Sandigan clears ex-BCDA chief, 2 others in ‘overpricing’ case

The Sandiganbayan has cleared a former chairman of the Bases Conversion Development Authority (BCDA) and two others of graft charges, ruling that government prosecutors failed to show that they overpriced a P376.4-million road in Mabalacat, Pampanga.

The anti-graft court’s first division absolved former BCDA chairman Victorino Basco and co-accused Romeo David and Rogelio Luis of criminal and administrative liability over the 11.79-kilometer Mabalacat-Clark spur road project of the Philippine National Construction Corp. (PNCC).

David was a former president of the Clark Development Corp. and Clark International Airport Corp., while Luis was a former president of the PNCC.

Justices Diosdado Peralta, Roland Jurado and Teresita Leonardo-de Castro granted the motion of Edna Herrera Batacan, counsel for the accused, to dismiss the charges since no less than the Court of Appeals (CA) has upheld the validity of the contract.

In a 12-page resolution penned by Peralta, the first division said the issue on the absence of a public bidding has been resolved "with finality" by the appellate court, while the alleged overprice was not ascertained by the main witness, lawyer Emora Pagunuran.

The CA sustained the BCDA’s position and upheld the validity of the agency’s memorandum of agreement (MOA) in November 1996 and August 1997, along with the supplemental agreement, which attained finality since the Ombudsman did not file an appeal.

"True it is that a CA decision is not a precedent and not binding upon this court, but still this court must defer thereto as a persuasive ruling because it has already passed upon and resolved the issue," the first division said.

"Besides, the Ombudsman did not question or appeal the CA decision and this can only mean that it adhered thereto," the anti-graft court said. "Given the findings of the CA, the matter of lack of bidding is settled and hence has become conclusive between the parties."

As to the alleged overpricing, the Sandiganbayan said Pagunuran could not even substantiate her claim that there was as much as 167 percent overprice, which was purportedly based on a DPWH table of construction costs.

During cross-examination, however, she contradicted herself and admitted she did not even inspect the construction site and could not even justify her use of the standard.

"The inaccuracy with respect to the issue of overpricing is not a minor inconsistency that the court can simply disregard. Actually, the discrepancies touch on significant facts which are crucial to the guilt or innocence of the accused," the Sandiganbayan said.

The anti-graft court noted that the Office of the Government Counsel itself found "no infirmities" in the deal and that the Ombudsman submitted "conflicting memoranda" on the alleged overprice, saying there was overpricing on June 19, 2000 but reversed this nine days later.

"This court cannot fathom why, given the same set of evidence, the Ombudsman found probable cause for overpricing. Clearly, even the Ombudsman is not certain as to the issue of the overpricing as it sought to have the contracts reviewed by the COA," it said.

"It is as once apparent that the issue of overpricing has not been proved with moral certainty by the prosecution. The evidence of the prosecution, as it stands, is bereft of any effective and reliable cost analysis showing that the project was indeed overpriced," it added.