1

REPUBLIC OF THE PHILIPPINES)

CITY OF ZAMBOANGA)S.S.
x---------------------------------------------------------x

COUNTER-AFFIDAVIT

WE, LEONARDO REY D. VASQUEZ, Filipino, of legal age, married, and a resident of
Canelar, Zamboanga City, LOVELL CAMANZO ABAD, Filipino, of legal age, married, and a
resident of Cabatangan, Zamboanga City, TEOTIMO C. REYES, Jr., Filipino, of legal age,
married and a resident of Lantawan, Pasonanca, Zamboanga City, ARNULFO A. ALFONSO,
likewise Filipino, of legal age, married and a resident of Lantawan, Pasonanca, Zamboanga City,
RODRIGO R. VEGA, Filipino, of legal age, married and a resident of Guiwan, Zamboanga City
and FERNANDO R. CAMBA, Filipino, of legal age, married and a resident of Putik, Zamboanga
City after having been duly sworn to in accordance with law, under oath hereby jointly and
severally DEPOSE and STATE:

1. That in compliance with Ombudsman Memorandum dated 09 September 2003, the

undersigned hereby indicate the following:

FULL NAME: LEONARDO REY DIMAGUILA VASQUEZ

OFFICIAL DESIGNATION: General Manager A, Office of the General
Manager, Zamboanga City Water District
SALARY GRADE: 28
OFFICIAL ADDRESS: ZCWD Main Bldg., Pilar St., Zamboanga City

FULL NAME: LOVELL CAMANZO ABAD

OFFICIAL DESIGNATION: Department Manager C, Legal and
Management Services Department, Zamboanga
City Water District and Chairman, Bids and
Awards Committee
SALARY GRADE: 24
OFFICIAL ADDRESS: 2/F ZCWD Bldg., Pilar St., Zamboanga City

FULL NAME: TEOTIMO C________ REYES, Jr.

OFFICIAL DESIGNATION: OIC - Production Department, Zamboanga City
Water District and Vice- Chairman, Bids and
Awards Committee
SALARY GRADE: 22
OFFICIAL ADDRESS: ZCWD Main Building, Pilar St., Zamboanga City

FULL NAME: ARNULFO A____________ ALFONSO

OFFICIAL DESIGNATION: OIC – Maintenance Department, Zamboanga
City Water District and Member, Bids and
Awards Committee
SALARY GRADE: 22
OFFICIAL ADDRESS: ZCWD Main Building, Pilar St., Zamboanga City
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FULL NAME: RODRIGO R__________ VEGA

OFFICIAL DESIGNATION: Division Manager C, Customer Accounts
Division, Zamboanga City Water District and
Member, Bids and Awards Committee
SALARY GRADE: 22
OFFICIAL ADDRESS: ZCWD Main Building, Pilar St., Zamboanga City

FULL NAME: FERNANDO RONAS CAMBA

OFFICIAL DESIGNATION: Division Manager C, Management Services
Division, Zamboanga City Water District, and
Member, Bids and Awards Committee
SALARY GRADE: 22
OFFICIAL ADDRESS: ZCWD Main Building, Pilar St., Zamboanga City

2. That the undersigned received on 11 May 2011, an Order emanating from the Hon. Office of
the Ombudsman, Mindanao pertinent to Case No. OMB-M-C-11-0123-D entitled
“BENDIMIL CONSTRUCTION DEVELOPMENT CORP., c/o Benjamin Dimaang,
Summerhill Subd., Pasonanca, Zamboanga City, Complainant, versus LEONARDO REY D.
VASQUEZ, Gen. Manager A, LOVELL C. ABAD, Chair-BAC, TEOTIMO REYES, JR.,
BAC Member, FERNANDO CAMBA, BAC Member, ARNULFO A. ALFONSO, BAC
Member, RODRIGO VEGA, BAC Member, Respondents” for: Violation of RA 9184 and
violation of RA 3019;

