AIDA D. EUGENIO,Petitioner, v. CIVIL SERVICE COMMISSION, DAVIDE, JR., HON. TEOFISTO T. GUINGONA. JR. & HON. SALVADOR ENRIQUEZ, JR.,Respondent.

Mauricio Law Office forPetitioner.

The Solicitor General forRespondents.SYLLABUS1. POLITICAL LAW; CIVIL SERVICE COMMISSION(CSC); CAREER EXECUTIVE SERVICE BOARD (CESB); AN OFFICE CREATED BY LAW AND CAN ONLY BE ABOLISHED BY LAW. The Career Executive Service Board (CESB) was created by Presidential Decree (P.D.) No. 1 on September 1, 1994 which adopted the Integrated Reorganization Plan. As the CESB was created by law, it can only be abolished by the legislature. This follows an unbroken stream of rulings that the creation and abolition of public offices is primarily a legislative function. As aptly summed up in AM JUR 2d on Public Officers and Employees, viz: Except for such offices as are created by the Constitution, the creation of public offices is primarily a legislative function. In so far as the legislative power in this respect is not restricted by constitutional provisions, it is supreme, and the legislature may decide for itself what offices are suitable, necessary, or convenient. When in the exigencies of government, it is necessary to create and define duties the legislative department has the discretion to determine whether additional offices shall be created, or whether these duties shall be attached to and become ex-officio duties of existing offices. An office created by the legislature is wholly within the power of that body, and it may prescribe the mode of filling the office and the powers and duties of the incumbent, and, if it sees fit, abolish the office." In the petition at bench, the legislature has not enacted any law authorizing the abolition of the CESB. On the contrary, in all the General Appropriation Acts from 1975 to 1993, the legislature has set aside funds for the operation of CESB.

2. ID.; ID.; ID.; AUTONOMOUS ENTITY THAT CANNOT BE ABOLISHED BY CSC. Respondent Commission invokes Section 17, Chapter 3, Subtitle A, Title I, Book V of the Administrative Code of 1987 as the source of its power to abolish the CESB. Section 17 must be read together with Section 16 of the said Code which enumerates the offices under the respondent Commission. As read together, the inescapable conclusion is that respondent Commissions power to reorganize is limited to offices under its control as enumerated in Section 16. From its inception, the CESB was intended to be an autonomous entity albeit administratively attached to respondent Commission. As conceptualized by the Reorganization Committee "the CESB shall be autonomous. It is expected to view the problem of building up executive manpower in the government with a broad and positive outlook." The essential autonomous character of the CESB is not negated by its attachment to respondent Commission. By said attachment, CESB was not made to fall within the control of respondent Commission. Under the Administrative Code of 1987, the purpose of attaching any functionally inter-related government agency to another is to attain "policy and program coordination." This is clearly etched out in Section 38(3), Chapter 7, Book IV of the aforecited Code.

EUGENIO vs. CSC etalLeave a commentEUGENIO vs. CSC et al

G.R. No. 115863

March 31, 1995

FACTS:. Eugenio is the Deputy Director of the Philippine Nuclear Research Institute. She applied for a Career Executive Service (CES) Eligibility and a CESO rank,. She was given a CES eligibility and was recommended to the President for a CESO rank by the Career Executive Service Board.

Then respondent Civil Service Commissionpassed a Resolution which abolished the CESB, relying on the provisions of Section 17, Title I, Subtitle A. Book V of the Administrative Code of 1987 allegedly conferring on the Commission the power and authority to effect changes in its organization as the need arises. Saidresolutionstates:

Pursuant thereto, the Career Executive Service Board, shall now be known as the Office for Career Executive Service of the Civil Service Commission. Accordingly, the existing personnel, budget, properties and equipment of the Career Executive Service Board shall now form part of the Office for Career Executive Service.

Finding herself bereft of further administrative relief as the Career Executive Service Board which recommended her CESO Rank IV has been abolished, petitioner filed the petition at bench to annul, among others, said resolution.

ISSUE:WON CSC given the authority to abolish the office of the CESB

HELD:the petition is granted and Resolution of the respondent Commission is hereby annulled and set aside

NO

1. The controlling fact is that the CESB was created in PD No. 1 on September 1, 1974.It cannot be disputed, therefore, that as the CESB was created by law, it can only be abolished by the legislature. This follows an unbroken stream of rulings that the creation and abolition of public offices is primarily a legislative function

In the petition at bench, the legislature has not enacted any law authorizing the abolition of the CESB. On the contrary, in all the General Appropriations Acts from 1975 to 1993, the legislature has set aside funds for the operation of CESB.

Respondent Commission, however, invokes Section 17, Chapter 3, Subtitle A. Title I, Book V of the Administrative Code of 1987 as the source of its power to abolish the CESB.

But as well pointed out by petitioner and the Solicitor General, Section 17 must be read together with Section 16 of the said Code which enumerates the offices under the respondent Commission.

As read together, the inescapable conclusion is that respondent Commissions power to reorganize is limited to offices under its control as enumerated in Section 16..

2. . From its inception, the CESB was intended to be an autonomous entity, albeit administratively attached to respondent Commission. As conceptualized by the Reorganization Committee the CESB shall be autonomous. It is expected to view the problem of building up executive manpower in the government with a broad and positive outlook.

The essential autonomous character of the CESB is not negated by its attachment to respondent Commission. By said attachment, CESB wasnotmade to fall within the control of respondent Commission. Under the Administrative Code of 1987, the purpose of attaching one functionally inter-related government agency to another is to attain policy and program coordination. This is clearly etched out in Section 38(3), Chapter 7, Book IV of the aforecited Code, to wit:

(3)Attachment. (a) This refers to the lateral relationship between the department or its equivalent and attached agency or corporation for purposes of policy and program coordination. The coordination may be accomplished by having the department represented in the governing board of the attached agency or corporation, either as chairman or as a member, with or without voting rights, if this is permitted by the charter; having the attached corporation or agency comply with a system of periodic reporting which shall reflect the progress of programs and projects; and having the department or its equivalent provide general policies through its representative in the board, which shall serve as the framework for the internal policies of the attached corporation or agency.

280 SCRA 713 Law on Public Officers Creation and Abolition of a Public Office is Essentially LegislativeIn 1993, Aida Eugenio passedthe CareerExecutive Service Eligibility (CES). She was then recommended to be appointed as a Civil Service Officer Rank IV. But her appointment to said rank was impeded when in the same year, theCivil Service Commission(CSC) abolishedthe CareerExecutive Service Board (CESB). CESB is the office tasked with promulgating rules, standards, and procedures on the selection,classificationand compensation of the members ofthe CareerExecutive Service.

Eugenio then assailed the resolution which abolished CESB. She averred that the CSC does not have the power to abolish CESB because the same was created by law (P.D. 1). CSC on the other hand argued that it has the power to do so pursuant to the Administrative Code of 1987 which granted the CSC the right to reorganize the CSC.

ISSUE:Whether or not theCivil Service Commissionmay validly abolishthe CareerExecutive Service Board.

HELD:No. The CESB is created by law. It can only be abolished by the legislature. The creation and abolition of public offices is primarily a legislative function, except for Constitutional offices. The power to restructure granted to the CSC is limited to offices under it. The law that created the CESB intended said office to be an autonomous entity although it is administratively attached to the CSC.

ALFREDO L. AZARCON,Petitioner, v. SANDIGANBAYAN, PEOPLE OF THE PHILIPPINES and JOSE C. BATAUSA,Respondents.

Ongkiko Kalaw Manhit Acorda Panga & Velasco Law Offices.

The Solicitor General forRespondents.SYLLABUS1. REMEDIAL LAW; JURISDICTION; CANNOT BE PRESUMED OR IMPLIED. It is hornbook doctrine that in order (to) ascertain whether a court has jurisdiction or not, the provisions of the law should be inquired into." Furthermore, "the jurisdiction of the court must appear clearly from the statute law or it will not be held to exist. It cannot be presumed or implied. And for this purpose in criminal cases, "the jurisdiction of a court is determined by the law at the time of commencement of the action."cralaw virtua1aw library

2. ID.; ID.; SANDIGANBAYAN; SEC. 4, P.D. NO. 1606 SPECIFY THE ONLY INSTANCES WHEN THE SANDIGANBAYAN WILL HAVE JURISDICTION OVER PRIVATE INDIVIDUAL. The provisions of Sec. 4 of P.D. No. 1606 unequivocally specify the only instances when the Sandiganbayan will have jurisdiction over a private individual, i.e. when the complaint charges the private individual either as a co-principal, accomplice or accessory of a public officer or employee who has been charged with a crime within its jurisdiction.

