Professional Documents
Culture Documents
2014-136
July 18, 2014
DECISION
In LRR No. 2011-004 dated January 12, 2011, the COA General Counsel denied
the request for concurrence to the legal retainership contracts of these five legal advisors.
One reason for the denial was the overlapping in the periods covered in the
previous and renewal contracts of Atty. Imperio and Atty. Nera, which were from
December 9, 2009 to June 1, 2010 and January 1, 2010 to June 30, 2010, respectively.
However, their renewal contracts were from April 5, 2010 to October 5, 2010.
The main reason for the denial, however, was that the contracts were already
signed, executed and paid before they were submitted to the COA for concurrence in
violation of Memorandum Circular (MC) No. 9 of the Office of the President (OP) dated
August 27, 1998, COA Circular No. 95-011 dated December 4, 1995, and the Supreme
Court rulings in Polloso vs. Gangan , et al. (G.R. No. 140563, July 14,
2000), Salalima, et al. vs. Guingona, Jr ., et al. (G.R. No. 117589-92, May 22, 1996),
and Santayana vs. Alampaya (A.C. No. 587, March 21, 2005).
1
It was also noted in the said LRR No. 2011-004 that, while the contracts of Atty.
Anastacio and Atty. Tantoco started in January and February, 2010, respectively, and
those of Mr. Yeap, Atty. Nera and Atty. Imperio started on April 5, 2010, the PSALM
submitted their contracts to the Office of the Government Corporate Counsel (OGCC)
only on April 22, 2010, which the OGCC approved on May 6, 2010.
In this request for reconsideration dated March 17, 2011, the PSALM, through its
OIC, Office of the Vice President and General Counsel, Atty. Gellada, Jr., submitted the
same arguments and discussions contained in their request for reconsideration dated
January 27, 2011 of LRR No. 2010-138 dated November 4, 2010. In addition, PSALM
explained that the previous contracts of Atty. Imperio and Atty. Nera were automatically
terminated on March 25, 2010 upon the appointment of PSALM President Jose C.
Ibazeta (the appointing head) as Acting Secretary of the Department of Energy. The
termination was purportedly in line with Section 53.7 of the Revised Implementing Rules
and Regulations of Republic Act (RA) No. 9184, which provides that the services of
highly technical consultants shall in no case exceed the term of the appointing Head of
the Procuring Entity. Their new contracts were executed under the new appointing head,
PSALM Acting President Maria Luz L. Caminero. The same rationale was given for the
automatic termination and renewal of the contracts of Atty. Tantoco and Mr. Yeap.
ISSUE
The issue to be resolved is whether or not the request for concurrence to the legal
retainership contracts may be given due course.
DISCUSSION
In this instant request for reconsideration, PSALM attached its previous request
for reconsideration dated January 27, 2011 of LRR No. 2010-138, adopting the
arguments stated therein, quoted as follows:
COA to comply in good faith with the directive of the Audit Team
Leader (ATL) after PSALM was furnished on April 20, 2010 with
a copy of Opinion No. 2010-020 dated March 15, 2010 of the COA
Legal Services Sector for strict compliance;
The averment is erroneous. Interpreting the applicability of COA Circular No. 95011, the Supreme Court, in the Polloso case, held:
The requirements of prior acquiescence of the Solicitor General or the GCC, and
the written concurrence of COA before the hiring of a private lawyer, was provided under
COA Circular No. 86-255 dated April 22, 1986. The same requirements were reiterated
in COA Circular No. 95-011 dated December 4, 1995.
4
The second ground is a vain attempt at misdirection. Records clearly show that the
PSALM submitted the contracts to the OGCC only on April 22, 2010, after these
contracts were executed and signed by the parties on April 5, 2010. Plainly, the real cause
of the belated submission of the contracts to the COA was the belated submission by the
PSALM of the contracts to the OGCC.
The third and fourth grounds should be dismissed since urgency and priority of
privatization of generation and transmission business, or the necessity of continuing the
legal advisory services, are all within the control of the PSALM management. If only
they gave more than lip service to the requirements of OP MC No. 9 and COA Circular
No. 95-011, the belated submission of the contracts to the OGCC and COA would have
been avoided. PSALM could not be excused from complying with these issuances as they
have been in force in the 1990s.
RULING
ATTESTED BY:
(SGD.) NILDA B. PLARAS
Director IV
Commission Secretariat
Copy furnished:
The Director
Information Technology Office
Administration Sector
ESZ/FED
ven:coadec-gellada
Footnote:
1 Prohibiting Government-Owned or Controlled Corporations (GOCC) from Referring their Cases and Legal
Matters to the Office of the Solicitor General, Private Legal Counsel or Law Firms and Directing the GOCCs to
Refer their Cases and Legal Matters to the Office of the Government Corporate Counsel, Unless Otherwise
Authorized Under Certain Exceptional Circumstances.
2 SUBJECT: Prohibition Against Employment by government agencies and instrumentalities, including
government-owned or controlled corporations, of private lawyers to handle their legal cases.
3 Should be COA Circular No. 95-011 dated December 4, 1995
4 SUBJECT: Inhibition ( sic ) against employment agencies and instrumentalities including government owned or
controlled corporations, of private lawyers to handle their legal cases.