3. That the above-stated Order from the Hon. Office of the Ombudsman required the
undersigned to submit its Counter-Affidavit on the allegations of a Complaint-Affidavit dated
18 March 2011 signed and executed by Benjamin Dimaano chairman of the board of
Bendimil Construction and Development Corporation (COMPLAINANT), and in
compliance thereto herein Respondents respectfully submit the following DEFENSES, to
WIT:

4. That the undersigned ADMIT paragraphs 1 and 4 of the Complaint-Affidavit. Paragraph 3 is

admitted but only as to the existence of the complaint against the Respondents as stated above,
while paragraph 2 is admitted, only as to the existence of PR No. 00345-10, which was the
project for the rehabilitation of pipeline at the Pasonanca-Sta. Maria Road, Zamboanga City
and which was subjected to failure of bidding in a resolution by the Head of Procuring Entity
(HOPE) dated 05 January 2011;

5. That paragraphs 5.a. and 5.b. are admitted, while the undersigned specifically DENY
paragraph 5.c., for while indeed the Bids and Awards Committee issued a Notice of Lowest
Calculated Bid (NLCB) to COMPLAINANT, what was actually intended was a NOTICE OF
LOWEST BID AS READ. COMPLAINANT seems to make too much of the fact that it had
received the subject NLCB six (6) days from the opening of bids, where neither the BAC nor
the TWG had any actual opportunity to make a detailed evaluation of the bids under PR
00345-10. Simply stated, the NLCB sent to COMPLAINANT was merely based on the
preliminary ranking from lowest to highest bids during bid opening, subject to 1. Post
Evaluation under RULE IX, Sec. 32 of the Revised Implementing Rules and Regulations
RIRR of Republic Act (RA) 9184 and 2. Post Qualification under RULE X, Sec. 32 of the
same RIRR. COMPLAINANT should not have been too elated when it received the NLCB
as it should have known that it was subject to the above-stated requirements;

6. That in order to prove that indeed, the NLCB received by COMPLAINANT was not within
the contemplation of that NLCB under Sec. 32 of the RIRR (meaning that which shall be
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issued after post evaluation of bids), attached as ANNEX “A” is a copy of MEMORANDUM
No. BAC 2010-50 from BAC Vice-Chairman Engr. Teotimo C. Reyes, Jr., addressed to
TWG-II Head Jaime Alvarez, requesting for a detailed post-evaluation report for PR No.
00345-10. The same Memorandum was dated 08 July 2010, or two (2) days after the issuance
of the NLCB in favor of COMPLAINANT. Also attached as ANNEX “B” is an affidavit
signed by Jennifer P. Sison of the BAC Secretariat, expounding on the nature of the NLCB
which COMPLAINANT received. To reiterate, what was actually intended for
COMPLAINANT was a NLCB AS READ, not a NLCB after the post-evaluation of bids;

7. That the undersigned DENY paragraph 5.d. of the Complaint-Affidavit, specifically that
portion where COMPLAINANT has made an erroneous interpretation that “the ZCWD as
procuring entity ‘is required’ to undertake post-qualification of the bidder with the Lowest
Calculated Bid (LCB) within seven (7) days and as such it (COMPLAINANT) should have
received a communication on the post-qualification process.” COMPLAINANT should be
reminded that post-qualification under Sec. 34 of the RIRR shall only take place when a
Lowest Calculated Bid/Highest Rated Bid shall have already been determined on the basis of
the Abstract of Bids under Section 32.3, Rule IX of the RIRR. Moreover, the Abstract of Bids
itself shall only be prepared after “all bids have been received, opened, examined, evaluated,
and ranked” by the BAC upon perusal of the TWG’s post-evaluation report and findings.
COMPLAINANT received its NLCB without the bids having undergone the aforementioned
processes, as it was a mere NLCB AS READ;

