberate use of patents to evade public bidding? OTC Paper Supply revealed in its Motion for Reconsideration42 dated April 8, 2010: 7.03. Significantly, the ballot secrecy folder covered by the subject contract was specifically designed for the purpose of the election and has therefore no alternative market. Unwittingly, OTC admitted that no one else would be interested in its BSF. So why patent it?
Is the specifications patentable? Who would imitate the specifications? If they imitate it, what usefulness would they steal? What benefit would they derive from OTCs soon-to-be patented specifications that they could not get from their own? Did the specifications have to come from OTC in order for the Specifications Committee and the BAC to know what the Commission needs as the appropriate Ballot Secrecy Folder? with it? patented Did the specifications require any specialized skill or inventiveness to come up What usefulness would Comelec derive from OTCs soon-to-be specifications that Comelec could not derive from the
specifications formulated by its own talented Directors in the Committee on Specifications? What were they being paid for if they could not even write down the simple dimensions and common material of a folder whose only purpose is to cover ones vote while voting?
42
Panel 54
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Is it not prejudicial to the interest of public service for the BAC et al. to adopt the specifications and design of one prospective bidder? And when the adoption favors said bidder exclusively so that no others could bid, is that not called tailor-fitting, reference to brand name, and connivance?
Even Chairman Jose Melo appears to have been deceived concerning the origin of the specifications and design. The partial transcript of stenographic notes of the regular en banc hearing on March 31, 2010 reveals that he thought the specifications and design came from the Committee on Specifications, not from a friend. Thus:
CHAIRMAN MELO: Sino ang nag ano ng design na iyan? ALARKON: Meron po tayong Committee na nag e-specs ng kung ano ang bagay sa needs natin. CHAIRMAN MELO: Oh, ayon ang anohin mo, that the design did not come from us. It came from ano nga lang. ALARKON: Meron tayong . . . CHAIRMAN MELO: Kanya we had to approve it. There must be proper staff work, hindi tayo tayo lang nagsasabi ng ganyan. ALARKON: And the process order way back January 19 pa po. CHAIRMAN MELO: Kaya i-emphasize mo sa report mo hindi tayo oy ito kaibigan ko ito itong design niya. No, it was done by staff work, nagcanvass sila what's the best ano nga lang, what's the best design di ba? COMM FERRER: May specs that . . . and a comparison of prices x x x CHAIRMAN MELO: Pero dapat ipakita natin dito that we were all the time, these were all staff work di tayo ang naglagay niyan. There was a team which looked at the design, and they said, and they had it approved by us, etc, etc. (PARTIAL TRANSCRIPT OF STENOCRAPHIC NOTES OF REGULAR EN BANC HEARING ON THE BSF DATED MARCH 31, 2010, (PANEL 42)).
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The letter43 dated February 5, 2010 from Willy Young, proprietor of OTC Paper Supply, addressed to the Chairman himself, offering its BSF with metal clip might have skipped Chairman Melos preoccupied mind. The said letter was personally indorsed by him for comment of Director Ladra on the same date.
Commissioner Larrazabal also realized that the specifications and design of the BSF did not suit Comelecs needs. Thus: COMM. LARRAZABAL: Chair, the specifications are over and beyond, are over and above that required . . . CHAIRMAN MELO: Required needs, and that the specifications and the kind of secrecy folders are beyond the ordinary needs. COMM. SARMIENTO: Di natin naperceive to be exorbitant. Wala na ito. (Partial transcript of stenographic notes of the special en banc meeting held on April 5, 2010, PANEL 45)
SUCH
DESIGN THE
WAS
REALLY
DESIGNED TEND
BY TO
SOMEONE RESTRAIN A
FOR THE
SOMETHING. THE MAKING OF THE DESIGN AND SPECIFICATIONS STARTED SUPPRESS SCHEMES WHICH AND NATURAL RIVALRY OF THE PARTIES OR OPERATE TO STIFLE OR COMPETITION THUS PRODUCE RESULT DISADVANTAGEOUS TO THE PUBLIC44. IT WAS ALSO AN ACT OF GIVING ANY PRIVATE PARTY ANY UNWARRANTED BENEFITS, ADVANTAGE OR PREFERENCE IN THE DISCHARGE OF OFFICIAL ADMINISTRATIVE FUNCTIONS THROUGH MANIFEST PARTIALITY, EVIDENT BAD FAITH OR GROSS INEXCUSABLE NEGLIGENCE45. There are many more pieces of circumstantial evidence that prove such connivance and unwarranted preference:
43
Panel 16A RA 9184, Sec. 65.B.4 RA 3019, Sec. 3(e)
44
45
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1. On November 10, 2009, BAC Chair Alarkon, through Executive Director Tolentino proposed the creation of the Committee on Specifications. Thus, the Commission En Banc promulgated COMELEC RESOLUTION NO. 09-0850 dated November 26, 2009 "IN THE MATTER OF BAC RESOLUTION NO. 50-2009 RECOMMENDING THE CREATION OF A COMMITTEE ON SPECIFICATIONS46." The COMMITTEE ON SPECIFICATIONS consists of: EXECUTIVE DIRECTOR, DEPUTY EXECUTIVE DIRECTOR FOR ADMINISTRATION, EBAD DIRECTOR IV, PERSONNEL DEPARTMENT DIRECTOR IV, INTERNAL AUDIT OFFICER-IN-CHARGE, and the HEAD or representative of the DEPARTMENT/OFFICE/COMMITTEE requesting the items to be purchased.
2. The letter of Henry Young of OTC Paper Supply dated February 5, 2010 addressed as follows: "We would like to offer for your consideration our Ballot Secrecy Folder. This folder is comprised of a top layer made of .65mm flexible plastic sheet and a bottom layer made of 3.0mm hard plastic board, with a width of 9.5 inches and length of 28 inches, held together by an expandable spine made of 0.2mm thick PVC plastic film, with a metal clip on top." (PANEL 15) The Panel of Investigators requested Executive Director Tolentino, the BAC, and the Committee on Specifications through MEMORANDUM NO. 10-2121 dated April 26, 2010 (PANEL NO. 93) to submit their individual comments on the attached copy of the affidavit of ATTY. MELCHOR MAGDAMO, on whether or not: 1. the specifications of the BSF prior to its approval by the en banc was studied and deliberated upon by the Committee on Specifications; 2. the BAC conducted an industry survey before proceeding with the procurement process; and 3. the BSF of OTC was already covered by intellectual property right when the to Chairman Jose Melo through the Committee on Specifications was not discussed by the Committee. It reads in part
46
"The Memorandum of Executive Director Tolentino reads: Attached herewith is the Memorandum dated November 10, 2009 from Atty. Maria Lea R. Alarkon, Chairman, Bids and Awards Committee (BAC), with reference to BAC Resolution No. 50-2009 proposing the creation of a Committee on Specifications to expedite and simplify the procurement of election supplies and election/canvassing forms for the May 10, 2010 Automated National and Local Elections; to determine the quantity, technical specifications (not content and design) of all election forms, supplies and paraphernalia, giving special priority to election paraphernalia that require importation and/or manufacturing process." (PANEL 11)
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procurement process was initiated. Only member Agnes Carreon
complied. In her Memorandum dated April 28, 2010 she stated:
"As to whether the specifications of the BSF had been studied and deliberated upon by the Committee on Specifications, undersigned is hereby categorically stating that, as far as her memory serves her, said specifications had not been studied nor deliberated upon by said Committee." (PANEL 97)
3. It appears that prior to the official release of the specifications, Executive Director Tolentino had clandestine communications with Henry Young of OTC Paper Supply - a person having direct interest in the project to be procured - giving him advanced and exclusive information. This is clear from the following incident. On February 5, 2010, Chairman Jose Melo asked Director Esmeralda Amora-Ladra to submit her comments on the aforesaid letter of Henry Young. On the same day, she gave her comments as follows: ". . . Undersigned respectfully submits that the materials used will not make the voting comfortable to the voter, especially to the sick, the weak and/or elderly. The plastic both at the bottom and top layers, as well as the metal clip, are very hard that the voter has to exert some efforts to carry it, put the ballot inside it and to strongly hold the top of the folder while shading." (PANEL 17)
Thus, in the En Banc meeting on February 11, 2010, the following was revealed: CHAIRMAN MELO: Eh tanggalin ang clip x x x EXEC. DIR. TOLENTINO: Pinacomment si Emerald, based on the comment inayos NIYA kasi dati ganoon siya oh. X x x Ibinigay lang NIYA yung design kung ok ang design. ATTY. DELA CRUZ: Baka nilagyan ng clip para hindi mahulog. EXEC DIR. TOLENTINO: Actually pangit ang may clip pa. GEN GURREA: Masabit o mapunit pa. Page 41 of 97

EXEC DIR TOLENTINO: Yes sir, iyung papel natin is . . . COMM VELASCO: Security mark pag nandito pa baka ma damage. (Emphasis supplied). (PANEL 18)
True enough, on February 10, 2010, or one (1) day earlier, OTC filed two (2) APPLICATIONS FOR REGISTRATION of utility model at the Intellectual Property Office, Bureau of Patents: one (1) WITH METAL CLIP (UM 2-2010-000049), and the other WITHOUT METAL CLIP (UM 2-2010000050).
R. A. 9184 (Government Procurement Reform Act) provides: SEC. 19. Access to Information. - In all stages of the preparation of the Bidding Documents, the Procuring Entity shall ensure equal access to information. Prior to their official release, no aspect of the Bidding Documents shall be divulged or released to any prospective bidder or person having direct or indirect interest in the project to be procured.
Aside from violating this express provision of RA 9184, the acts of Exec. Dir. Tolentino also violate RA 3019 as follows: RA 3019, Sec. 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: x x x (k) Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date. That valuable information of a confidential character partly enabled OTC Paper Supply to claim later, with the assistance of the BAC et al., that the design and specifications (without metal clip) was covered by his application for patent (actually, application for registration of a utility model).
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4. The official records show who presented OTC Paper Supplys design and specifications to the Commission En Banc for its approval. COMELEC MINUTE RESOLUTION 10-0251 dated February 17, 2010 "IN THE MATTER OF THE PROCUREMENT WITH THE OF THE 10, BALLOT 2010 SECRECY NATIONAL FOLDERS AND IN CONNECTION MAY LOCAL
ELECTIONS", approved the design with specifications, and directed the BAC "to take appropriate action for the procurement of said ballot secrecy folders". It states: This pertains to the design of the ballot secrecy folder which will be used for the May 10, 2010 Automated National and Local Elections. Said design was presented by Executive Director Jose M. Tolentino, Jr. to the members of the Commission during its meeting on February 17, 2010 (A.M.) The Commission resolved as it hereby resolves, as follows: 1. to approve the design of the ballot secrecy folder to be used in the May 10, 2010 Automated National and Local Elections with the following specifications: x x x 2. to direct the Bids and Awards Committee to take appropriate action for the procurement of said ballot secrecy folders. (PANEL NO. 21)
5. Executive Director Tolentino made it appear to the Commission En Banc that the procurement would be through the regular public bidding, instead of getting an express authority to resort to the alternative mode of procurement, which is Direct Contracting. R. A. 9184 provides: SEC. 48. Alternative Methods. - Subject to the prior approval of the Head of the Procuring Entity or his duly authorized representative, and whenever justified by the conditions provided in this Act, the Procuring Entity may, in order to promote economy and efficiency, resort to any of the following alternative methods of Procurement: x x x (PANEL 21)
The PARTIAL TRANSCRIPT OF STENOGRAPHIC NOTES OF THE REGULAR EN BANC MEETING HELD ON FEBRUARY 17, 2010 AM (where Chairman Melo asks "magpapabid tayo niyan, o hindi na?") shows the following:
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EXEC. DIR. TOLENTINO: Yes sir ang sa akin if we agree to this design we can say ok, agreed iyung design and then we will let the BAC take appropriate action for the procurement x x x CHAIRMAN MELO: hindi na? Ano, ano, mag papa-bid tayo niyan, o
EXEC DIR TOLENTINO: YES x x x sir ito sir, ah, we'll just direct the BAC to proceed with the procurement process and then bahala na ang BAC kung ano ang gagawin nila x x x Approve the design and then let the BAC proceed with the procurement. (PANEL 20)
6. BAC RESOLUTION NO. 85-2010 DATED MARCH 5, 2010 RECOMMENDED TO THE COMELEC EN BANC THE AWARD OF THE BSF CONTRACT TO OTC PAPER SUPPLY, INVOKING EMERGENCY AND PROPRIETARY NATURE AS WELL AS "THE ACCOMPANYING ELIGIBILITY DOCUMENTS" after having adopted OTCS own specifications and design and/or after OTC has adopted and allegedly patented Comelecs specifications. Said BAC Resolution recites as follows: WHEREAS, on 17 February 2010, the Honorable Commission en Banc issued Comelec Minute Resolution No. 10-0251 approving the design presented by Executive Director Jose M. Tolentino, Jr. for the procurement of the Ballot Secrecy Folder for the May 10, 2010 National and Local Elections; WHEREAS, on 27 February 2010, OTC PAPER SUPPLY submitted to the Bids and Awards Committee (BAC) its proposal to supply the above-subject procurement with attachment of its Improved File Folder whose technical specifications are very much in unison with the design approved by the Honorable Commission en Banc as well as its attachment of the certification issued by the Intellectual Property Office certifying that it had a pending patent application on the aforesaid Improved File Folder; x x x (PANEL 23)
That is what Atty. Melchor Magdamo had in mind when he sent an e-mail to Dr. Arwin Serrano on March 15, 2010, stating: Recently, he orchestrated another scam by persuading the Comelec en Banc to approve a tailor-fitted design for ballot secrecy folder. On 17 February 2010, the En Banc promulgated Resolution 10-0251, therein approving Tolentinos design and directing the Bids and Awards Committee (BAC) to take appropriate action without mentioning the price.
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What is the effect of tailor-fitting combined with a sneaky patent? Other interested bidders are excluded and public bidding is dispensed with. Thus, in the sworn affidavit of Atty. Melchor Magdamo dated April 15, 2010, this malpractice was vividly illustrated as follows: x x x sometime in March when I saw in the Office of the Chairman a lady by the name of Emily G. Cam Bacoto, complaining against what she claims to be an infringement of her intellectual property right to a secrecy folder design, accusing OTC Paper Supply of being a copycat. I told her to raise her grievance before the Intellectual Property Office. When she said that the price of OTC is 380 pesos per folder, I told her that it may be only a typographical error because the price of the original folder is only P3.80 so maybe the decimal point fell into a wrong location. Just the same, I told her to submit her own bid come bidding day. 12. Bidding day for the secrecy folder never came. Later, talks about the secrecy folder grew more intense because the price proposal is really 380 pesos per folder which adds up to an astronomical budget of almost 689 million pesos! I tried to visit BAC Chairperson Chairman Maria Lea Alarkon. Unfortunately, whenever I go to her Office, I see Executive Director Tolentino inside. (PANEL 79)
This is corroborated by the sworn affidavit of Dr. Arwin Serrano dated April 20, 2010, narrating as follows: x x x I first saw the four (4) samples of the BSF provided by Filefix wherein the first thought that came to my mind is sosyal naman and baka mahal?. I also got the opportunity to talk to Mrs. Emily Cam G. Bacoto (proprietor of Filefix) twice at the Office of the Chairman Melo, together with Mr. Ramon Aquino and Atty. Melchor Magdamo. From those two discussions, where I gather additional information about the sosyal BSF that might be approved. She even threatened to sue OTC Paper Supply because she claims that she has an Intellectual Property Right while OTC has not. She claims that the Committee on Specifications disqualified her because it tailor-fit the one that will be provided by OTC Paper Supply which product will be made in China. Her bid for the folder is P100.00 (one hundred pesos) while OTC Paper Supply is P380.00 (three hundred eighty pesos). Although, she admits when asked by Mr. Aquino if shes willing to supply OTC if it bags the contract and she said yes. I also learned that there was another prospective bidder DECO which submitted a P16.00 (sixteen pesos) bid but it was for a simple BSF. (PANEL 86) Page 45 of 97
Further, in the Supplemental Affidavit of Atty. Melchor Magdamo dated May 18, 2010, he alleged: In most bidding scams in COMELEC, upon expose, news reporters were quick to focus their cameras to the Bids and Awards Committee (BAC). In truth, the root cause of most of the procurement anomalies in COMELEC is traceable to the evil practice of tailor-fitting specifications to ensure the victory of a particular bidder. In the COMELEC set-up, the tailor fitter is a mere ad hoc entity known as Committee on Specifications. The Committee consists of three active old-timer members and two new ceremonial members47 who rarely participate in the Committee Activities. (PANEL NO. 139)
7. What other pieces of circumstantial evidence are there which when taken together with the first six above prove connivance between OTC Paper Supply (Henry Young) and Executive Director Tolentino and the BAC members? During the March 30, 2010 meeting of the Commission en banc, one of the issues that was raised was the price. Thus: E.D. TOLENTINO: "AND I DON'T THINK HE IS QUESTIONING THE PROCEDURE, IT'S JUST THE PRICE. COMM. VELASCO: 700 ALMOST 10% OF THE TOTAL AMOUNT OF AUTOMATION. AUTOMATION IS 7B AND THIS ONE IS 700. MOST CUMBERSOME. (PANEL NO. 38) Then the discussion proceeded more seriously: CHAIRMAN MELO: At saka hindi bidding ito eh. COMM. TAGLE: Ah hindi, direct. COMM. SARMIENTO: Procurement without public bidding. So Chair I would join Comm. Yusoph Chair and Comm. Nick . . . Cancellation. (PANEL NO. 38)
47
The three active members are Executive Director Jose Marundan Tolentino, Deputy Executive Director for Administration (DEDA), Estrella Pimentel De Mesa, and Election Records and Statistics Department (ERSD) Director IV Ester Villaflor Roxas. The two ceremonial members are Personnel Department Director Adolfo A. Ibaez and Internal Auditor Agnes T. Carreon. (PANEL 139)
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Executive Director Tolentino interposed an objection: Sir ang sa akin naman Sir, probably it wouldnt be proper to cancel it kasi nag issue na ng notice of award eh baka tayo naman ang mademanda niyan. CHAIRMAN MELO: Yah, oh iyan. EXEC DIR TOLENTINO: Most siguro Sir, negotiate for a lower price but not to cancel it kasi nag notice of award most probably nag order na iyan, and the only reason hindi nakaka-deliver is because of the requirement that the purchase order must first be issued before delivery." (PANEL NO. 38)
7.a. True enough, at 5pm of the same day, as though knowing what had just transpired, Henry Young of OTC Paper Supply sent a letter dated March 30, 2010 (PANEL NO. 37) addressed to Chairman Jose Melo. It falsely averred: Please allow us to submit to your office our comparative cost analysis of our product BALLOT SECRECY FOLDER relative to products of similar material available in the open market. It ends by saying we therefore come to the conclusion that we have offered the best, reasonable and most equitable PRICE . . . The content of the letter however shows no comparison with prices of other products from other suppliers at all, but just the hypothetical pricing of the components of its own material! It was aptly made to suit pro forma the need to show in a rush some basis, true or false, for the exorbitant price of P380 per piece of its folder. 7.b. Then came the discount letter dated April 5, 2010 from OTC Paper Supply, as though knowing the need to negotiate for a lower price, offering a huge discount. It was presented in the En Banc hearing on April 5, 2010 in this manner: EXEC DIR. TOLENTINO: Ang sunod naman Sir is iyong the conclusion that the price of P380 is exorbitant. Just like the statement of Dr. Serrano and Ferdie, there was no statement or study made to show that this is indeed exorbitant. It's just a subjective . . . CHAIRMAN MELO: Ako akala ko P3.80. x x x EXEC. DIR. TOLENTINO: Sir, at 10:20 Sir Dir. Alarkon submitted to my office a transmittal of the offer of OTC Paper na nanalo dyan Sir, because if we recall last En Banc meeting, di ba sinabi mahal ang presyo so you asked for price reduction. CHAIRMAN Page 47 of 97

