Former Makati Mayor Jejomar Erwin Binay Jr.
The Sandiganbayan will proceed with the graft and falsification cases against former Makati Mayor Jejomar Erwin “Junjun” Binay and 13 other former city officials in connection with the allegedly overpriced Makati City Hall car park building, more than a year after their indictment.
In a resolution penned by presiding Justice Amparo M. Cabotaje-Tang, the graft court’s Third Division affirmed probable cause to bring the accused to trial.
The prosecution’s evidence has so far shown that “more likely than not,” Binay and the other officials committed the crime and there was basis to make them defend themselves in a full-blown trial, it said. It scheduled their arraignment for May 18 at 1:30 p.m.
The other respondents include former city administrator Marjorie de Veyra, former bids and awards committee (BAC) vice chair Gerardo San Gabriel, former city legal officer Pio Kenneth Dasal, former city budget officer Lorenza Amores, former BAC secretariat head Manolito Uyaco, former BAC technical working group head Rodel Nayve, former city engineer Mario Badillo, former Central Planning Management Office (CPMO) chief Line dela Peña, former CPMO civil engineer Connie Consulta, former city accountant Cecilio Lim III, former acting city administrator Eleno Mendoza Jr., former city treasurer Nelia Barlis, and Hilmarc’s Construction Corp.’s representative Efren Canlas.
Binay and the rest were accused of rigging the bidding for Phases 4 and 5 of the construction of the City Hall car park building in favor of Hilmarc’s from 2011 to 2013. The two contacts were worth a total of P790.93 million.
‘Falsified’ invitations
The court said it had been inclined so far to believe that the bid invitations were falsified to conceal the mock bidding, and that Hilmarc’s was given unwarranted benefits when it was awarded the construction deals without complying with the requirements.
It “appears prima facie” that the bid-rigging and the awarding of contracts and payments to Hilmarc’s without the necessary documents “would not have been accomplished without the active participation and/or cooperation of the herein accused-movants of the city government of Makati,” the court said.
As mayor and head of the procuring entity, Binay had the “legal obligation” to evaluate the documents submitted to him for approval by the BAC, it said.
For one, the prosecution and the defense presented two different versions of page 13 of the July 7, 2011, issue of Balita newspaper. The city officials’ copy showed that they issued a bid invitation for the project, but the prosecution’s copy showed a Sudoku game in that space instead.
There also seemed to be a lack of proof that the bid invitation was published on the city website, the court said.
“In any case, the presumption of authorship of falsification is equally applicable to him as he is charged in conspiracy with his coaccused,” the resolution read.
Hasty approval
As for the graft charges, the court noted Binay’s hasty approval of the BAC resolution on the same day it was issued by the procurement officials. He also executed the contract even as Hilmarc’s had yet to post a performance security, it said.
For the court, these findings “only serve to buttress a finding of probable cause.”
It flagged various procurement and auditing violations, such as the lack of a preprocurement conference before the conduct of such a big-ticket government project.
Binay defense
The court noted the absence of various documents, such as plans and specification, inspection report for the first payment, progress reports and a certification of final inspection.
Binay defended himself by raising the supposed lack of an “overt act” constituting manifest partiality, evident bad faith and gross inexcusable negligence that may be attributed to him.
For the court, these were evidentiary matters “best ventilated and passed upon during the trial of the case.” It said the claim of lack of proof of conspiracy was something that should be proven in the trial.
It added that the lack of a Commission on Audit finding of irregularity in the project would not prevent the Office of the Ombudsman from pursuing the criminal and administrative aspects of the case.
“Although the construction of Phases 4 and 5 of the MCHP Building passed in audit, the same does not constitute a legal bar to the investigation and institution of these legal cases,” the resolution said.
Associate Justices Sarah Jane T. Fernandez and Bernelito R. Fernandez concurred with the resolution.