8. That the undersigned ADMIT paragraph 5.e. of the Complaint-Affidavit, with a clarification
that the RIRR of RA 9184 does not require any cancellation or revocation of the NLCB AS
READ such as that which was primarily issued in favor of COMPLAINANT prior to the
issuance of a NLCB after post-evaluation in favor of NLV. The fact that NLV was the fourth
(4th) lowest bidder during the bid opening cannot serve as basis for COMPLAINANT to make
an assumption that there was irregularity in the issuance of a NLCB in its favor, inasmuch as
the result of the post-evaluation report prepared by the TWG-II has pointed to NLV as the
bidder with the LOWEST CALCULATED BID. The RIRR requires that a detailed
evaluation of bids shall be made to ensure fair and competitive bid comparison, considering
the twin criteria of completeness of the bid and arithmetical corrections under Section 32
thereof. Attached as ANNEX “C” to “C-8” is the Post Evaluation Report. Notably, in page 4
(ANNEX “C-3”) of the Report, NLV’s Total Bidded Amount which was initially
19,530,649.27 has been corrected to 18,756,583.18. This would mean that the difference of its
bid offer from the Approved Budget Cost (ABC) has increased from 17,469.73 to 791,535.82
thus making it the highest ranking bidder in the Abstract of Bids;

9. That the undersigned DENY paragraph 5.f. of the Complaint-Affidavit specifically that portion
where COMPLAINANT claims that the BAC has issued a “second NLCB” in favor of NLV,
as well as the contents of its letter dated 16 August 2010, attached in the Complaint-Affidavit as
Annex “F” to “F-3”, for the same reasons as stated above. That NLCB in favor of NLV,
notwithstanding the fact that it was issued forty-six days after bid opening, is actually supported
by the detailed evaluation report of TWG-II pointing to it as the bidder with the lowest
calculated bid. The August 17, 2010 letter sent by BAC Chair Atty. Lovell C. Abad to
COMPLAINANT (Annex “G” of the Complaint-Affidavit), while it was mistakenly addressed
to Mr. Eduardo Catis of the Zamboanga Erectors and Contractors, Inc., was all intended IN
GOOD FAITH to notify herein COMPLAINANT of the facts as indicated therein. The BAC
Chairman even deeply apologized towards Eduardo Ramon T. Dimaano, BENDIMIL
President, for the mistake in the notice dated August 17, 2010 per its August 19, 2010 letter
(Annex “G-1” of the Complaint-Affidavit. This shows that the BAC was not only keen on
notifying the bidders, but also in rectifying and apologizing for the clerical error of its BAC
Secretariat;

10. That the undersigned ADMIT paragraph 5.g. of the Complaint-Affidavit, but vehemently and
categorically DENIES the highly presumptive assertion of COMPLAINANT (even contained
in its letter dated August 20, 2010, Annex “H” to “H-2” of the Complaint-Affidavit), that it is
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“entitled to a Notice of Award”. On the claim that “Bendimil had not been post-disqualified”,
it is most respectfully submitted that there is absolutely no need to post-disqualify
COMPLAINANT for the reason that it was not a recipient of a NLCB AFTER POST-
EVALUATION in the first place. COMPLAINANT has no right to assume that it should be
subject to post-qualification under Sec. 34 of the RIRR inasmuch as the NLCB it received was
a mere NLCB AS READ;

11. That the undersigned have no personal knowledge sufficient to form a belief as to the truth of
the averments contained in paragraph 5.h. of the Complaint-Affidavit, particularly with respect
to the August 23, 2010 request for clarification (Annex “I” to “I-2” of Complaint-Affidavit) of
the COMPLAINANT to the Government Procurement Policy Board (GPPB for brevity).
Furthermore, the undersigned specifically and vehemently DENY all the contents contained
therein for being too self-serving and manipulated to favor the COMPLAINANT purposely to
mislead the GPPB as to the true facts surrounding the proceedings involving PR No. 00345-10;

