OFFICE OF THE OMBUDSMAN

REPUBLIC OF THE PHILIPPINES

OMBUDSMAN BUILDING
AGHAM ROAD
QUEZON CITY 1101
OMNIPRIME MARKETING, INC.,
through
its
Authorized
Representative,
Annabelle
A.
Margaroli,
Complainant,
- versus HON.
ALBERTO
D.
LINA,
incumbent Commissioner of the
Bureau
of
Customs,
PRIMO
DONDI AGUAS, former Deputy
Commissioner of the Bureau of
Customs, GUILLERMO PARAYNO,
JR., former Commissioner of the
Bureau of Customs and President
of E-Konek Pilipinas,

Case No. IC-OC15-0990

For: Plunder &
Grant and
Corruption and
abuse of power of
the Head of
Procuring Entity
under R.A. No.
9184

Respondents..
X_________________________________
X
MOTION FOR PREVENTIVE SUSPENSION
OF RESPONDENT BUREAU OF CUSTOMS
COMMISSIONER ALBERTO D. LINA
COMPLAINANT OMNIPRIME MARKETING, INC. through
counsel, and unto this Honorable Office, most respectfully
states that:
1. On 2 July 2015, Complainant filed with this Honorable Office
a Complaint-Affidavit charging Respondents Lina, Aguas, and
Parayno, Jr. for violation of Section 3(e) of the Anti-Graft and
Corrupt Practices Act, Republic Act 3019; Section 65 (5) of
RA 9184; and Republic Act No. 7080, otherwise known as the
Anti-Plunder Act, specifically Section 2. To the Complainant,
the acts or omissions of Respondents complained of are

contrary to law, oppressive, unfair, unreasonable, and devoid

of justification, thus subject to the disciplinary authority of
this Honorable Office.1
2. In particular, Complainant decried Respondent Linas
manifest partiality, crystal clear conflict of interest, and bad
faith when the cancellation of the NSW 2 Project unduly
benefited losing bidder E-Konek Pilipinas, where Respondent
Parayno is the President and where Respondent Lina himself
holds a 96.47 % stake, and gravely prejudiced the Joint
Venture of Omniprime Marketing Inc. and Intrasoft
International, Inc., which has been declared as the Highest
Rated Bid and with whom the DBM Procurement Service Bids
and Awards Committee have already negotiated.
3. Under the Ombudsman Act, Republic Act No. 6770:
Section 24. Preventive Suspension. -- The Ombudsman or
his Deputy may preventively suspend any officer or
employee under his authority pending investigation, if in
his judgment the evidence of guilt is strong, and (a)
the charge against such officer or employee involves
dishonesty, oppression or grave misconduct or
neglect in the performance of duty; (b) the charges
would warrant removal from the service; or (c) the
respondent's continued stay in office may prejudice the
case filed against him. xxxxxx2 (Emphasis supplied.)

4. The purpose of a preventive suspension order issued by the

Ombudsman or the Deputy Ombudsman cannot be gainsaid.
It is aimed at inhibiting that official from using his office to
intimidate or influence witnesses or to tamper with records
that might be vital to the prosecution of the case against
him.3

5. Complainant submits that Respondent Bureau of Customs

Commissioner Alberto D. Lina should be preventively
suspended on the following grounds:
5.1.

Evidence of Respondent Linas guilt is strong;

1 REPUBLIC ACT NO. 6770, 19 & 21.

2 REPUBLIC ACT NO. 6770, 24.
3 Garcia vs. Mojica, G.R. No. 139043, September 10, 1999, 314 SCRA
207 (1999)

5.2.
The charge against Respondent Lina involves
dishonesty, oppression or grave misconduct or neglect
in the performance of duty; and
5.3.
Respondents continued stay
prejudice the case filed against him.