MELO: Oh, that was last Wednesday. EXEC. DIR. TOLENTINO: That was before the Holy Week. So may memo dito si Leah dated today transmitting the offer of OTC dated today also. Ang sinasabi nila that binigyan sila ng discount of P137.74 per piece. CHAIRMAN MELO: 137. EXEC. DIR. TOLENTINO: .74 per piece. Which translates to a total discount of 250 million. (PANEL 45)
7.c. That was intended to rescue the award of the contract to negotiate for a lower price, but not to cancel it. But it was done irregularly or in bad faith; it was done clandestinely. The PANEL'S MEMORANDUM NO. 102892 dated May 31, 2010 (PANEL NO. 163) requested ATTY. MA. LEA ALARKON to submit her memo dated April 5, 2010 transmitting to Executive Director Tolentino the offer of OTC dated April 5, 2010 giving a discount of P137.74 per piece of BSF for a total of P250,000,000. Atty. Alarkon ignored it as though by ignoring she could wish the two documents away out of existence. BAC Secretariat Head, Atty. Jocelyn Postrado, in answer to a similar request addressed to herself, stated in her Memorandum dated May 6, 2010 (FTR 105862) (PANEL NO. 134B) that "the BAC has no documents of OTC re-offering discount for the ballot secrecy folders in our custody. If there was any observation on that matter, the BAC has no knowledge of such facts." 7.d. Executive Director Tolentino just wrote on the Panels Memorandum No. 10-2892 dated May 31, 2010 sent to him, these words: "I DON'T HAVE IT. NO LETTER WAS SUBMITTED TO ME. PERHAPS, IT WAS GIVEN TO THE BAC." (PANEL 134)
He simply ignored the subsequent PANEL'S MEMORANDUM NO. 10-3005 dated June 7, 2010 (PANEL NO. 174) addressed to him reiterating "the request to have a copy of both the letter of OTC giving discount and the memo of Atty. Alarkon transmitting the offer of OTC." In addition, we asked him to please submit the Official Logbook for incoming documents covering February to May 2010". Said Panels Memo made clear and plain to him the issue.48
48
In reply to our Memorandum No. 10-2429, dated May 6, 2010, you categorically stated that you do not have the copy of the memorandum of Atty. Ma. Lea Alarkon dated April 5, 2010 transmitting the offer of OTC Paper Supply dated April 5, 2010 giving a discount of one hundred thirty seven pesos and seventy four cents (Php 137.74) per piece. The partial transcript of stenographic notes (Copy is hereto attached for your easy reference and
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He still stubbornly refused to submit said documents. Proof of giving undue preference to OTC Paper Supply over a period of time would be a list of all the contracts awarded to it over the years. Against such a setting, the BSF contract award would fit congruently and clearly as part of a series of grossly disadvantageous contracts in favour of OTC Paper Supply, with some officials as the common denominator. Thus, the Panel issued PANEL'S MEMORANDUM NO. 10-2810 (PANEL NO. 154) addressed to BAC SECRETARIAT HEAD JOCELYN POSTRADO, requiring her to submit "LIST OF CONTRACTS ENTERED INTO WITH OTC PAPER SUPPLY. We asked her to submit: "certified copy of List of Contracts entered into with OTC Paper Supply from 2004 up to the present with the date of the award of the contract. Please specify the amount of the contract and whether it was bidded or negotiated or other alternative modes of procurements had been resorted to". (PANEL NO. 154)
She likewise stubbornly refused to submit said List of Contracts.
This refusal solidifies proof of connivance and furtive deals among OTC Paper Supply represented by Henry Young, Executive Director Tolentino, BAC Secretariat Head Jocelyn Postrado, and the members of the BAC headed by Atty. Alarkon. Aside from dishonesty, it is also a violation of Article 226 of the Revised Penal Code which penalizes a public officer for
guidance) of the Special En Banc meeting held on April 5, 2010 reveals the following: Exec. Dir. Tolentino, Jr.: Sir, at 10:20 Sir, Dir. Alarkon submitted to my office a transmittal of the, I mean the offer of OTC Paper nanalo d'yan Sir, because if we recall last En Banc meeting, diba sinabi mahal ang presyo so you ask for price reduction. X x x Exec. Dir. Tolentino, Jr.: That was before the Holy Week, so may memo dito si Leah dated today transmitting the offer of OTC dated today also ang sinasabi nila that binigyan sila ng discount of one hundred thirty seven point seventy four pesos (Php 1 37.74) per piece. Relative thereto, the undersigned reiterates the request to have a copy of both the letter of OTC giving discount and the memo of Atty. Alarkon transmitting the offer of OTC. In addition, please submit to us your Official Logbook for incoming documents covering February to May 2010. You are required to issue a certification under oath if said documents are not available explaining clearly the reasons therefor. (PANEL 174)
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removal, destruction, or concealment of documents officially entrusted to him49.
The BAC Secretariat, by the nature of its functions as the custodian of the records of the BAC may be held liable under the foregoing penal provision. Presidential Decree No. 1829 also penalizes the same act as
obstruction of justice as follows: Section 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to 6,000 pesos, or both, shall be imposed upon any person who knowingly or willfully obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases by committing any of the following acts: X x x (b) altering, destroying, suppressing or concealing any paper, record, document, or object, with intent to impair its verity, authenticity, legibility, availability, or admissibility as evidence in any investigation of or official proceedings in, criminal cases, or to be used in the investigation of, or official proceedings in, criminal cases;
8. Atty. Melchor Magdamo (Chairman Jose Melo's representative to the Technical Working Group (TWG) of the Bids & Awards Committee (BAC) relevantly observed and divulged in his affidavit dated April 15, 2010: x x x I told her (Emily Cam Bacoto) to submit her own bid come bidding day. . . Bidding day for the secrecy folder never came. Later, talks about the secrecy folder grew more intense because the price proposal is really 380 pesos per folder which adds up to an astronomical budget of almost 689 million pesos! I tried to visit BAC Chairperson
49
Art. 226. Removal, concealment or destruction of documents.
Any public officer who shall remove, destroy or conceal documents or papers officially entrusted to him, shall suffer: 1. The penalty of prision mayor and a fine not exceeding 1,000 pesos, whenever serious damage shall have been caused thereby to a third party or to the public interest. 2. The penalty of prision correccional in its minimum and medium period and a fine not exceeding 1,000 pesos, whenever the damage to a third party or to the public interest shall not have been serious. In either case, the additional penalty of temporary special disqualification in its maximum period to perpetual disqualification shall be imposed.
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Chairman Maria Lea Alarkon. Unfortunately, whenever I go to her Office, I see Executive Director Tolentino inside. (PANEL 79) Thus, the SCHEMES WHICH TEND TO RESTRAIN THE NATURAL RIVALRY OF THE PARTIES OR OPERATE TO STIFLE OR SUPPRESS COMPETITION AND THUS PRODUCE A RESULT DISADVANTAGEOUS TO THE PUBLIC were being put into effect successfully. Above-mentioned pieces of circumstantial evidence and records are consistent with one another. Taken together, they point unerringly to the direction which would lead a reasonably discreet and prudent mind to believe that OTC Paper Supply, Executive Director Tolentino, and the BAC in connivance employed schemes which restrained the natural rivalry in the procurement process and operated to suppress competition, and thus produced a result disadvantageous to the public. Section 65 (b.4) of RA 9184. Even in a criminal case, circumstantial evidence may be sufficient for conviction provided the following requisites concur: a) b) and c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt (Sec. 4, Rule 133 of the Rules of Court; People vs. Sevilleno, G. R. No. 152954, March 10, 2004). There is more than one circumstance; The facts from which inferences are derived are proven; This violates
The awardee of the foregoing bidless procurement for the Ballot Secrecy Folder in the total amount of P689,700,000 was OTC Paper Supply. This is not the first time, however, that OTC Paper Supply and Executive Director Tolentino had a transaction. Affidavit50 of Atty. Melchor In the April 15, 2010 sworn Chairman Jose Melo's Magdamo,
representative to the TWG of the BAC, he also relevantly observed the manner51 Exec. Dir. Tolentino conducted a public bidding when he himself
50
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was the BAC Chairman. It was the bidding for VRR Binders and Fillers
during the first half of 200852. Exec. Dir. Tolentino then persisted in maneuvering to conduct the bidding, despite a ban, which eventually showed OTC Paper Supply winning. First, there was a Memorandum (February 19, 2008) from then Acting Chairman Brawner53 directing him not to hold the bidding yet. Second, said memorandum was affirmed (March 11, 2008) by the Commission En Banc thru Resolution No. 08-036454. Third, same day that it was affirmed, he tried anew through another document to push through with the bidding. Fourth, the En Banc simply re-affirmed (March 11, 2008) its resolution issued earlier in the day, thru Resolution No. 08037555. Fifth, since he even had the temerity to attempt to get a reversal of the resolution that same day, its no wonder that he did it again another day (22 days later) and this time he apparently succeeded by getting Resolution No. 08-0391 on April 1, 2008 setting aside Resolution No. 08-0364. He almost got through it cleanly literally if not for the spirit of said resolution (SUSPENSION OF THE PUBLIC BIDDING FOR THE PROCUREMENT OF BINDERS AND PLASTIC FILLERS FOR VRRS UNTIL AFTER THE SUBMISSION OF THE REPORT OF THE FSD ON THE CURRENT
51
Performing my duty, the first bidding I was able to observe in COMELEC was on the first day of April 2008 (April Fools Day). It was the bidding for the OPTICAL MARK READER (OMR) system for certain areas in the AUTONOMOUS REGION FOR MUSLIM MINDANAO (ARMM). Presiding over the bidding was the COMELEC Executive Director and concurrent BAC Chairman Jose Marundan Tolentino. Except for the BAC Chairman, all the other BAC members were mysteriously missing. The BAC TWG Head was also mysteriously missing. The BAC Secretariat Head was also mysteriously missing. I tried asking my co-observer seatmates (representatives of election watchdogs) why in a bidding involving, with due respect, no less than the cheating capital of the Philippines, the BAC Chairman was functioning like a one man band.
52
X x x continuation of a project for Voter Registration Records (VRR) costing more than 200 million pesos plus another 100 million pesos, therefore a total project price of approximately 300 million pesos.
53
In connection with the procurement of binders and plastic fillers for Voters Registration Records, please hold in abeyance the conduct of the public bidding for said items until such time as the Commission en Banc has been fully appraised by the Finance Services Department of the current financial status of the Commission.
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FINANCIAL STATUS OF THE COMMISSION). Said spirit survived and continued to live in Resolution No. 08-037556, which was not expressly set aside (holding in abeyance the conduct of the public bidding) and Resolution No. 08-049757 (dated Aril 29, 2008 scheduling the presentation of the FSD FINANCIAL STATUS REPORT on 14 May 2008). Two days before the requisite FSD Report, surmounting all obstacles and prohibitions, he stubbornly conducted the bidding58 on May 12, 2008, and OTC Paper Supply won59. The actuations of Executive Director Tolentino, the BAC, et al. also violate RA 3019, Sec. 3(e) which provides as follows: RA 3019, Sec. 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: 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.
In the case of Sison vs. People (G.R. Nos. 170339, 170398-403 (March 9, 2010), with then Justice, now Chief Justice Renato Corona as ponente, the Supreme Court ruled: To be found guilty under said provision, the following elements must concur: (1) the offender is a public officer; (2) the act was done in the discharge of the public officers official, administrative or judicial functions;
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57
58
59
On July 2, 2008, the Commission En Banc promulgated Resolution No. 8482 declaring failure of bidding, setting a re-bidding, and directing bidders to withdraw their bid securities. This was re-affirmed on July 18, 2008 by Resolution No. 8490.
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(3) the act was done through manifest partiality, evident bad faith, or gross inexcusable negligence; and (4) the public officer caused any undue injury to any party, including the Government, or gave any unwarranted benefits, advantage or preference60. (Emphasis supplied) It is undisputed that the first two elements are present in the case at bar. The only question left is whether the third and fourth elements are likewise present. We hold that they are. The third element of Section 3 (e) of RA 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 RA 3019 is enough to convict. Explaining what "partiality," "bad faith" and "gross negligence" mean, we held: "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."
60
The fourth element is likewise present. While it is true that the prosecution was not able to prove any undue injury to the government as a result of the purchases, it should be noted that there are two ways by which Section 3(e) of RA 3019 may be violated the first, by causing undue injury to any party, including the government, or the second, by giving any private party any unwarranted benefit, advantage or preference. Although neither mode constitutes a distinct offense, an accused may be charged under either mode or both. 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. Aside from the allegation of undue injury to the government, petitioner was also charged with having given unwarranted benefit, advantage or preference to private suppliers. Under the second mode, damage is not required. 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.
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This applies to all public officers including the BAC, et al. In the case of Buencamino Cruz vs. Sandiganbayan and People of the Philippines (G. R. No. 134493, August 16, 2005), the Supreme Court ruled as follows: Petitioner maintains, anent the first issue, that the Information filed against him was fatally defective in that it did not allege that he is an officer charged with the grant of licenses or permits or other concessions. Petitioners contention is flawed by the very premises holding it together. For, it presupposes that Section 3(e) of R.A. 3019 covers only public officers vested with the power of granting licenses, permits or similar privileges. Petitioner has obviously lost sight, if not altogether unaware, of our ruling in Mejorada vs. Sandiganbayan61, where we held that a prosecution for violation of Section 3(e) of the Anti-Graft Law will lie regardless of whether or not the accused public officer is charged with the grant of licenses or permits or other concessions.
C.
ON ISSUE NO. 3: WAS THE PRICE OF P380 PER PIECE OF THE A BALLOT TOTAL PRICE SECRECY OF THE FOLDER MOST FOR COST FOR
P689,700,000 VALID, APPROPRIATE, AND ADVANTAGEOUS GOVERNMENT?
Both the quantity and the price exceeded the Annual Procurement Plan (APP, 189%) and the Approved Budget for the Contract (ABC, 15,000%).
61
Following is an excerpt of what we said in Mejorada: Section 3 cited above enumerates in eleven subsections the corrupt practices of any public officers (sic) declared unlawful. Its reference to any public officer is without distinction or qualification and it specifies the acts declared unlawful. We agree with the view adopted by the Solicitor General that the last sentence of paragraph [Section 3] (e) is intended to make clear the inclusion of officers and employees of officers (sic) or government corporations which, under the ordinary concept of public officers may not come within the term. It is a strained construction of the provision to read it as applying exclusively to public officers charged with the duty of granting licenses or permits or other concessions.
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As pointed out earlier, this was in violation of the legal requirements on the APP. On April 10, 2010, we issued PANEL'S MEMORANDUM NO. 10-1581 dated April 10, 2010 requesting DIRECTOR EDUARDO MEJOS to submit all documents pertaining to the budget, if any, for the procurement of the BSF. (PANEL 55) On April 30, 2010, FSD Director EDUARDO MEJOS issued a Memorandum dated April 30, 2010 in reply to the Panel's Memorandum dated 29 April 2010, stating that the Approved Budget for the Contract (ABC) is not determined by the FSD, and that the FSD merely issues the Certificate of Availability of Funds for the ABC. He attached the Annual Procurement Plan (APP) covering the procurement of the ballot secrecy folder (breakdown of other supplies) showing "BALLOT SECRECY FOLDER: 960,000 PIECES, P4.80 ESTIMATED UNIT COST, TOTAL AMOUNT OF P4,608,000" (PANEL 112) We issued the Panel's Memorandum No. 10-2208 dated April 29, 2010 requesting Director J. Thaddeus Hernan62 to submit the Annual Procurement Plan covering the procurement of the BSF but we have not received said requested document from him until now. We issued the Panel's Memorandum No. 10-2808 dated May 28, 2010 requiring Atty. Jocelyn Postrado63 to submit a duly certified copy of the Annual Procurement Plan which covered the aborted BSF but she did not submit any. Section 7 of RA 9184 states that No government procurement shall be undertaken unless it is in accordance with the approved Annual Procurement Plan. The BAC did not procure within the small Approved Budget for the Contract for procurement of the BSF in the amount of only P4,608,000. They far exceeded the quantity of 960,000 pieces of BSF budgeted for at P4.80 ESTIMATED UNIT COST. At the very least, the BACs failure to ask for the ABC and the APP constitutes inexcusable gross negligence. As a result, Exec. Dir. Tolentino and the BAC recommended to the Commission En Banc a total price which they did not even dare to reveal
62
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in exact figures and in words (a sure badge of bad faith), 150 times the approved budget! Also, when the BAC computed the total cost, it conveniently relied on obsolete data. For the total number of clustered precincts, it should have asked not only the Allocation Committee, but also the Election and Barangay Affairs Department (EBAD) for the latest figures. The DATA64 ON THE TOTAL NUMBER OF ESTABLISHED PRECINCTS, CLUSTERED/GROUPED PRECINCTS, REGISTERED VOTERS, AND VOTING CENTERS PREPARED BY EBAD AS OF JANUARY 14, 2010, shows 76,340 clustered/grouped precincts. If there should be 22 BSF pieces per precinct, then we would have to purchase 1,679,480 pieces instead of 1,815,000. These basic data alone show that the BAC recklessly squandered P51,497,600! From the quantity alone, not to mention the unconscionable price, there is plunder!
RA 9184 provides explicitly: SEC. 7. Procurement Planning and Budgeting Linkage. All procurement should be within the approved budget of the Procuring Entity and should be meticulously and judiciously planned by the Procuring Entity concerned. Consistent with government fiscal discipline measures, only those considered crucial to the efficient discharge of governmental functions shall be included in the Annual Procurement Plan to be specified in the IRR. No government Procurement shall be undertaken unless it is in accordance with the approved Annual Procurement Plan of the Procuring Entity. The Annual Procurement Plan shall be approved by the Head of the Procuring Entity and must be consistent with its duly approved yearly budget. The Annual Procurement Plan shall be formulated and revised only in accordance with the guidelines set forth in the IRR.
Instead, what did the BAC use as basis for the procurement?
Henry
Young of OTC Paper Supply wanted to provide some basis on March 30, 2010 25 days after the BAC had already recommended to the En Banc the award of the contract, or 15 days after it had been awarded, or 1 day
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after he was tipped off that the price of P689,700,000.00 was being assailed as exorbitant. He sent a letter dated March 30, 2010 addressed to Chairman Jose Melo. It falsely averred: Please allow us to submit to your office our comparative cost analysis of our product BALLOT SECRECY FOLDER relative to products of similar material available in the open market. It ends by saying we therefore come to the conclusion that we have offered the best, reasonable and most equitable PRICE . . . (PANEL 37) The content of the letter however shows no comparison with prices of other products from other suppliers at all, but just the hypothetical pricing of the components of its own material! It was aptly made to suit pro forma the need to show in a rush some basis, true or false, for the exorbitant price of P380 per piece of its folder. BAC Chair Alarkon revealed her own basis for the exorbitant price as follows: ALARKON: For comparison sabi ko nga iyung Filefix ng dineliberate ng TWG . . . Ng paper P320 tatlo ang canvass price namin noon: P500, P400, P330. Ganito kalaki iyon ating, dalawang long matigas rin po. Iyung secrecy folder natin halos pareho rin ang materyales. Kung sinabi na may comparison ang price actually kung iyong Filefix nga na sinabi na ng TWG na P320 na pinakamura, ito dalawang long P380. So for comparison ng price, so sa tingin namin ang sabi lang namin kung i-aatras ng Commission ang ano is whatever expenses they had under the law we should pay. x x x ALARKON: Sir tapos tinatanong kasi application for patent, application lang daw so bakit hindi naman pala siya regular patent. Tapos sabi ko ang premise na ginamit namin noon pareho ng ballot box iyung provider natin application for patent lang yon na inaward natin sa kanila kahit na certification lang ng IPO office na ano lang so kung may precedent na kung bakit ganito ang procedure natin, na sinunod natin. x x x (PARTIAL TRANSCRIPT OF STENOCRAPHIC NOTES OF REGULAR EN BANC HEARING ON THE BSF DATED MARCH 31, 2010, PANEL 42).
There was misrepresentation to the Honorable Chairman Jose Melo when BAC Chair Alarkon told him as above: For comparison sabi ko nga iyung Filefix ng dineliberate ng TWG . . . Ng paper P320 tatlo ang Page 58 of 97