12. That the undersigned ADMIT paragraph 5.i. of the Complaint-Affidavit;

13. That the undersigned specifically DENY the allegations in paragraph 5.j. of the Complaint-
Affidavit, for while there was confusion as to the validity of the surety bond and Certification
from the Insurance Commission submitted by NLV, efforts were exerted by ZCWD to seek
clarifications on the matter as evidenced by its letter dated 03 September 2010 addressed to the
GPPB at its Main Office at Unit 2506, Raffles Corporate Center, F. Ortigas Road, Ortigas
Center Pasig City and another letter dated06 September 2010 addressed to the Insurance
Commission in its main Office at 1071 United Nations Avenue, Manila, all inquiring as regards
the Certification issued by the Insurance Commission, which has accompanied NLV’s surety
bond as its bid security. Again, this manifests good faith on the part of the BAC, and on the
part of the procuring entity contrary to the fault-finding assertions of COMPLAINANT as
stated in paragraph 5.j. of its Complaint-Affidavit that “the BAC failed to check on this basic
bid document, or else, it deliberately and conveniently overlooked this defect, which would
immediately have disqualified NLV from the bidding.”

14. That the undersigned ADMIT paragraph 5.k. of the Complaint-Affidavit, but limit their
admission only as to the existence of GPPB’s reply (Annex “L” and “L-1” of the Complaint-
Affidavit) to COMPLAINANT dated 23 August 2010. As to its contents, it may clearly be
gleaned from the same GPPB reply that COMPLAINANT should have sought a clarification
with the procuring entity (ZCWD) on which among the notices issued is correct. This
opportunity to seek clarification has been repeatedly done by COMPLAINANT and ZCWD
through its BAC has repeatedly clarified on the matter. This notwithstanding, it appears that
COMPLAINANT remains steadfast in its self-serving declaration that it was a recipient of a
NLCB on the basis of a post-evaluation, when in truth and in fact the NLCB issued to it was a
NLCB AS READ, pending post-evaluation;

15. That undersigned are without knowledge or information sufficient to form a belief as to the
veracity of the averments in paragraph 5.l. of the Complaint-Affidavit;

16. That the undersigned specifically DENY the allegation of COMPLAINANT as stated in
paragraph 5.m. of its Complaint-Affidavit, for while there was no reply to the question
regarding NLV’s bid security, actions were initiated by the procuring entity as stated in
paragraph 13 above to seek clarification from the GPPB and the Insurance Commission as to
the Certification from the Insurance Commission submitted by NLV in support of the latter’s
surety bond as bid security;

17. That the undersigned DENY paragraph 5.n. of its Complaint-Affidavit particularly the
existence of the GPPB reply, allegedly dated October 20, 2010 as they were never officially
furnished a copy of the same;
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18. That the undersigned ADMIT the existence of COMPLAINANT’s letter-demand dated 02
November 2010 as stated in paragraph 5.o. of its Complaint-Affidavit. The undersigned
however vehemently and categorically DENY the contents thereof, inasmuch as no provision
under RA 9184 or its RIRR exists to justify COMPLAINANT’s “demand for the issuance of a
Notice of Award” in its favor. Likewise, the undersigned specifically takes exception to
COMPLAINANT’s declaration that “secrecy and subterfuge have attended the bid
proceedings”, there being absolutely no proof of the same and further rebutted by the fact that
ZCWD as the procuring entity has always been transparent to all bidders, subject to the rules
on confidentiality in order not to compromise the affairs and best interests of the ZCWD;

19. That the undersigned admit COMPLAINANT’s allegations in paragraph 5.p. of its
Complaint-Affidavit;

20. That the undersigned likewise vehemently and categorically DENY the self-serving declarations
made by COMPLAINANT in paragraph 5.q. of its Complaint-Affidavit, particularly that the
“BAC is vigorously defending its decision to issue a second NLCB a total of 46 days after the
opening of bids” and that the “head of the procuring entity is using the delay as a ground to
declare a failure of bidding, [because] the resolution of Vasquez came only after Bendimil
questioned the bid security of NLV”. The latter statements have no factual basis and are clearly
being based on surmises and imaginations of COMPLAINANT. Where it true that the BAC
had “vigorously defended its decision to issue a second NLCB to NLV”, then would a later
RESOLUTION TO DECLARE A FAILURE OF BIDDING from no less than the head of
the procuring entity be consistent with such “vigorous” resolve? True, lengthy delays (albeit
proof of justification as to the delay is readily available for the appreciation of the Hon. Office
of the Ombudsman as will be discussed below) were incurred by the BAC, the TWG-II and
even perhaps the procuring entity itself in the entire bidding process, from the moment the
bids were opened up to the failure of bids; but does the COMPLAINANT have the right in
the first place to make a cavalier DEMAND of the Notice of Award, knowing that it received
its NLCB AS READ without the benefit of post-evaluation? On the other hand, the NLCB
received by NLV was consistent with the provisions of RA 9184 and its RIRR for while there
were delays prior to its issuance, the bids have undergone detailed evaluation on the basis of
completeness of the bid and arithmetical corrections. Had COMPLAINANT been more
professional, it should have followed GPPB’s advice in its letter dated 23 September 2010 to
seek a clarification from the procuring entity, on which among the notices issued is correct;