3. CRIMINAL LAW; PUBLIC OFFICER, DEFINED. Article 203 of the Revised Penal Code determines who are public officers: "Who are public officers. For the purpose of applying the provisions of this and the preceding titles of the book, any person who, by direct provision of the law, popular election, or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, or shall perform in said Government or in any of its branches public duties as an employee, agent, or subordinate official, of any rank or classes, shall be deemed to be a public officer." Thus," (to) be a public officer, one must be (1) Taking part in the performance of public functions in the government, or Performing in said Government or any of its branches public duties as an employee, agent, or subordinate official, of any rank or class; and (2) That his authority to take part in the performance of public functions or to perform public duties must be a. by direct provision of the law, or b. by popular election, or c. by appointment by competent authority."cralaw virtua1aw library

4. CONSTITUTIONAL LAW; DELEGATED POWERS; ADMINISTRATIVE AGENCIES MAY EXERCISE ONLY THOSE PROVIDED BY ITS ENABLING ACT. It is axiomatic in our constitutional framework, which mandates a limited government, that its branches and administrative agencies exercise only that power delegated to them as "defined either in the Constitution or in legislation or in both." Thus, although the "appointing power is the exclusive prerogative of the President, . . ." the quantum of powers possessed by an administrative agency forming part of the executive branch will still be limited to that "conferred expressly or by necessary or fair implication" in its enabling act. Hence," (a)n administrative officer, it has been held, has only such powers as are expressly granted to him and those necessarily implied in the exercise thereof." Corollarily, implied powers "are those which are necessarily included in, and are therefore of lesser degree than the power granted. It cannot extend to other matters not embraced therein, nor are not incidental thereto." For to so extend the statutory grant of power "would be an encroachment on powers expressly lodged in Congress by our Constitution."cralaw virtua1aw library

5. ID.; ID.; ID.; NATIONAL INTERNAL REVENUE CODE; DOES NOT STRETCH THE BIRS POWER AUTHORIZING A PRIVATE INDIVIDUAL TO ACT AS A DEPOSITARY AS TO INCLUDE THE POWER TO APPOINT HIM AS PUBLIC OFFICER. It is true that Sec. 206 of the NIRC, as pointed out by the prosecution, authorizes the BIR to effect a constructive distraint by requiring "any person" to preserve a distrained property, thus: ". . . The constructive distraint of personal property shall be effected by requiring the taxpayer or any person having possession or control of such property to sign a receipt covering the property distrained and obligate himself to preserve the same intact and unaltered and not to dispose of the same in any manner whatever without the express authority of the Commissioner. . . However, we find no provision in the NIRC constituting such person a public officer by reason of such requirement. The BIRs power authorizing a private individual to act as a DEPOSITARY cannot be stretched to include the power to appoint him as a public officer.

6. STATUTORY CONSTRUCTION; LEGISLATIVE INTENT; DETERMINED PRINCIPALLY FROM THE LANGUAGE OF THE STATUTE; APPLICATION IN CASE AT BAR. Legislative intent is determined principally from the language of a statute. Where the language of a statute is clear and unambiguous, the law is applied according to its express terms, and interpretation would be resorted to only where a literal interpretation would be either impossible or absurd or would lead to an injustice. This is particularly observed in the interpretation of penal statutes which "must be construed with such strictness as to carefully safeguard the rights of the defendant . . ." The language of the foregoing provision is clear. A private individual who has in his charge any of the public funds or property enumerated therein and commits any of the acts defined in any of the provisions of Chapter Four, Title Seven of the RPC, should likewise be penalized with the same penalty meted to erring public officers. Nowhere in this provision is it expressed or implied that a private individual falling under said Article 222 is to be deemed a public officer.

Facts:Petitioner Alfredo Azarconowned and operatedan earth-moving business, hauling dirt and ore. His services werecontractedby PICOP. Occasionally, he engaged the services of sub-contractors like Jaime Ancla whose trucks were left at the formers premises.

On May 25, 1983, a Warrant of Distraint of Personal Property was issued by BIR commanding one of its Regional Directors to distraint the goods, chattels or effects and other personal property of Jaime Ancla, a sub-contractor of accused Azarcon and adelinquenttaxpayer. A Warrant of Garnishment was issued to and subsequently signed by accused Azarcon ordering him to transfer, surrender, transmit and/or remit to BIR the property in his possessionowned byAncla. Azarcon then volunteered himself to act ascustodianofthe truckowned byAncla.

After some time, Azarcon wrote aletter tothe Reg. Dir of BIR stating that while he had made representations to retain possession of the property of Ancla, he thereby relinquishes whatever responsibility he had over the said property since Ancla surreptitiously withdrew his equipment from him. In his reply, the BIR Reg. Dir. said that Azarconsfailureto comply with the provisions of the warrant did not relieve him from his responsibility.

Along with his co-accused, Azarcon was charged before the Sandiganbayan with the crime of malversation of public funds or property. On March 8, 1994, the Sandiganbayan rendered a Decision sentencing the accused to suffer the penalty of imprisonment ranging from 10 yrs and 1 day of prision mayor in its maximum period to 17 yrs, 4 mos and 1 day of reclusion temporal. Petitioner filed a motion for new trial which was subsequently denied by Sandiganbayan. Hence, this petition.

Issue:Whether or not Sandiganbayan has jurisdiction over a private individual designated by BIR as acustodianof distrained property.

Held:SC held that the Sandiganbayans decision was null and void for lack of jurisdiction.

Sec. 4 of PD 1606 provides for the jurisdiction of the Sandiganbayan. It was specified therein that the only instances when the Sandiganbayan will have jurisdiction over a private individual is when the complaint charges the private individual either as a co-principal, accomplice or accessory of a public officer or employee who has been charged with a crime within its jurisdiction.

The Information does no charge petitioner Azarcon of becoming a co-principal, accomplice or accessory to a public officer committing an offense under the Sandiganbayans jurisdiction. Thus, unless the petitioner be proven a public officer, Sandiganbayan will have no jurisdiction over the crime charged.

Art. 203 of the RPC determines who public officers are. Granting that the petitioner, in signing the receipt forthe truckconstructively distrained by the BIR, commenced to take part in an activity constituting public functions, he obviously may not be deemed authorized by popular election. Neither was he appointed by direct provision of law nor by competent authority. While BIR had authority to require Azarcon to sign a receipt for the distrained truck, the NationalInternal RevenueCode did not grant it power to appoint Azarcon a public officer. The BIRs power authorizing a private individual to act as a depositary cannot be stretched to include the power to appoint him as a public officer. Thus, Azarcon is not a public officer.

LEON MATEO and ANA VILORIA MATEO,Petitioners, v. THE HONORABLE COURT OF APPEALS; THE HONORABLE JUDGE DAVID MOJICA, Presiding Judge of Branch XIX, Regional Trial Court of Davao del Sur; THE HONORABLE JUDGE PEDRO CASIA, Executive Judge of the Regional Trial Court of Davao del Sur; ATTY. BONIFACIO J. GUYOT, Clerk of Court of Davao del Sur; JULIA MATEO and FRANCISCO DEL ROSARIO,Respondents.

Rodolfo S.J. De Leon, forPetitioners.

Carlos A. Cadiente forPrivate Respondents.SYLLABUS1. REMEDIAL LAW; CIVIL PROCEDURE; PETITION FOR RELIEF FROM JUDGMENT; DENIAL OF, AN EXERCISE OF TRIAL COURTS DISCRETION. The petitioners assail the decision of the respondent appellate court confirming the trial courts denial of both their Petition for Relief from Judgment and the notice of appeal. As regards the denial of the Petition for Relief from Judgment, there is no question that the same involved the exercise of discretion by the trial court and, therefore, the granting thereof can not be compelled by mandamus.

2. ID.; SPECIAL CIVIL ACTION; MANDAMUS. A petition for mandamus lies "when any tribunal, corporation, board or person unlawfully neglects the performance of an act which the law enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no plain and adequate remedy in the ordinary course of law . . ." As the Court en banc recently held in Cruz v. Major General Montano, "mandamus is a remedy available only to compel the doing of an act specifically enjoined by law as a duty. It cannot compel the exercise of discretion one way or the other." Indeed, mandamus does not lie to compel the performance of a discretionary duty.

3. ID.; ID.; ID.; DISTINCTIONS BETWEEN MINISTERIAL DUTY AND DISCRETIONARY DUTY. In Symaco v. Aquino, we had the occasion to clearly distinguish between a ministerial duty and a discretionary duty. We explained: . . . Ministerial duty is one which is so clear and specific as to leave no room for the exercise of discretion in its performance. On the other hand, a discretionary duty is that which by its nature requires the exercise of judgment. A purely ministerial act or duty is one in which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment, upon the propriety of the act done. But if the law imposes a duty upon a public officer and gives him the right to decide how or when the duty shall be performed, such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires neither the exercise of official discretion nor judgment. . . .

4. ID.; CIVIL PROCEDURE; PETITION FOR RELIEF FROM JUDGMENT; ABSENCE OF ONE OF TWO PERIODS BARS FILING OF PETITION FOR RELIEF. The petitioners do not dispute the fact that the Petition for Relief from Judgment was not filed with the trial court within the reglementary period, i.e., within sixty (60) days from the time the petitioners learned of the judgment in question and not more than six (6) months after such judgment was entered. Although the petition was filed within six (6) months, it was not within sixty (60) days from the time the petitioners learned of the judgment, but only after 107 days. The absence of one of the two said periods which are concurring elements precludes the petitioners from availing of the Petition for Relief from Judgment.

5. ID.; ID.; ID.; REMEDY IN CASE OF DENIAL IS APPEAL. In this instance, the remedy available to the petitioners is to appeal the denial of their Petition for Relief from Judgment. As we held in De Jesus v. Domingo, an order denying a petition for relief, being final, is appealable and may not be corrected through the special civil action forcertiorariand prohibition.

6. ID.; ID.; APPEAL; MINISTERIAL DUTY OF TRIAL COURT TO APPROVE NOTICE OF APPEAL. We agree with the contention of the petitioners that it was the ministerial duty of the trial court to approve the notice of appeal. It must be observed that the petitioners had filed within the prescribed period a notice of appeal on December 1, 1987 when the petition in question was denied by the trial court in an order dated November 9, 1987, a copy of which was received by the petitioners on November 27, 1987. The refusal of the trial court, therefore, to accept the said notice filed by petitioners in pursuance of their statutory right to appeal is clearly enforceable by mandamus.

