It has been almost three months since Super Typhoon ‘‘Lawin’’ barreled its way through Tuguegarao City—and many government buildings (particularly in the Regional Center) remain unroofed and in a virtually derelict state. Recently, in the Hall of Justice, hearings had to be interrupted while litigants, court personnel and even some lawyers took turns at sweeping off rainwater that was starting to flood the unroofed courtrooms and to protect precious court records in the Hall of Justice.
By contrast, most private residences and establishments have been completely repaired and hardly any trace of the devastation could be found in them. At the the Cagayan State University, we recently received from DBM assistance for the rehabilitation of damage left by Typhoon ‘‘Vinta’’—a typhoon that has long receded from memory, and whatever is forthcoming for ‘‘Lawin’’ (if any at all) is not expected in the near future!
Had the heads of offices been free to effect repairs and rehabilitation work by heeding common sense, I have no doubt that, most of the work that has not even commenced yet would be nearing completion at this time. Alas, government offices cannot be guided by common sense. They must rather punctiliously comply with every section, sub-section and clause of government procurement laws, many of which fly in the face of common sense. Equity is that set of necessary principles by which a law is to be construed to temper the harshness of its application when applied to situations that the legislator did not contemplate. Common sense should be the fallback whenever laws stand in the way of immediate, meaningful and salutary response—alas, though, it seems that Philippine jurisprudence does not recognize the currency of common sense in respect to government procurement.
“Value for money.” That is often taken to mean that you must get back in goods and services the full worth of what you pay. But it works the other way too: You want quality, you must pay for quality. But awarding bids “to the lowest bidder” goes against this fundamental rule of reason because it insists that you demand quality without paying for it! Empirical proof will be found in the roofless buildings of government offices in Tuguegarao City. It was government establishments that were really hardest hit —because they were built in compliance with the legal command of awarding the contract to the lowest bidder. Defenders of the absurd provisions of procurement law will insist that bidders must meet the quality standards set forth. But what our legal “fundamentalists” overlook is the creativity of bidders—who are, after all, in pursuit of profit —at putting up the appearance of meeting standards without really trying.
There is no doubt that the intention of the law was to stymie corrupt practices that have been characteristic of government contracts and purchases—but one does not write laws for the corrupt, and that is exactly the trouble with present procurement laws: They were crafted to obviate wrongdoing but are hardly workable at getting things done. Rather than legislate details leaving no elbowing room and maneuvering space, it is the appointments process that should be more stringently regulated so that only the fit, the intelligent and the upright get into office.
In his well-known treatise on administrative law, Davis writes on the necessity of “discretion.” Most of the work of administrative agencies and their heads must consist in an exercise of discretion because there is no way that legislation—no matter the thoughtfulness and prescience of the legislator (qualities that we must enunciate with rising inflection, in respect to many members of our Legislature!)—can anticipate the myriad situations to which provisions will be applied. You choose competent people, and you choose judiciously, so that discretion may be properly exercised. Our procurement laws work in the opposite direction: diminishing, if not eliminating discretion, altogether.
There is also a point of jurisprudence that may need revisiting. It is the Supreme Court doctrine that even if the Commission on Audit finds nothing anomalous about a transaction, according to the auditing rules that, constitutionally, the Commission alone is empowered to draw and to apply, the Ombudsman may nevertheless maintain a different position and cause the prosecution of officials it deems to have erred. The principle in administrative law is to leave technical matters to technical experts—and as between the Ombudsman and the CoA, the latter has the expertise to audit. And if the Constitution ordains that the CoA shall have the competence to lay down the rules of audit, then the conclusions of the Commission that nothing is amiss in regard to a transaction should be binding on all tribunals, agencies and instrumentalities of government, even the courts, after all the Commission is one of the independent constitutional bodies!
Corruption will always be a scourge to national life—but you do not deal with this by enacting laws that suppress the workings of common sense or that deny public officers the use of discretion. You deal with the problem by seeing to the choice of the right persons, and rising above sentiments of indebtedness, political alliances, intrigue and back-stabbing in the choice of persons for public service.
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