canvass65 price namin noon: P500, P400, P330. him those prices were NOT for the Ballot Secrecy Folder! BAC Resolution No. 99-2010 dated April 5, 2010 (Procurement Report66 on the Supply and Delivery of the 1,815,000 Pieces Ballot Secrecy Folders For the May 10, 2010 National and Local Elections). Paragraph 3 states: 3. There being no alternative supplier from which to compare the offer considering the claim for patent, the canvass price submitted by the ASD in the procurement of Document Binders was used as reference, copy of the said quotations are herein attached. The Binders, made of modified density fiberboard, and more or less half the size of the required Ballot Secrecy Folders, is priced at Php 320.00. (PANEL 57E) Actually, this refers to "REQUEST FOR PRICE QUOTATION" for "OUTER DOCUMENT HOLDER/BINDER" (not for Ballot Secrecy Folder) filled out and signed by Faustino F. Dan, Jr. of BEST FORMS on February 24, 2010, Emily C. Bacoto of Filefix, undated, and by Mary Dawn D. Sy of Ernest Printing Corp. on March 3, 2010. All alleged requests67 are unsigned by Director Rey Doma or any employee of the ASD. The subject of BAC Chair Alarkons Memorandum68 to Director Julius Thaddeus Hernan of the Administrative Services Department, dated February 9, 2010 was: Procurement of Binders, Fillers and Screws for the filing and Safekeeping of Voters Registration Records (VRRs) for the May 10, 2010 National and Local Elections (NLE). And she stated: For purposes of procurement of above subject, undersigned respectfully requests that the BAC be provided with the specifications and canvass price of the same. The fact is that there was no request for canvass of prices for Ballot Secrecy Folder which is in violation of Direct Contractings requirement for an industry survey under RA 9184. Stating on April 5, 2010 in BAC Resolution No. 99-201069 that the canvass price submitted by the ASD in the procurement of
65
She did not tell
Panel 42 Panel 57E Panel 189A, Panel 189B, Panel 189C Panel 194A Panel 57E
66
67
68
69
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Document Binders was used as reference, in determining the price for the BSF, is an act of dishonesty. It is a lie for the BAC to state that there was no alternative supplier from which to compare the offer considering the claim for patent, and therefore, the canvass price submitted by the ASD in the procurement of Document Binders was used as reference. It is a lie also because on February 9, 2010 when the BAC made the request to be provided with the specifications and canvass, there was even no application for patent yet of OTC Paper Supply. If the BAC had foreknowledge that on February 10, 2010 OTC Paper Supply would apply for patent, then this is another evidence of connivance and unwarranted preference. In fact, OTHER SUPPLIERS APPARENTLY PURSUING TO BID for the Ballot Secrecy Folder were ignored and/or taken aback and offended by the schemes which tend to restrain the natural rivalry of the parties or operate to stifle or suppress competition and by the unwarranted preference. There are 3 other samples of Ballot Secrecy Folder70 submitted by them to Ramon Aquino of the Office of the Chairman which we are marking here as exhibits. their desire to bid as follows: 11. One irregularity after another came pounding hard against the image of the COMELEC, some of which appear to be deliberate. I did my best to exercise restraint and keep cool until sometime in March when I saw in the Office of the Chairman a lady by the name of Emily G. Cam Bacoto, complaining against what she claims to be an infringement of her intellectual property right to a secrecy folder design, accusing OTC Paper Supply of being a copycat. I told her to raise her grievance before the Intellectual Property Office. When she said that the price of OTC is 380 pesos per folder, I told her that it may be only a typographical error because the price of the original folder is only P3.80 so maybe the decimal point fell into a wrong location. Just the same, I told her to submit her own bid come bidding day. 12. Bidding day for the secrecy folder never came. (Atty. Melchors Affidavit dated April 15, 2010). (PANEL 79) The records71 show
70
Panel 197-Final, Panel 198-Prototype, Panel 199, Panel 200, Panel 201 Panel 79
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Dr. Arwin Serrano similarly observed interest to bid for the Ballot Secrecy Folder. He averred in his sworn letter72 dated April 20, 2010: One of the items that was shown to me was the proposed Ballot Secrecy Folder (BSF) as early as February which at that time was one of the Election Paraphernalias being discussed. I first saw the four (4) samples of the BSF provided by Filefix wherein the first thought that came to my mind is sosyal naman and baka mahal?. I also got the opportunity to talk to Mrs. Emily Cam G. Bacoto (proprietor of Filefix) twice at the Office of the Chairman Melo, together with Mr. Ramon Aquino and Atty. Melchor Magdamo. From those two discussions, where I gather additional information about the sosyal BSF that might be approved. She even threatened to sue OTC Paper Supply because she claims that she has an Intellectual Property Right while OTC has not. She claims that the Committee on Specifications disqualified her because it tailor-fit the one that will be provided by OTC Paper Supply which product will be made in China. Her bid for the folder is P100.00 (one hundred pesos) while OTC Paper Supply is P380.00 (three hundred eighty pesos). Although, she admits when asked by Mr. Aquino if shes willing to supply OTC if it bags the contract and she said yes. I also learned that there was another prospective bidder - DECO which submitted a P16.00 (sixteen pesos) bid but it was for a simple BSF. (PANEL 86)
Ramon Aquino of the Office of the Chairman stated in his sworn affidavit 73 dated May 5, 2010: X x x 8. With regard to the Ballot Secrecy Folder, Ms. Bacoto did send to our Office thru a messenger three prototypes of the Ballot Secrecy Folder. One is opened sideways, another is from the top without any mechanism and the last is also opened with a clip. The prototypes were submitted after the en banc has already promulgated the resolution approving the design for the secrecy folder; therefore since it was not in accordance with the approved design we no longer sent it to the specification committee and just kept it at our office. There was no price quotation received together with the said prototypes. As far as I can remember that is the time that she was involved with the Ballot Secrecy Folder. (PANEL 133)
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The Panel of Investigators made a canvass of prices for Ballot Secrecy Folder through Corazon Danao74, Head Executive Assistant at the Law Department. specifications and design: Top Layer : Size She gave the following
: 9.5 inches (width) x 28 inches (length) or 9.5 in x 14 in. Thickness: 0.65 mm Material : Polypropylene Sheet Color : Royal Blue Printing : One Color Print Comelec Logo Expandable Spine: Size : 2 inches (width x 28 inches (length) or 2 in. x 14 in. Thickness : 0.2 mm Material : Polypropylene Sheet Color : Ultrasonic welded with the Top Layer joined by rivet the Bottom Layer Bottom Layer : Size : 9.5 inches (width) x 28 inches (length) or 9.5 in. x 14 in. Thickness : 3.0 mm Material : Polypropylene Board Color : Royal Blue
She was able to obtain quotations as follows:

Name Company of Specs. Of supplier/manufactur er Fabri-Plast 1) PP/DBLU x 0.2 mm Industrial Corp. x 3 ft. x 6 ft 2) PP/DBLU x 0.6 mm x 3 ft. x 6 ft. 3) PP/DBLU x 0.7 mm x 3 ft. x 6 ft. Phil. Stylene SIZE: Inc. 0.70 mm x 9.5 x 14 0.50 mm x 2 x 14 1.60 mm x 9.5 x 14 MATERIAL: Hi-impact Polystyrene Sheets COLOR: Royal Blue Standard (w/ soft copy of the Plastic Inc. folder) Result 1) P 143.00/sht 2) P 407.00/sht 3) P 473.00/sht. P 14.00 P 2.00 P 31.00
Emailed a picture of their
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proposed folder
(PANEL 181) Please note that the 1st quotation of Fabri-Plast apparently would make 2 pieces of BSF for a unit price of P76.50. The most expensive would be P276.50. Obviously, these are far below P380. And please note further that the specifications, except for the length, are the same as the BSF of OTC Paper Supply: expandable spine, polypropylene, colored - which are not really relevant to the purpose and only serve to make the folder expensive and extravagant beyond the ordinary needs75 of the Commission. It is crystal clear that the BAC failed to ensure that the most advantageous price for the government is obtained. The concealed discount offer76 of OTC Paper Supply (deducting P137.74 per piece from P380 for a total discount of P250 million) would result to a net offer of P242.26. It would not be far-fetched to say that the amount of P250 million is the minimum measure of the governments gross disadvantage from the transaction with OTC Paper Supply. The unbidded price, the uncompared cost, is indeed extortionate. Anti-Graft and Corrupt Practices Act states: RA 3019, Sec. 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: 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 (g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby. For such an unjust situation, the law has long ago provided a solution. The
75
Chairman Jose Melos own words Panel 45
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Of course, Exec. Dir. Tolentino, not expecting that the above study and data on costs and materials would be easily available, tried to justify and rescue the contract award to OTC Paper Supply up to the end. He said: x x x EXEC DIR. TOLENTINO: Ang sunod naman Sir is iyong the conclusion that the price of P380 is exorbitant. Just like the statement of Dr. Serrano and Ferdie, there was no statement or study made to show that this is indeed exorbitant. It's just a subjective . . . CHAIRMAN MELO: Ako akala ko P3.80. x x x (PARTIAL TRANSCRIPT OF STENOGRAPHIC NOTES OF THE SPECIAL EN BANC MEETING HELD ON APRIL 5, 2010) (PANEL 45)
In its Supplement to the Motion for Reconsideration77 dated April 12, 2010, OTC Paper Supply again falsely stated: 1.03 The foregoing design and the resulting cost were evaluated by the concerned Departments of this Commission whose recommendation was later on approved by this Honorable Commission. In fairness to said Committees members, the records show that the Committee on Specifications did not study the design, but the Committee Chairman, Exec. Dir. Tolentino directly presented it to the Commission En Banc for approval. Neither did the BAC make a study of the cost by making a comparison with prices of the BSF from other suppliers. Above irregularities could have been avoided if the BAC observed the Governing Principles on Government Procurement as mandated in RA 9184, Section 3, as follows: SEC. 3. Governing Principles on Government Procurement. All procurement of the national government, its departments, bureaus, offices and agencies, including state universities and colleges, government-owned and/or controlled corporations, government financial institutions and local government units, shall, in all cases, be governed by these principles: (a) Transparency in the procurement process and in the implementation of procurement contracts. (b) Competitiveness by extending equal opportunity to enable private contracting parties who are eligible and qualified to participate in public bidding.
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Panel 58
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(c) Streamlined procurement process that will uniformly apply to all government procurement. The procurement process shall be simple and made adaptable to advances in modern technology in order to ensure an effective and efficient method. (d) System of accountability where both the public officials directly or indirectly involved in the procurement process as well as in the implementation of procurement contracts and the private parties that deal with government are, when warranted by circumstances, investigated and held liable for their actions relative thereto. (e) Public monitoring of the procurement process and the implementation of awarded contracts with the end in view of guaranteeing that these contracts are awarded pursuant to the provisions of this Act and its implementing rules and regulations, and that all these contracts are performed strictly according to specifications.
Exec. Dir. Tolentino and the BAC virtually violated all of above principles in the procurement of the BSF. There was no transparency because the design and specifications were not brought to the Specifications Committee for discussion. There was no pre-procurement conference. There was no There was no publication of the need for BSF.
competitiveness because the design and specifications came from only one prospective bidder and were tailor-fitted for OTC Paper Supply alone. There was a deliberate resort to a patent claim to prevent competition. The unmitigated insult to the Filipino taxpayer is the brazen assumption that what we need is a patented material to cover our vote, or a patented binder to bind our registration records, etc. There was no streamlined procurement process since it was up to the BAC whether to publish, invite, canvass, have a pre-procurement conference, activate the Committee on Specifications, accept bids, etc., or not. We will see if there will be accountability; but the officials involved have refused to submit documents; and although the immediate relief of the BAC Chairman was recommended as early as April 30, 2010 she continues to be the Chairman - this despite expiration of her term and that of all the BAC members on April 21, 2010. Public monitoring is frowned upon as shown by the treatment of the two whistleblowers.
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THE TWO WHISTLEBLOWERS ATTY. MELCHOR MAGDAMO AND DR. ARWIN SERRANO SAVED P690 MILLION FOR OUR COUNTRY BUT THEY ARE SUFFERING. In the sworn letter of Dr. Arwin Serrano dated April 20, 2010, he wrote of the sufferings of those who tell the truth, who call attention to what is wrong, and who save the country from a waste of hundreds of millions of pesos: E. I would like to put in writing the improper remarks and utterances made by Atty. Lea Alarkon last March 31 (Holy Wednesday) about 3:40pm heard by BAC members when she said that I am not welcome anymore here in BAC, challenging me to report her to Chairman Melo, to the Commission, and even to media. When I asked her who her source is, she told me that it is unfair to reveal her source but she didnt know that it is more unfair not to tell me directly and when I told her that she shouldnt behave like that, her remarks were Huwag mo akong tuturuan kung ano ang sasabihin ko! I told her that with that behavior, I really might file a complaint against her. When Amb. Tita De Villa asked her, she defended herself saying, Kasi palagi siyang nakikipagusap sa mga members, TWG at kilos ng kilos. I thought she is not fit to be in the Bids & Awards Committee. Let this letter be the start of my formal complaint against her. F. Atty. Lea Alarkon never gives any communication to the PPCRV Office regarding BAC activities, Bidding Schedules, Notices, Abstract, Minutes and Resolutions, even up to now. Then, on June 15, 2010, Dr. Arwin Serrano made another letter dated June 15, 2010, narrating indignities and asserting his human rights as follows: I would just like to express my disappointment to what transpired during that fateful incident on May 25, 2010 when we were invited by the Commission En Banc to appear before them with regards to the accusations brought to us by the en banc regarding the ballot secrecy folder issue. First of all, let me point out the following matters, namely: 1. Comelec Resolution no. 8941 was made May 24, 2010 and was sent to our PPCRV office past five (5:00) pm and wanted me to appear the following day, May 25, 2010 at 9:00am. (I know that per Comelec Rules and Procedures, we are entitled to have at least three (3) days before the hearing date); x x x Page 66 of 97

4. Commission en Banc tried to discredit me with the help of BAC Chairperson Atty. Lea Alarkon that I am not a PPCRV observer in the BAC (the transcript would show that they tried to discredit me but I stood my ground and told them that Amb. De Villa could validate these things); 6. We were invited on the notion that it would result to a very positive78 outcome and would try to settle our differences, if any. (I even persuaded Atty. Magdamo and Director del Rosario to go with me and I have a very good feeling that it is our great opportunity to talk and explain to the En Banc and that it would result to a better understanding of the sequence of events but the worst things happened and they lambasted us, shouted at us, humiliated us and did not accord us due respect79); Atty. Melchor Magdamo also wrote about his fears. In his email to Dr.
Arwin Serrano on March 15, 2010, he said: If something happens to me, let this letter be the evidence. Remember Marlene Garcia Esperat? She spoke against 728 million peso fertilizer scam of Joc Joc Bolante. On Maundy Thursday 24 March 2005, in Tacurong, Sultan Kudarat, an assassin shot her dead with a single bullet in front of her children. That is what 728 million pesos can do. In his Thanksgiving letter of May 4, 2010, Atty. Magdamo wrote: This pertains to the contrasting opinions regarding my security. On one hand, Commissioner Gregorio y. Larrazabal told news reporters that I am safe here (in COMELEC), while on the
78
5. The line of questioning is not appropriate and improper and the conduct of the En Banc is not in accordance to their honorable position. (I would like to make special mention of Comm. Nicodemo Ferrer regarding his misbehaviors, not only his malicious remarks but also his very bad mannerisms of pointing his finger to peoples face and branding you liar and disrupting you even while the other person is talking; this was evident of his remarks given to the media and accepted the fact that he did it.);
79
7. Commissioner Ferrer even tried to sow fear and threatened to sue me and Atty. Magdamo for libel. (I know for long standing SC decision that government employees cannot sue for private citizens and that government employees, especially those holding high positions should not be onion-skinned and be ready to face all kinds of challenges in doing public service.
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other hand, no less than COMELEC security personnel themselves are saying with sincerity that I may be safe inside COMELEC premises, but not so the moment I step outside the building, more especially when those who lost an opportunity for a 700 Million Peso Bonanza have an axe to grind against me. To all appearances, these COMELEC security personnel have no motive for inventing danger or exaggerating alarms. Considering that my children are still young (7 year old daughter and 2 year old son), may I respectfully ask for permission to go on terminal leave starting immediately until final separation on 31 May 2010? x x x I wish to say additional thanks to the En Banc if it were to share a humble portion of the 700 Million Peso savings as incentive bonus to the low ranking employees who have been working hard for the success of the elections. Atty. Melchor Magdamo unleashes his fears side by side with hopes for eradicating graft and corruption, saving the countrys wealth. On May 18, 2010, he wrote80: Drowning in a tsunami of kilometric questions from persistent news reporters and incisive investigative journalists, some of my knee-jerk-reaction answers made me a prime target for senseless violence by those who lost an opportunity for a P700M extravaganza. Considering that crime statistics in or involving issues boiling out from the Commission on Elections (COMELEC) cauldron are shockingly high, I am now at a point of no return. How can I muffle the thunder of news broadcasting organizations? Re-sealing my lips and jumping back to silence can only serve as the go signal for lurking assassins. As it is now, exposing the complete truth inspires public vigilance that deters evil plots and is better than wearing a bulletproof vest. Hence, I respectfully submit this affidavit. Atty. Melchor Magdamo went on to reveal: FREQUENT SUPPLIERS During my two years in Comelec, most of the bidders appear to be old-timers who have their respective connections and fixers inside Comelec. I have been proposing investigations to probe into the backgrounds of these traditional providers so as to dispel the possibility of cartels and other combinations in restraint of trade. Accordingly, I respectfully submit this tentative list81 of persons and/or companies that have been supplying to Comelec under questionable
80
I wrote my 15 April 2010 affidavit for the purpose of complying with the lawful request of the Rafanan Ibaez Perez probe panel. At that time, I did not expect, and never in my wildest dream did I imagine, that my spontaneous email dated 15 March 2010 (Annex B) to a Fellow Crusader in the Parish Pastoral Council for Responsible Voting (PPCRV) and the ensuing 15 April 2010 affidavit were to become the topic of intense public scrutiny.
81
In alphabetical order, the keywords for searching their names are as follows:
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circumstances, either as anomaly proponent or as victim thereof.
After a punishing meeting82 with the Commission En Banc on May 25, 2010, Atty. Melchor Magdamo and Dr. Arwin Serrano wrote a joint Urgent Request addressed to the Panel, stating as follows: After saving approximately 700 Million Pesos for government, it is puzzling why, during that hearing, some in the En Banc had to subject us to brutal indignities and humiliations, as if they were cops interrogating criminals, with Commissioner Nicodemo T. Ferrer constantly shouting and pointing fingers as if like a pistol spraying bullets to our faces and thereafter going ballistic by bumping off a chair while tubthumping his chest like gorilla. What is more saddening is that before the ballistic ignition, Commissioner Elias R. Yusoph and no less than Chairman Jose Armando R. Melo himself were blurting out words of grave threats by psychologically heaping praises to a sharp shooter under an atmosphere of subtle terror (the sharp shooter was just around two meters to our right rear side who was staring at us with menacing look). We respectfully raise to the Rafanan Ibaez Perez Panel this puzzling behavior and pray for the issuance of a SUPPLEMENTAL INTERIM REPORT or at least an ENDORSEMENT (or any other equivalent analysis) concerning this specific matter alone, and for the Panel to seal and deposit its own analysis in escrow in the Bangko Sentral ng Pilipinas or reputable institutions such as the Commission on Human Rights with two back up escrow copies in the vaults of the Catholic Bishops Conference of the Philippines (CBCP) and National Council of Churches in the Philippines (NCCP), in trust for unsealing and opening by the next President of the Republic of the Philippines.
WE, THE MEMBERS OF THE PANEL OF INVESTIGATORS, HEREBY RECOGNIZE ATTY. MELCHOR MAGDAMO AND DR. ARWIN SERRANO
Advance Computer Forms, Advance Paper, Albert See, Argo Forwarder, Atlanta Industries, Bernard Fong, Bonnie Yu, Consolidated Paper, David Huang, Eastland Printink, Embu Integrated, Emily Cam Bacoto, Enrique Tansipek, Ernest Printing, Explorer Freight, FileFix, Forms International, Front Cargo, Henry Young, Johnson Fong, Lamco Paper, Laureano Barrios, Mega Pacific Consortium, Multi Forms, New World Printing, Noah Paper Mills, One Time Carbon (OTC), Pedro Tan, Philand Industries, Rosita Tansipek, SPH, Synergy, Terry Sy, Texas Resource, Tony Yap, Trojan Marketing, Unison Computer System, Willy Kwok Young, Willy Sy, combinations of two or more of the foregoing, and several more others.
82
This pertains to Commission on Elections En Banc Resolution No. 8941 promulgated on 24 May 2010 requiring us (whistleblowers Arwin Serrano and Melchor Magdamo) to appear before the Commission En Banc on May 25, 2010 at 9:00 AM which is therefore in violation of the minimum three-day notice rule under he COMELEC Rules of Procedure (Rule 17, Section 1).
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FOR THEIR WISDOM, COURAGE, IDEALISM AND SACRIFICE IN EXPOSING THE PATENTED BALLOT SECRECY FOLDER CONTRACT AWARD. These two (2) men are worthy of emulation for telling the truth even when it means a radical and dangerous change in their lifestyle. We appreciate the fact that saving for the country P689,700,000 through their small and gentle voice of divulging the truth is already a very big achievement that cannot be matched by the accomplishment of one who earns 10% thereof even thru honest means. May God bless them more!
LIABILITY OF SUPERIORS FOR ACTS OF THEIR SUBORDINATES