7. ID.; ID.; PETITION FOR RELIEF FROM JUDGMENT; REQUISITES. The petitioners, to be entitled to a Petition for Relief from Judgment, must not only show excusable negligence but must likewise assert the facts constituting their good and substantial cause of action. Still and all, considering the evidence adduced by the petitioners, we see no reason to depart from the well-grounded conclusion of the respondent appellate court finding the appeal not meritorious for failure to establish both foregoing requisites.

FACTS: Petitioners, all Board Members of MOWAD, conducted an investigation on private respondent Edgar Sta. Maria, then General Manager. When placed under preventive suspension, Maximo San Diego was designated in his place as acting General Manager. He was later dismissed from service.

Private respondent then filed a Special Civil Action before the Regional Trial Court of Rizal, Branch 78, challenging his dismissal by petitioners.

Petitioners moved to dismiss the case on two grounds: 1. The court had no jurisdiction over the case; and 2. Quo warranto was not the proper remedy.

Respondent judge denied the motion to dismiss and the motion for reconsideration as well.

ISSUE: Whether or not the regional trial court has jurisdiction over the special civil case involving dismissal of an employee of quasi-public corporation.

RULING: The Supreme Court held that it has no jurisdiction. MOWAD is a quasi-public corporation created pursuant toPresidential Decree No. 198, as amended, and as such its officers and employees are covered by the Civil Service Law. Indeed the established rule is that the hiring and firing of employees of government-owned and controlled corporations are governed by the provisions of the Civil Service Laws and Rules and Regulations. Petition is hereby granted.

REPUBLIC OF THE PHILIPPINES, represented by the AIR TRANSPORTATION OFFICE and its PRE-QUALIFICATION, BIDDING and AWARD COMMITTEE of the DEPARTMENT OF TRANSPORTATION AND COMMUNICATION,Petitioners, v. HONORABLE IGNACIO C. CAPULONG, Presiding Judge, RTC, NCJR, Branch 134, Makati, and INTER TECHNICAL PACIFIC PHIL., INC.,Respondents.

Vicente T . Verdadero forPrivate Respondent.SYLLABUS1. PRESIDENTIAL DECREE NO. 1594 (PUBLIC BIDDINGS IN GOVERNMENT INFRASTRUCTURE CONTRACTS); FORM OF BID; NATURE. The Form of Bid, as technically used in this case, contains the offer to undertake the works for a specified sum of money expressed in foreign currency and Philippine peso and, it stipulates the terms and conditions in the call for bid which the bidder, thru its duly authorized signing representative, agrees to undertake and abide once the bid is accepted by the PBAC. Specifically, it is a standard form made available to prequalified bidders containing the bidders "offer to undertake the work complete in conformity with the above-mentioned documents" to wit: Conditions of Contract, Technical Specifications, Bid Schedule and Drawings" for specified sum of money, one in foreign currency and the other in Philippine pesos.

2. ID.; ID.; ID.; ESSENCE OF A DULY ACCOMPLISHED AND SIGNED FORM OF BID. In essence, a duly accomplished and signed Form of Bid submitted to the bidding committee together with the written acceptance by the government agency constitutes a binding preliminary contract governing the relationship between the bidder and the government agency concerned during the examination and evaluation period of the bid proposal until the Notice of Award is given to and the Project Contract is executed by the winning bidder. If there is no duly accomplished and signed Form of Bid submitted to the bidding committee, there is nothing to accept on the part of the government agency.

3. ID.; ID.; BASIS OF AWARD. Under Section 5 of Presidential Decree No. 1594 (June 11, 1978), the law which prescribes the policies, guidelines, rules and regulations for government infrastructure contracts, the contract may be awarded to the lowest bidder whose bid as evaluated complies with all the terms and conditions in the call for bid.

4. ID.; BID BOND; NATURE. The Bid Bond is an indispensable requirement for the validation of a bid proposal. The bond insures good faith of the bidders and binds them to enter into a contract with the Government should their proposal be accepted (see Padilla v. Zaldivar, L-22789, October 30, 1964, 12 SCRA 260).

5. ID.; BASIC RULE IN PUBLIC BIDDING. The basic rule in public bidding is that bids should be evaluated based on the required documents submitted before and not after the opening of bids. Otherwise, the foundation of a fair and competitive public bidding would be defeated. Strict observance of the rules, regulations, and guidelines of the bidding process is the only safeguard to a fair, honest and competitive public bidding.

6. ID.; PURPOSE OF PUBLIC BIDDING. In Caltex (Phil.) Inc., Et. Al. v. Delgado Brothers, Inc., Et Al., (96 Phil. 368, 375), We stressed that public biddings are held for the protection of the public and the public should be given the best possible advantages by means of open competition among the bidders.

7. ID.; ID.; SUBSTANTIAL VARIANCE BETWEEN THE CONDITIONS UNDER WHICH BIDS ARE INVITED AND THE PROPOSAL SUBMITTED NOT ALLOWED. Authorities should not be permitted to waive any substantial variance between the conditions under which bids are invited and the proposal submitted. If one bidder is relieved from conforming to the conditions which impose some duty upon him, or lay the ground for holding him to a strict performance of his contract that bidder is not contracting in fair competition with those bidders who propose to be bound by all the conditions (Case v. Inhabitants of Trenton, 76 N.J.L. 696, 74 A. 672; Lupter Et. Al. v. Atlantic Country, Et Al., 87 N.J. Eq. 491, 100 A. 927, cited in Cobacha and Lucenario, Law on Public Bidding and Government Contracts, p. 7).

8. ID.; ID.; ID.; CASE AT BAR. INTER TECHNICALs failure to comply with what is perceived to be an elementary and customary practice in a public bidding process, that is, to enclose the Form of Bid in the original and eight separate copies of the bidding documents submitted to the bidding committee is fatal to its cause. All the four prequalified bidders which include INTER TECHNICAL were subject to Rule IB 2.1 of the Implementing Rules and Regulations of P.D. 1594 in the preparation of bids, bid bonds, and prequalification statement and Rule IB 2.8 which states that the Form of Bid, among others, shall form part of the contract. INTER TECHNICALs explanation that its bid form was inadvertently left in the office will not excuse compliance with such a simple and basic requirement in the public bidding process involving a multi-million project of the Government. There should be strict application of the pertinent public bidding rules, otherwise the essential requisites of fairness, good faith, and competitiveness in the public bidding process would be rendered meaningless.

9. REMEDIAL LAW; SPECIAL CIVIL ACTION; MANDAMUS; AS A RULE, LIES ONLY TO COMPEL THE PERFORMANCE OF MINISTERIAL DUTY. As a rule, mandamus lies only to compel an officer to perform a ministerial duty and not a discretionary act. (Meralco Securities Corporation v. Savellano, L-36748, October 23, 1982, 117 SCRA 804, 812) As a general rule, a writ of mandamus will not issue to control or review the exercise of discretion of a public officer since it is his judgment that is to be exercised and not that of the court (see Magtibay v. Garcia, G.R. No. L-28971, January 28, 1983, 120 SCRA 370). Thus, the courts will not interfere to modify, control or inquire into the exercise of this discretion unless it be alleged and proven that there has been an abuse or an excess of authority on the part of the officer concerned (see Calvo v. de Gutierrez, Et Al., 4 Phil. 2033).

10. ID.; ID.; MINISTERIAL DISTINGUISHED FROM DISCRETIONARY DUTY. We ruled that" (d)iscretion when applied to public functionaries, means a power or right conferred upon them by law of acting officially, under certain circumstances, uncontrolled by the judgment or conscience of others. A purely ministerial act or duty in contradiction to a discretional act is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done. If the law imposes a duty upon a public officer and gives him the right to decide how or when the duty shall be performed, such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires neither the exercise of official discretion or judgment."cralaw virtua1aw library

11. ID.; ID.; AUTHORITY OF PBAC TO EVALUATE BIDS, AN EXERCISE OF DISCRETION. Under Rule IB 2.3 of the Rules implementing Presidential Decree No. 1594, and in the Invitation to Bid, the Government has expressly reserved the right to reject any or all bids. PBACs authority to evaluate the bids during the opening and examination thereof clearly indicates its discretion to determine compliance or non-compliance with the bidding requirements. Consequently, when PBAC made a preliminary evaluation of the required documents and found INTER TECHNICALs bid non-complying for lack of a Form of Bid, the former merely exercised its discretion under the law. In the absence of an allegation and proof that PBAC committed grave abuse of discretion, the respondent judge committed an error in directing and ordering ATO and PBAC to do an act which clearly involves the exercise of discretion on their part.

GUTIERREZ, JR.J., concurring:chanrob1es virtual 1aw library

1. PRESIDENTIAL DECREE No. 1594 (PUBLIC BIDDINGS IN GOVERNMENT INFRASTRUCTURE CONTRACTS); FORM OF BID; FAILURE TO SUBMIT FORM OF BID BY MERE INADVERTENCE, FATAL. The respondent contends that every single one of the commitments embodied in the Form of Bid is found in the other documents which it submitted. The Form of Bid was filed only a day later thus indicating that the respondent company had no intent to avoid it and that its omission was pure inadvertence. The private respondent appears to be a competent firm with an excellent track record fully capable of undertaking the project. I am not too sure that the Form of Bid is such an essential document that its absence during the day of bidding is a kiss of death and its subsequent submission only a day later can no longer cure the fatal omission. I, however, abide by the more expert opinion of my peers who seem to be more qualified than myself when it comes to the mechanics of bidding. With the above reservations, I concur in the results of the Courts decision.