21. That the undersigned ADMIT the existence of COMPLAINANT’s demand letter dated
January 12, 2011 as alleged in paragraph 5.r. of its Complaint-Affidavit, but DENY the
contents thereof;

22. That the undersigned ADMIT the allegations of the COMPLAINANT in paragraph 5.s. of its
Complaint-Affidavit, with due emphasis on the reply of the GPPB on the Order to Re-bid
(Annex “S” to “S-1” of Complaint-Affidavit), a portion of which is quoted below as
FOLLOWS:

“It is our (GPPB) view that decisions by the head of the procuring
entity, such as the use of the reservation clause, fall solely within their sound
authority as sanctioned by law, but with concomitant responsibility that they
perform such functions with judiciousness and adherence to the principles
of transparency and accountability. Thus, the responsibility for determining
whether any of the situations specified under Section 41 exists, the
corresponding basis therefor, and the decision to declare failure of bidding
on such basis rest primarily on the head of the procuring entity or his duly
authorized representative.

As such, we (GPPB) have limited our guidance to the ZCWD in

confirming that Section 38.1 of the IRR mandates procuring entities to
complete the procurement process from the opening of bids up to the
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award of contract within three months and that Section 32.2.4 of the IRR
requires procuring entities to identify the Lowest Calculated Bid that will be
notified for purposes of post-qualification, and failure to comply with these
provisions may be a ground for declaration of failure of bidding under
Section 41 (b) of the IRR.

In relation to this, please note that Section 65.1 (b) of the IRR does not
conflict with, nor preclude declaration of, failure of bidding on the basis of
non-compliance with the mandatory period provided in Section 38.1 of the
IRR. It only applies as the basis for the imposition of sanction when, after
due proceedings, it is proven in court that the public officer has no
justifiable cause to delay compliance within the prescribed periods in the
IRR.

(x-x-x)

Emphasis supplied.

Apparently being not satisfied with the above-stated advise of no less than the GPPB, herein
COMPLAINANT brings before the Hon. Office of the Ombudsman a totally baseless, malicious
and troublesome Complaint all because of a controversy which started by virtue of
COMPLAINANT’s own misleading and self-serving declaration that it is entitled to demand for
itself a Notice of Award of the project.

23. That the undersigned ADMITS paragraph 5.t. of the Complaint-Affidavit;

24. That the undersigned categorically and vehemently DENY the entirety of paragraph 51, page 4 of
the Complaint-Affidavit, as the same contains sweeping and unfounded accusations of violation of
Section 65 b) and e) of RA 9184, and further specifically set forth their defenses specifically as
FOLLOWS:

“a. That contrary to Sec. 34.8 of Rule IX of the IRR, respondent members of the BAC
deliberately delayed the post-qualification process on Bendimil beyond the mandatory 7-day
maximum period in order to give undue benefit, advantage and preference to NLV.”

