8/4/2019 20100408 PANEL 54

1/10

Republic of the PhilippinesCommission on Electionslntramuros, Manila

IN THE MATTER OF THE CANCELLATION OFTHE CONTRACT FOR THE SUPPLY ANDDELIVERY OF 1,815,000 PIECES OF BALLOTSECRECY FOLDER FOR THE MAY 10, 2O1ONATIONAL AND LOCAL ELECTION.OTC PAPER SUPPLY, as single proprietorship ofWILLY YOUNG,

Movant.

I' ruoroN FoR REcoNsTDERATtoNt--.-----\I '-JA"{ oTc Paper supply, by counsel, respectfully moves for a reconsideration of Resolution No. 8814w\ whichwas promulgated bythis Honorable commission on April 5,20Lo (copy received on April 7,2010).\ upon the following presentation:1. Resolution No. 8814 recalled Resolution No. 8795 (promulgated on March 15,2010) which

awarded the contract for the supply and delivery of 1,815,000 pieces of ballot secrecy folder for the usein the May 70,20Io National and Local Elections to herein movant on the ground that: (a) the totalnumber of ballot secrecy folder recommended to be purchased exceeded the total number of ballotsecrecy folders that may actually be used during the elections; (b) upon re-deliberation by theHonorable Commission, it was discovered that the purchase price of Php 380.00/folder is extravagantand beyond the ordinary needs of the Commission; and, (c) Chairman Jose Melo has declined to sign thepurchase order.

2. This Honorable Commission should reconsider Resolution No. 8814. lt effectively terminatedan existing contract of the Commission without the observance of the process, both procedural andsubstantive, required by law. Let us explain.

3. A valid contract exist between movant OTC Paper Supply and the Commission for the supplyand delivery of 1,815,000 pieces of ballot secrecy folder -

3.01 The procurement of goods and services by the Commission is governed bythe Government Procurement Reform Act or RA 9184.

3.O2 On March L6,zOtO, movant OTC Paper Supply received a Notice of Awardfor the supply and delivery of 1,8L5,000 pieces of ballot secrecy folder which theCommission issued through its Bids and Awards Committee. A photocopy of the Notice

0,'itl,0$Af,Ric10

8/4/2019 20100408 PANEL 54

2/10

of Award dated March 15, 20L0 is hereto attached and made an integral part hereof asAnnex "A".

3.03 Pursuant to the terms of the Notice of Award, on March tf ZO1O, movantOTC submitted a Performance Bond to the Commission for the supply and delivery of1,8L5,000 pieces of ballot secrecy folder:. A photocopy of the Bond of movant OTCPaper Supply with the receipt mark of this Honorable Commission dated March 19,20L0 is hereto attached and made an integral part hereof as Annex ,.8".

3-04 Under Section 37 of RA 9184, movant OTC paper Supply has ten (10) daysfrom its receipt of the Notice of Award within which to formally enter into contractwith this Commission and under Section 38 of the said law, if no action on the contractis taken by the head of this commission within the aforesaid period, the contract shaltbe deemed approved. Thus -

"Section 38. xxxlf no action on the contract is taken by the head of theprocuring entity, or by his duly authorized representative, or by theconcerned board in the case of government owned and/or controlledcorporations, within the periods specified in the preceding paragraph,the contract concerned shall be deemed approved.

xxx"3.05 By operation of the law, therefore, on March 27, ZO1-O or ten days after

the receipt by movant OTC Paper Supply of the Notice of Award, this HonorableCommission is deemed to have approved its contract with the movant for the supplyand delivery of 1,815,000 pieces of ballot secrecy folder.4. under RA 9184, a contract entered into by a procuring entity may be terminated by the

procuring entity only upon grounds recognized by and only after compliance with the process requiredunder the said law.

5. The termination of the contract of this Honorable Commission with the herein movantthrough Resolution 88L4 runs counter to the procedure prescribed under RA 9184 -

5.01 Under Rule lV, Section 1 of the Guidelines for Termination of Contracts,Annex "A" of the lmplementing Rules and Regulationsr "upon receipt of a written reportof acts or causes which may constitute ground(s) for termination as aforementioned, orupon its own initiative, the lmplementing Unit shall, within a period of seven (7)calendar days, verify the existence of such ground(s) and cause the execution of a

8/4/2019 20100408 PANEL 54

3/10

Verified Report, with relevant evidence attached.,, ln the instant case, basednewspaper reports, the Committee tasked to investigate the alleged anomaly inawarding of the said contract was formed onry after the rapse of severar days afterHonorable Commission terminated its contract with the herein movant.

onthethis

t

fi---\\\+---\tV\Ard\J

5.02 Under Section 2 0f the aforesaid rule, this commission is required to send aNotice to Terminate to herein movant which shall state: the ground for the terminationand the acts that constitute the same; the extent of the termination whether in wholeand in part; the instruction to show cause to the supplier why the contract should notbe terminated; and any special instruction from the procuring entity. Again, thisrequirement was not complied in the termination of the herein movant,s contract.