D E C I S I O NMEDIALDEA,J.:This petition for review oncertiorariseeks to reverse the (a) Decision dated April 17, 1990 (pp. 72-76, Rollo) of respondent Judge Ignacio C. Capulong, in Civil Case No. 90-173, directing the Air Transportation Office (ATO) and its Prequalification, Bidding and Award Committee (PBAC) to immediately convene or reconvene and to read and consider the Inter Technical Pacific Phil., Inc.s bid to furnish the necessary goods and services for works under the Nationwide Air Navigation Facilities Modernization Project Phase II of the Air Transportation Office of the Department of Transportation and Communications; (b) the Order dated May 22, 1990 (p. 77, Rollo) which denied petitioners motion for reconsideration of the said decision; and (c) Order dated February 12, 1990 (pp. 78-80, Rollo) which earlier granted Inter Technical Pacific Inc.s petition for the issuance of a writ of preliminary injunction.

The facts are as follows:chanrob1es virtual 1aw library

On July 26, 1989, the Air Transportation Office (ATO for short) and its Prequalification, Bidding and Award Committee (PBAC for short) publicly invited prequalified bidders to furnish the necessary goods and services for works under the Nationwide Air Navigation Facilities Modernization Project Phase II, a government infrastructure project financed from proceeds of a loan (PH-P72) from the Overseas Economic Cooperation Fund of Japan (pp. 81-88, Rollo). Inter Technical Pacific, Inc. (INTER TECHNICAL for short), a Filipino contractor, prequalified as a bidder and submitted its sealed bidding documents contained in a set of one (1) original and eight (8) copies in bookbound form in six (6) volumes.

The bidding was conducted by the PBAC on November 10, 1989. The PBAC informed the public that only four (4) prequalified bidders had submitted their bids and then announced that the approved government agency estimate for the project was Eight Hundred Fifty Nine Million Four Hundred Seventy Two Thousand Seventy Four Pesos and Fifty Centavos (P859,472,074.50). After the opening, examination and evaluation of the bids, the PBAC read the bids of the prequalified bidders (p. 73, Rollo) as follows:chanrob1es virtual 1aw library

BRITISH IAL P916,731,100.42

ISRAELI KOORTRADE P954,536,621.05

JAPANESE TOYO MENKA P776,915.886.45

When INTER TECHNICALs bidding documents were opened and examined, it was discovered that the entire set of bidding documents and eight copies thereof did not contain a Form of Bid (see copy pp. 186-187, Rollo). The PBAC, allegedly upon the advice of the assisting Japanese consultants in the committee, refused to read INTER TECHNICALs bid and rejected the same as "non complying."cralaw virtua1aw library

INTER TECHNICAL protested the action of the PBAC, explaining that the Form of Bid was inadvertently left in the office; that its bid price was clearly spelled out in the bidding documents; that its bid was accompanied by a bid bond attached to the documents; that it complied with all the requirements and that the "Form of Bid" was a mere formality which can be rectified through cursory reading of the bidding documents it submitted; that it is willing to accomplish right then and there the "Form of Bid" and fill in the data required without varying the data or figures already declared in the bidding documents submitted.chanrobles.com.ph : virtual law library

INTER TECHNICALs authorized representative then publicly informed PBAC that its bid was Six Hundred Seven Million One Hundred Sixty Nine Thousand and Four Hundred FORTY-FOUR PESOS and FIFTY CENTAVOS (P607,169,444.50).

Despite INTER TECHNICALs plea, the PBAC adjourned the proceedings. INTER TECHNICAL appealed for reconsideration to the ATO, PBAC and the Secretary of Transportation and Communications, attaching in its letters of appeal the duly accomplished "Form of Bid," but all were not acted upon.

ATO, for its part, referred the matter to the Department of Justice which in its Opinion dated January 10, 1990 (pp. 87-89, Rollo) ruled that INTER TECHNICALs bid was invalid because the Form of Bid is an essential bidding requirement embodying vital provisions, namely: 1) an agreement to be bound by his bid; 2) the obligation to submit a performance guarantee; 3) the amounts of his bid bond, performance bond, and amount of third party insurance; 4) respective periods of commencement of works, maintenance and completion; and 5) authority of the person signing. As legal basis for the ruling, the Secretary of Justice cited paragraph 12.2 of the "Instructions to Bidders" which states: "Bids not fully complying with all the requirements shall be disqualified," and Rule IB 2.8 of the Implementing Rules of Presidential Decree No. 1594 which provides that a Bid Form is part of the contract for the project.

On January 22, 1990, INTER TECHNICAL filed a complaint for specific performance mandatory and prohibitory injunction with prayer for preliminary injunction and restraining order against ATO and PBAC before the Regional Trial Court, NCJR, Branch 134, Makati, docketed as Civil Case No. 90-173, seeking the issuance of a writ of preliminary injunction to enjoin PBAC from awarding the subject contract and prayed that after trial, judgment be rendered ordering ATO and PBAC to read and consider the bid of plaintiff and making the injunction, both prohibitory and mandatory, permanent. Upon filing of the complaint, the court issued a temporary restraining order prayed for.

In their answer filed on February 13, 1990, ATO and PBAC alleged that the Form of Bid is an indispensable bid document which is confirmed by the Department of Justice; that due to the importance of this Form of Bid, the failure to enclose this document in the set of submitted bidding documents will nullify the bid as non-complying and it is as if no bid was submitted to be considered or read. By way of Special and Affirmative Defenses, ATO and PBAC cited Presidential Decree No. 1818 which deprives courts of jurisdiction to issue restraining orders, preliminary prohibitory and mandatory injunctions in cases or controversies involving infrastructure projects of the government; that the acceptance or rejection of bids is within the sole discretion of PBAC and, therefore, may not be enjoined by prohibitory or mandatory injunction, and finally, that INTER TECHNICALs complaint does not state a cause of action.chanrobles.com : virtual law library

After hearing INTER TECHNICALs petition for the issuance of a writ of preliminary injunction on January 29 and February 2, 1990, respondent Judge Capulong issued an Order dated February 12, 1990 granting the issuance of a writ of preliminary injunction, thus, enjoining ATO and PBAC from awarding the contract to the "second lowest bidder or whomsoever" until further orders from the court. Respondent Judge ruled that INTER TECHNICAL submitted a bid bond and bidders bond which are indispensable to the validation of a bid proposal; that the bid price was spelled out in the INTER TECHNICALs Summary of Schedule Proposal; and that the tender of INTER TECHNICAL was the lowest and appeared to be the most beneficial to the government; that the government of the Philippines will save P252,302,630.00 with INTER TECHNICALs supposed bid, and that not to read such bid will work injustice to INTER TECHNICAL (p. 78, Rollo).

On March 16, 1990, the Republic of the Philippines, represented by the ATO and PBAC of the Department of Transportation and Communications, filed with the Court of Appeals a petition forcertiorariand prohibition to nullify the Order dated February 12, 1990 issued by respondent judge granting the petition of INTER TECHNICAL for the issuance of a writ of preliminary injunction. A supplemental petition for injunction was thereafter filed on April 4, 1990 to enjoin respondent judge from exercising jurisdiction in Civil Case No. 90-173 as it involves an infrastructure project covered by P.D. 1818 and that the action in Civil Case No. 90-173 is in fact an action for mandamus and mandamus does not lie against discretionary acts of petitioner.

While the petition of the Republic was pending before the Court of Appeals, respondent Judge rendered a decision dated April 17, 1990 in Civil Case No. 90-173 directing ATO and PBAC to immediately convene or reconvene and to read and consider INTER TECHNICALs bid (p. 72, Rollo).

INTER TECHNICAL, on the other hand, filed a manifestation/motion dated April 26, 1990 informing the Court of Appeals that the Republics petition had become moot and academic in view of the decision dated April 17, 1990 in Civil Case No. 90-173.

After filing on May 2, 1990 its motion for reconsideration of the decision of April 17, 1990 in Civil Case No. 90-173 before the RTC of Makati, Branch 134, the Republic filed on May 4, 1990 before the Court of Appeals an urgent motion reiterating its prayer for the issuance of a restraining order and writ of preliminary prohibitory injunction as to respondent judge. This was followed on May 18, 1990 by another urgent motion for issuance of restraining order and writ of preliminary prohibitory injunction stating therein that respondent judges decision of April 17, 1990 had not yet become final. Both were not favorably acted upon by the Court of Appeals.

Or May 22, 1990, respondent judge denied the motion for reconsideration filed by the Republic in Civil Case No. 90-173.cralawnad

The Republic then filed a motion to withdraw petition forcertiorariand supplemental petition with the Court of Appeals pursuant to its commitment in its motion for extension of time within which to file petition for review oncertiorariwith this Court. Such motion was granted by the Court of Appeals on July 29, 1990.

Hence, this petition.

After the required pleadings were filed by the parties, this Court, in the resolution of October 23, 1990 (p. 257-A, Rollo), gave due course to the petition for review oncertiorariand required the parties to submit their respective memoranda. In compliance therewith, the Republic filed its memorandum on December 4, 1990, and INTER TECHNICAL, on January 10, 1991. The case was then submitted for deliberation. On April 26, 1991, the Solicitor General filed an Urgent Motion for Early Resolution (p. 381, Iloilo), manifesting that Acting Secretary Pete Nicomedes Prado of the Department of Transportation and Communications urged him in a letter (p. 384, Rollo) to seek early resolution of the case because the final disbursement by the Overseas Economic Cooperation Fund (OECF) of Japan which is financing the Nationwide Air Navigation Facilities Modernization Project Phase II, subject of this case, cannot be made later than May 30, 1991, after which no further disbursement therefrom can be made; that the government is exerting efforts to secure an extension of the disbursement period for the loan agreement and thus, save the project but that it foresees a considerable resistance from the lending institution; and that construction of a new domestic terminal building can not commence unless the Nationwide Air Navigation Facilities Modernization Project Phase II materializes. Such motion was noted in the resolution of April 30, 1991.