There is no deliberate delay in the post-qualification to speak of, as the delays incurred by the
BAC and TWG were more than justified especially considering that since the beginning of year
2010, all concerned were pressed with time to meet the heavy task of having to consecutively
implement three (3) major ZCWD infrastructure projects (PR Nos. 00458-10, 000340-10 and
00345-10). As early as 08 July 2010, the BAC had already forwarded to the TWG-II for post-
evaluation all the bids submitted in the three (3) infrastructure projects as stated above. This has,
needless to state, tripled the workload of the TWG-II, hence on 19 July 2010 it requested for an
extension of time to submit its post-evaluation report to the BAC. Further delay was caused due
to the several queries presented by the ZCWD before the GPPB and the Insurance Commission
as evidenced by its letters dated ____________________, hereto attached as ANNEXES D and
E, respectively. As a measure of prudence and judiciousness, the ZCWD and its BAC deemed it
wise to defer proceedings on the bidding process, pending replies from the afore-stated official
queries.

No undue benefit, advantage or preference was enjoyed by NLV. The act of issuing the NLCB in
its favor was a ministerial duty that the BAC was obligated to perform under the RIRR of 9184
when he TWG-II, after having finally submitted its post-evaluation report, made a finding that
NLV’s Bid was actually the Lowest Calculated Bid or Highest Ranking Bid under Sec. 32 of the
RIRR. On the contrary, it would have been inappropriate and unlawful for the BAC to maintain
its first NLCB AS READ issued to COMPLAINANT and treat the latter as the winning bidder,
in utter disregard of the post-evaluation report and findings submitted by the TWG-II.
1 The Complaint Affidavit contains two (2) paragraph 5s, one commencing at page 1 and the other commencing at page 2.
 7

“b. That 46 days after the opening of the bids, the BAC issued a second NLCB to another
bidder, without first post-disqualifying Bendimil and even any notice as to the grounds for such
disqualification, if any, as required under section 34.5 of the IRR; that significantly the BAC
issued said second NLCB to NLV without subjecting the 2nd and 3rd lowest bidders to post-
qualification as required under Section 34.6 of the IRR.”

It is most respectfully submitted that the above statement is once again a clear misapplication of
Sec. 34 of the RIRR on the actual events which transpired in the instant controversy.
COMPLAINANT was never entitled to any post-disqualification as already expounded and
clarified above, for the reason that it was NLV who was the recipient of a NLCB after the detailed
evaluation conducted by the TWG. Neither was there a need to subject the 2nd and 3rd lowest
bidders to post-qualification inasmuch as Sec. 34 clearly indicates that ONLY ONE (1) BIDDER
shall be subject to post-qualification. Sec. 34.1 states: “The Lowest Calculated/Highest rated Bid
shall undergo post-qualification in order to determine whether the bidder concerned complies
with and is responsive to all the requirements and conditions as specified in the Bidding
Documents.” Clearly, the provision means that that bidder considered to have the lowest
calculated/highest bid (which in this case is NLV), shall be subjected to post-disqualification. The
same provision never required that herein COMPLAINANT, as recipient of a NLCB AS READ,
shall be subject to post-disqualification. The fact that the NLCB issued in favor of
COMPLAINANT was a NLCB AS READ has been made clear and explained numerous times
to the COMPLAINANT, as evidenced by a the Notice dated August 17, 2010 hereto attached as
ANNEX “F” addressed to Bendimil President Eduardo Ramon T. Dimaano, a letter of apology
dated August 19, 2010 hereto attached as ANNEX “G”, explaining the inadvertence of the BAC
when it sent its first letter to supposedly notify COMPLAINANT of the fact that it had issued to
NLV the Notice of Lowest Calculated Bid to a bidder in another project, and the
RESOLUTION of the BAC dated 24 August 2010, hereto attached as ANNEXES “H” to “H-2”
after the ZCWD and its BAC has already been bombarded with unfounded protests and
complaints by losing bidders.

“c. That when Bendimil demanded for the results of the ‘recalculated bid price as evaluated by
the TWG’ showing NLV as the lowest bidder, the BAC could not even present any.”

