THE OMBUDSMAN has found probable cause to indict Joseph Emilio A. Abaya together with 16 others, in connection with “the anomalous MRT-3 maintenance contract” on Mr. Abaya’s watch as head of the then Department of Transportation and Communications (DoTC), the Ombudsman said in a statement Monday.
The statement said a Special Panel of Investigators formed by the Ombudsman has found irregularities in the awarding of the P4.25-billion contract to the Busan Joint Venture (Busan JV), which includes the firms Edison Development and Construction, Tramat Mercantile Inc., TMI Corp. Inc., Castan Corp., and Korean-led enterprise Busan Universal Rail Inc. (BURI).
“During the evaluation process, all offers were found to be deficient in their eligibility and technical documents and were given the opportunity to cure the defect,” the Ombudsman said regarding the three offers to maintain the MRT-3 submitted as of Oct. 21, 2015.
The contract entailed the maintenance of the train system, a general overhaul of 43 units of light rail vehicles (LRVs), the total replacement of the signaling system, and additional maintenance works.
A week later, a negotiating team still “declared the Busan JV as being the sole entity which passed the eligibility on technical and financial documents evaluation… (and) recommended to the MRT-3 BAC (Bids and Awards Committee) that the bid of Busan JV be declared as the Single Calculated Officer and that post-qualification proceedings be conducted.”
Busan JV entered into the contract with the MRT-3 and DoTC (now the Department of Transportation or DoTr) on Jan. 7 the next year.
According to the special panel, “unwarranted benefits, advantage and preference” were also extended when the project was awarded to Busan JV, “an ineligible and unqualified entity,” the Ombudsman said.
The Commission on Audit (CoA) also observed, in its 2016 audit, that “DoTr still failed to provide the riding public with a safe and comfortable transport system even with the procurement and delivery from August 2015 to January 2017 of 48 new LRVs with a total cost of P3,759,382,400.00.”
“Despite four years in the procurement process and total payments of P527,761,083.00 (equivalent to 14% of the contract price) (for the Dalian trains), the LRVs remain inoperati(ve) and unaccepted by the DoTr as of reporting date due to glitches in the power supply and signaling system. These resulted from the DOTr’s poor planning and other major procurement lapses,” the Ombudsman said, quoting CoA.
“The Special Panel also found irregularity in the award when the Busan JV was allowed to simply submit a Certificate of Registration of BURI as a Special Purpose Company (SPC) instead of a valid JVA (joint venture agreement),” the Ombudsman said. “The action becomes even more suspect as it was respondent DoTr Assistant Secretary for Procurement (Camille) Alcaraz who wrote the Securities and Exchange Commission to facilitate the registration of Busan JV as an SPC.”
“This Office notes that [Alcaraz] was (also)… the Chairperson of the MRT-3 BAC. Her action thus reeks of impropriety as it gives the impression that she was acting in favor of the Busan JV,” the Ombudsman said, quoting a consolidated resolution by the special panel.
The resolution further pointed out that “as then DoTr Secretary, Abaya had supervision and control over the officials under him and was immediately and primarily responsible for all government funds and property pertaining to his agency at the time of the questioned transaction.”
The resolution added: “There is a given authority and responsibility to Abaya as DoTr Secretary to regulate the acts of the DoTr officials responsible for the procurement of the MRT3 long-term maintenance contract(,) and he cannot simply evade such responsibility by invoking reliance on his subordinates, especially considering that the subject contract is one with a scope and magnitude affecting a big portion of the commuting public in Metro Manila, with an accompanying financial impact on the coffers of the government amounting to more than P4 billion.”
Besides Mr. Abaya and Ms. Alcaraz, also facing charges for violation of Section 3(e) of R.A. No. 3019 (the Anti-Graft and Corrupt Practices Act) are DoTr Undersecretaries Edwin Lopez; Rene Limcaoco and Catherine Jennifer Francis Gonzales (as head and vice-head of the negotiating team); MRT-3 General Manager Roman Buenafe; Ofelia Astrera as vice-chairperson of the Bids and Awards Committee; Charissa Eloisa Julia Opulencia (Attorney V), Oscar Bongon (Chief, Engineering Division); and Jose Rodante Sabayle (Engineer III).
Private respondents are Eldonn Ferdinand Uy of Edison Development and Construction, Elizabeth Velasco of Tramat Mercantile, Belinda Tan of TMI Corp., Brian Velasco of Castan Corp., and Antonio Borromeo, Jun Ho Hwang and Elpidio Uy of BURI.
Lawyer Enricka Gonzales said in a statement on Mr. Abaya’s behalf, “We find this decision unfortunate, considering that Sec. Jun clearly laid out his defense against the poorly-crafted and unsubstantiated complaint filed by the DoTr.”
In her statement, Senator Grace Poe-Llamanzares said the Ombudsman’s findings are “a welcome development in the fight to make erring public officials accountable for their failure to exercise the highest degree of diligence in the performance of their duties.”
“This announcement is consistent with the conclusion of the Committee Report submitted by the Subcommittee on Public Services, which observed the badges of negligence and inactions of the DoTR officials led by Abaya indicating insensitivity, callous indifference, and acts disadvantageous to the commuters, to the Filipino public and to the government with regard to the malfunction problem of the MRT,” Ms. Poe also said. The senator heads the Senate committee on public services. — Charmaine A. Tadalan

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