Please allow us to quote from De Leon, The Law on Public Officers and Election Law, 4th ed., pp. 297-298: (1) General Rule It is well-settled as a general rule that public officers of the government, in the performance of their public functions, are not are not civilly liable to third persons, either for the misfeasance or positive wrongs, or for the nonfeasance, negligence, or omissions of duty of their official subordinates. The exemption of public officers from responsibility in the discharge of their public duties is allowed in a great measure from consideration of public policy. Consistent with the interest in unimpaired decision-making, it is appropriate to protect from the possibility of suit a public servant who has not himself engaged in actionable conduct; thus, those in the chain of command should not be subject to suit on any theory of vicarious responsibility. (2) Exceptions - The rule which exempts from liability a public officer in a supervisory position for acts or defaults of his subordinates is qualified in the following cases: (a) Where, being charged with the duty of employing or retaining his subordinates, he negligently or wilfully employs or retains unfit or improper persons; or (b) Where, being charged with the duty to see that they are appointed or qualified in a proper name, he negligently or wilfully fails to require them due conformity to the prescribed regulations; or (c) Where he so carelessly or negligently oversees, conducts or carries on the business of his office as to furnish the opportunity for the default; or Page 70 of 97

(d) A fortiori, where he has directed, authorized or cooperated in the wrong; or (e) Where liability is expressly provided in the statute.
The Supreme Court, speaking through Justice Hugo Gutierrez as ponente in the case of Arias vs Sandiganbayan (G.R. No. 81563, December 19, 1989), held as follows: There is no question about the need to ferret out and convict public officers whose acts have made the bidding out and construction of public works and highways synonymous with graft or criminal inefficiency in the public eye. However, the remedy is not to indict and jail every person who may have ordered the project, who signed a document incident to its construction, or who had a hand somewhere in its implementation. The careless use of the conspiracy theory may sweep into jail even innocent persons who may have been made unwitting tools by the criminal minds who engineered the defraudation. Under the Sandiganbayan's decision in this case, a department secretary, bureau chief, commission chairman, agency head, and all chief auditors would be equally culpable for every crime arising from disbursements which they have approved. The department head or chief auditor would be guilty of conspiracy simply because he was the last of a long line of officials and employees who acted upon or affixed their signatures to a transaction. Guilt must be premised on a more knowing, personal, and deliberate participation of each individual who is charged with others as part of a conspiracy83. The issue was put in sharper focus by the equally valid opinion, albeit in the minority, of Justice Carolina Grino-Aquino in her dissent as follows: A conspiracy need not be proved by direct evidence of the acts charged, but may and generally must be proven by a number of indefinite acts, conditions and circumstances (People vs. Maralit, G.R. No. 71143, Sept. 19,1988; People vs. Roca, G.R. No. 77779, June 27, 1988).
83
We would be setting a bad precedent if a head of office plagued by all too common problems-dishonest or negligent subordinates, overwork, multiple assignments or positions, or plain incompetence is suddenly swept into a conspiracy conviction simply because he did not personally examine every single detail, painstakingly trace every step from inception, and investigate the motives of every person involved in a transaction before affixing, his signature as the final approving authority. (Arias vs. Sandiganbayan)
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This case presents a CONSPIRACY OF SILENCE AND INACTION where chiefs of office who should have been vigilant to protect the interest of the Government in the purchase of Agleham's two-hectare riceland, accepted as gospel truth the certifications of their subordinates, and approved without question the millionpeso purchase which, by the standards prevailing in 1976-78, should have pricked their curiosity and prompted them to make inquiries and to verify the authenticity of the documents presented to them for approval. The petitioners kept silent when they should have asked questions; they looked the other way when they should have probed deep into the transaction. (Dissenting opinion, Arias vs. Sandiganbayan) Since it was too much of a coincidence that both petitioners were negligent at the same time over the same transaction, the Sandiganbayan was justified in concluding that they connived and conspired to act in that manner to approve the illegal transaction which would favor the seller of the land and defraud the Government. Six (6) years later, in 1995, the Supreme Court cited the Arias ruling with approval as follows: We are not unaware of an observation made by this Court in People vs. Rodis 8 to the effect that a person may be so held liable as a co-principal if he, by an act of reckless imprudence, has brought about the commission of estafa through falsification, or malversation through falsification, without which (reckless negligence) the crime could not have been accomplished. 9 When, however, that infraction consists in the reliance in good faith, albeit misplaced, by a head of office on a subordinate upon whom the primary responsibility rests, absent a clear case of conspiracy, the Arias doctrine must be held to prevail. (Magsuci vs. Sandiganbayan, G.R. No. L101545 January 3, 1995). Then on September 2, 2009, speaking through Justice Eduardo Nachura in the case Joey Marquez vs. Sandiganbayan, G. R. No. 182020-24, the Supreme Court reiterated the ruling in the Magsuci and Arias cases.
V. SOURCES OF EVIDENCE AND REFERENCE MATERIALS
The PANEL OF INVESTIGATORS, issuing various memoranda addressed to different officials and persons, requested and obtained documents. We Page 72 of 97