Further manifesting COMPLAINANT’s stubbornness and desperation is the statement above, in

that it even went to the extent of demanding for the results of the recalculated bid price as
evaluated by the TWG. The same demand was altogether and outright ignored by the BAC
inasmuch as the post-evaluation report and finding by the TWG is a document solely for the
consumption and appreciation of the BAC and especially considering the confidential nature of
the document COMPLAINANT demanded. Had the BAC’s decision been otherwise, there
would be a violation of RA 3019 (k) which punishes a public officer for “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”. The non-disclosure of the TWG’s post-evaluation report was a discretionary
exercise of prudence and caution on the part of the BAC which has to the best of its efforts,
defended itself from the harassment and threats of losing bidders.

Be that as it may, for the satisfaction of COMPLAINANT and due to the fact that the bidding
process has been rendered moot and academic by virtue of the failure of bidding, the
undersigned has attached the post-evaluation report and findings of the TWG-II (already attached
as ANNEX “C” to “C-8” as indicated above), with emphasis on page 4 thereof, highlighting the
fact that NLV’s bid offer which was initially 19,530,649.27 has been corrected to 18,756,583.18,
as already explained in paragraph 8, page 2 of this Counter-Affidavit.

“d. That the explanation of the BAC that the delay in the post-qualification was caused by the
travel of TWG members is not tenable. (x-x-x)”
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COMPLAINANT, perhaps in its hopelessness and condescension, even goes to the extent of
arrogating unto itself a determination of what constitutes the exceptional circumstances which may
justify delays within the contemplation of RA 9184 and its RIRR. The grant of the request for an
extension of time for the TWG to come up with the post-evaluation report is an exercise of the
BAC and the General Manager’s discretion, which was exercised with due caution and good
judgment, in view of the attending circumstances. Again, worthy to reiterate is the fact that the
TWG was time pressed to simultaneously come up with post-evaluation reports and findings on
three (3) infrastructure projects involving millions of Pesos and keeping in mind the best interests
of the ZCWD. A hastily prepared post-evaluation report would have put the bid proceedings in a
more precarious position.

“e. That in another project, Proposed Replacement of Talon-Talon Distribution Pipeline issued
the NOA to Teddie Construction Development Corporation some 110 days after the opening of
bids on June 29, 2010, which proves that insofar as ZCWD is concerned, delay per se in the
bidding and post-qualification process has not been a ground to declare failure of bidding.”

The decision to declare a failure of bidding by the ZCWD General Manager in his capacity as
HOPE is one which is peculiar to the projects affected, namely PR Nos. 00345-10 and 00458-10.
No less than the GPPB has affirmed the authority of the HOPE to appreciate facts and
interpretations of law, review recommendations presented before him by the BAC, and thereafter
render a decision or resolution on the basis thereof. The facts and circumstances involved in PR
No. 00340-10 (Talon-Talon Pipeline Replacement Project) are not to be confused with those in
PR Nos. 00345-10 and 00458-10. It was the best judgment and for the benefit of the ZCWD that
the HOPE decided to push through with PR No. 00340-10, and when it decided to declare a
failure of bidding with respect to PR Nos. 00345-10 and 00458-10. This is best shown by the
numerous queries (see letters with corresponding replies from the GPBB hereto attached as
ANNEXES I, J, K, L & M respectively) the HOPE has presented before the GPPB before
coming up with its Resolution dated 05 January 2011 declaring a failure of bidding. The Supreme
Court has declared in ALBAY ACCREDITED CONTRACTORS ASSOCIATION, INC. vs.
HON. OMBUDSMAN, ET. AL., {G.R. No. 133517; January 30, 2006} : “The discretion to
accept or reject a bid and award contracts is vested in the government agencies entrusted with that
function. The discretion given to authorities to accept or reject a bid is of such wide latitude that
courts will not interfere, unless it is apparent that it is exercised arbitrarily, or in the language of
Bureau Veritas vs. Office of the President {205 SCRA 705 (1992)}, used as a shield to a
fraudulent award. The exercise of that discretion is a policy decision that necessitates prior
inquiry, investigation, comparison, evaluation and deliberation.”

“f. That GM Vasquez cancelled the bidding results without conducting the post-qualification on the
2nd and 3rd lowest bidders; that obviously, “failure of bidding” is intended to ensure that the 2 nd and
3rd bidders will not post-qualify, so that NLV can still win in a new bid.”