Considering that We already have deliberated on the petition and have reached a consensus on its merits favorable to the petitioner as well as have assigned to this writer the task of making the `opinion of the Court and in order that the project of the government would not be prejudiced as time is of the essence in this case. We issued a resolution dated May 30, 1991. In this resolution, We granted the petition, without prejudice to rendering an extended opinion in due course, and annulled and set aside the respondent Judges Order dated February 12, 1990, his decision dated April 17, 1990, his Order dated May 22, 1990 in Civil Case No. 90-173 as well as allowed the petitioner to proceed with the awarding of the contract (p. 387, Rollo).

Indeed, a careful and in-depth study of the records constrains Us to reverse the judgment and orders of the respondent court.

In this case, a controversy exists whether the failure of INTER TECHNICAL to enclose in its bidding documents the duly accomplished and signed Form of Bid is, under the circumstances of the case, a valid ground for the PBAC of ATO to reject its bid to furnish the necessary goods and services for works under the Nationwide Air Navigation Facilities Modernization Project Phase II of the Air Transportation Office, Department of Transportation and Communication. The controversy gave rise to the next question: may the respondent court step into the controversy by ordering the award and bidding committee to reconvene and read INTER TECHNICALs bid when the discretion to determine whether or not a bidder complies with the bidding requirements lies with the said bidding committee.chanrobles virtual lawlibrary

Petitioner asserts that the Form of Bid is the central unifying document containing the substantial legal requirements of the bid while the other documents, like the summary of bid or the bid bond, merely support the Form of Bid; that the Form of Bid is the document which authenticates and summarizes the amounts on the Summary of Schedule Proposals; that in view of the absence of a Form of Bid, INTER TECHNICAL in effect has not submitted a bid, thus since there is no bid, there is no basis for claiming that INTER TECHNICAL is the lowest bidder.

In support of its contention that the Form of Bid is a principal document, petitioner cited the stipulations contained therein which the bidder agrees to do and undertake, thus:chanrob1es virtual 1aw library

1. To undertake the work complete in conformity with the abovementioned documents (Conditions of Contract, Technical Specifications, Bid Schedule and Drawings) for the specified sum (in foreign currency and peso);

2. If bid is accepted, to commence the work within 30 days (mobilization period) after receipt of the Employers Notice to Commence Work and to complete and deliver the whole of the Works comprised in the contract within 600 calendar days calculated from the last day of the aforesaid period in which the Works are to be commenced;

3. If bid is accepted, to submit a Performance Guarantee with effectivity period to be specified in a written advice to be made by ATO and PBAC, or, in the event that this guarantee is deemed insufficient, sureties acceptable to ATO and PBAC from a bank to be jointly and severally bound, for the faithful and satisfactory performance of the contract.

4. To abide by this Bid for a period of 120 calendar days from the date set for the opening of Bids and it shall remain binding upon the (bidder) and may be accepted at any time before the expiration of that period;

5. Unless and until a formal Agreement is prepared and executed, this Bid, together with the (agencys) acceptance thereof, shall constitute a binding contract between them;

6. The understanding that the agency is not bound to accept the lowest or any Bid the agency may receive. (see Annex 1, Form of Bid, p. 186, Rollo).

Without a duly accomplished Form of Bid submitted before the opening of bids, petitioner argues that a prospective bidder will not be bound by the foregoing stipulations. Consequently, for lack of a Form of Bid, INTER TECHNICAL was not bound to complete the project for a specific compensation.cralawnad

The arguments set forth by the petitioner are persuasive. The Form of Bid, as technically used in this case, contains the offer to undertake the works for a specified sum of money expressed in foreign currency and Philippine peso and, it stipulates the terms and conditions in the call for bid which the bidder, thru its duly authorized signing representative, agrees to undertake and abide once the bid is accepted by the PBAC. Specifically, it is a standard form made available to prequalified bidders containing the bidders "offer to undertake the work complete in conformity with the above-mentioned documents" to wit: Conditions of Contract, Technical Specifications, Bid Schedule and Drawings" for specified sum of money, one in foreign currency and the other in Philippine pesos. In essence, a duly accomplished and signed Form of Bid submitted to the bidding committee together with the written acceptance by the government agency constitutes a binding preliminary contract governing the relationship between the bidder and the government agency concerned during the examination and evaluation period of the bid proposal until the Notice of Award is given to and the Project Contract is executed by the winning bidder. If there is no duly accomplished and signed Form of Bid submitted to the bidding committee, there is nothing to accept or the part of the government agency.

Under Section 5 of Presidential Decree No. 1594 (June 11, 1978), the law which prescribes the policies, guidelines, rules and regulations for government infrastructure contracts, the contract may be awarded to the lowest bidder whose bid as evaluated complies with all the terms and conditions in the call for bid, thus:jgc:chanrobles.com.ph

"SEC. 5. Award and Contract. The contract may be awarded to the lowest prequalified bidder whose bid as evaluated complies with all the terms and conditions in the call for bid and is the most advantageous to the Government.

To guarantee the faithful performance of the contractor, he shall, prior to the award, post a performance bond, in an amount to be established in accordance with the rules and regulations to be promulgated under Section 12 of this Decree.

All awards and contracts duly executed in accordance with the provisions of this Decree shall be subject to the approval of the Minister of Public Works, Transportation and Communications, the Minister of Public Highways, or the Minister of Energy, as the case may be."cralaw virtua1aw library

It is not disputed by petitioner that INTER TECHNICAL submitted a Bid Bond in the form of an Irrevocable Domestic Standby Letter of Credit No. SFM-L-027-89 in the amount not exceeding the Philippine peso equivalent of US $800,000.00 issued on behalf of INTER TECHNICAL by the Philippine National Bank in favor of ATO and PBAC. However, a careful examination of the records of the case reveals that the filing of said Bid Bond together with the other bid documents does not constitute substantial compliance with the stipulations contained in the Form of Bid under Presidential Decree No. 1594 and its Rules and Regulations and, more particularly, the Instructions to Bidders made available to prequalified bidders in the instant case.chanrobles.com : virtual law library

There is no question that the Bid Bond is an indispensable requirement for the validation of a bid proposal. The bond insures good faith of the bidders and binds them to enter into a contract with the Government should their proposal be accepted (see Padilla v. Zaldivar, L-22789, October 30, 1964, 12 SCRA 260). Yet, there is nothing in the Bid Bond submitted in the instant case which guarantees that INTER TECHNICAL will commence the work within 30 days (mobilization period) after receipt of Employers Notice to Commence Work and to complete and deliver the whole of the work within 600 days as provided in stipulation no. 2 of the Form of Bid. Nowhere in the Bid Bond does INTER TECHNICAL agree to abide by the bid for a period of 120 calendar days from the date set for the opening of the bid. Besides, the Bid Bond does not contain any undertaking that it shall remain binding upon INTER TECHNICAL and may be accepted at any time before the expiration of that period as provided in stipulation no. 4 of the Form of Bid. There is likewise no formal acknowledgment on the part of INTER TECHNICAL that the PBAC and ATO are not bound to accept the lowest or any bid they may receive as provided in stipulation no. 6 of the Form of Bid. Lastly, the Bid Bond does not even state the amount of the bid expressed in foreign currency and Philippine peso as clearly required in the Form of Bid.

The Irrevocable Domestic Standby Letter of Credit merely states that drafts shall be drawn under the letter of credit in the event INTER TECHNICAL withdraws its bid before the expiration of the specified period; or after being awarded the contract, INTER TECHNICAL refuses or fails to furnish the performance bond within the required period, thus:jgc:chanrobles.com.ph

"This Credit is available by the Beneficiarys sight drafts ("Drafts") in duplicate drawn on us without recourse to the drawer. Drawing against this Credit shall be made by the beneficiary only upon failure of the Accountee to fulfill its obligation under the Bid.

Drafts drawn under this Credit must be accompanied by the following:chanrob1es virtual 1aw library

1. Original of this Credit.

2. Beneficiarys certificate stating:chanrob1es virtual 1aw library

a) that the Accountee Inter-Technical Pacific Philippines, Inc. has withdrawn its bid before the expiration of the specified period; or

b) that after being awarded the contract, refuses or fails to furnish the performance bond within the required period."cralaw virtua1aw library

In other words, the letter of credit merely guarantees that INTER TECHNICAL will not withdraw its bid before the expiration of the period specified by ATO and PBAC and that after being awarded the contract, it will furnish the performance bond within the period required by ATO and PBAC. Clearly then, the letter of credit standing alone does not guarantee that INTER TECHNICAL will enter into a contract under the terms and conditions stipulated in the Form of Bid.

It must be noted that prior to the opening of the bids on November 10, 1989, PBAC was guided by the existing rules and regulations formulated pursuant to Section 12 of P.D. 1594. In the evaluation of the bids, PBAC was guided by Rule IB 2.3 of the Implementing Rules and Regulations of P.D. 1594 which provides, thus:jgc:chanrobles.com.ph

"IB 2.3 Evaluation of Bids. A bid which does not comply with the conditions or requirements of the bid documents shall be rejected by the PBAC (or the Bid and Award Committee as the case may be) giving the reason or reasons for its rejection. The Government, however, in the evaluation of bids received, reserves the right to waive the consideration of minor deviations in the bids received which do not affect the substance and validity of the bids." (84 OG No. 23, p. 3350).