also secured samples of the so-called BALLOT SECRECY FOLDER. Here is the list of the documents:
DATE
27-Jul-06 4-Mar-08
11-Mar-08
11-Mar-08
29-Apr-08 17-Jun-08
18-Jul-08
26-Jan-09 26-May-09 17-Nov-09
TITLE OF DOCUMENTS COMELEC RESOLUTION NO. 06-0782 "IN THE MATTER OF THE MEMORANDUM OF COMMISSIONER RENE V. SARMIENTO, CIC, FSD, RELATIVE TO THE MEMO OF ATTY. JOSEFINA E. DELA CRUZ . . . BRINGING TO THE ATTENTION OF THE COMMISSION THAT THE PROPOSED PROJECT OF FILING THE DCS-GENERATED VRRS OF THE EBAD IS WANTING OF THE REQUISITE ESTIMATED EXPENSES TO DETERMINE FUNDS NEEDED THEREFOR" COMELEC RESOLUTION NO. 8424 "IN THE MATTER OF THE NEW CONSTITUTION OF THE NEW BAC", WITH EXECUTIVE DIRECTOR JOSE M. TOLENTINO AS BAC CHAIRMAN COMELEC RESOLUTION NO. 08-0364 "IN THE MATTER OF THE MEMORANDUM OF ACTING CHAIRMAN ROMEO A. BRAWNER FORWARDING THE MEMORANDUM OF EXECUTIVE DIRECTOR JOSE M. TOLENTINO, JR. CHAIRMAN OF THE BAC, RELATIVE TO THE SUSPENSION OF THE PUBLIC BIDDING FOR THE PROCUREMENT OF BINDERS AND PLASTIC FILLERS FOR VRR UNTIL AFTER THE SUBMISSION OF THE REPORT OF THE FSD ON THE CURRENT FINANCIAL STATUS OF THE COMMISSION COMELEC RESOLUTION NO. 08-0375 DATED MARCH 11, 2008 "IN THE MATTER OF THE MEMORANDUM OF JOSE M. TOLENTINO, JR. FORWARDING THE MEMORANDUM OF ATTY. JUDY L. LORENZO, ATTORNEY VI, EBAD, REQUESTING FOR THE IMMEDIATE PURCHASE OF VRR BINDERS AND FILLERS"; COMELEC REITERATED MINUTE RESOLUTION NO. 08-0364 DATED MARCH 11, 2008, HOLDING IN ABEYANCE THE CONDUCT OF THE PUBLIC BIDDING FOR THE PROCUREMENT OF BINDERS AND PLASTIC FILLERS FOR THE VRR COMELEC RESOLUTION NO. 08-0497 DATED APRIL 29, 2008 "IN THE MATTER OF MINUTE RESOLUTION NO. 08-0277 REQUIRING FSD DIRECTOR EDUARDO D. MEJOS TO SUBMIT A DETAILED REPORT ON THE CURRENT FINANCIAL STATUS OF THE COMMISSION ON MAY 14, 2008 COMELEC RESOLUTION NO. 08-0688 "IN THE MATTER OF THE CONSTITUTION OF THE MEMBERS OF THE BAC SECRETARIAT, TECHNICAL WORKING GROUP AND REPRESENTATIVES TO THE BAC COMELEC RESOLUTION NO. 8490 "IN THE MATTER OF THE MEMORANDUM OF THE EXECUTIVE DIRECTOR REQUESTING MODIFICATION OF RESOLUTION NO. 8482 RELATIVE TO THE PUBLIC BIDDING FOR VRR BINDERS AND PLASTIC FILLERS COMELEC MINUTE RESOLUTION 09-0075 "IN THE MATTER OF ADDITIONAL MEMBERS OF THE TECHNICAL WORKING GROUP (TWG); AND THE NEW COMPOSITION OF THE BIDS AND AWARDS COMMITTEE"; BAC CHAIR ATTY. MA. LEAH ALARKON, VICE CHAIR ATTY. ALLEN FRANCIS ABAYA, AND MEMBERS ATTY. MARIA NORINA TANGARO-CASINGAL, ZITA BUENA-CASTILLON, AND ANTONIO S. SANTELLA. THE TERM OF OFFICE OF THE NEW BAC MEMBERS SHALL BE EFFECTIVE APRIL 1, 2009 COMELEC RESOLUTION NO. 09-0309 "IN THE MATTER OF THE APPOINTMENT OF ADDITIONAL SUPPORT STAFF, BAC". THE REQUEST OF CHAIR ALARKON IS DENIED COMELEC RESOLUTION NO. 8699 "AMENDMENT TO RESOLUTION NO. 8647 PROMULGATED ON JULY 14, 2009" ADJUSTING THE NUMBER OF ESTABLISHED PRECINCTS TO BE CLUSTERED/GROUPED IN ORDER
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NOT TO EXCEED THE ALLOCATION OF THE PCOS MACHINES FOR 1000 REGISTERED VOTERS PER CLUSTER/GROUP COMELEC RESOLUTION NO. 09-0850 DATED NOVEMBER 26, 2009 "IN THE MATTER OF BAC RESOLUTION NO. 50-2009 RECOMMENDING THE CREATION OF A COMMITTEE ON SPECIFICATIONS." THE COMMITTEE ON SPECIFICATIONS CONSISTS OF: EXECUTIVE DIRECTOR, DEPUTY EXECUTIVE DIRECTOR FOR ADMINISTRATION, EBAD DIRECTOR IV, PERSONNEL DEPARTMENT DIRECTOR IV, INTERNAL AUDI OFFICER-IN-CHARGE, AND THE HEAD OR REPRESENTATIVE OF THE DEPARTMENT/OFFICE/COMMITTEE REQUESTING THE ITEMS TO BE PURCHASED DATA ON THE TOTAL NUMBER OF ESTABLISHED PRECINCTS, CLUSTERED/GROUPED PRECINCTS, REGISTERED VOTERS AND VOTING CENTERS PREPARED BY EBAD AS OF JANUARY 14, 2010, SHOWING 76,340 CLUSTERED/GROUPED PRECINCTS COMELEC EN BANC RESOLUTION NO. 10-0066 DATED JANUARY 19, 2010 "IN THE MATTER OF THE ADJUSTED QUANTITY REQUIREMENTS OF ELECTION FORMS AND SUPPLIES FOR THE MAY 10, 2010 NATIONAL AND LOCAL ELECTIONS". ATTACHED IS THE ALLOCATION SHOWING "BALLOT SECRECY FOLDER, 22 PIECES (RATE OF DISTRIBUTION), 1,815,000 PIECES" DATED JANUARY 14, 2010 SIGNED BY ENGR. VERGIL JUAN S. SORIANO. ALSO ATTACHED IS A PURCHASE REQUEST FOR 1,815,000 PCS OF BALLOT SECRECY FOLDER REQUESTED AND SIGNED BY ENGR. VERGIL JUAN S. SORIANO ON JANUARY 28, 2010 AND APPROVED BY EXEC. DIR. TOLENTINO, BUT RECEIVED BY THE OFFICE OF THE CHAIRMAN ONLY IN FEBRUARY 2010. LETTER DATED FEBRUARY 5, 2010 OF HENRY K. YOUNG OF OTC PAPER SUPPLY TO CHAIRMAN JOSE MELO THRU COMMITTEE ON SPECIFICATION WHICH OFFERED THE BALLOT SECRECY FOLDER SAME LETTER DATED FEBRUARY 5, 2010 OF WILLY K. YOUNG, PROPRIETOR OF OTC PAPER SUPPLY TO CHAIRMAN JOSE MELO DIRECTLY WHICH OFFERED THE BALLOT SECRECY FOLDER, ROUTED TO PLANNING DEPARTMENT SAME DAY FOR COMMENT DIRECTOR ESMERALDA AMORA-LADRA'S MEMORANDUM FOR CHAIRMAN JOSE MELO, DATED FEBRUARY 5, 2010 COMMENTING ON THE BALLOT SECRECY FOLDER OFFERED BY WILLY K. YOUNG OTC FILES FEBRUARY 10, 2010 2 APPLICATIONS FOR REGISTRATION OF UTILITY MODEL AT THE IPO: 1 WITH METAL CLIP (2-2010-000049), AND THE OTHER WITHOUT METAL CLIP (2-2010000050) PARTIAL TRANSCRIPT OF STENOGRAPHIC NOTES OF SPECIAL EN BANC MEETING ON FEBRUARY 11, 2010 WHERE THE OFFER OF OTC AND THE COMMENT OF DIRECTOR LADRA WERE DISCUSSED. EN BANC DECIDES TO REMOVE METAL CLIP. PARTIAL TRANSCRIPT OF STENOGRAPHIC NOTES OF THE REGULAR EN BANC HELD ON FEBRUARY 17, 2010 AM (REFERENCE NO. 33510): EXEC. DIR. TOLENTINO: YES SIR ANG SA AKIN IF WE AGREE TO THIS DESIGN WE CAN SAY OK, AGREED IYUNG DESIGN AND THEN WE WILL LET THE BAC TAKE APPROPRIATE ACTION FOR THE PROCUREMENT X X X CHAIRMAN MELO: ANO, ANO, MAG PAPABID TAYO NIYAN, O HINDI NA? EXEC DIR TOLENTINO: YES X X X SIR ITO SIR, AH, WE'LL JUST DIRECT THE BAC TO PROCEED WITH THE PROCUREMENT PROCESS AND THEN BAHALA NA ANG BAC KUNG ANO ANG GAGAWIN NILA X X X APPROVE THE DESIGN AND THEN
26-Nov-09
14-Jan-10
19-Jan-10 5-Feb-10
5-Feb-10 5-Feb-10
10-Feb-10
11-Feb-10 17-Feb-10
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LET THE BAC PROCEED WITH THE PROCUREMENT. COMELEC MINUTE RESOLUTION 10-0251 DATED FEBRUARY 17, 2010 "IN THE MATTER OF THE PROCUREMENT OF THE BALLOT SECRECY FOLDERS IN CONNECTION WITH THE MAY 10, 2010 NATIONAL AND LOCAL ELECTIONS", APPROVING THE DESIGN (PRESENTED BY E.D. TOLENTINO) WITH SPECIFICATIONS, DIRECTING BAC "TO TAKE APPROPRIATE ACTION FOR THE PROCUREMENT OF SAID BALLOT SECRECY FOLDERS" LETTER DATED FEBRUARY 27, 2010 OF HENRY K. YOUNG OF OTC PAPER SUPPLY TO BAC CHAIR ALARKON SUBMITTING HIS PROPOSAL FOR 1,815,000 PCS OF Plastic Ballot Secrecy Folder at P380/pc WITH EXACT SPECIFICATIONS AS CONTAINED IN COMELEC RESOLUTION 10-0251, ATTACHING "A COPY OF THE CERTIFICATION FROM THE IPO WITH APPLICATION NO. 2-2010000050, AFFIRMING OUR PATENT APPLICATION FOR THE ABOVE MENTIONED FOLDER". LETTER OF HENRY K. YOUNG OF OTC PAPER SUPPLY TO BAC CHAIR ALARKON DATED MARCH 5, 2010 (EXACTLY THE SAME AS THE LETTER DATED FEBRUARY 27, 2010), SUBMITTING HIS PROPOSAL FOR 1,815,000 PCS OF Plastic Ballot Secrecy Folder at P380/pc WITH EXACT SPECIFICATIONS AS CONTAINED IN COMELEC RESOLUTION 10-0251, ATTACHING "A COPY OF THE CERTIFICATION FROM THE IPO WITH APPLICATION NO. 2-2010000050, AFFIRMING OUR PATENT APPLICATION FOR THE ABOVE MENTIONED FOLDER". BAC RESOLUTION NO. 85-2010 DATED MARCH 5, 2010 RECOMMENDING TO THE COMELEC EN BANC THE AWARD OF BSF CONTRACT TO OTC PAPER SUPPLY, INVOKING EMERGENCY AND PROPRIETARY NATURE AS WELL AS "THE ACCOMPANYING ELIGIBILITY DOCUMENTS" MEMO OF BAC CHAIR ALARKON TO DIRECTOR MEJOS DATED MARCH 8, 2010 REQUESTING FOR CERTIFICATION AS TO THE AVAILABILITY OF FUNDS AMOUNTING TO P689,700,000.00 TO DEFRAY THE PROCUREMENT OF BSF BAC CHAIR ALARKON'S MEMO DATED MARCH 8, 2010 TANSMITTING TO COMELEC EN BANC BAC RESOLUTION NO. 85-2010 RECOMMENDING AWARD OF THE BSF CONTRACT THRU EXEC. DIR. TOLENTINO AND ATTY. JOSEFINA DELA CRUZ CERTIFICATION ISSUED BY ATTY. MARTIN NIEDO OF FSD DATED MARCH 15, 2010 THAT FUNDS ARE AVAILABLE FOR THE PROCUREMENT OF BSF IN THE AMOUNT OF P689,700,000.00 COMELEC RESOLUTION 8795 DATED MARCH 15, 2010 " N THE MATTER OF BAC RESOLUTION NO. 85-2010 RE: RECOMMENDATION OF THE BIDS AND AWARDS COMMITTEE TO AWARD THE CONTRACT FOR THE SUPPLY AND DELIVERY OF 1,815,000 PCS. BALLOT SECRECY FOLDER FOR THE MAY 10, 2010 NATIONAL AND LOCAL ELECTIONS" RESOLVING TO AWARD THE CONTRACT FOR THE BSF EMAILED LETTER OF ATTY. MELCHOR MAGDAMO TO DR. ARWIN SERRANO DATED MARCH 15, 2010 EXPRESSING OUTRAGE AT THE PRICE PUBLICATION OF OTC'S APPLICATION FOR REGISTRATION OF UTILITY MODEL AT THE IPO NOTICE OF AWARD TO OTC PAPER SUPPLY FROM BAC CHAIR ALARKON DATED MARCH 16, 2010, RECEIVED BY HENRY YOUNG ON THE SAME DATE OBLIGATION REQUEST NO. 10-03-2024 DATED MARCH 20, 2010 IN THE TOTAL AMOUNT OF P689,700,000 WITH OTC PAPER SUPPLY AS PAYEE, SIGNED BY DIRECTOR J. THADDEUS HERNAN AND ATTY. MARTIN NIEDO, CONSISTING OF NLE 10: P560,000,000 AND P-NLE:
17-Feb-10
27-Feb-10
5-Mar-10
5-Mar-10
8-Mar-10
8-Mar-10 15-Mar-10
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P129,700,000 LETTER OF DR. ARWIN SERRANO OF PPCRV TO ATTY. FERDINAND T. RAFANAN DATED MARCH 22, 2010 QUESTIONING THE AWARD OF THE BSF CONTRACT AND THE INDELIBLE INK MEMORANDUM NO. 10-1276 (FTR 102921) OF DIRECTOR FERDINAND T. RAFANAN DATED MARCH 23, 2010 RE 1,815,000 PIECES OF BALLOT SECRECY FOLDER WORTH PHP 380.00 PER PIECE WITHOUT PUBLIC BIDDING PURCHASE ORDER NO. 10-03-020BAC DATED MARCH 23, 2010 INDICATING MODE OF PROCUREMENT AS "PUBLIC BIDDING" FOR P689,700,000 UNSIGNED BY CHAIRMAN JOSE MELO MEMORANDUM NO. 10-1431 OF DIRECTOR FERDINAND T. RAFANAN DATED MARCH 29, 2010 RECOMMENDING THAT "THE PURCHASE OF 1,815,000 BSF AT P380 PER PIECE BE CANCELLED", "THAT ORDINARY BALLOT SECRECY FOLDERS WITH THE SAME SPECIFICATIONS USED IN THE PAST ELECTIONS WITH A SIZE OF 9.5 INCHES (WIDTH) BY 28 INCHES (LENGTH) WITH THE COMELEC SEAL AND MARKING 'BALLOT SECRECY FOLDER' BE PURCHASED" AND THAT "THE RIGHT SIDE OF THE FOLDER WHERE THE BALLOT WILL BE PLACED BY THE VOTER NEEDS ONLY TO BE A LITTLE BIT THICKER AND HARDER TO ALLOW THE HEAVY WEIGHT WHEN SHADING." MEMORANDUM FOR THE EN BANC DATED MARCH 29, 2010 SIGNED BY GEN GURREA, RENATO GARCIA, MELCHOR MAGDAMO, AND RAMON AQUINO FINDING MERIT AND RECOMMENDING APPROVAL OF THE RECOMMENDATIONS FROM THE LAW DEPARTMENT FOR CANCELLATION OF THE PURCHASE OF BSF FROM OTC LETTER OF HENRY YOUNG OF OTC PAPER SUPPLY DATED MARCH 30, 2010 ADDRESSED TO CHAIRMAN MELO INDICATING THE "COMPARATIVE" COST ANALYSIS OF ITS OWN BALLOT SECRECY FOLDER, WITHOUT ANY COMPARISON PARTIAL TRANSCRIPT OF STENOGRAPHIC NOTES OF REGULAR EN BANC HEARING ON THE BSF DATED MARCH 30, 2010. E.D. TOLENTINO: "AND I DON'T THINK HE IS QUESTIONING THE PROCEDURE IT'S JUST THE PRICE. COMM. VELASCO: 700 ALMOST 10% OF THE TOTAL AMOUNT OF AUTOMATION. AUTOMATION IS 7B AND THIS ONE IS 700. MOST CUMBERSOME. X X X TOLENTINO SAID "NEGOTIATE FOR A LOWER PRICE BUT NOT TO CANCEL IT KASI NAG NOTICE OF AWARD MOST PROBABLY NAG ORDER NA IYAN, AND THE ONLY REASON HINDI NAKAKA-DELIVER IS BECAUSE OF THE REQUIREMENT THAT THE PURCHASE ORDER MUST FIRST BE ISSED BEFORE DELIVERY." PARTIAL TRANSCRIPT OF STENOCRAPHIC NOTES OF REGULAR EN BANC HEARING ON THE BSF DATED MARCH 31, 2010. CHAIRMAN MELO THINKS THE SPECS CAME FROM THE COMMITTEE ON SPECS, NOT FROM A FRIEND. COMMISSIONER FERRER THINKS THERE WAS A COMPARISON OF PRICES. E.D. TOLENTINO CONFIRMS THE BSF STOCKS ARE ALREADY IN CUSTOMS. BAC CHAIR ALRAKON SAYS THE CONTRACT AWARD RE BALLOT BOXES WAS A PRECEDENT FOR THE BSF AWARD BY REASON OF PATENT APPLICATION. COMELEC RESOLUTION NO. 10-0442 DATED MARCH 31, 2010 "IN THE MATTER OF THE MEMORANDUM OF THE LAW DEPARTMENT ON THE PRICING OF 1,815,000 PIECES OF BALLOT SECRECY FOLDER FOR USE IN CONNECTION WITH THE MAY 10, 2010 ELECTIONS, QUOTING DIRECTOR RAFANAN'S MEMORANDUM DATED MARCH 23, 2010 AND REQUIRING HIM "TO BE PRESENT DURING THE NEXT EN BANC MEETING ON APRIL 06, 2010 IN ORDER TO ELUCIDATE ON MATTERS RAISED IN HIS INSTANT MEMORANDUM" PARTIAL TRANSCRIPT OF STENOGRAPHIC NOTES OF THE SPECIAL EN
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BANC MEETING HELD ON APRIL 5, 2010 ON THE BSF WHERE EXEC. DIR. TOLENTINO PRESENTED DOCUMENTS FOR DISCOUNT OF P250 MILLION. COMM. LARRAZABAL: Chair, the specifications are over and beyond, are over and above that required . . . CHAIRMAN MELO: Required needs, and that the specifications and the kind of secrecy folders are beyond the ordinary needs. COMM. SARMIENTO: Di natin naperceive to be exorbitant. Wala na ito. EXEC. DIR. TOLENTINO: Inapprove ninyo yan eh, babalik at babalik sa inyo yan Sir! COMM. FERRER: But you . . . ! (pointing to the support staff) CHAIRMAN MELO: We are not afraid of that. Sa akin, bad. That's why we denied it. We are recalling them. COMM. LARRAZABAL: Over and above. CHAIRMAN MELO: Ako I'm not afraid. That error . . . that's why we are correcting it x x x EXEC. DIR. TOLENTINO: Sir but still we need a folder just to make . . . CHAIRMAN MELO: We need something to cover it. It can be a piece of paper; it can be a banana leaf. COMELEC RESOLUTION NO. 8814 DATED APRIL 5, 2010 "IN THE MATTER OF THE CANCELLATION OF THE CONTRACT FOR THE SUPPLY AND DELIVERY OF 1,815,000 PCS OF THE BALLOT SECRECY FOLDER FOR THE MAY 10, 2010 NATIONAL AND LOCAL ELECTIONS" BAC RESOLUTION NO. 99-2010 DATED APRIL 5, 2010 (PROCUREMENT REPORT ON THE SUPPLY AND DELIVERY OF THE 1,815,000 PIECES BALLOT SECRECY FOLDERS FOR THE MAY 10, 2010 NATIONAL AND LOCAL ELECTIONS). PARAGRAPH 3 STATES: "3. THERE BEING NO ALTERNATIVE SUPPLIER FROM WHICH TO COMPARE THE OFFER CONSIDERING THE CLAIM FOR PATENT, THE CANVASS PRICE SUBMITTED BY THE ASD IN THE PROCUREMENT OF DOCUMENT BINDERS WAS USED AS REFERENCE, COPY OF THE SAID QUOTATIONS ARE HEREIN ATTACHED. THE BINDERS, MADE OF MODIFIED DENSITY FIBERBOARD, AND MORE OR LESS HALF THE SIZE OF THE REQUIRED BALLOT SECRECY FOLDERS, IS PRICED AT P320.00." THIS REFERS TO "REQUEST FOR PRICE QUOTATION" FOR "OUTER DOCUMENT HOLDER/BINDER" FILLED OUT AND SIGNED BY FAUSTINO F. DAN, JR OF BEST FORMS ON FEBRUARY 24, 2010, EMILY C. BACOTO OF FILEFIX, UNDATED, AND BY MARY DAWN D. SY OF ERNEST PRINTING CORP. ON MARCH 3, 2010. ALL ALLEGED REQUESTS ARE UNSIGNED BY DIRECTOR REY DOMA OR ANY EMPLOYEE OF THE ASD. BAC RESOLUTION NO. 101-2010 DATED APRIL 5, 2010, STATING: "WHEREFORE, IN VIEW OF THE FOREGOING, THE BAC, MOST RESPECTFULLY DEEMS THAT THE HONORABLE COMMISSION EN BANC, WAS FULLY INFORMED OF THE BASIS ON THE REQUESTED ALLOCATION AND THE BAC REGULALRY PERFORMED ITS DUTIES IN ACCORDANCE WITH THE REQUIREMENTS PROVIDED BY LAW." PARTIAL TRANSCRIPT OF STENOGRAPHIC NOTES OF EN BANC MEETING ON APRIL 6, 2010 WHERE IT WAS DECIDED THAT WE USE ORDINARY FOLDER AS BSF. BAC CHAIR ALARKON: Kung kailangan po Your Honor ng alternative dapat meron po ulit ibibigay po sa amin na basis for buying. CHAIRMAN MELO: Ano, ano? COMM. SARMIENTO: Basis for buying. ALARKON: Basis for buying katulad po nung sa resolution po dati, na nagbigay po ng specs. So di ba sabi po ninyo na, ng en banc yesterday, we will find, we will look for alternative . . . yong parameters . . . CHAIRMAN MELO: Ordinary folder. LETTER OF CHAIR ALARKON DATED APRIL 6, 2010 ADDRESSED TO OTC PAPER SUPPLY NOTIFYING IT THAT THE NOTICE OF AWARD "IS HEREBY RECALLED." RECEIVED BY HENRY YOUNG ON APRIL 7, 2010 MEMORANDUM OF BAC CHAIR ALARKON DATED APRIL 6, 2010 ADDRESSED TO THE COMMISSION EN BANC THRU EXEC DIR
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TOLENTINO, TRANSMITTING BAC'S BOARD RESOLUTION NO. 101-2010 "PROVIDING FOR THE BAC'S REPLY ON EN BANC RESOLUTION NO. 8814 FOR THE PROCUREMENT OF BALLOT SECRECY FOLDERS." MEMORANDUM OF BAC CHAIR ALARKON TO DIRECTOR JAMES JIMENEZ TRANSMITTING TO HIM COPY OF THE BAC'S REPORT "FOR PURPOSES OF RECORD AND INFORMATION." COMELEC MINUTE RESOLUTION 10-0455 DATED APRIL 6, 2010 "IN THE MATTER OF CREATING A PANEL TO INVESTIGATE THE PROCUREMENT OF THE BALLOT SECRECY FOLDER" MEMORANDUM NO. 10-1560 DATED APRIL 9, 2010 TO CONVENE AS PANEL TO DISCUSS PROCEDURES AND TASKS IN THE CONDUCT OF INVESTIGATION MEMORANDUM NO. 10-1561 DATED APRIL 9, 2010 DIRECTING THE BAC AND SECRETARIAT HEAD TO SUBMIT ALL DOCUMENTS PERTINENT TO THE PROCUREMENT OF THE BSF LEADING TO THE ISSUANCE OF NOTICE OF AWARD TO OTC, AND TO SUBMIT ALL MEMORANDA AND OTHER DOCUMENTS RELATIVE THERETO. PANEL'S MEMORANDUM NO.10-1576 DATED APRIL 9, 2010 DIRECTING EXEC. DIR. TOLENTINO TO SUBMIT ALL DOCUMENTS PERTINENT TO THE PROCUREMENT OF THE BALLOT SECRECY FOLDERS LEADING TO THE ISSUANCE OF NOTICE OF AWARD TO OTC MOTION FOR RECONSIDERATION DATED APRIL 8, 2010 FILED BY OTC PAPER SUPPLY ON APRIL 9, 2010: "IN THE MATTER OF THE CANCELLATION OF THE CONTRACT FOR THE SUPPLY AND DELIVERY OF 1,815,000 PIECES OF BALLOT SECRECY FOLDER FOR THE MAY 10, 2010 NATIONAL AND LOCAL ELECTIONS" PANEL'S MEMORANDUM NO. 10-1581 DATED APRIL 10, 2010 DIRECTING DIRECTOR EDUARDO MEJOS TO SUBMIT ALL DOCUMENTS PERTAINING TO THE BUDGET, IF ANY, FOR THE PROCUREMENT OF THE BSF. PANEL'S MEMORANDUM NO. 10-1588 DATED APRIL 10, 2010 DIRECTING ATTY. MA. JOSEFINA DELA CRUZ TO SUBMIT THE NAME OF THE EMPLOYEE WHO PREPARED EN BANC RESOLUTION NO. 8795 PROMULGATED ON MARCH 15, 2010 AND TO SUBMIT ALSO THE REASON WHY THE UNIT PRICE WAS NOT INDICATED IN WORDS AND ALSO IN THE REASON WHY THE TOTAL CONTRACT PRICE WAS NOT INDICATED AT ALL. BAC CHAIRMAN ALARKON'S MEMORANDUM COMPLIANCE WITH THE PANEL'S 9 APRIL 2010 DIRECTIVE (TRANSMITTAL OF DOCUMENTS ON THE PROCUREMENT FOR THE COMELEC BALLOT SECRECY FOLDERS), SUBMITTING THE FOLLOWING: 1. "A"- RECALL OF NOTICE AWARD; 2. "B"- MEMO TO DIR. JAMES JIMENEZ, DIRECTOR IV-EID ON THE BAC'S PROCUREMENT REPORT ON THE BALLOT SECRECY FOLDERS; 3. "C"- TRANSMITTAL- BAC'S REPLY TO COMELEC EN BANC RESO NO. 8814; 4. "D"- COMELEC RESO NO. 10-0442; 5. "E"- COMELEC MINUTE RESO NO. 8814; 6. "F"- BAC RESO NO. 99-2010; 7. "G" OTC PAPER SUPPLY'S JUSTIFICATION ON THEIR PRICE OFFER FOR THE BALLOT SECRECY FOLDER; 8. "H"- NOTICE OF AWARD TO OTC PAPER SUPPLY; 9. "I"- COMELEC MINUTE RESO NO. 8795; 10. "J" FSD CERTIFICATION AS TO THE AVAILABILITY OF FUNDS; 11. "K"- RECOMMENDATION OF AWARD TO THE COMMISSION EN BANC; 12. "L"- -CONFIRMATION OF THE OTC PAPER SUPPLY'S PRICE PRICE PROPOSAL";
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13. "M"- ORIGINAL PRICE PROPOSAL OF OTC PAPER SUPPLY ; 14. "N"- EN BANC RESO NO. 10-0251 SUPPLEMENT TO THE MOTION FOR RECONSIDERATION FILED BY OTC PAPER SUPPLY, AS SINGLE PROPRIETORSHIP OF WILLY YOUNG: "IN THE MATTER OF THE CANCELLATION OF THE CONTRACT FOR THE SUPPLY AND DELIVERY OF 1,815,000 PIECES OF BALLOT SECRECY FOLDER FOR THE MAY 10, 2010 NATIONAL AND LOCAL ELECTIONS" PRAYING THAT "IN THE MEANTIME IT (THE COMMISSION EN BANC) CEASE AND DESIST FROM PURCHASING ORDINARY FOLDERS FROM OTHER SUPPLIER." MEMORANDUM OF FSD DIRECTOR EDUARDO MEJOS DATED APRIL 12, 2010 SUBMITTING COPY OF THE CERTIFICATE OF AVAILABILITY OF FUNDS (CAF) AND REQUEST OF THE BAC FOR SUBMISSION OF THE CAF MEMORANDUM OF ATTY. JOSEFINA DELA CRUZ DATED APRIL 13, 2010 SUBMITTING THE NAMES OF PERSONNEL INVOLVED IN THE PROCESSING, PREPARATION, DRAFTING, ROUTING AND RELEASE OF RESOLUTION NO. 8795 DATED MARCH 15, 2010: VIRGINIA ROBLES - RECEIVING/ ASSIGNING OF REFERENCE NO., ENCODER WITH ALTERNATE ARNEL PAULO; JEOFREY PAREJA, ENCODING; MA. KHRISTINA ANGELES - REVIEWING/PROOFREADING; MA. MELINDA BELUANG - REVIEW/CORRECT FINAL, CLEAN DRAFT; ADRIANO ARESTA - ROUTING; AND JOSELITO VISTAN AND FRANCIS PALACIO RELEASING MEMORANDUM FOR ATTY. JOSEFINA DELA CRUZ OF BOARD SECRETARY MELINDA BELUANG AND BOARD SECRETARY MARIA KHRISTINA ANGELES DATED APRIL 13, 2010 NARRATING THE PROCEDURE HOW THE BSF RESOLUTION WAS PROCESSED. MEMORANDUM NO. 10-1601 ADDRESSED TO EXEC. DIR. TOLENTINO DATED APRIL 13, 2010 REQUESTING HIM TO SUBMIT THE SAMPLE OF BALLOT SECRECY FOLDER GIVEN TO HIM BY OTC PAPER SUPPLY. NOTICE OF MEETING OF PANEL OF INVESTIGATORS DATED APRIL 13, 2010 LETTER TO DIR. EPIFANIO EVASCO, DIRECTOR, BUREAU OF PATENTS, INTELLECTUAL PROPERTY OFFICE, DATED APRIL 14, 2010, ASKING 6 QUESTIONS REGARDING THE APPLICATION FOR REGISTRATION AS UTILITY MODEL OF THE BSF BY OTC PAPER SUPPLY LETTER TO ATTY. CAESAR ASUNCION, ACTING DIRECTOR OF THE ASSETS AND INVESTIGATION BUREAU, OFFICE OF THE OMBUDSMAN, DATED APRIL 13?, 2010, SUBMITTING SOME DOCUMENTS PERTAINING TO THE BSF AS SUBPOENAED. PANEL'S MEMORANDUM NO. 10-1600 DATED APRIL 13, 2010 ADDRESSED TO BAC CHAIR ALARKON REQUESTING FOR "DOCUMENTS SUBMITTED BY OTC PAPER SUPPLY IN ITS BID FOR THE INDELIBLE INK OR LATEST BID, SHOWING ITS LEGAL ELIGIBILITY, FINANCIAL ELIGIBILITY AND TECHNICAL ELIGIBILITY. WE NEED THIS TO DETERMINE ITS COMPETITIVE CAPACITY TO PROVIDE P690,000,000 WORTH OF SUPPLIES, AMONNG OTHERS" PANEL'S MEMORANDUM NO. 10-1600 (same number) DATED APRIL 14, 2010 ADDRESSED TO BAC CHAIR ALARKON REQUESTING FOR ELIGIBILITY "DOCUMENTS SUBMITTED BY OTC PAPER SUPPLY IN ITS BID FOR UV LAMPS, STAMP PADS, AND/OR OTHER BIDS, SHOWING ITS LEGAL ELIGIBILITY, FINANCIAL ELIGIBILITY AND TECHNICAL ELIGIBILITY" MEMORANDUM OF ALARKON DATED APRIL 14, 2010: "ANENT YOUR MEMORANDUM DATED APRIL 13, 2010 REQUIRING THE BAC TO SUBMIT THE ELIGIBILITY DOCUMENTS OF OTC PAPER SUPPLY IN ITS BID FOR THE INDELIBLE INK OR LATEST BID, PLEASE BE
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INFORMED THAT OTC PAPER SUPPLY HAS NOT PARTICIPATED IN THE AFORESAID PROCUREMENT." LETTER OF DIR. EPIFANIO EVASCO, DIRECTOR, BUREAU OF PATENTS, INTELLECTUAL PROPERTY OFFICE DATED APRIL 14, 2010, INFORMING THE PANEL THAT HENRY YOUNG FILED AN APPLICATION FOR UTILITY MODEL REGISTRATION FOR AN IMPROVED FILE FOLDER ON FEBRUARY 10, 2010, WITH UM APPLICATION NO. 2-2010-000050. ANOTHER APPLICATION FILED BY HENRY YOUNG IS AN "IMPROVED FILE FOLDER WITH CLIP" WITH UM APPLICATION NO. 2-2010000049. BOTH APPLICATIONS WERE PUBLISHED ON MARCH 15, 2010 AND WOULD BE DEEMED REGISTERED ON MAY 15, 2010 PROVIDED NO OPPOSITION IS RECEIVED. MEMORANDUM OF DIRECTOR EDUARDO MEJOS DATED APRIL 14, 2010 SUBMITTING OBLIGATION REQUEST NO. 10-03-2024 DATED MARCH 20, 2010 AND PURCHASE ORDER NO. 10-03-020BAC DATED MARCH 23, 2010 IN FAVOR OF OTC PAPER SUPPLY FOR THE PROCUREMENT OF 1,815,000 PCS OF BSF IN THE TOTAL AMOUNT OF P689,700,000. LETTER TO ATTY. MA. LEA ALARKON FROM SERVANDO HIZON, ACTING DIRECTOR IV, NPO, DATED APRIL 14, 2010 SUBPOENA DUCES TECUM (OMBUDSMAN) AFFIDAVIT OF ATTY. MELCHOR MAGDAMO DATED APRIL 15, 2010 MEMORANDUM OF BAC SECRETARIAT HEAD POSTRADO ASKING FOR ADDITIONAL TIME TO SUBMIT DOCUMENTS REQUESTED MEMORANDUM OF EXEC. DIR. JOSE TOLENTINO DATED APRIL 15, 2010 SUBMITTING THE "FIRST PROTOTYPE OF THE BSF THAT WAS GIVEN TO HIM BY OTC PAPER SUPPLY. ALSO SUBMITTED IS THE COVERING LETTER OF OTC DATED FEBRUARY 5, 2010 ADDRESSED TO CHAIRMAN JOSE A.R. MELO THROUGH THE COMMITTEE ON SPECIFICATIONS. THE PROTOTYPE AND COVERING LETTER WERE RECEIVED AT 10:45A.M. OF FEBRUARY 9, 2010." PANEL'S MEMORANDUM NO. 10-1743 DATED APRIL 16, 2010 ADDRESSED TO ATTY. JOSEFINA DELA CRUZ REQUESTING FOR COPIES OF RESOLUTIONS AND TRANSCRIPTS OF EN BANC HEARINGS MEMORANDUM OF CYNTHIA AQUINO AND MEDEL DE ASIS DATED APRIL 17, 2010 IN REPLY TO PANEL'S MEMORANDUM NO. 10-1743 DATED 16 APRIL 2010, SUBMITTING VARIOUS DOCUMENTS INCLUDING THE SAMPLE BSF (BLUE COLORED HARDBOUND FOLDER) PANEL'S LETTER TO HENRY YOUNG (MEMO NO.1873) DATED APRIL 17, 2010 REQUESTING HIM TO SUBMIT: 1. AUDITED FINANCIAL STATEMENT FOR THE YEAR 2008-2009; 2. DTI BUSINESS NAME REGISTRATION; 3. VALID AND CURRENT MAYORS PERMIT; 4. BIR REGISTRATION CERTIFICATION, WHICH CONTAINS THE TAXPAYERS IDENTIFICATION NUMBER; 6. TAX CLEARANCE CERTIFICATE ISSUED BY THE BIR MAIN OFFICE AND INCOME OR BUSINESS TAX RETURNS FILED THROUGH THE EFPS; 7. BANK LOAN CERTIFICATE OR ANY PROOF TO THE AMOUNT OF FIVE HUNDRED MILLION (500,000,000) PESOS MORE OR LESS YOU ALREADY INCURRED TO CARRY OUT THE BALLOT SECRECY FOLDER TRANSACTION AS YOU CLAIMED BEFORE THE MEDIA; 8. REASON FOR SUBMISSION ON MARCH 30, 2010 LETTER ADDRESSED TO CHAIRMAN JOSE AR MELO, SUBMITTING THE COMPARATIVE COST ANALYSIS OF YOUR PRODUCT, BALLOT SECRECY FOLDER; AND 9. CONFIRMATION ON WHETHER OR NOT YOU SUBMITTED ANY LEGAL DOCUMENTS AND FINANCIAL STATEMENTS TO THE BIDS AND
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AWARDS COMMITTEE (BAC) RELATIVE TO THE BALLOT SECRECY FOLDER TRANSACTION. WE ARE ANTICIPATING TO RECEIVE YOUR RESPONSE WITHIN THREE (3) DAYS FROM THE RECEIPT HEREON. THANK YOU VERY MUCH. PANEL'S MEMORANDUM NO. 10-1820 DATED APRIL 19, 2010 REQUESTING FOR EXTENSION OF TIME TO COMPLETE INVESTIGATION UNTIL APRIL 30, 2010 LETTER OF DR. ARWIN SERRANO DATED APRIL 20, 2010 PANEL'S MEMORANDUM NO. 10-1875 DATED APRIL 20, 2010 ADDRESSED TO ATTY. JOSEFINA DELA CRUZ REITERATING REQUEST FOR TRANSCRIPT OF EN BANC HEARING WHERE DESIGN AND SPECIFICATIONS OF THE BSF WERE DISCUSSED. PANEL'S MEMORANDUM NO. 10-1876 DATED APRIL 20, 2010 ADDRESSED TO ATTY. JOSEFINA DELA CRUZ REITERATING REQUEST FOR THE RESOLUTION APPOINTING THE PRESENT MEMBERS OF THE BAC, AND ASKING FOR COPY OF RESOLUTION SHOULD THERE BE ANY EXTENDING THEIR TERM MEMORANDUM OF STENOGRAPHER VIRGINIA ROBLES AND SECRETARY CYNTHIA AQUINO DATED APRIL 21, 2010 IN COMPLIANCE TO PANEL'S MEMORANDUM DATED 20, 2010, SUBMITTING MINUTE RESOLUTION NO. 09-0075 DATED JANUARY 26, 2009 APPROVING THE NEW COMPOSITION OF THE BAC HEADED BY ALARKON, AND THE TRANSCRIPT OF NOTES OF THE EN BANC HEARING ON FEBRUARY 11, 2010 SUBPOENA DUCES TECUM (CPL NO. C-10-0763) DATED APRIL 21, 2010 OF ATTY. CAESAR D. ASUNCION OF THE OFFICE OF THE OMBUDSMAN LETTER OF DIRECTOR FERDINAND T. RAFANAN TO ATTY. CAESAR D. ASUNCION, ACTING DIRECTOR OF THE ASSETS INVESTIGATION BUREAU, OFFICE OF THE OMBUDSMAN IN COMPLIANCE TO SUBPOENA DUCES TECUM DATED APRIL 21, 2010 (CPL NO. C-100763) PANEL'S MEMORANDUM NO. 10-2121 DATED APRIL 26, 2010 REQUESTING THE BAC AND THE COMMITTEE ON SPECIFICATIONS TO SUBMIT THEIR INDIVIDUAL COMMENTS ON THE ATTACHED COPY OF THE AFFIDAVIT OF ATTY. MELCHOR MAGDAMO, ON WHETHER OR NOT: 1. THE SPECIFICATIONS OF THE BSF PRIOR TO ITS APPROVAL BY THE EN BANC WAS STUDIED AND DELIBERATED UPON BY THE COMMITTEE ON SPECIFICATIONS; 2. THE BAC CONDUCTED AN INDUSTRY SURVEY BEFORE PROCEEDING WITH THE PROCUREMENT PROCESS; AND 3. THE BSF OF OTC WAS ALREADY COVERED BY INTELLECTUAL PROPERTY RIGHT WHEN THE PROCUREMENT PROCESS WAS INITIATED. PANEL'S MEMORANDUM NO. 10-2222 (2122) DATED APRIL 26, 2010 ADDRESSED TO BAC CHAIR ALARKON AND BAC SECRETARIAT HEAD POSTRADO REITERATING 3 PREVIOUS MEMORANDA (DATED ARPIL 9, 13, 14, 2010) REQUESTING FOR SUBMISSION OF THE ELIGIBILITY DOCUMENTS OF OTC PAPER SUPPLY REPLY TO MEMORANDUM 10-2121 FROM ATTY. MA. LEA ALARKON, WITH ATTACHED 1-PAGE MEMORANDUM DATED APRIL 27, 2010 SIGNED BY ALL MEMBERS OF THE BAC, STATING: "X X X AS REGARDS THE PROCUREMENT OF THE BSF, ALL THE DOCUMENTS PERTAINING THERETO WERE ALREADY SUBMITTED X X X" MEMORANDUM OF EXEC DIR TOLENTINO DATED APRIL 28, 2010 SUBMITTING HIS COMMENTS TO THE AFFIDAVIT OF ATTY. MELCHOR MAGDAMO IN REPLY TO THE PANEL'S MEMORANDUM NO. 2121 DATED APRIL 26, 2010, STATING: "MAGDAMO HAS ONCE AGAIN OMITTED FROM SAID AFFIDAVIT, IN THE SAME MANNER HE WITHHELD WAY BACK IN 2008, A PUBLIC DOCUMENT, NAMELY,
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MINUTE RESOLUTION NO. 08-0391, SHOWING THAT WHEN THE BAC PROCEEDED WITH THE BIDDING FOR VRR BINDERS/FILLER, MINUTE RESOLUTION NO. 08-0364 WHICH MAGDAMO REPEATEDLY CITES AS HAVING SUSPENDED THE BIDDING FOR SAID ITEMS, WAS ALREADY SET ASIDE." MEMORANDUM OF MA. AGNES CARREON DATED APRIL 28, 2010 STATING: "AS TO WHETHER THE SPECIFICATIONS OF THE BSF HAD BEEN STUDIED AND DELIBERATED UPON BY THE COMMITTEE ON SPECIFICATIONS, UNDERSIGNED IS HEREBY CATEGORICALLY STATING THAT, AS FAR AS HER MEMORY SERVES HER, SAID SPECIFICATIONS HAD NOT BEEN STUDIED NOR DELIBERATED UPON BY SAID COMMITTEE." PANEL'S MEMORANDUM NO. 10-2190 DATED APRIL 28, 2010 DIRECTING ALARKON TO NAME THE EMPLOYEE OR MEMBER OF THE BAC WHO PREPARED BAC RESOLUTION NO. 85-2010, AND TO STATE THE REASON WHY THE UNIT PRICE WAS NOT INDICATED IN WORDS AND WHY THE TOTAL PRICE WAS NOT INDICATED AT ALL. PANEL'S MEMORANDUM NO. 10-2213 DATED APRIL 29, 2010 REQUESTING ATTY. ALLEN FRANCIS ABAYA, VICE CHAIR OF THE BAC TO SUBMIT THE BAC RESOLUTION JUSTIFYING AND RECOMMENDING THE USE OF ALTERNATIVE METHOD OF PROCUREMENT PANEL'S MEMORANDUM NO. 10-2218 DATED APRIL 29, 2010 REQUESTING RAMON AQUINO, MELCHOR MAGDAMO, AND RENATO GARCIA TO SUBMIT THE SAMPLE SECRECY FOLDER AND ITS SPECIFICATIONS AS OFFERED BY EMILY CAM BACOTO. PANEL'S MEMORANDUM NO. 10-2208 DATED APRIL 29, 2010 REQUESTING DIR J. THADDEUS HERNAN TO SUBMIT THE ANNUAL PROCUREMENT PLAN COVERING THE PROCUREMENT OF THE BSF. PANEL'S LETTER TO EMILY G. CAM BACOTO (DOC. NO. 10-2211) REQUESTING HER TO SUBSTANTIATE HER CLAIM OF INFRINGEMENT BY OTC PAPER SUPPLY OF HER INTELLECTUAL PROPERTY RIGHT CONCERNING THE BSF PANEL'S MEMORANDUM NO. 10-2209 ADDRESSED TO FSD DIRECTOR MEJOS REGARDING THE BSF'S ABC, AND ANNUAL PROCUREMENT PLAN. PANEL'S MEMORANDUM NO. 10-2210 REQUIRING DIRECTOR LADRA TO SUBMIT HER COMMENT ON STATEMENTS MADE BY EXEC DIR TOLENTINO REFERRING TO HER "LUMALABAN SIR EH" REGARDING HER COMMENTS ON THE SPECIFICATIONS OF THE BSF BY OTC MEMORANDUM OF DIRECTOR ESMERALDA AMORA-LADRA DATED APRIL 29, 2010 PANEL'S MEMORANDUM NO. 10-2214 DATED APRIL 29, 2010 REQUESTING ALARKON FOR THE 5TH TIME TO SUBMIT THE ELIGIBILITY DOCUMENTS OF OTC PAPER SUPPLY MEMORANDUM EDUARDO MEJOS DATED APRIL 30, 2010 IN REPLY TO PANEL'S MEMORANDUM DATED 29 APRIL 2010, STATING THAT THE ABC IS NOT DETERMINED BY THE FSD, AND THAT THE FSD MERELY ISSUES THE CERTIFICATE OF AVAILABILITY OF FUNDS FOR THE ABC. HE ATTACHED THE APP COVERING THE PROCUREMENT OF THE BALLOT SECRECY FOLDER (BREAKDOWN OF OTHER SUPPLIES) SHOWING "BALLOT SECRECY FOLDER: 960,000 PIECES, P4.80 ESTIMATED UNIT COST, TOTAL AMOUNT OF P4,608,000" REPLY OF BAC DATED MARCH 30, 2010 RE MEMO NO. 10-2190 DATED 28 APRIL 2010, EXPLAINING WHY THE QUANTITY AND THE PRICE ARE NOT IN WORDS: "1. BAC RESOLUTION NO. 85-2010 DATED MARCH 5, 2010 WAS DULY SIGNED BY ALL MEMBERS OF THE BAC, HENCE IT GOES WITHOUT SAYING THAT IT IS THE BAC WHO PREPARED THE SAME. 2. PLEASE NOTE THAT NEITHER THE LAW
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NOR ITS IMPLEMENTING RULES REQUIRE THAT IN ITS RECOMMENDATION THE BAC MUST INDICATE THE UNIT PRICE OFFER IN BOTH WORDS AND FIGURES." REPLY OF ATTY. ALLEN ABAYA RE MEMO NO. 10-2213 DATED 29 APRIL 2010 STATING THAT HE CANNOT SUBMIT THE REQUIRED DOCUMENT BECAUSE ALL DOCUMENTS ARE IN THE CUSTODY OF BAC SECRETARIAT PURSUANT TO IMPLEMENTING RULES OF RA 9184 PANEL'S MEMORANDUM NO. 10-2216 DIRECTING ATTY. JOSEFINA DELA CRUZ TO SUBMIT TRANSCRIPT OF RECORDS OF EN BANC HEARINGS ON MARCH 29, MARCH 30, APRIL 5, AND APRIL 6, 2010 REPLY TO MEMO OF STENOGRAPHER VIRGINIA ROBLES AND BOARD SECRETARY CYNTHIA AQUINO RE MEMO 10-2216, INFORMING US THERE WAS NO DISCUSSION ON BSF ON MARCH 30, 2010, AND ASKING FOR TIME TO SUBMIT TSN MEMORANDUM OF ALARKON DATED APRIL 30, 2010 IN REPLY TO MEMO NO. 10-2121 STATING THAT SHE HAS NO PERSONAL KNOWLEDGE OF THE ALLEGATIONS CONTAINED IN ATTY. MAGDAMO'S AFFIDAVIT MEMORANDUM OF ALLEN ABAYA DATED APRIL 30, 2010 IN REPLY TO MEMO NO. 10-2121 STATING THAT HE HAS NO PERSONAL KNOWLEDGE OF THE ALLEGATIONS CONTAINED IN ATTY. MAGDAMO'S AFFIDAVIT MEMORANDUM OF ANTONIO SANTELLA DATED APRIL 30, 2010 IN REPLY TO MEMO NO. 10-2121 STATING THAT HE HAS NO PERSONAL KNOWLEDGE OF THE ALLEGATIONS CONTAINED IN ATTY. MAGDAMO'S AFFIDAVIT MEMORANDUM OF MARTIN NIEDO DATED APRIL 30, 2010 IN REPLY TO MEMO NO. 10-2121 STATING THAT HE HAS NO PERSONAL KNOWLEDGE OF THE ALLEGATIONS CONTAINED IN ATTY. MAGDAMO'S AFFIDAVIT MEMORANDUM OF MARIA NORINA TANGARO-CASINGAL DATED APRIL 30, 2010 IN REPLY TO MEMO NO. 10-2121 STATING THAT SHE HAS NO PERSONAL KNOWLEDGE OF THE ALLEGATIONS CONTAINED IN ATTY. MAGDAMO'S AFFIDAVIT MEMORANDUM OF BAC DATED APRIL 30, 2010 IN REPLY TO PANEL'S MEMORANDUM NO. 10-2214 AND 10-2222, STATING: " THE ELIGIBILITY DOCUMENTS MENTIONED IN THE RESOLUTION PERTAIN TO THE LETTER-PROPOSAL OF THE PROVIDER IN SUBJECT PROCUREMENT, THE CERTIFICATION FROM THE INTELLECTUAL PROPERTY OFFICE, AND THE SPECIFICATIONS ON THE DESIGN OF THE OFFERED BSF . . . ASIDE FROM THESE, NO OTHER ELIGIBILITY DOCUMENTS WERE SUBMITTED CONSIDERING THAT THE BAC APPLIED THE PROCEDURE PROVIDED UNDER SECTION 50 OF THE REVISED IRR OF RA 9184 . . ." MEMORANDUM DATED APRIL 30, 2010 SUBMITTING THE TRANSCRIPT OF RECORDS OF EN BANC HEARING HELD ON MARCH 30, 2010 (FROM VIRGINIA ROBLES AND CYNTHIA PATRICIA AQUINO) STATEMENT OF MATIAS DIN, ADMINISTRATIVE OFFICER IV, OFFICE OF CHAIRMAN MELO, DATED APRIL 30, 2010 PANEL'S MEMORANDUM NO. 10-2217 DATED APRIL 30, 2010: 1.) RECOMMENDATION FOR THE TEMPORARY RELIEF OF DIR. MA. LEA ALARKON AS BAC CHAIRMAN AND THE DESIGNATION OF DIR. ESMERALDA AMORA-LADRA AS ACTING BAC CHAIRMAN; 2. EXTENSION OF TIME UNTIL MAY 14, 2010 TO SUBMIT INVESTIGATION REPORT. MEMORANDUM REQUEST DATED MAY 1, 2010 FOR THE EXTENSION OF THE SUBMISSION OF STENOGRAPHIC NOTES (VIRGINIA ROBLES) SUBMISSION OF THE STENOGRAPHIC NOTES ON THE REGULAR EN
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BANC MEEETING HELF ON MARCH 31, 2010 AND APRIL 6, 2010 SUBPOENA DUCES TECUM DATED MAY 4, 2010 ISSUED BY ATTY. CESAR D. ASUNCION, ACTING DIRECTOR OF THE ASSETS INVESTIGATION BUREAU OF THE OFFICE OF THE OMBUDSMAN PANEL'S LETTER (DOC. 2300 DATED MAY 4, 2010) TO SECRETARY JESLI LAPUZ OF THE DEPARTMENT OF TRADE AND INDUSTRY REQUESTING FOR CERTIFICATION WHETHER OTC PAPER SUPPLY IS REGISTERED AS A BUSINESS ENTITY. THANKSGIVING LETTER OF ATTY. MELCHOR MAGDAMO DATED MAY 4, 2010, WITH REQUEST FOR TERMINAL LEAVE, GIVING HINTS OF HIS SECURITY CONCERNS SUBMISSION OF THE STENOGRAPHIC NOTES ON THE REGULAR EN BANC MEEETING HELD ON APRIL 5, 2010 DTI CERTIFICATION DATED MAY 5, 2010 (DOC. NO. 10-2300) ISSUED BY DIRECTOR VICTORIO MARIO A. DIMAGIBA THAT OTC PAPER SUPPLY IS A BUSINESS NAME REGISTERED UNDER THE NAME OF WILLY KWOK YOUNG AT NO. 451 M. DELA CRUZ ST., STA. QUITERIA, KALOOKAN CITY, NCR. AFFIDAVIT OF RAMON AQUINO DATED MAY 5, 2010. THE DOCUMENTS SUBMITTED PERTAINING TO EMILY CAM BACOTO ARE NOT FOR THE BSF BUT FOR DOCUMENT BINDERS, FILLERS, AND SCREWS. PANEL'S MEMORANDUM NO. 10-2429 DATED MAY 6, 2010 REQUESTING EXEC. DIR. TOLENTINO TO SUBMIT THE DOCUMENT OF OTC DATED APRIL 5, 2010 WHICH OFFERED A OF P137.74 PER PIECE AS DISCUSSED IN THE COMELEC EN BANC MEETING ON APRIL 5, 2010. EXEC. DIR. TOLENTINO WROTE ON THE MEMORANDUM: "I DON'T HAVE IT. NO LETTER WAS SUBMITTED TO ME. PERHAPS, IT WAS GIVEN TO THE BAC." PANEL'S MEMORANDUM NO. 10-2430 DATED MAY 6, 2010 REQUESTING BAC CHAIR ALARKON TO SUBMIT THE DOCUMENT OF OTC DATED APRIL 5, 2010 WHICH OFFERED A OF P137.74 PER PIECE AS DISCUSSED IN THE COMELEC EN BANC MEETING ON APRIL 5, 2010. MEMORANDUM OF BAC SECRETARIAT HEAD ATTY. JOCELYN POSTRADO DATED MAY 6, 2010 STATING THAT "THE BAC HAS NO DOCUMENTS OF OTC RE-OFFERING DISCOUNT FOR THE BALLOT SECRECY FOLDERS IN OUR CUSTODY. IF THERE WAS ANY OBSERVATION ON THAT MATTER, THE BAC HAS NO KNOWLEDGE OF SUCH FACTS." COMELEC EN BANC RESOLUTION NO. 8870 DATED MAY 7, 2010 AWARDING THE CONTRACT FOR THE BSF TO PRINTWELL, INC AT P7.8 PER PIECE FOR 1,815,000 PIECES PANEL'S MEMORANDUM NO. 10-2685 DATED MAY 14, 2010 REQUESTING FOR EXTENSION OF TIME TO COMPLETE INVESTIGATION UP TO MAY 28, 2010 REGISTRATION OF UTILITY MODEL ALLEGEDLY TAKES EFFECT RETROACTIVE TO MARCH 15, 2010 SUPPLEMENTAL AFFIDAVIT OF ATTY. MELCHOR MAGDAMO DATED MAY 18, 2010, SAYING "RE-SEALING MY LIPS AND JUMPING BACK TO SILENCE CAN ONLY SERVE AS THE GO SIGNAL FOR LURKING ASSASINS. AS IT IS NOW, EXPOSING THE COMPLETE TRUTH INSPIRES PUBLIC VIGILANCE THAT DETERS EVIL PLOTS AND IS BETTER THAN WEARING A BULLET-PROOF VEST." COMELEC EN BANC RESOLUTION NO. 8941 DATED MAY 24, 2010 "IN THE MATTER OF REQUIRING ATTY. MELCHOR MAGDAMO, DR. ARWIN SERRANO AND MR. ERNESTO DEL ROSARIO TO APPEAR BEFORE THE COMMISSION EN BANC AND IDENTIFY THE NAMES OF
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COMELEC OFFICIALS PRIVY TO ALLEGED ANOMALOUS TRANSACTIONS EXISTING IN THE COMMISSION. ATTY. MELCHOR MAGDAMO'S INQUIRY LETTER DATED MAY 25, 2010 ADDRESSED TO THE COMELEC EN BANC "TO ASCERTAIN THE EXISTENCE OF A VERY SHORT NOTICE RESOLUTION REQUIRING WHISTLEBLOWERS (WHO ARE ARE NOT WEARING ANY MASK) TO EXPLAIN WITHIN LESS THAN 24 HOURS (MAY 24 TO MAY 25) PANEL'S MEMORANDUM NO. 10-2802 DATED MAY 26, 2010 REQUESTING FOR EXTENSION OF TIME TO COMPLETE INVESTIGATION UNTIL JUNE 4, 2010 PANEL'S MEMORANDUM NO. 10-2796 DATED MAY 26, 2010 REQUESTING GENERAL GURREA, CHIEF OF STAFF OF CHAIRMAN MELO TO SUBMIT OTC'S OFFER OF REDUCED PRICE, THE SAMPLE BSF SUBMITTED BY EMILY CAMBACOTO, AND ENDORSEMENT MEMO SIGNED BY GEN GURREA, ATTY. MAGDAMO, RENATO GARCIA, AND RAMON AQUINO GEN GURREA'S COMPLIANCE, BUT HE DID NOT SUBMIT OTC'S OFFER OF REDUCED PRICE BUT INSTEAD OTC'S JUSTIFICATION FOR THE P380 UNIT PRICE PANEL'S MEMORANDUM NO. 10-2809 DATED MAY 28, 2010 REQUIRING ATTY. JOCELYN POSTRADO TO SUBMIT DULY CERTIFIED COPY OF THE BAC POLICY ON MECHANISM FOR IDENTIFYING AND SELECTING BIDDING OBSERVERS. PANEL'S MEMORANDUM NO. 10-2807 DATED MAY 28, 2010 REQUIRING ATTY. JOCELYN POSTRADO TO SUBMIT DULY CERTIFIED COPY OF THE BAC POLICY ON MECHANISM FOR IDENTIFYING AND SELECTING MEMBERS OF THE TECHNICAL WORKING GROUP. PANEL'S MEMORANDUM NO. 10-2808 DATED MAY 28, 2010 REQUIRING ATTY. JOCELYN POSTRADO TO SUBMIT DULY CERTIFIED COPY OF THE ANNUAL PROCUREMENT PLAN WHICH COVERED THE ABORTED BSF. PANEL'S MEMORANDUM NO. 10-2811 DATED MAY 28, 2010 REQUIRING SUBMISSION OF CERTIFIED COPIES OF MINUTES OF THE PREPROCUREMENT CONFERENCE WHICH RECOMMENDED THE AWARD OF THE BSF CONTRACT PANEL'S MEMORANDUM NO. 10-2810 DATED MAY 28, 2010 REQUIRING ATTY. JOCELYN POSTRADO TO SUBMIT DULY CERTIFIED COPY OF LIST OF CONTRACTS ENTERED INTO WITH OTC PAPER SUPPLY FROM 2004 UP TO THE PRESENT WITH DATE OF THE AWARD, AMOUNT, AND WHETHER IT WAS BIDDED OR NEGOTIATED OR OTHER ALTERNATIVE MODES. BAC SECRETARIAT HEAD JOCELYN POSTRADO'S MEMORANDUM DATED MAY 31, 2010 ASKING FOR ADDITIONAL TIME TO SUBMIT REQUESTED DOCUMENTS "CONSIDERING THAT SHE IS ALSO PREPARING THE BAC'S COMPLIANCE OF THE TRANSMITTAL OF DOCUMENTS TO THE OMBUDSMAN." MEMORANDUM OF ATTY. POSTRADO DATED MAY 31, 2010 STATING: "1. THE APP MAY BE REQUESTED FROM THE FSD, IT BEING THE DEPARTMENT THAT PREPARES THE SAME UNDER COMELEC RESOLUTION NO. 09-0324; 2. THE MINUTES ON PREPROCUREMENT CONFERENCE IS NOT REQUIRED UNDER THE PROVISIONS OF RA 9184 CONSIDERING THAT THE MODE APPLIED IN THE PROCUREMENT OF THE BSF IS THE ALTERNATIVE MODE OD DIRECT CONTRACTING, PLEASE SEE SECTION 20, RA 9184." PANEL'S MEMORANDUM NO. 10-2890 DATED MAY 31, 2010 DIRECTING ATTY. JOCELYN POSTRADO, BAC SECRETARIAT HEAD TO SUBMIT ATTY. ALARKON'S MEMORANDUM DATED APRIL 5, 2010 TRANSMITTING THE OFFER OF OTC DATED APRIL 5, 2010 GIVING A DISCOUNT OF P137.74 PER PIECE OF BSF FOR A TOTAL OF
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P250,000,000. PANEL'S MEMORANDUM NO. 10-2891 DATED MAY 31, 2010 REQUESTING EXEC. DIR. TOLENTINO TO SUBMIT ATTY. ALARKON'S MEMORANDUM DATED APRIL 5, 2010 TRANSMITTING THE OFFER OF OTC DATED APRIL 5, 2010 GIVING A DISCOUNT OF P137.74 PER PIECE OF BSF FOR A TOTAL OF P250,000,000. PANEL'S MEMORANDUM NO. 10-2892 DATED MAY 31, 2010 DIRECTING ATTY. MA. LEA ALARKON TO SUBMIT HER MEMORANDUM DATED APRIL 5, 2010 TRANSMITTING THE OFFER OF OTC DATED APRIL 5, 2010 GIVING A DISCOUNT OF P137.74 PER PIECE OF BSF FOR A TOTAL OF P250,000,000. PANEL'S MEMORANDUM NO. 10-2889 DATED MAY 31, 2010 REQUESTING FOR CASH ADVANCE OF P15,000 URGENT REQUEST OF ATTY. MELCHOR MAGDAMO AND DR. ARWIN SERRANO DATED MAY 31, 2010 ADDRESSED TO THE PANEL. PANEL'S MEMORANDUM NO. 10-2898 DATED JUNE 1, 2010 REQUIRING ATTY. JOCELYN POSTRADO, BAC SECRETARIAT HEAD TO SUBMIT THE REQUESTED DOCUMENTS NOT LATER THAN 12 NOON OF JUNE 2, 2010, NON-EXTENDIBLE. PANEL'S MEMORANDUM NO. 10-2899 DATED JUNE 1, 2010 REQUESTING THE BAC MEMBERS TO SUBMIT A DULY CERTIFIED COPY OF THEIR APPOINTMENT OR RENEWAL OF TERM OR ANY EXTENSION OF AUTHORITY. MEMORANDUM OF BAC SECRETARIAT HEAD ATTY. JOCELYN POSTRADO DATED JUNE 2, 2010 STATING THAT "THE OBSERVERS ATTENDING ITS PROCEEDINGS ARE JUST THE SAME AS THAT INVITED BY THE FORMER BAC SAVE FOR THE TRANSPARENCY AND ACCOUNTABILITY NETWORK (TAN) WHICH SUBMITTED A REQUEST TO BE INCLUDED AS OBSERVER." QUOTATIONS FOR 1000 ORDINARY LEGAL SIZE FOLDERS AS BALLOT SECRECY FOLDER MADE BY EXECUTIVE ASSISTANT CORAZON DANAO ON JUNE 3, 2010. UNIT PRICES RANGE FROM P2.40 TO 7.00 (14 QUOTATIONS) AND TWO QUOTATIONS FROM VAN HAWK PAPER AT P390 AND P496. PANEL'S LETTER (DOC. 2982 DATED JUNE 4, 2010) TO DIRECTOR EPIFANIO M. EVASCO OF THE BUREAU OF PATENTS INQUIRING WHETHER THE SPECIFICATIONS IN COMELEC RESOLUTION NO. 100251 DATED FEBRUARY 17, 2010 WHICH MATCH THE SPECIFICATIONS IN THE LETTER OF OTC PAPER SUPPLY DATED FEBRUARY 27, 2010 ALSO MATCH THE SPECIFICATIONS IN OTC PAPER SUPPLY'S APPLICATION NO. 2-2010-000050 PANEL'S MEMORANDUM NO. 2983 DATED JUNE 4, 2010 REQUESTING FOR EXTENSION UP TO JUNE 8, 2010 TO SUBMIT THE INVESTIGATION REPORT PANEL'S MEMORANDUM NO. 10-3005 DATED JUNE 7, 2010 ADDRESSED TO EXEC. DIR. TOLENTINO REITERATING "THE REQUEST TO HAVE A COPY OF BOTH THE LETTER OF OTC GIVING DISCOUNT AND THE MEMO OF ATTY. ALARKON TRANSMITTING THE OFFER OF OTC." PANEL'S MEMORANDUM NO. 10-3006 DATED JUNE 7, 2010: "THE RECORD REVEALS THAT ON FEBRUARY 5, 2010, MR. HENRY K. YOUNG SENT A LETTER TO CHAIRMAN MELO THRU THE COMMITTEE ON SPECIFICATIONS. YOU, BEING THE HEAD OF SAID COMMITTEE, ARE HEREBY DIRECTED TO SUBMIT TO THE UNDERSIGNED NOT LATER THAN 10:00AM OF JUNE 8, 2010 YOUR TRANSMITTAL OF SUCH LETTER." PANEL'S MEMORANDUM NO. 10-3007 DATED JUNE 7, 2010 DIRECTING BAC CHAIR ALARKON TO SUBMIT THE OFFICIAL
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LOGBOOK OF INCOMING COMMUNICATIONS OF THE BAC FOR THE MONTH OF APRIL 2010. CERTIFICATION ISSUED BY EPIFANIO M. VELASCO, DIRECTOR OF THE BUREAU OF PATENTS DATED JUNE 8, 2010, STATING AMONG OTHER THINGS: "3. AFTER A CAREFUL SCRUTINY OF THE OTC PAPER SUPPLY LETTER/ COMELEC EN BANC RESOLUTION NO. 10-0445 AND THE CLAIMS IN THE UM APPLICATION, WE CONCLUDE THAT THE SPECIFICATIONS OF THE COMELEC BALLOT SECRECY FOLDER ARE WITHIN THE SCOPE OF THE CLAIMS OF THE ABOVE MENTIONED UM APPLICATION. THIS MEANS THAT THE SPECIFICATIONS CONTAINED IN THE BALLOT SECRECY FOLDER ARE COVERED BY THE BOARDER CLAIMS OF THE UM APPLICATION. IT MUST BE NOTED THAT THE CLAIMS IN THE UM APPLICATION DOES NOT CONTAIN THE EXACT SPECIFICATIONS AS CONTAINED IN COMELEC EN BANC RESOLUTION NO. 10-0251/ OTC LETTER. BUT THIS IS IN THE NATURE OF A UM PATENT APPLICATION THE CLAIM/S SHOULD BE BROAD ENOUGH TO GIVE AMPLE PROTECTION TO THE INVENTOR/APPLICANT AGAINST MINIMAL/MINOR IMPROVEMENTS IN OR REPLICATION OF HIS/HER INVENTION BY OTHERS." PANEL MEMORANDUM NO. 10-3036 DATED JUNE 8, 2010 REQUESTING FOR EXTENSION UP TO JUNE 18, 2010 QUOTATIONS FOR BALLOT SECRECY FOLDER MADE BY EXECUTIVE ASSISTANT CORAZON DANAO ON JUNE 3, 2010. THE SPECIFICATIONS ARE THE SAME AS THAT OF OTC BUT HALF THE LENGTH. FABRIPLAST INDUSTRIAL CORPORATION QUOTED P143, P407, AND P473 FOR A LENGTH OF 6FT PER SHEET, OR 5 TIMES THE LENGTH OF OTC BSF (5 PIECES). PHIL. STYLENE INC QUOTED P14.00, P2.00, AND P31.00 PER PIECE OF 14". MEMORANDUM OF ATTY. JOCELYN POSTRADO DATED JUNE 9, 2010 SUBMITTING 16 PAGES OF OFFICIAL LOGBOOK OF BAC FOR INCOMING COMMUNICATIONS FOR THE MONTH OF APRIL 2010 REPLY AFFIDAVIT OF ATTY. MELCHOR MAGDAMO DATED JUNE 14, 2010 REBUTTING THE ANSWER OF EXEC. DIR. TOLENTINO TO HIS EARLIER AFFIDAVIT LETTER OF DR. ARWIN SERRANO DATED JUNE 15, 2010 EXPRESSING HIS DISAPPOINTMENT AT THE EN BANC HEARING ON MAY 25, 2010: I WOULD JUST LIKE TO EXPRESS MY DISAPPOINTMENT TO WHAT TRANSPIRED DURING THAT FATEFUL INCIDENT ON MAY 25, 2010 WHEN WE WERE INVITED BY THE COMMISSION EN BANC TO APPEAR BEFORE THEM WITH REGARDS TO THE ACCUSATIONS BROUGHT TO US BY THE EN BANC REGARDING THE BALLOT SECRECY FOLDER ISSUE." MEMORANDUM NO. 10-3071 OF THE PANEL OF INVETIGATORS TO BAC CHAIRMAN ATTY. MARIA LEA ALARKON REQUESTING FOR LOGBOOK OF OUTGOING COMMUNICATIONS
LETTER OF THE PANEL OF INVESTIGATORS (DOCUMENT NO. 10-3074) TO MR. HENRY YOUNG OF OTC PAPER SUPPLY REQUESTING FOR THE EXACT NUMBER/QUANTITY OF THE BALLOT SECRECY FOLDERS READY FOR DELIVERY AT THE TIME OF CANCELLATION OF THE NOTICE OF AWARD ON APRIL 5, 2010. MEMORANDUM NO. 10-3075 OF THE PANEL OF INVESTIGATORS TO ATTY. REY DOMA RE REQUEST FOR PRICE QUOTATION AFFIDAVIT OF SERVICE OF MR. RODOLFO ESPINOSA, EMPLOYEE OF COMELEC LAW DEPARTMENT MEMORANDUM NO. 10-3078 OF THE PANEL OF INVESTIGATORS
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REQUESTING TO SUBMIT INVESTIGATION REPORT ON JUNE 22, 2010.
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VI.
RECOMMENDATIONS
ACCOUNTABILITY OF PUBLIC OFFICERS Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives (Section 1 of Article XI of the 1987 Constitution). The x x x Members of the Constitutional Commissions, x x x may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. (Section 2, Article XI of the Constitution). Father Joaquin Bernas explained the meaning of "betrayal of public trust" in his column at Inquirer.net on August 21, 2005: We must look to the history of the phrase "betrayal of public trust" as it is now found in the 1987 Constitution. It is a phrase not found in the United States Federal Constitution whence our impeachment system originated. It is not found in our 1935 Constitution either, or in the 1973 Constitution. But the 1973 Constitution added "graft and corruption" as another ground for impeachment in order to tighten the screws on misbehaving Page 88 of 97