5.03 Under Section 3 of the aforesaid rule, this Honorable Commission isrequired to give herein movant an opportunity to explain why the contract should notbe terminated through the submission of a verified position paper within seven (7) daysfrom receipt of the Notice to Terminate. Again, this process was not observed.

5.04 rt is onry after affording due process to herein movant as above-describedthat this Honorable commission may, under section 5 of the aforesaid rule, render adecision to terminate its contract with the herein movant.6. More importantly, none of the grounds for termination of a procurement contract

enumerated under Rule lll of Annex "A" of the lmplementing Rules and Regulations of RA 91"g4 arepresent in the instant case.

. 5.01 Movant OTC paper Supply has not been in default in the performance of itscontract with this commission (section A, Rule Ill, id.). lt is not insolvent (section c, id.).And' there is no evidence nor was its contract terminated for the commission of anunlawful act: (a) corrupt, fraudulent, collusive and coercive practices; (b) drawing up orusing forged documents; and, (c) Using adulterated materials, means or methods orengaging.

6.02 Neither is there a ground to terminate the subject contract forconvenience (section B, id.). No condition exist that makes the project implementationeconomically, financially or technically impractical and/or unnecessary such asfortuitous events or change in the law and national government policies.

8/4/2019 20100408 PANEL 54

4/10

7. Movant OTC Paper Supply has already invested a significant amount of capital in order todeliver the goods covered by the subject contract and will suffer serious financial losses if thetermination thereof will not be set aside by this Honorable Commission.

7.01 Underthe terms ofthe Notice ofAward, Annex "B', hereof, movant OTC isobliged to deliver thirty percent (30%) of the 1,815,000 ballot secrecy folder on April 7,20L0, another thirty percent (30%) on April 14, 2010 and the remaining forty percent(40%) on April 21,2010.

7.02 On account of the proximity of the delivery dates of the goods covered bythe contract, movant OTC Paper Supply, under the pain of being penalize for delayeddelivery under Section 68 of the lmplementing Rules and Regul'ations, proceeded toprocure the needed raw materials and to manufacture the aforesaid goods.

7.03 Significantly, the ballot secrecy folders covered by the subject contractwas specifically designed for the purpose of the election and has therefore noalternative market.8. Even assuming ex gratia argumenti that there exist grounds to terminate the subject

contract for convenience, movant OTC Paper Supply should still be compensated for the sum of moneythat it has invested for th e manufactured and ready for delivery ballot secrecy folder -

8.0L Under Section 8, Rule lV of the cuidelines for Termination of Contract, id.,"the goods that have been performed or a ready for delivery within thirty (30) calendardays after the Supplier's receipt of Notice to Terminate shall be accepted by theProcuring Entity at the contract terms and prices.WHEREFORE, OTC Paper Supply respectfully prays of this Honorable Commission that it

reconsider Resolution 88L4 by proceeding with the contract for the supply and delivery of 1,814,000ballot secrecy folder. Alternatively, OTC Paper Supply respectfully prays that it be compensated for thesum of money that it has used for the manufacture of ready for delivery ballot secrecy folders.

Quezon City for Manila. April 8, 2010.

8/4/2019 20100408 PANEL 54

5/10

VALERIO & ASSOCIATES LAW OFFICESCounsel for OTC PAPER SUPPLYUnit 17-F Petron Plaza Building358 Buendia Avenue, Makati City

ICTO M. VALERIO, JRwyers' Roll No. 34966PTR NO. 2087843 1.04.10

IBP LRN NO. 01668ROLL OF ATTORNEY'S NO. 34966

MCLE COMPLTANCE NO. -0003502 9.28.07

NOTICE OF HEARING

TO THE CLERKCOMMISSION ON ELECTIONSINTRAMUROS MANILA

Please take notice that the undersigned counsel will submit the foregoing motion to theCommission for its reconsideration and approval on Tuesday, April 13, 2010 at 9:00 a.m. or soonthereafter as counsel or matter may be heard.

I M. VAIERIO, JR.

8/4/2019 20100408 PANEL 54

6/10

VERIFICATION

RE PU BLIC OF THE PH ILIP PIN ES)Quezon City )l, WILLY K. YOUNG, of legal age, Filipino and with address at 451 M. De La Cruz St., Sta. euiteria,

Caloocan City after having been duly sworn to in accordance with law depose and state:1. I am the proprietor of OTC Paper Supply.2. I have cause the preparation and filing of the foregoing motion for reconsideration.3. I have read the said motion and the facts alleged therein are true and correct based on my

personal knowledge and official records.4. The photocopies of the documents attached the motion are faithful reproduction of their

origina ls.FURTHER AFFIANT SAYETH NAUGHT.