The PBAC was also guided by the following rules, among others, under the Instruction to Bidders, thus:jgc:chanrobles.com.ph

"OPENING AND EXAMINATION OF BID

17.1. At the time, date and place advised in the Invitation to Bid, Bids will be publicly opened and witnessed for examination and evaluation of the Prequalification, Bidding and Award Committee (PBAC) created for the purpose. Bidders or their authorized representatives are instructed to be present during the opening of bids.

17.2. Prior to the opening and reading of the separately sealed Bid Price of the Works, contents of the Individual Bid shall be examined as to their conformity and agreement with the Bidding requirements, and Bids not fully complying with all requirements shall be disqualified. (Emphasis supplied).

17.3 Only Bids considered satisfactory by the Committee will qualify for the opening and reading of the separately sealed Bid Price for the Works. Percentage deductions, contingent or otherwise quoted in accordance with the provisions of Clause B.13 hereof, will be publicly announced as component of the Bid." (p. 285, Rollo).

INTER TECHNICAL calls the attention of the Court that the Form of Bid is but a mere formality which does not affect the substance and validity of its bid. It asserts that it submitted a duly accomplished and signed Form of Bid the day after the bids were opened on November 10, 1989 and its intention to comply with its alleged bid is shown by the filing of the instant case before the RTC; and that the Form of Bid is only a surplusage which could be dispensed with as long as a bid bond is submitted. To bolster its argument, INTER TECHNICAL urges Us to consider an Opinion No. 142-A, Series of 1952 of the Secretary of Justice which stated that the failure of the lowest bidder to secure a license as a transportation operator at the time of the opening of the bids does not affect its bid. The Secretary of Justice at that time considered the following peculiar circumstances of the case: that the bidder then had a pending application for such license; that while he was not a licensed operator on the date the bids were opened, his application as a transportation operator was approved before an award of the contract was made to any of its bidders; that there being no awards as yet, the bids are still under consideration; and that since he qualified prior to the date of the awarding of bids, his bid should be considered, otherwise the interests of the government would be sacrificed for a mere technicality.

We are unconvinced, PBAC was guided by the rules, regulations or guidelines existing before the bid proposals were opened on November 10, 1989. The basic rule in public bidding is that bids should be evaluated based on the required documents submitted before and not after the opening of bids. Otherwise, the foundation of a fair and competitive public bidding would be defeated. Strict observance of the rules, regulations, and guidelines of the bidding process is the only safeguard to a fair, honest and competitive public bidding.

In underscoring the Courts strict application of the pertinent rules, regulations and guidelines of the public bidding process. We have ruled in C & C Commercial v. Menor (L-28360, January 27, 1983, 120 SCRA 112), that Nawasa properly rejected a bid of C & C Commercial to supply asbestos cement pressure which bid did not include a tax clearance certificate as required by Administrative Order No. 66 dated June 26, 1967. In Caltex (Phil.) Inc., et. al. v. Delgado Brothers, Inc. et. al., (96 Phil. 368, 375), We stressed that public biddings are held for the protection of the public and the public should be given the best possible advantages by means of open competition among the bidders.chanrobles lawlibrary : rednad

Basically, the purpose of the statute requiring competitive bidding is that each bidder, actual or possible, shall be put upon the same footing. Therefore, authorities should not be permitted to waive any substantial variance between the conditions under which bids are invited and the proposal submitted. If one bidder is relieved from conforming to the conditions which impose some duty upon him, or lay the ground for holding him to a strict performance of his contract, that bidder is not contracting in fair competition with those bidders who propose to be bound by all the conditions (Case v. Inhabitants of Trenton, 76 N.J.L. 696, 74 A. 672; Lupter et. al. v. Atlantic County, et., al., 87 N.J. Eq. 491, 100A. 927, cited in Cobacha and Lucenario, Law on Public Bidding and Government Contracts, p. 7).

INTER TECHNICALs failure to comply with what is perceived to be an elementary and customary practice in a public bidding process, that is, to enclose the Form of Bid in the original and eight separate copies of the bidding documents submitted to the bidding committee is fatal to its cause. All the four prequalified bidders which include INTER TECHNICAL were subject to Rule IB 2.1 of the Implementing Rules and Regulations of P.D. 1594 in the preparation of bids, bid bonds, and prequalification statement and Rule IB 2.8 which states that the Form of Bid, among others, shall form part of the contract. INTER TECHNICALs explanation that its bid form was inadvertently left in the office (p. 6, Memorandum for Private Respondent, p. 355, Rollo) will not excuse compliance with such a simple and basic requirement in the public bidding process involving a multi-million project of the Government. There should be strict application of the pertinent public bidding rules, otherwise the essential requisites of fairness, good faith, and competitiveness in the public bidding process would be rendered meaningless.

The 1952 Opinion of the Secretary of Justice is not relevant to this present case. A meticulous examination of the opinion reveals that the invitation to bid issued by the Department of Agriculture and Natural Resources contained no requirement that the bidder must be a duly licensed transportation operator at the time of the opening of the bids. The invitation to bid expressly provided that a bid not conforming with the specifications therein contained will not be considered. The circumstances in the case at bar are exactly the opposite of the situation in the 1952 opinion. In the Instruction to bidders, notably 17.2 thereof (supra), copies of which were furnished to all the four prequalified bidders, it was categorically provided that bids not fully qualifying shall be disqualified. Furthermore, the Implementing Rules and Regulations of P.D. 1594, IB. 2.3, emphasizes that a bid which does not comply with the conditions or requirements of the bid documents shall be rejected by the PBAC giving the reason or reasons for its rejection (supra). Such rule cannot be treated lightly in view of PD No. 1594, Sec. 12, which makes the implementing rules and regulations applicable to all contracts for infrastructure and other construction projects of all government agencies including government-owned or controlled corporations and other instrumentalities. Given such clear and manifest intention of the law, INTER TECHNICALs plea cannot be heeded.

As stated earlier, the controversy in the instant case, arose from a complaint instituted by INTER TECHNICAL before the RTC of Makati to compel PBAC to read its bid. On the face of the allegations in the complaint, it is clear that the complaint is actually one for mandamus.chanrobles virtual lawlibrary

As a rule, mandamus lies only to compel an officer to perform a ministerial duty and not a discretionary act. In Meralco Securities Corporation v. Savellano (L-36748, October 23, 1982, 117 SCRA 804 812), We ruled that" (d)iscretion when applied to public functionaries, means a power or right conferred upon them by law of acting officially, under certain circumstances, uncontrolled by the judgment or conscience of others. A purely ministerial act or duty in contradiction to a discretional act is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done. If the law imposes a duty upon a public officer and gives him the right to decide how or when the duty shall be performed, such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires neither the exercise of official discretion or judgment." As a general rule, a writ of mandamus will not issue to control or review the exercise of discretion of a public officer since it is his judgment that is to be exercised and not that of the court (see Magtibay v. Garcia, G.R. No. L-28971, January 28, 1983, 120 SCRA 370). Thus, the courts will not interfere to modify, control or inquire into the exercise of this discretion unless it be alleged and proven that there has been an abuse or an excess of authority on the part of the officer concerned (see Calvo v. de Gutierrez, Et Al., 4 Phil. 2033).

A perusal of INTER TECHNICALs complaint shows that it is bereft of any allegation that ATO and PBAC committed grave abuse of discretion in rejecting its bid. It did not submit proof that ATO and PBAC acted arbitrarily, fraudulently and against the interest of the public when they rejected its bid. Apparently, INTER TECHNICALs belated allegation of grave abuse of discretion in their comment on the herein petition for review oncertiorariis a mere afterthought.

Under Rule IB 2.3 of the Rules implementing Presidential Decree No. 1594, and in the Invitation to Bid (p . 81, Rollo), the Government has expressly reserved the right to reject any or all bids. PBACs authority to evaluate the bids during the opening and examination thereof clearly indicates its discretion to determine compliance or non-compliance with the bidding requirements. Consequently, when PBAC made a preliminary evaluation of the required documents and found INTER TECHNICALs bid non-complying for lack of a Form of Bid, the former merely exercised its discretion under the law. In the absence of an allegation and proof that PBAC committed grave abuse of discretion, the respondent judge committed an error in directing and ordering ATO and PBAC to do an act which clearly involves the exercise of discretion on their part.

Finally, INTER TECHNICAL insinuates that the Japanese consultants of the project made the decision to reject INTER TECHNICALs bidding documents. A careful review of the records indicates that this insinuation obviously seeks to confuse the issues submitted to this Court. On the contrary, We find the following unrebutted facts: that INTER TECHNICAL was given every opportunity before the ATO and PBAC to be heard and tender its explanation for not enclosing the duly accomplished and signed Form of Bid; that the other bidders were even present and allowed to speak; that the PBACs final decision to reject INTER TECHNICALs bidding documents came only after the issues were extensively discussed not only by the PBAC members but the other bidders as well; and that the Japanese consultants were merely allowed to give their opinion on the matter and it was the PBAC which made the final decision. To that extent therefore, the fairness, good faith, competitiveness, and stability of the public bidding process were not undermined where, as in the instant case, a decision was reached after due deliberation in the presence of all parties concerned.