public officers. Not content with previous texts, however, the 1986 Constitutional Commission added "betrayal of public trust" as another ground for impeachment. Evidently, they wanted to make the screws even tighter. What did the 48 commissioners mean? Commissioner Ricardo Romulo, in response to a query from Commissioner (later Supreme Court Justice) Florenz Regalado, said that the phrase "betrayal of public trust" was meant to be a catch-all phrase to cover any violation of the oath of office. Commissioner Rustico de los Reyes, who was responsible for the insertion of the screw-tightening phrase, said that it referred to all acts, even if not punishable by statute as penal offenses, which render the officer unfit to continue in office. He enumerated "inexcusable negligence of duty, tyrannical abuse of power, breach of official duty by malfeasance or misfeasance, cronyism, favoritism, etc. to the prejudice of public interest and which tend to bring the office into disrepute." To which Romulo added "obstruction of justice." Expressly excluded, however, were "profanity, obscenity, habitual drunkenness while performing official duty"-perhaps, in the belief that these are understandable macho vices! Significantly, Commissioner Blas Ople, who had sought to add "manifest and gross disregard of the popular will" as another ground, withdrew his amendment after the Committee explained that such addition would in fact narrow the grounds for impeachment by requiring that the offense be gross. Moreover, Commissioner (former Chief Justice) Roberto Concepcion cautioned that additional particularization would have the effect of weakening the provision under the principle expressio unius est exclusio alterius. To further understand the import of "betrayal of public trust" as a screw tightener, it is important to compare it to how the 1986 commissioners understood "culpable violation of the Constitution." The accepted view in the Commission was that "culpable violation of the Constitution" implied "deliberate intent, perhaps even a certain degree of perversity, for it is not easy to imagine that individuals in the category of these [impeachable] officials would go so far as to defy knowingly what the Constitution commands." Moreover, as Commissioner and now Chief Justice Hilario Davide observed, "betrayal of public trust," as already explained, required much less than culpable violation of the Constitution and, in effect, already included everything in the other enumerated grounds for impeachment!
It is the policy of the State to promote high standards of ethics in public service. Public officials and employees shall x x x uphold public interest over personal interest (Section 2 of RA 6713).
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Every public official and employee shall observe the following as standards of personal conduct in the discharge and execution of official duties84: (a) Commitment to public interest. Public officials and employees shall always uphold the public interest over and above personal interest. All government resources and powers of their respective offices must be employed and used efficiently, effectively, honestly and economically, particularly to avoid wastage in public funds and revenues. (b)Professionalism. Public officials and employees shall perform and discharge their duties with the highest degree of excellence, professionalism, intelligence and skill. They shall enter public service with utmost devotion and dedication to duty. They shall endeavor to discourage wrong perceptions of their roles as dispensers or peddlers of undue patronage. (c) Justness and sincerity. Public officials and employees shall remain true to the people at all times. They must act with justness and sincerity and shall not discriminate against anyone, especially the poor and the underprivileged. X x x (Section 4 of RA 6713)
THREE-FOLD RESPONSIBILITY OF PUBLIC OFFICERS85
A public officer is under a three-fold responsibility for violation of duty or for wrongful act or omission. Firstly, if the individual is damaged by such violation, the official shall, in some cases, be held liable civilly to reimburse the injured party. Secondly, if the law has attached a penal sanction, the officer may be punished criminally.
84
Code of Conduct and Ethical Standards for Public Officials and Employees
85
De Leon, The Law on Public Officers and Election Law, 2000, p. 274 citing Goodnow, Principles of Administrative Law, pp. 302-303
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Thirdly, if the administrations disciplinary power is strong, such violation may lead to reprimand, suspension, or removal from office, as the case may be. With the above as broad standards, and guided by the specific laws and the facts we gathered, the Panel now recommends the following courses of action as a result of the investigation into the Ballot Secrecy Folder direct contract award: 1. TO DIRECT THE FOLLOWING TO EXPLAIN UNDER OATH AND WITH THE ASSISTANCE OF LEGAL COUNSEL WITHIN TEN (10) DAYS WHY NO CRIMINAL COMPLAINTS SHALL BE FILED BY THE COMMISSION AGAINST THEM IN THE OFFICE OF THE OMBUDSMAN FOR THE FOLLOWING OFFENSES AND FELONIES: a. Executive Director Jose Tolentino, Jr., BAC Chair Ma. Leah Alarkon, and BAC Secretariat Head Jocelyn Postrado FOR VIOLATION OF PD 1829 (OBSTRUCTION OF JUSTICE) b. Executive Director Jose Tolentino, Jr., FOR VIOLATION OF ARTICLE 226 OF THE REVISED PENAL CODE (CONCEALMENT); c. Executive Director Jose Tolentino, Jr., and all members of the BAC, namely: Atty. Ma. Leah Alarkon, Atty. Allen Francis Abaya, Atty. Maria Norina Tangaro-Casingal, Atty. Martin Niedo, Mr. Antonio Santella, Mr. Henry Young and Mr. Willy Young FOR VIOLATION OF RA 9184, Sec. 65.B.4 (CONNIVANCE); d. Executive Director Jose Tolentino, Jr. FOR VIOLATION OF RA 3019, Sec. 3.K (DIVULGING VALUABLE INFORMATION); e. Executive Director Jose Tolentino, Jr., and all members of the BAC, namely: Atty. Ma. Leah Alarkon, Atty. Allen Francis Abaya, Atty. Maria Norina Tangaro-Casingal, Atty. Martin Niedo, and Mr. Antonio Santella, FOR VIOLATION OF RA 3019, SEC. 3.E (CAUSING UNDUE INJURY TO ANY PARTY); f. Executive Director Jose Tolentino, Jr., and all members of the BAC, namely: Atty. Ma. Leah Alarkon, Atty. Allen Francis Abaya, Atty. Maria Norina Tangaro-Casingal, Atty. Martin Niedo, and Mr. Antonio Santella, Mr. Henry Young and Mr. Willy Young FOR Page 91 of 97