in

office

may

6. First, the unwarranted benefits which the cancellation of the

bidding procedure for the NSW 2 Project upon his
assumption as Customs Commissioner bestows upon his
very own E-Konek Pilipinas, a losing bidder in such
procurement, is patently abject. E-Konek Pilipinas, a
corporation 96.47 percent of the shareholdings of which is
held by Respondent Lina himself, stand to benefit from the
continuous use of the current customs electronic or mobile
system as a Value Added Service Provider.
Attached as Annex A, A-1, and so on is the
General Information Sheet of E-Konek Pilipinas
dated 23 April 2015. The 3rd page thereof or
Annex A-3 thereof shows that Respondent
Parayno Jr. is the President of E-Konek Pilipinas,
while page 4 or Annex A-4 thereof indicates that
Respondent Lina holds 96.47 percent of said EKonek Pilipinas.
7. Second, the cancellation of the bidding procedure, which has
already reached contract negotiation stage unduly prolonged
until Respondent Linas assumption of office, is a stumbling
block to the integration of the Customs system into the
ASEAN Single Window, in nonobservance of the Philippines
international obligations to the ASEAN. 4 The cancellation also
deprives the Filipino people of a much deserved transparent,
efficient, and graft and corruption-free customs service.
8. Third, the cancellation of the bidding for the PNSW 2 Project
was oppressive and has done injustice to Complainants Joint
Venture whose rights as a bidder were clear and apparent. It
is notable that in Civil Case No. 15-134333 entitled Joint
Venture of Omniprime Marketing, Inc., and Intrasoft
International, Inc. versus DBM Procurement Service, et al,
4 Agreement to Establish and Implement the ASEAN Single Window
Kuala Lumpur, 9 December 2005, Available at
http://www.asean.org/communities/asean-economiccommunity/item/agreement-to-establish-and-implement-the-aseansingle-window-kuala-lumpur-9-december-2005-2, last accessed on 25
August 2015.

Petition for Certiorari and Mandamus pending before Branch

47 of the Manila Regional Trial Court, a writ of preliminary
injunction issued on 24 August 2015 therefore establishing
the clear legal right of the Joint Venture to which
Complainant belongs, the violation of such right by
Respondent Lina, and the grave irreparable damage suffered
by the Joint Venture.
Attached as Annex B to this Motion is a copy of
the Omnibus Order dated 24 August 2015 granting
the application for a writ of injunction against the
Bureau of Customs, represented by herein
Respondent Lina, inter alia.
9. The lower court added in its Omnibus Order dated 24 August
2015 that:
the Court finds sufficiently meritorious just to maintain
the status quo prior to the questioned acts of cancelling
the procurement process, as well as for the purpose of
giving temporary relief to petitioner whose rights as bidder
now appear, from the evidence so far presented by both of
the parties, to have been unduly and unfairly violated
by the sudden cancellation of the subject
procurement process for
PNSW2 project
5
(Emphasis supplied)

10.
In issuing the writ of preliminary injunction the
presiding judge then found that the Joint Venture, of which
Complainant is the local counterpart, suffered injustice out
of the sudden cancellation following years long and rigorous
bidding process for its qualification6
11.
Fourth, the cancellation of the bidding process was
made without any justifiable basis. Respondent Linas 6 May
2015 letter requesting the discontinuance and abandonment
of the procurement for the PNSW 2 Project for the reason
that he has to conduct a review of the project was clearly
based on flimsy grounds, and not because there was a
significant change in the physical & economic conditions that
warranted the cancellation of the PNSW2 Project for being
no longer economically, financially, or technically feasible.

5 See page 15, Annex B, Omnibus Order dated 24 August 2015, Civil
Case No. 15-134333.
6 See page 15, Annex B, Omnibus Order dated 24 August 2015, Civil
Case No. 15-134333.