SUBSCRIBED AND SWORN TO before me, affiant exhib to me his PHILIPPINE PASSPORT No.XX1239859 issued on May 22, 2008 at Manila, Philip

ooc. ruo. /01 ;PAGE NO, JJ ;BOOKNO. ?J ;SER|ES OF 2010. tor 0

r -05-103282',7

l:i. 'i/ d61-lUfftil llere.$ irrr J1,PTtl ltlo. "li {i2'r26i}ililoili*'!"s !l'"t!l i\$'

8/4/2019 20100408 PANEL 54

7/10

REPUBLIC OF THE PHILIPPINES)QUEZON C|TY, METRO MANTLA) S.S.

CERTIFICATION

l, WILLY K. YOUNG, of legal age, Filipino, after having been duly sworn to in accordancewith law, hereby depose and state, that in compliance with Section 5, Rule 7 of the 1997 Rulesof civil Procedure, I have not commenced any other action or proceeding involving the sameissues in the Supreme court, the court of Appeals, or any other tribunal or agency. That to thebest of my knowledge, no such action or proceeding is pending in the Supreme Court, the Courtof Appeals, or any other tribunal or agency. That if I should thereafter learn that a similar actionor proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, orany other tribunal or agency, I undertake to report that fact within five (5) days therefrom withthis Honorable Court.

SUBSCRIBED AND SWORN to before me this 8thday of April 20j.0 at euezon City, MetroManila, affiant exhibited to me his Philippine Passport No. xx1239859 issued by DFA-Manila on22 May 2008 to expire on 22 May 2013, containing their photographs and whom Ihave identified through competent evidence of his identities as defined byrthe ZOO4 Rules onNotarial Practice and who also personally presented to me the foregoing/document and signedit in my presence and avowed under penalty of law to the whol

Doc. No. 102;Page No. 22;Book No. 91;Series of 2010.

Dccernbtr 31,i\o. 3!6?tI6BA?t0rney's Roll l{o.?0t0r-ssti32827

8/4/2019 20100408 PANEL 54

8/10

Ii

L

II

I

i

iIjI

IL

i

Il

Iardh 20coiltract

I

qNrrP6ICE

Pu rsuant ito Comelec Resolutiare hereby notified that the Commisprinting and delivery of the following:

Republic of the PhilippinesCOMMISSION OT{ ELECTIOI,{Slntramu ros, Manila

NOTICF OF AWAR.D16 March 2010

1orc PAPER sr..!FPLV451 m. Dela Cruz, Street, Sta Quiteria,Kalookan CityGREETINGS:

Pursuant ito Comelec Resolution No, 8795 promulgated 10, youfor there hereby that lhe Conrmission AWARDS to your firm

QUANTITY ,1

1,815,000 piecesARTICI-ES/SPECIFICATION

Color: BlackJoint: Ultrasonic welded with the Top tayer and jointby rivets with the Bottom layerBottom Layer:Size:9.5 inches (width) x 28 inches (length)

bank drafl/guarantee @nfirrned bry a universal or cornrnercjal bank payable toCommission on El,edixts- YoUr failure b pd SE rEqdsfE perfofinarc sflrityshall be ground for tfie annulneni of thb asd-

15 Mthe

Ballot Secrecy Folder P380100/pieceTop Layer: ISize: 9.5 inches (width) x 28 inches (length) i'Thickness: 0.65 mm I. Material: Polypropylene Sheet IColor: Royal Blue IPrinting: One Color Print Comelec Logo and "BallptSecrecy Fold er"Expandable Spine:Size:2 inches (width) x 28 inches (lenqth)Thickness: 0.2 mmMaterial : Polypropylene Sheet

*"t"r7;

8/4/2019 20100408 PANEL 54

9/10

AccoL\L{sLE Fbnu Nd_ St{Revisrd IEnur+,, 1rg? orreftaL)ffi-d thc:!!ryHcorUrs F$FFkl6N9 0e6os08 c.rur MtcSlS,XWtr-ruAsmt ffiffi$rtESnF Fred

Peyor I'Ti !-"IF. SIIIFI-YE-_-

NsEqE ofCofi,Erdz- AccosrtCo* AEoEd

Prr-**.s; + E:4:r:ljgl$ 'Dl lr)inr3,* it +9i000.00I.3i j.mi ,l:l.Elbt +br! t I:i. rl 3.!(Bf,C.M :r* X!${Ll ri.ItJ

Tgrn L 11,+sSJt{LloAlEoujrt ilr Wsrih :irri{li*ur rdiiie foshiJtx"tdncd I,:-: IL* ChrctQ Moncy- ffi

IbE-BdI - H6tE h!" -..-gtffi:!

NOTE: Wdt. tic trsfrlGl rid drlc of this ru+ripr on. 6c hE& of Hctpor*ycArt**rd .

**-r 'te''

8/4/2019 20100408 PANEL 54

10/10

((-$_s \{r+Ar\)

x-gX,/\J-UNJEL{ r-\o -