VIOLATION OF RA 3019, SEC. 3.E (GIVING UNWARRANTED BENEFIT OR PREFERENCE); and g. Executive Director Jose Tolentino, Jr., and all members of the BAC, namely: Atty. Ma. Leah Alarkon, Atty. Allen Francis Abaya, Atty. Maria Norina Tangaro-Casingal, Atty. Martin Niedo, and Mr. Antonio Santella, FOR VIOLATION OF RA 3019, SEC. 3.G (ENTERING INTO A TRANSACTION THAT IS GROSSLY DISADVANTAGEOUS). 2. TO DIRECT THE FOLLOWING TO EXPLAIN UNDER OATH, AND WITH THE ASSISTANCE OF LEGAL COUNSEL, WITHIN TEN (10) DAYS, WHY NO ADMINISTRATIVE COMPLAINTS OF GRAVE MISCONDUCT AND CONDUCT PREJUDICIAL TO PUBLIC SERVICE SHALL BE FILED BY THE COMMISSION AGAINST THEM IN THE CIVIL SERVICE COMMISSION FOR EACH OF THE ABOVE SEVEN (7) COUNTS OF OFFENSES AND FELONIES: Executive Director Jose Tolentino, Jr., and all members of the BAC, namely: Atty. Ma. Leah Alarkon, Atty. Allen Francis Abaya, Atty. Maria Norina Tangaro-Casingal, Atty. Martin Niedo, and Mr. Antonio Santella. 3. TO DIRECT THE FOLLOWING: Executive Director Jose Tolentino, Jr., and all members of the BAC, namely: Atty. Ma. Leah Alarkon, Atty. Allen Francis Abaya, Atty. Maria Norina Tangaro-Casingal, Atty. Martin Niedo, and Mr. Antonio Santella, TO EXPLAIN UNDER OATH, AND WITH THE ASSISTANCE OF LEGAL COUNSEL, WITHIN TEN (10) DAYS, WHY NO ADMINISTRATIVE COMPLAINTS OF DISHONESTY SHALL BE FILED BY THE COMMISSION ON ELECTIONS IN THE CIVIL SERVICE COMMISSION AGAINST THEM FOR THE FOLLOWING ACTS: a) MAKING THE COMMISSION EN BANC BELIEVE THAT THEY MADE A COMPARISON OR CANVASS OF PRICES WHEN IN FACT THERE WAS NO CANVASS OF PRICES OF BSF FROM OTHER SUPPLIERS; b) MAKING THE COMMISSION EN BANC BELIEVE THAT THERE WOULD BE PUBLIC BIDDING, NOT DIRECT CONTRACTING; c) GRANTING THE RIGHTS OF A PATENT HOLDER TO OTC PAPER SUPPLY WHO HAD NO PATENT RIGHTS, MISREPRESENTING TO THE COMMISSION EN BANC THAT OTC WAS THE ONLY Page 92 of 97

