Contrary to Ombudsman Merceditas Gutierrez’s claim at the Senate hearing last Thursday, two former officials of the office of the Ombudsman say there is enough information in the World Bank (WB) report to pursue a probe into the allegations of collusion involving a WB-funded road project.
At the hearing, Gutierrez told senators that the WB's "referral report", a 9-page confidential report on the summary of the bank investigation that led to the blacklisting of a number of contractors, gave the Ombudsman barely any evidence or witnesses' names to pursue the probe. She also stressed that the WB referral report that her office received was "full of restrictions" and only had a one-paragraph conclusion.
But abs-cbnNEWS.com/Newsbreak’s sources pointed out that the WB report should be treated merely as a lead for investigation. “You will not be spoon fed. You have to start your own investigation and gather your own evidence. You cannot just wait for evidence.” Both sources are lawyers, who are privy to the inner workings of the office.
If the Ombudsman is really after pursuing crooks in government, even a simple letter complaining about a scam that happened is enough to trigger an investigation, the abs-cbnNEWS.com/Newsbreak sources said.
Even confidential documents that cannot be used in court can be put to good use, one of the sources said. “Just be thankful they alerted you.”
Red flags that indicate corruption in public procurement
How does one find out if there was corruption in the procurement of particular services or goods?
The book, The Many Faces of Corruption, which was published by the World Bank in 2007, enumerates examples of corruption schemes in government procurement and identifies red flags that indicate the possible operation of a particular scheme.
This was precisely what Gutierrez’ predecessor, Simeon Marcelo, did when he received information from the US Customs that the sons of former Armed Forces comptroller Maj. Gen. Carlos F. Garcia were apprehended by border officials for carrying with them thousands of dollars of undeclared currency in December 2003, the other source said.
At the time, the only documents the US Customs sent were uncertified copies of documents concerning the apprehension of Garcia’s sons and the statements made by his wife.
Marcelo, however, used the information to probe deeper into Garcia’s finances. The probe later resulted in the filing of forfeiture cases against Garcia’s properties and the filing of plunder charges against Garcia himself.
The law creating the office of the Ombudsman has given the office holder a vast arsenal of tools it could use to probe into wrong dealings in government. This includes the power to compel government agencies to cough up documents it needs to piece together cases against erring government officials.
Marcelo put these powers to good use in putting together the Garcia case.
A Newsbreak report on the case narrated that, while investigating the matter, Marcelo initially found the military leadership reluctant to give the Ombudsman all the records pertaining to Garcia. Marcelo had to issue a subpoena to the AFP to get the documents he needed.
Despite this, Marcelo was able to find a prima facie case against Garcia within two weeks after receiving the information from the US Customs.
All that is needed is good investigative nose.
“There are so-called red flags in the bidding process that indicate that there’s collusion,” the first source explained. An example, the source said, is if bids are too close together and if the same bidders are submitting bids.
One rich source of information in bid rigging are the losing bidders. In lifestyle checks, one can get tips from cliques within an agency. “If somebody is earning (from a government transaction), you talk to other groups who are not earning. Of course, you always take (the information you get) with a grain of salt.”
But that has value even for prosecutors, the source said. “It’s a process you have to go through.” This was how the Ombudsman during Marcelo’s time investigated the repair scam at the DPWH and the ghost projects at the Bureau of Fire Protection.
The Ombudsman can also entice participants in a rigged bidding to testify by offering them immunity.
“You give immunity, witness protection.” Whistleblowers usually participated in the commission of a crime, the source explained. “How will they know (details of a crime) if they are not part of the whole thing?” What is important in criminal procedure is that the one asked to testify should not be the most guilty person of the lot.
Of course, to do this, the Office of the Ombudsman has to have good investigators.
Under Marcelo, the Ombudsman increased the number of its field investigators, upgraded the skills of its prosecutors. This speeded up resolution of cases.
When Gutierrez took over, she froze the hiring of more investigators and placed the entire program of institutionalizing anti-corruption efforts “under review.” (Read: The Street Ombudsman)
Despite the additional budget given the Ombudsman over the past years, there are less investigators now compared to before. Worse, a number of the field investigators resigned due to demoralization after being assigned to other posts. “A lot of the veteran investigators are gone.”
It is no wonder then that the Ombudsman is finding it difficult to put together a case against contractors and officials involved in rigging the bids of the World Bank road projects. They have the power and the resources, the source said. "They are just not using it."