12.
Referring to the testimony of Customs OIC Deputy
Commissioner Angelica Sarmiento of the Bureau of Customs
Management Information System and Technology Group
(MISTG)7 Civil Case No. 15-134333 entitled Joint Venture of
Omniprime Marketing, Inc., and Intrasoft International, Inc.
versus DBM Procurement Service, et al, Petition for
Certiorari and Mandamus pending before Branch 47 of the
Manila Regional Trial Court, it becomes apparent that there
was no factual and technical basis or justification in the
cancellation of the procurement for the PNSW 2 project
where Complainants Joint Venture has emerged as the
Highest Rated Bid.
13.
The MISTG, the office within the Bureau of Customs
which primarily supervises the current operating system of
the said Bureau, was created by Executive Order No. 463
with the following function:
Section 3. Functions. The MISTG shall upgrade the
present information technology group where it will have a
more strategic position within the Bureau of Customs
organization setup and provide a functional structure which
will encompass the functions which are seen as vital in the
attainment of the vision of a modernized trade facilitating
and globally competitive Bureau of Customs.8

14.
The testimony of Customs OIC Deputy Commissioner
Angelica Sarmiento in Civil Case No. 15-134333 clearly
shows that there were no other matters left undiscussed in
the contract negotiation for the procurement in the NSW 2
Project. In fact, if the procurement of the project PNSW 2
with Complainants Joint Venture were not cancelled, it would
not have taken long before the contract for the procurement
were finalized. Hence:
ATTY. BUTUYAN
Now, were there any other issues that were not
agreed upon during the contract negotiation?
WITNESS
I did not agree to the parking slot being
requested by the short listed bidder.
ATTY. BUTUYAN
7 Created under Executive Order No. 463.
8 EXECUTIVE ORDER NO. 463, 3.

To the what?
WITNESS

To the parking slot.9

ATTY. BUTUYAN
Parties?
WITNESS
Parking slot.
ATTY. BUTUYAN
Just the parking slot?
WITNESS

Yes.10
XXX XXX

XXX

ATTY. BUTUYAN
If the project was not cancelled by
Commissioner Lina, how long would have
taken for the contract to be finalized and
signed? If it was not cancelled, how long?11
WITNESS

Not more than a week.12

Attached as Annex C is a copy of the TSN of

the testimony of Customs Deputy Commissioner
Angelica Sarmiento.
15.
Further in the testimony of said witness, it became
clear that Customs Commissioner Lina or any officer
representing the latter did not consult said OIC Deputy
Commissioner, herself the Head of the MISTG which
supervises the Bureau of Customs operating system, on the
cancellation of the PNSW 2 procurement. Thus:
ATTY. BUTUYAN
In relation to your answer to question number
59, the portion were you consulted by
Commissioner Lina before he cancelled the
PNSW2, and your answer was our office MISTF
was consulted but that is not my question
9 TSN, Joint Venture vs DBM et. al., Testimony of Ms. Angelica
Sarmiento, August 13, 2015, page 56.
10 Id. at page 57.
11 Supra note 6 at page 59.
12 Supra note 6, at page 60.

Madam Witness, were you yourself consulted

by Commissioner Lina?
WITNESS
No, sir.
ATTY. BUTUYAN
Did
any
BOC
officer
representing
Commissioner Lina consult you on the
cancellation of the project considering
that you were the one drafted the Terms
of Reference and you are the highest
ranking BOC officer whose an IT expert?
WITNESS
No, sir.
ATTY. BUTUYAN
How about Commissioner Lina cancelled
the project were you consulted by
Commissioner Lina on the cancellation?
WITNESS

No, sir.13 (Emphasis supplied.)