AVAILABLE SUPPLIER OF BSF, THUS GIVING UNWARRANTED PREFERENCE TO THE EXCLUSION OF OTHERS; d) MISREPRESENTING TO THE COMMISSION EN BANC WHEN THEY ISSUED BAC RESOLUTION NO. 85-2010 DATED MARCH 5, 2010 THAT OTC PAPER SUPPLY SUBMITTED "THE ACCOMPANYING ELIGIBILITY DOCUMENTS" WHEN THE TRUTH IS THAT IT SUBMITTED NO ELIGIBILITY DOCUMENTS; e) AGAINST EXECUTIVE DIRECTOR TOLENTINO ALONE FOR WRITING ON THE PANELS MEMORANDUM NO. 10-2892 DATED MAY 31, 2010 SENT TO HIM, THESE WORDS: "I DON'T HAVE IT. NO LETTER WAS SUBMITTED TO ME. PERHAPS, IT WAS GIVEN TO THE BAC," WHEN THE TRUTH IS THAT SAID LETTER WAS SUBMITTED TO HIM; 4. TO DIRECT THE FOLLOWING: Executive Director Jose Tolentino, Jr., and all members of the BAC, namely: Atty. Ma. Leah Alarkon, Atty. Allen Francis Abaya, Atty. Maria Norina Tangaro-Casingal, Atty. Martin Niedo, and Mr. Antonio Santella, TO EXPLAIN UNDER OATH, AND WITH THE ASSISTANCE OF LEGAL COUNSEL, WITHIN TEN (10) DAYS, WHY NO ADMINISTRATIVE COMPLAINTS OF INEXCUSABLE GROSS NEGLIGENCE AMOUNTING TO BAD FAITH SHALL BE FILED BY THE COMMISSION ON ELECTIONS IN THE CIVIL SERVICE COMMISSION AGAINST THEM FOR THE FOLLOWING ACTS: a. USING OBSOLETE DATA ON NUMBER OF CLUSTERED PRECINCTS DUE TO FAILURE TO VERIFY DATA FROM THE ULTIMATE SOURCE WHICH IS EBAD, RESULTING THEREBY TO AN INCREASE IN COST BY P51,497,600; b. FAILING TO SCRUTINIZE JUDICIOUSLY THE PROPRIETY OF DEPARTING FROM THE UNIT PRICE OF P4.80 AS BUDGETED AND PROVIDED FOR IN THE APP AND ABC THEREBY EMBRACING AND RECOMMENDING THE ASTRONOMICAL UNIT PRICE OF P380 AS PRESENTED BY OTC PAPER SUPPLY, THUS RESULTING TO THE TOTAL COST OF P689,700,000 INSTEAD OF P13,576,200 ONLY; c. NOT CONDUCTING A SURVEY OF THE INDUSTRY AS REQUIRED BY LAW TO CONFIRM THE EXCLUSIVITY OF THE SOURCE OF THE BSF AND TO PROVE THAT THERE IS NO SUITABLE SUBSTITUTE IN THE MARKET THAT CAN BE
Page 93 of 97

OBTAINED AT MORE ADVANTAGEOUS TERMS TO JUSTIFY DIRECT CONTRACTING WITH THE OTC PAPER SUPPLY; d. NOT OBTAINING AND OBSERVING THE ABC AND THE APP, THUS EXCEEDING BOTH TREMENDOUSLY AND RECOMMENDING TO THE COMMISSION EN BANC A TOTAL PROCUREMENT PRICE THAT IS 150 TIMES THE APPROVED BUDGET; 5. TO DIRECT THE ONE WHO PREPARED PURCHASE ORDER86 (P. O.) NO. 10-03-020BAC DATED MARCH 23, 2010 COVERING THE BSF, TO EXPLAIN UNDER OATH, AND WITH THE ASSISTANCE OF LEGAL COUNSEL, WITHIN TEN (10) DAYS, WHY NO ADMINISTRATIVE COMPLAINT OF DISHONESTY SHALL BE FILED BY THE COMMISSION ON ELECTIONS IN THE CIVIL SERVICE COMMISSION AGAINST HIM FOR INDICATING IN THE P. O. THE MODE OF PROCUREMENT AS "PUBLIC BIDDING", FOR P689,700,000, WHEN THE TRUTH IS THAT THE MODE OF PROCUREMENT WAS DIRECT CONTRACTING.
6. TO DIRECT ATTY. MARTIN B. NIEDO TO EXPLAIN UNDER OATH, AND WITH THE ASSISTANCE OF LEGAL COUNSEL, WITHIN TEN (10) DAYS, WHY NO ADMINISTRATIVE COMPLAINT OF DISHONESTY SHALL BE FILED BY THE COMMISSION ON ELECTIONS IN THE CIVIL SERVICE COMMISSION AGAINST HIM FOR SIGNING AND CERTIFYING IN OBLIGATION REQUEST NO. 10-03-2024 DATED MARCH 20, 2010 ALLOTMENT AVAILABLE AND OBLIGATED FOR THE PURPOSE AS INDICATED ABOVE WHEN THE TRUTH IS THAT IT EXCEEDED THE ABC.
THE CHAIRMAN AND THE COMMISSIONERS

Considering the following factors: 1. The huge amount involved P689,700,000.00 2. The procurement was not thru public bidding but direct contracting
86
Panel 33
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3. The supply or material is so common that it is ordinarily available in households, offices, and bookstores 4. Its purpose is just plain and simple to cover ones vote 5. It has been used in past elections at P3 to P5 unit cost 6. Other available suppliers wanted to bid but they were deprived it would appear that the Chairman and the Commissioners 87 may have to explain their apparent inexcusable gross negligence in promulgating Comelec En Banc Resolution No. 879588 approving the recommendation contained in BAC Resolution No. 85-201089 for the procurement of 1,815,000 BSF for P380 per piece. This might constitute betrayal of public trust, which is a ground for impeachment90. However, mitigating or even probably negating such act or omission are the following: 1. Chairman Jose Melo did not sign the Purchase Order 2. Immediate cancellation or recall of the Notice of Award 3. There was yet no contract signed by the parties 4. There was yet no Notice to Proceed 5. No payment has been made 6. Candid admission of error, that it is bad, and so it was being corrected (April 5, 2010 En Banc hearing) 7. An investigation was immediately ordered We have laid down the law and the facts, and now we let the Judges judge themselves.91 The Panel further recommends that:
87
Commissioners Nicodemo Ferrer and Arman Velasco did not sign Comelec En Banc Resolution No. 8795 because they were then on Official Business abroad
88
Panel 27 Panel 50 Section 2, Article XI of the Constitution
89
90
91
Matthew 7:1 Judge not, that you be not judged. For with the judgment you pronounce you will be judged, and with the measure you use it will be measured to you.
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1. The directives to explain be issued within ten (10) days from submission of this Investigation Report; 2. The Panel shall continue to function, evaluate the explanations, and draft the Complaint or dismiss the charges, subject to approval of the Commission En Banc; 3. Immediate relief of the respondents from their respective positions involved in the acts being investigated; 4. Protection and assurance of members of the Panel of Investigators so that no retaliatory action shall be taken against them; 5. Due recognition and protection under the Witness Protection Program be extended to the two whistleblowers Atty. Melchor Magdamo and Dr. Arwin Serrano; 6. Copies of this Investigation Report shall be furnished by the Commission En Banc to interested parties like the media, the Office of the Ombudsman, the Government Procurement Policy Board, the Presidential Anti-Graft and Corruption office, the Civil Service Commission, Transparency and Accountability Network, Procurement Watch, PPCRV, etc. as it may deem proper and necessary within ten (10) days from submission; and 7. Members of the Panel shall be authorized to release this Investigation Report to the media and other interested parties after ten (10) days from submission or earlier as the Commission En Banc may authorize. The members of this Panel would like to express their gratitude and appreciation for the trust92 reposed in them by the Commission En Banc. RESPECTFULLY SUBMITTED BY They see it as a sign of good faith. THE PANEL OF INVESTIGATORS:
THE
WICKED TAKE SECRET
May this investigation be constructive and fruitful, so that the Commission on Elections, long languishing from lack of credibility shall continue to ATTY. FERDINAND T. RAFANAN arise, and the citizenry having become so desperate may see a beacon of Director IV, Law Department hope in government!
BRIBES TO PERVERT THE
ATTY. ADOLFO IBANEZ Director IV, Personnel Department

92
They were also members of the Special Bids and Awards Committee that conducted between March and July 2009 the most transparent bidding for the May 10, 2010 Automated Election System ATTY. DIVINA BLAS-PEREZ
Director III, Election & Brgy. Affairs Dept.
COURSE96 of 97 OF Page JUSTICE.

Proverbs 17:23
Undaunted by man or circumstance, and unswayed by praise or criticism, in me right will find a sanctuary and wrong will find no refuge. Fiat justitia coelum ruat. Let justice be done though the heavens fall, even if this should require my turning back the tide. (Chief Justice Renato C. Corona, in his speech after taking oath of office on May 17, 2010).
Page 97 of 97

1hyp Investigation Report On The p690 Million BSF, June 26, 2010

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COMMISSION ON INVESTIGATORS

BALLOT SECRECY FOLDER INVESTIGATION REPORT

BALLOT SECRECY FOLDER INVESTIGATION REPORT

INVESTIGATION REPORT ON THE P690 MILLION BALLOT SECRECY FOLDER

BALLOT SECRECY FOLDER INVESTIGATION REPORT

MILLION SEVEN HUNDRED (P689,700,000) for 1,815,000

BALLOT SECRECY FOLDER INVESTIGATION REPORT

ELECTION MAY 2004 MAY 2007 OCT. 2007 MAY 2010

UNIT COST P5.00 P3.33 P3.12 P7.48

QUANTITY 3,000,000 3,060,000 3,000,000 1,815,000 1,815,000

TOTAL PRICE P15,000,000 P10,189,800 P9,360,000 P13,576,200 P689,700,00 0

MAY 2010 P380.00 CANCELLED

II. CHRONOLOGY OF EVENTS

BALLOT SECRECY FOLDER INVESTIGATION REPORT

BALLOT SECRECY FOLDER INVESTIGATION REPORT

BALLOT SECRECY FOLDER INVESTIGATION REPORT

BALLOT SECRECY FOLDER INVESTIGATION REPORT

BALLOT SECRECY FOLDER INVESTIGATION REPORT

BALLOT SECRECY FOLDER INVESTIGATION REPORT

BALLOT SECRECY FOLDER INVESTIGATION REPORT

Panel 46 Panel 27 Panel 23 Panel 27

BALLOT SECRECY FOLDER INVESTIGATION REPORT

BALLOT SECRECY FOLDER INVESTIGATION REPORT

Act of the same BAC headed by Atty. Alarkon

BALLOT SECRECY FOLDER INVESTIGATION REPORT

BALLOT SECRECY FOLDER INVESTIGATION REPORT

BALLOT SECRECY FOLDER INVESTIGATION REPORT

Panel 51 Panel 52 Panel 53

BALLOT SECRECY FOLDER INVESTIGATION REPORT

BALLOT SECRECY FOLDER INVESTIGATION REPORT

OFFICERS UNDER SECRECY

BALLOT SECRECY FOLDER INVESTIGATION REPORT

BALLOT SECRECY FOLDER INVESTIGATION REPORT

BALLOT SECRECY FOLDER INVESTIGATION REPORT

It dispensed with it.

competitive bidding can be dispensed with only in accordance with Article

BALLOT SECRECY FOLDER INVESTIGATION REPORT

BALLOT SECRECY FOLDER INVESTIGATION REPORT

BALLOT SECRECY FOLDER INVESTIGATION REPORT

BALLOT SECRECY FOLDER INVESTIGATION REPORT

BALLOT SECRECY FOLDER INVESTIGATION REPORT

BALLOT SECRECY FOLDER INVESTIGATION REPORT

Epifanio M. Evasco of the Bureau of Patents submitted to the Panel a

Panel 177 Panel 23

BALLOT SECRECY FOLDER INVESTIGATION REPORT

BALLOT SECRECY FOLDER INVESTIGATION REPORT

The PANEL'S MEMORANDUM NO. 10-1600 dated April 13,

BALLOT SECRECY FOLDER INVESTIGATION REPORT

BALLOT SECRECY FOLDER INVESTIGATION REPORT

BALLOT SECRECY FOLDER INVESTIGATION REPORT

BALLOT SECRECY FOLDER INVESTIGATION REPORT

BALLOT SECRECY FOLDER INVESTIGATION REPORT

BALLOT SECRECY FOLDER INVESTIGATION REPORT

BALLOT SECRECY FOLDER INVESTIGATION REPORT

BALLOT SECRECY FOLDER INVESTIGATION REPORT

BALLOT SECRECY FOLDER INVESTIGATION REPORT

BALLOT SECRECY FOLDER INVESTIGATION REPORT

Panel 16A RA 9184, Sec. 65.B.4 RA 3019, Sec. 3(e)

BALLOT SECRECY FOLDER INVESTIGATION REPORT

BALLOT SECRECY FOLDER INVESTIGATION REPORT

complied. In her Memorandum dated April 28, 2010 she stated:

BALLOT SECRECY FOLDER INVESTIGATION REPORT