The above-quoted statement is specifically DENIED for obviously being presumptuous, self-
serving, and wanting of legal and factual basis. Apparently, COMPLAINANT is trying to bring to
life pigments of his imagination with the use of surmises and conjectures. The failure of bidding as
declared by the ZCWD General Manager was an exercise of sound discretion in good faith and
with heavy reliance on GPPB opinions and upon a careful perusal of the facts presented to him.
That the failure of bidding “has been intended to ensure (x-x-x) that NLV can still win in a new
bid” is not supported by any evidence and is highly presumptive. If anything, it is crystal clear proof
that COMPLAINANT are determined only to harass the undersigned for not giving in to its
demand for a Notice of Award, which it does not even deserve in the first place.

25. That the undersigned categorically DENY paragraph 6 of the Complaint-Affidavit as the same
is a sweeping statement, which cannot even remotely be substantiated by any of its annexes.
Clearly, no benefit, advantage or preference has been derived or enjoyed by NLV by reason of
the events which have transpired, taken altogether. There is likewise no manifest partiality of
the undersigned to speak of, inasmuch as all decisions with respect to the bidding process in
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PR 00345-10 up to the declaration of failure of bidding were done with utmost judiciousness
and prudence. Even the delays were justifiable, as have already been explained above.

26. Paragraph 7 of the Complaint-Affidavit is specifically DENIED by the undersigned.

COMPLAINANT is noticeably quoting legal phrases to make it appear that Respondents are
already guilty of their baseless accusations. No “undue injury” has been suffered by
COMPLAINANT. In Llorente vs. Sandiganbayan {G.R. No. 122166, 11 March 1998, 287
SCRA 282}, “undue injury” was defined as actual damage capable of proof and actually proven
with a reasonable degree of certainty and does not include speculative damages which are too
remote to be included in an accurate estimate of the loss or injury.

27. That finally paragraphs 8 and 9 are SPECIFICALLY and VEHEMENTLY DENIED by the
undersigned as the accusations of “manifest partiality and evident bad faith” have all been
rebutted as discussed above, and all pointing out to the fact that these sweeping accusations are
entirely based on mere surmises and conjectures. In order to be held liable for violation of
Section 3 paragraph (e) of RA 3019 as amended, the following elements must concur: (1) the
accused is a public officer discharging administrative, judicial or official functions; (2) he must
have acted with manifest partiality, evident bad faith or inexcusable negligence; and (3) his
action has caused undue injury to any party, including the Government, or has given any party
any unwarranted benefit, advantage or preference in the discharge of his functions. It was held
in Gallego vs. Sandiganbayan {G.R. No. 57841, 30 July 1982, 115 SCRA 793} it was held that
“manifest partiality,” “evident bad faith” and “gross inexcusable negligence” describe different
modes by which the offense penalized in Section 3 (e) of RA 3019 may be committed. Among
these three different modes, not even one was proved and substantiated by COMPLAINANT.

28. The undersigned have the right to be protected against malicious and oppressive prosecution,
to be secure from an open and public accusation of a crime and from the trouble, expense and
anxiety of a public trial. Proof, not mere conjectures or assumptions, should be submitted to
indicate a person’s criminal liability, for otherwise the accusations would serve no other
purpose than to bother, coerce, and harass innocent public officers such as the undersigned.

29. That this affidavit is being executed for the purpose of jointly and severally countering the
charges as alleged in COMPLAINANT’s Counter-Affidavit, and for the purpose of causing the
dismissal of the instant case before the Office of the Hon. Ombudsman-Mindanao for utter
lack of merit.

RESPECTFULLY SUBMITTED this 16th day of May 2011 in the City of Zamboanga,
Philippines.

LEONARDO REY D. VASQUEZ LOVELL C. ABAD

Respondent Respondent

TEOTIMO C. REYES, Jr. ARNULFO A. ALFONSO

Respondent Respondent

RODRIGO R. VEGA FERNANDO R. CAMBA

Respondent Respondent