16.
More importantly, it was unmistakably revealed that
there was no change of circumstances that would
necessarily impel the cancellation of the PNSW 2
procurement. To wit:
ATTY. BUTUYAN
Since the cancellation of the project by
Commissioner Lina has the needs of the
BOC with respect to the Philippine
National Single Window Phase 2 project
change? Has there ever been a change of
circumstances that would no longer
required the PNSW2?
WITNESS

None, sir.14

ATTY. BUTUYAN
None. Has the problems of the BOC, with
respect to the present system being use,
change or they still there?
WITNESS

They still there.15

13 Supra 6, at page 58.

14 Id.
15 Supra note 6, at page 59.

17.
There is thus no dispute that a prior
factual or
technical evaluation was absent before the cancellation of
the bidding. Neither did Respondent Lina make use of any
technical recommendation in his decision to cancel the
same. Hence, there is no factual or technical justification for
the cancellation of the PNSW 2 bidding process where the
contract with Complainants Joint Venture is already being
finalized.
18.
The cancellation of the PNSW 2 bidding process, at a
time when the contract negotiations with Complainants Joint
Venture has ended and there was nothing more left to do but
to finalize the contract, will thus ultimately benefit
Respondent Lina who owns and controls the E-Konek
Pilipinas service provider of the current Bureau of Customs
operating system. Additionally, Respondent Linas very own
E-Konek Pilipinas will have a change to participate in case a
rebidding is made in the procurement for the PNSW 2.
19.
All these manifest that Respondent Lina committed acts
tantamount to oppression, grave misconduct, graft, and
corruption in the cancellation of the PNSW 2 bidding process
for his benefit and to the prejudice and damage of
Complainant.
20.
Lastly, Respondent Lina is the incumbent Customs
Commissioner and Head of the Procuring Entity in the
procurement procedure subject of the Complaint against
him, his continued stay in office will most definitely prejudice
this instant case. Said Respondents continuance in office will
pose a threat to the integrity of records involved in this case
and expose witnesses to influence.
21.
Besides that prejudice may result in Respondent Linas
continuance in office, the General Information Sheet of EKonek Pilipinas where Respondent Lina is the majority owner,
the findings of the trial court in issuing the writ of
preliminary injunction against the Bureau of Customs, and
the testimony of Customs Deputy Commissioner Angelica
Sarmiento are strong evidence sufficiently convincing to
justify the imposition of preventive suspension evidence
against Respondent Lina.

PRAYER
WHEREFORE, premises considered, it is most respectfully
prayed of this Honorable Office to ISSUE A PREVENTIVE
SUSPENSION ORDER against Respondent Alberto D. Lina,
incumbent Commissioner of the Bureau of Customs.
Other
reliefs,
just
and
equitable
circumstances, are likewise prayed for.

under

the

Makati City for Quezon City, 27 August 2015.

ROQUE & BUTUYAN LAW OFFICES

Counsel
for
Complainant
Omniprime
Marketing, Inc., represented by Annabelle A.
Margaroli
1904 Antel Corporate Center
121 Valero St., Salcedo Village,
1227 Makati City, Philippines
+632.8873894 +632.8873893
mail@roquebutuyan.com
By:
H. HARRY L. ROQUE JR.
Roll No. 36976
PTR No. 4781976 / 1-30-2015 / Makati
IBP No. 01749 / Lifetime
MCLE Exemption No.IV-000513 / Feb. 15,
2013

JOEL R. BUTUYAN
Roll No. 36911
PTR No. 4781975 / 1-30-2015 / Makati
IBP No. 01742 / Lifetime
MCLE Compliance No.IV-0011417 / Jan. 11,
2013

ROMEL R. BAGARES
Roll No. 49518
PTR No. 4781972 / 1-30-2015 / Makati
IBP No. 993980 /1-30-2015 / So. Cotabato
MCLE Compliance No.IV-0011822 / Jan. 25,
2013

EXPLANATION
Copies of the foregoing Motion were sent to the parties
via registered mail due to inadequacy of personnel, and
distance between the offices involved.
ROMEL R. BAGARES
Copy furnished:
Respondent Alberto D. Lina
Respondent Primo Aguas
Bureau of Customs, South Harbor,
Gate 3, Port Area, Manila
Respondent Guillermo Parayno,
Jr.
Unit 6D, Washington Towers, Pacific
Ave.,
Asiaworld
City
1700,
Philippines.