MANILA, Philippines – Presidential candidate and Vice President Jejomar Binay is administratively liable for grave misconduct, dishonesty and gross inexcusable negligence, graft and corrupt practices in connection with the allegedly overpriced Makati City Hall Parking Building II.
This was among the findings of a special 148-page audit report of the Commission on Audit (COA) verified and sworn to on Monday, March 7. The audit covered the controversial 11-story, P2.28-billion ($48.8 million) project initiated in 2007 during the last term of Binay as Makati mayor. (READ: Binay’s Makati building overshoots budget)
Assistant Audit Commissioner Alexander B. Juliano approved the recommendation of the 12-member team, which said they are presenting their findings for further investigation and filing of appropriate charges before the Office of the Ombudsman.
The COA report had 2 major findings:
(1) The construction of 5 phases of the Makati City Hall Parking Building II totaling P2.28 billion showed "irregularities from budgeting to procurement to execution resulting in misuse of public funds."
(2) The contract for architectural and engineering services with contractor MANA Architecture and Interior Design Co (MANA) amounting to P11.97 million (around $256,000) is not covered by an appropriation, and was awarded through "simulated bidding and payments" that were not supported with documents and required information.
The same report said Hilmarc’s Construction and MANA, which bagged contracts from the Makati City government, got undue advantage to the detriment of the city government.
Binay may be liable for both administrative and possibly criminal acts that carry penalties ranging from fines and imprisonment to removal from office or perpetual disqualification from holding public office. The grant of undue advantage to MANA and Hilmarc's is a violation of the Anti Graft and Corrupt Practices Act.
The audit traced irregularities such as the following:
Among others, Binay was found to have approved contracts with Hilmarc's Construction Corp for phases I-II, while his son, dismissed Makati mayor Jejomar Erwin Binay Jr, approved contracts for phases III-V "without real competitive public bidding" and without submitting complete supporting documents.
When he was mayor, the Vice President approved contracts with Hilmarc's for the construction of the 11-story building with roof deck at a total cost of P2.28 billion as-built without the corresponding ABC. This resulted in "excessive and unconscionable cost difference of P1.9 billion ($40.7 million)" from the original P283 million.
At various phases of the project, father and son were found to have signed certificates of completion and acceptance, and to have approved change orders and accomplishment reports for billings without complete supporting documents.
Insofar as MANA is concerned, COA found that the Makati city government entered into a contract agreement in 2007 without any corresponding appropriation and prior authorization required by law.
The negotiated procurement was tainted with irregularities like simulated bidding as seen in the presence of "fictitious bidders and dubious bidding documents, and lack of track record of the winning bidder."
At the time it was awarded the architecture and engineering services contract, MANA was only a newly registered general professional partnership with the Securities and Exchange Commission in July 2007, only 4 months before the purported bidding on November 22 of the same year. It did not even submit a valid business permit.
Payments to MANA were not supported with proof of accomplishments, outputs or reports and other relevant documents and information as required, the COA report said.
Based on the bids submitted by 7 bidders for the project, the report said it appears that only MANA was aware of the approved budget for the contract amounting to P11.99 million ($257,000), "indicating that it was a favored bidder." It was the sole bidder that submitted a bid slightly lower than the approved budget – P11.97 million. The other contractors submitted bids over P12 million or P13 million (around $278,000).
The audit team was constituted after Ombudsman Conchita Carpio Morales requested from then COA chair Ma. Gracia Pulido-Tan the conduct of a special audit on the construction of the parking building based on the complaint filed by Renato Bondal and Nicolas Enciso in July 2014. Audit field work was done for 90 days and an exit conference done on January 12, 2016.
Presidential candidate, immunity
Reacting to the COA report, the younger Binay also said it is "an issue for us." He said he found "highly questionable" these investigations, considering that "the vice president is running for president."
In latest presidential preference surveys, Binay has caught up with front-runner Senator Grace Poe. An ABS-CBN-commissioned national survey conducted by Pulse Asia from February 16-27 showed him and Poe statistically tied for top spot at 24% and 26%, respectively.
On whether Binay can be removed from office on account of the cases, there are different schools of thought. Some constitutionalists believe he does not enjoy immunity from suit because unlike the president, he does not have "multifarious duties and powers."
But election lawyer Romulo Macalintal said the Vice President is immune from criminal suit, but not from impeachment – just like the President.
The Office of the Ombudsman over the weekend refuted claims by Binay's camp they were exerting pressure on COA to release its report. It said in a statement that "it was the COA that advised the Office of the Ombudsman months ago that the report was ready and that a copy would be transmitted to the office by the end of January."
Furthermore, it was Binay who "pleaded with a COA official not to release the report until after the elections."
It was during a January 26 subcommittee hearing that the Office of the Ombudsman was promised a final copy of the audit report by February 16, Rappler learned. That was postponed to February 22 and yet again to March 2.
The Office of the Ombudsman said that as of Thursday, March 10, the office was still waiting for the transmittal of the COA report. "The Office will thoroughly study the COA findings before issuing any further statement." – with Michael Bueza and Mara Cepeda/Rappler.com
*$1 = P46.72
Chay Hofileña is editor of Rappler's investigative and in-depth section, Newsbreak. Among Rappler’s senior founders and editors, she is also in charge of training. She obtained her graduate degree from Columbia University’s School of Journalism in New York.