In its 1995 Decision in the case of Quibal vs. Sandiganbayan, the Supreme Court said:
Violation of Section 3 (e) of R.A. 3019 [Anti Graft and Corrupt Practices Act] requires proof of the following facts, viz:Relying solely on the undisputed FACTS of the case, both from the Supreme Court decision and the OMB's Resolution, let me cite a simple example of each of the elements in bullet #3 above in this whole sorry mess involving Comelec and now the Ombudsman.
1. The accused is a public officer discharging administrative or official functions or private persons charged in conspiracy with them;
2. The public officer committed the prohibited act during the performance of his official duty or in relation to his public position
3. The public officer acted with manifest partiality, evident bad faith or gross, inexcusable negligence; and
4. His action caused undue injury to the Government or any private party, or gave any party any unwarranted benefit, advantage or preference to such parties.
EVIDENT BAD FAITH: The Comelec's Official Request for Proposal (RFP) specifically required a 99.9995% accuracy rating for any acceptable system. This requirement was later decided by Comelec to be unachievable and so it changed the requirement to 99.995% AFTER the eligibility phase had already either discouraged or eliminated many potential bidders or offerors. Only two bidders survived: MPC, the eventual winner, and TIMC, the eventual loser. That the Comelec did not restart the entire bidding process with a revised RFP was SELF-EVIDENT BAD FAITH! Indeed the Supreme Court already noted this point in its decision, yet the Ombudsman clearly ignores the testimony of Dir. Jose Tolentino, the Comelec's Phase II Project Manager, who attested to these facts.
MANIFEST PARTIALITY: The OMB's Resolution makes a great show of how impartial the Comelec was in judging between MPC and TIMC, how manifestly superior the MPC system was to that of TIMC. Comelec's partiality becomes MANIFEST when one considers the testimony of the Comelec in the OMB's Report that they reduced the required accuracy rating from 99.9995% to 99.995% after being informed, probably by the bidders, that the 99.9995% rating was unachievable. To make their partiality even more manifest consider the simple fact testified to by Secretary Estrella Alabastro and Engr. Rolando Viloria both of the DOST that both MPC and TIMC actually failed the technical evaluation tests for compliance with the 27 Key Requirements contained in the Comelec's own bid documents and RFP, including the REDUCED 99.995% accuracy rating requirement. Despite failing the eval, the Comelec nevertheless awarded the contract to MPC, when by every law of God and Nature they should have declared a failure of bidding process and restarted. A pattern emerges: Comelec was hell-bent on giving the contract to MPC no matter what. MANIFEST PARTIALITY!
GROSS INEXCUSABLE NEGLIGENCE: The Supreme Court Decision expounded upon its interpretation of "gross inexcusable negligence" :
Gross negligence is the pursuit of a course of conduct which would naturally and reasonably result in injury [or unwarranted benefit]. It is an utter disregard of or conscious indifference to consequences. In cases involving public officials, there is gross negligence when a breach of duty is flagrant and palpable.I think this aspect of the Comelec's demeanor can be seen also in the OMB's Resolution in the overall pattern of ignoring requirements and discounting the failures reported by the DOST to it, and worse, getting that body to do "verification tests" and re-tests in an obvious, heedless drive to get that vendor to pass. Awarding the contract to a bidder that fails multiple explicit requirements of the RFP displays a callous disregard for the long-term consequences of its acts. When the Comelec ignored, and now the OMB glosses over such major deficiencies of the ACM system, such as the ability to provide an audit trail, and others noted by the Court in its decision, amounts to GROSS, INEXCUSABLE NEGLIGENCE. It was their duty as public officials to reject all bids, since they failed the very requirements set forth. They breached that duty in their flagrant act of graft and the palpable corruption of spirit that must have motivated them.MPC was undeserving of the benefit done them with manifest partiality, in evident bad faith and gross negligence.
Altogher that spells the crime of GRAFT and CORRUPTION.
Then there are the utterly ignorant and naive arguments in the Ombudsman's Resolution about SOFTWARE -- generic and customized -- which are actually based on not understanding the difference between CODE and DATA that I however, will have to reserve for another Commentary.