ACCORDINGLY, the petition is GRANTED. Respondent Judges Order dated February 12, 1990, his decision dated April 17, 1990, as well as his Order dated May 22, 1990 in Civil Case No. 90-173 are hereby ANNULLED and SET ASIDE As a consequence thereof, petitioner is allowed to proceed with the awarding of the bid contract.

SO ORDERED.

Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Padilla, Bidin, Sarmiento, Grio-Aquino, Regalado and Davide, Jr.,JJ., concur.

Gancayco,J., is on leave.

CITIZEN J. ANTONIO M. CARPIO,Petitioner, v. THE EXECUTIVE SECRETARY, THE SECRETARY OF LOCAL GOVERNMENTS, THE SECRETARY OF NATIONAL DEFENSE, and THE NATIONAL TREASURER,Respondents.SYLLABUS1. POLITICAL LAW; STATUTES; REPUBLIC ACT NO. 6975; DATE OF EFFECTIVITY. With the aforequoted provision in mind, Congress passed Republic Act No. 6975 entitled "AN ACT ESTABLISHING THE PHILIPPINE NATIONAL POLICE UNDER A REORGANIZED DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, AND FOR OTHER PURPOSES" as the consolidated version of House Bill No. 23614 and Senate Bill No. 463. The Act took effect after fifteen days following its publication, or on January 1, 1991.

2. CONSTITUTIONAL LAW; THE PRESIDENT HAS CONTROL POWERS OVER THE EXECUTIVE BRANCH OF THE GOVERNMENT; DOCTRINE OF QUALIFIED POLITICAL AGENCY AS COROLLARY RULE THERETO. It is a fundamentally accepted principle in Constitutional Law that the President has control of all executive departments, bureaus, and offices. Equally well accepted, as a corollary rule to the control powers of the President, is the "Doctrine of Qualified Political Agency." As the President cannot be expected to exercise his control powers all at the same time and in person, he will have to delegate some of them to his Cabinet members, who in turn and by his authority, control the bureaus and other offices under their respective jurisdictions in the executive department.

3. ID.; ID.; THE PRESIDENT, AS COMMANDER-IN-CHIEF, IS NOT A MEMBER OF THE ARMED FORCES. The President, as Commander-in-Chief, is not a member of the Armed Forces. He remains a civilian whose duties under the Commander-in-Chief provision "represent only a part of the organic duties imposed upon him. All his other functions are clearly civil in nature." His position as a civilian Commander-in-Chief is consistent with, and a testament to, the constitutional principle that "civilian authority is, at all times, supreme over the military." (Article II, Section 3, 1987 Constitution.)

4. POLITICAL LAW; PLACEMENT OF NAPOLCOM AND PHILIPPINE NATIONAL POLICE (PNP) UNDER THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, MERELY AN ADMINISTRATIVE REALIGNMENT. The circumstance that the NAPOLCOM and the PNP are placed under the reorganized Department of the Interior and Local Government is merely an administrative realignment that would bolster a system of coordination and cooperation among the citizenry, local executives and the integrated law enforcement agencies and public safety agencies created under the assailed Act, the funding of the PNP being in large part subsidized by the national government.

5. ID.; NATIONAL POLICE FORCE; ADMINISTERED AND CONTROLLED BY NATIONAL POLICE COMMISSION; LOCAL EXECUTIVES ACT ONLY AS REPRESENTATIVES OF NAPOLCOM. The national police force shall be administered and controlled by a national police commission as at any rate, and in fact, the Act in question adequately provides for administration and control at the commission level. We agree, that "there is no usurpation of the power of control of the NAPOLCOM under Section 51 because under this very same provision, it is clear that the local executives are only acting as representatives of the NAPOLCOM. As such deputies, they are answerable to the NAPOLCOM for their actions in the exercise of their functions under that section. Thus, unless countermanded by the NAPOLCOM, their acts are valid and binding as acts of the NAPOLCOM." It is significant to note that the local officials, as NAPOLCOM representatives, will choose the officers concerned from a list of eligibles (those who meet the general qualifications for appointment to the PNP) to be recommended by PNP officials. The same holding is true with respect to the contention on the operational supervision and control exercised by the local officials. These officials would simply be acting as representatives of the Commission.

6. ID.; ID.; INVOLVEMENT OF CIVIL SERVICE COMMISSION UNDERSCORES ITS CIVILIAN CHARACTER. As regards the assertion involving the Civil Service Commission, suffice it to say that the questioned provisions, which read: "Sec. 31. Appointment of PNP Officers and Members. The Appointment of the officers and members of the PNP shall be effected in the following manner: a.) Police Officer I to Senior Police Officer IV. Appointed by the PNP regional director for regional personnel or by the Chief of the PNP for national headquarters personnel and attested by the Civil Service Commission; b.) Inspector to Superintendent Appointed by the Chief of the PNP, as recommended by their immediate superiors, and attested by the Civil Service Commission; c.) Senior Superintendent to Deputy Director-General Appointed by the President upon recommendation of the Chief of the PNP, with proper endorsement by the Chairman of the Civil Service Commission . . . . Sec. 32. Examinations for Policemen. The Civil Service Commission shall administer the qualifying entrance examinations for policemen on the basis of the standards set by the NAPOLCOM." precisely underscore the civilian character of the national police force, and will undoubtedly professionalize the same.

7. ID.; ID.; DOES NOT FALL UNDER THE COMMANDER-IN-CHIEF POWERS OF THE PRESIDENT; REASON AND CONSEQUENCE THEREOF. It thus becomes all too apparent then that the provision herein assailed precisely gives muscle to and enforces the proposition that the national police force does not fall under the Commander-in-Chief powers of the President. This is necessarily so since the police force, not being integrated with the military, is not a part of the Armed Forces of the Philippines. As a civilian agency of the government, it properly comes within, and is subject to, the exercise by the President of the power of executive control. Consequently, Section 12 does not constitute abdication of commander-in-chief powers. It simply provides for the transition period or process during which the national police would gradually assume the civilian function of safeguarding the internal security of the State. Under this instance, the President, to repeat, abdicates nothing of his war powers.

8. ID.; NATIONAL POLICE COMMISSION (NAPOLCOM); EXERCISES APPELLATE JURISDICTION THRU REGIONAL APPELLATE BOARDS. Pursuant to the Act, the Commission exercises appellate jurisdiction, thru the regional appellate boards, over decisions of both the PLEB and the said mayors. This is so under Section 20(c). Furthermore, it is the Commission which shall issue the implementing guidelines and procedures to be adopted by the PLEB for the conduct of its hearings, and it may assign NAPOLCOM hearing officers to act as legal consultants of the PLEBs (Section 43-d4, d5).

9. ID.; CONSTITUTIONAL CONSTRUCTION; EVERY PRESUMPTION INDULGED IN FAVOR OF CONSTITUTIONALITY. We find light in the principle of constitutional construction that every presumption should be indulged in favor of constitutionality and the court in considering the validity of the statute in question should give it such reasonable construction as can be reached to bring it within the fundamental law."cralaw virtua1aw library

10. ID.; PEOPLES LAW ENFORCEMENT BOARDS (PLEB); PURPOSE FOR ITS CREATION. As a disciplinary board primarily created to hear and decide citizens complaints against erring officers and members of the PNP, the establishment of PLEBs in every city and municipality would all the more help professionalize the police force.

11. ID.; SPECIAL OVERSIGHT COMMITTEE; SOLE FUNCTION THEREOF. The Special Oversight Committee is simply an ad hoc or transitory body, established and tasked solely with planning and overseeing the immediate "transfer, merger and/or absorption" into the Department of the Interior and Local Governments of the "involved agencies." This it will undertake in accordance with the phases of implementation already laid down in Section 85 of the Act and once this is carried out, its functions as well as the committee itself would cease altogether. As an ad hoc body, its creation and the functions it exercises, decidedly do not constitute an encroachment and in diminution of the power of control which properly belongs to the President. What is more, no executive department, bureau or office is placed under the control or authority of the committee.

12. CONSTITUTIONAL LAW; INDEPENDENT CONSTITUTIONAL COMMISSIONS; NOT UNDER THE CONTROL OF THE CHIEF EXECUTIVE. Under the Constitution, there are the so-called independent Constitutional Commissions, namely: The Civil Service Commission, Commission on Audit, and the Commission on Elections. (Article IX-A, Section 1). As These Commissions perform vital governmental functions, they have to be protected from external influences and political pressures. Hence, they were made constitutional bodies, independent of and not under any department of the government. Certainly, they are not under the control of the President. The Constitution also created an independent office called the "Commission on Human Rights." (Article XIII, Section 17[1]). However, this Commission is not on the same level as the Constitutional Commissions under Article IX, although it is independent like the latter Commissions. It still had to be constituted thru Executive Order No. 163 (dated May 5, 1987). In contrast, Article XVI, Section 6 thereof, merely mandates the statutory creation of a national police commission that will administer and control the national police force to be established thereunder. This commission is, for obvious reasons, not in the same category as the independent Constitutional Commissions of Article IX and the other constitutionally created independent Office, namely, the Commission on Human Rights.

power of administrative control

power ofexecutivecontrol

FACTS:

Petitioner Antonio Carpio as citizen, taxpayer and member of the Philippine Bar, filed this petition, questioning the constitutionality of RA 6975 witha prayerfor TRO.

RA 6875, entitled AN ACT ESTABLISHIGN THE PHILIPPINE NATIONAL POLICE UNDER A REORGANIZED DEPARTMENT OFTHE INTERIORAND LOCAL GOVERNMENT, AND FOR OTHER PURPOSES, allegedly contravened Art. XVI, sec. 6 of the 1986 Constitution: The State shall establish and maintain onepolice force, which shall be national in scope andcivilianin character, to be administered and controlled by a national police commission. The authority of local executives overthe policeunits in their jurisdiction shall be provided by law.

