Ex-DepEd exec admits inclusion of FDA law in MOA for laptop procurement, a 'big mistake'

A former Education official on Thursday admitted there was a "big mistake" in the Memorandum of Agreement (MOA) between the Department of Education and the Department of Budget and Management-Procurement Service (PS-DBM) for the purchase of teachers' laptops.

This was after blue ribbon committee chairman Senator Francis Tolentino pointed out during the hearing on the reported overpriced and outdated DepEd laptops that the Food and Drug Law was cited in one of the sections of the document.

Former DepEd assistant secretary for procurement and administration Atty. Salvador Malana III said the mistake can be attributed to the "pro forma" contract provided by the PS-DBM.

Tolentino questioned why Section 1.8 of the MOA that former Education secretary Leonor Briones and former PS-DBM officer-in-charge Christopher Lloyd Lao signed for the laptop procurement read as: "The PS-DBM reserves the right with prior consultation with the DepEd to make changes to the bidding documents which includes the technical specifications TOR or other project requirements, as it may deem necessary to promote competition and ensure compliance with RA 9184 and its IRR and to other regulatory laws like the Food and Drug Law in its IRR."

He said the MOA signing was witnessed by Malana and former PS-DBM executive director Jasonmer Uayan.

"Bakit po nakasali dito ang Food and Drug Administration? Bakit nakasali po ang Department of Health? Ang pinag-uusapan natin laptop hindi po ito PPE. Hindi po ito medical devices, hindi po ito medicines, nakalagay po sa contract tapos cinite pa sa succeeding articles, referring to Section 1 again, and section 1 refers to that FDA," Tolentino said.

"Hindi ho kaya merong de kahong kontrata na pinalitan na lang kung medicine, ginawang laptop. Bakit po nakasama ang FDA? FDA is not part of this procurement process. Laptop po ito para sa DepEd," he added.

Tolentino said the lawyers who were tasked to review the MOA did not study all the provisions thoroughly.

"Pinapakita ko lang po ito para ipakita sa inyo na parang—mawalang galang na po ayaw ko po banggitin ito—parang hindi napag-aralan ng abogado kasi kung maayos ayos na abogado tatanungin niya bakit kasama itong FDA law sa pagbili ng laptop?" he asked.

Education Undersecretary Annalyn Sevilla pointed to Malana to answer Tolentino's question.

"So as witness, as a lawyer, you testify that you have read this. Ayaw natin ipahamak 'yung secretary niyo. Ayaw natin ipahamak ang kagawaran ninyo. So bakit lumagda ka rito na FDA na ang pinag-uusapan dito?" Tolentino asked Malana.

Malana admitted that the inclusion of the FDA law was a mistake by the lawyers who were asked to study the MOA.

"I will therefore agree with you, your honor, that this could be a big mistake...It was a mistake to have included Food and Drug Law on Clause 1.8 and I would also mention, your honor, that indeed this emanated from a pro forma contract from DBM-PS," Malana said.

The former DepEd official said the contract was "customized for the project."

"I would admit that there were mistakes not on the part of the legal department but the lawyers who were involved in the crafting of the document. But I do take responsibility for having signed as a witness. I provided the secretary inputs on the legality or propriety," Malana added.

After Malana's admission, Tolentino said there might be other "legal mistakes" on the procurement and that this was just the "tip of the iceberg."

"Pinahamak ninyo ang secretary ninyo kasi naging drugs. Dapat sa Department of Health ka, kay Secretary Duque," he said.

"So the admission here is a reflection on the part of not just the negligence of the legal department... Siguro dito po nag-uugat 'yung problema natin. 'Yung legal department natin e medyo mahina kaya pati si Secretary Briones na napakaganda ng record e mapapahamak dito dahil sa ginawa ninyo bilang abogado, nilagyan ninyo ng gamot itong computer," he added.—AOL, GMA News