ISSUEs:

Whether or not RA 6975 is contrary to the Constitution

Whether or not Sec. 12 RA 6975 constitutes an encroachment upon, interference with, and an abdication by the President of,executivecontrol and commander-in-chief powers

HELD:

Power of Administrative Control

NAPOLCOM is under the Office of the President.

SC held that the President has control of allexecutivedepartments, bureaus, and offices. This presidential power of control over theexecutivebranch of government extends over allexecutiveofficers from CabinetSecretary tothe lowliest clerk. In the landmark case of Mondano vs. Silvosa,the power ofcontrol means the power ofthe President to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former with that of the latter. It is said to be at the very heart of the meaning of ChiefExecutive.

As a corollary rule to the control powers of the President is the Doctrine of Qualified Political Agency. As the President cannot be expected to exercise his control powers all at the same time and in person, he will have to delegate some of them to hisCabinet members.

Under this doctrine, which recognizes the establishment of a singleexecutive, allexecutiveand administrative organizations are adjuncts of theExecutiveDepartment, the heads of the variousexecutivedepartments are assistants and agents of the ChiefExecutive, and, except in cases where the ChiefExecutiveis required by the Constitution or law to act in person or the exigencies of the situation demand that he act personally, the multifariousexecutiveand administrative functions of the ChiefExecutiveare performed by and through theexecutivedepartments, and the acts of the Secretaries of such departments, performed and promulgated in the regular course of business, unless disapproved or reprobated by the ChiefExecutive, are presumptively the acts of the ChiefExecutive.

Thus, the Presidents power of control is directly exercised by him over the members of the Cabinet who, in turn, and by his authority, control the bureaus and other offices under their respective jurisdictions in theexecutivedepartment.

The placing of NAPOLCOM and PNP under the reorganized DILG is merely an administrative realignment that would bolster a system of coordination and cooperation among the citizenry, local executives and the integratedlaw enforcement agenciesand public safety agencies.

Power ofExecutiveControl

Sec. 12 does not constitute abdication of commander-in-chief powers. It simply provides for the transition period or process during which the national police would gradually assume thecivilianfunction ofsafeguardingthe internal security of the State. Under this instance, the President, to repeat, abdicates nothing of his war powers. It would bear to here state, in reiteration of the preponderant view, that the President, as Commander-in-Chief, is not a member ofthe Armed Forces. He remains acivilianwhose duties under the Commander-in-Chief provision represent only a part of the organic duties imposed upon him. All his other functions are clearly civil in nature. His position as acivilianCommander-in-Chief is consistent with, and a testament to, the constitutional principle that civilianauthority is, at all times, supreme over the military.

digest

In 1990, Republic Act No. 6975 entitled AN ACT ESTABLISHING THE PHILIPPINE NATIONAL POLICE UNDER A REORGANIZED DEPARTMENT OFTHE INTERIORANDLOCAL GOVERNMENT, AND FOR OTHER PURPOSES was passed. Antonio Carpio, as a member of the bar and a defender of the Constitution, assailed the constitutionality of the said law as he averredthat it only interferes with the control power of the president.

He advances the view that RA 6975 weakened the National Police Commission (NAPOLCOM) by limiting its power to administrative control over the PNP thus, control remained with the Department Secretary under whom both the NPC and the PNP were placed; that the system of letting local executives choose local police heads also undermine the power of the president.

ISSUE:Whether or not the president abdicated its control power over the PNP and NPC by virtue of RA 6975.

HELD:No.The President has control of allexecutivedepartments, bureaus, and offices. This presidential power of control over theexecutivebranch of government extends over allexecutiveofficers from Cabinet Secretary to the lowliest clerk. Equally well accepted, as a corollary rule to the control powers of the President, is the Doctrine of Qualified Political Agency. As the President cannot be expected to exercise his control powers all at the same time and in person, he will have to delegate some of them to his Cabinet members.

Under this doctrine, which recognizes the establishment of a singleexecutive, allexecutiveand administrative organizations are adjuncts of theExecutiveDepartment, the heads of the variousexecutivedepartments are assistants and agents of the ChiefExecutive, and, except in cases where the ChiefExecutiveis required by the Constitution or law to act in person on the exigencies of the situation demand that he act personally, the multifariousexecutiveand administrative functions of the ChiefExecutiveare performed by and through theexecutivedepartments, and the acts of the Secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the ChiefExecutivepresumptively the acts of the ChiefExecutive.

Thus, and in short, the Presidents power of control is directly exercised by him over the members of the Cabinet who, in turn, and by his authority, control the bureaus and other offices under their respective jurisdictions in theexecutivedepartment.

Additionally, the circumstance that the NAPOLCOM and the PNP are placed under the reorganized DILG is merely an administrative realignment that would bolster a system of coordination and cooperation among the citizenry, local executives and the integrated law enforcement agencies and public safety agencies created under the assailed Act, the funding of the PNP being in large part subsidized by the national government.

[Adm. Case No. 4634. September 24, 1997.]

JESUS CABARRUS, JR.,Complainant, v. JOSE ANTONIO S. BERNAS,Respondent.

Bernas Law Office forRespondent.SYLLABUS1. REMEDIAL LAW; CIVIL PROCEDURE; FORUM SHOPPING; CONSTRUED. There is forum-shopping whenever, as a result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal orcertiorari) in another. Therefore, a party to a case resorts to forum shopping because "by filing another petition involving the same essential facts and circumstances, . . ., respondents approached two different fora in order to increase their chances of obtaining a favorable decision or action.

2. ID.; ID.; ID.; PURPOSE OF FORUM SHOPPING. It is scarcely necessary to add that Circular No. 28-91 must be so interpreted and applied as to achieve the purposes projected by the Supreme Court when it promulgated that Circular. Circular No. 28-91 was designed to serve as an instrument to promote and facilitate the orderly administration of justice and should not be interpreted with such absolute literalness as to subvert its own ultimate and legitimate objective or the goal of all rules of procedure which is to achieve substantial justice as expeditiously as possible.

3. ID.; ID.; ID.; FILING OF A CIVIL CASE INDEPENDENTLY WITH A CRIMINAL CASE, NOT A VIOLATION OF CIRCULARS ON FORUM SHOPPING; CASE AT BENCH. After a careful scrutiny of the records, we find the administrative complaint for transgression of Circular 28-91, Revised Circular 28-91 and Adm. Circular No. 04-94 on Forum Shopping, bereft of merit and should be dismissed. In this case, there is no forum shopping to speak of Atty. Bernas, as counsel of Mr. Pascual, Jr., merely requested the assistance of the NBI to investigate the alleged fraud and forgery committed by Mr. Jesus Cabarrus. The filing of a civil case for reconveyance and damages before the Regional Trial Court of Pasig City does not preclude respondent to institute a criminal action. The rule allows the filing of a civil case independently with the criminal case without violating the circulars on forum shopping.

4. ID.; ID.; ID.; NATIONAL BUREAU OF INVESTIGATION. NOT INCLUDED AMONG THOSE FORUMS CONTEMPLATED UNDER CIRCULAR NO. 28-91, REVISED CIRCULAR NO. 28-91 AND ADMINISTRATIVE CIRCULAR NO. 04-94 BECAUSE IT IS NOT PERFORMING JUDICIAL OR QUASI-JUDICIAL FUNCTIONS. The courts, tribunals and agencies referred to under Circular No. 28-91, Revised Circular No. 28-91 and Administrative Circular No. 04-94 are those vested with judicial powers or quasi-judicial powers and those who not only hear and determine controversies between adverse parties, but to make binding orders or judgments. As succinctly put it by R.A. 157, the NBI is not performing judicial or quasi-judicial functions. The NBI cannot therefore be among those forums contemplated by the Circular that can entertain an action or proceeding, or even grant any relief, declaratory or otherwise.

5. ADMINISTRATIVE LAW; NATIONAL BUREAU OF INVESTIGATION; FUNCTIONS THEREOF ARE MERELY INVESTIGATORY AND INFORMATIONAL IN NATURE. The functions of the National Bureau of Investigation are merely investigatory and informational in nature. It has no judicial or quasi-judicial powers and is incapable of granting any relief to a party. It cannot even determine probable cause. It is an investigative agency whose findings are merely recommendatory. It undertakes investigation of crimes upon its own initiative and as public welfare may require. It renders assistance when requested in the investigation or detection of crimes which precisely what Atty. Bernas sought in order to prosecute those persons responsible for defrauding his client.

D E C I S I O NTORRES, JR.,J.:On August 30, 1996, Mr. Jesus Cabarrus, Jr. filed an administrative complaint for disbarment against Atty. Jose Antonio Bernas for alleged violations of Article 172 of the Revised Penal Code and Code of Professional Responsibility. In his complaint-affidavit 1 dated August 12, 1996, complainant alleged as follows:chanrobles virtual lawlibrary

"A. That on April 16, 1996, respondent Ramon B. Pascual, Jr., subscribed under oath before Marie Lourdes T. Sia Bernas, a notary public in Makati City, wife of lawyer Jose Antonio Bernas, a verification and certification of non-forum shopping which was appended to a complaint for reconveyance of property and damages, denominated as Civil Case No. 65646, filed before the Regional Trial Court in National Capital Region, RTC, which case was raffled to RTC Branch 159 in Pasig City. A photocopy of said complaint