MEMORANDA

April 11,2005

OGCC CIRCULAR No. 001
Series of 2005

TO : ALL WATER DISTRICTS
SUBJECT : MANDATED FUNCTIONS OF THE OFFICE OF THE GOVERNMENT CORPORATE COUNSEL (OGCC) RELATIVE TO REFERRAL OF LEGAL MATTERS/CASES BY WATER DISTRICTS

Pursuant to existing laws, policy and jurisprudence, referral of all legal .matters or.cases by the Water Districts formed and created under, P.O. 198, as amended, to the Office of the Government Corporate Counsel (OGCC) for handling shall be serviced or acted upon pursuant to its mandated functions, to wit:

1. Render opinion, advice and or determination on all important legal questions.

2. Review and approved contracts including legal retainer contracts.

3. Initiate and handle exclusively expropriation cases in accordance with Section 25 of P.O. 198, as amended, notwithstanding the availability of retainer counsel.

4. Handle administrative cases either as Hearing Officer or Prosecutor.

5. Initiate and handle civil cases for and in behalf of water districts as plaintiff, complainant or petitioner.

6. Defend and handle civil cases including BIR tax collection cases for and in behalf of water districts as defendant/respondent.

7. Initiate and assist water districts in filing criminal cases in the Prosecutors' Office as complainant or as an aggrieved party thereof.

8. Handle and prosecute for and in behalf of water districts as complainant in criminal cases filed and or pending in court with the conformity and authorization of the Department of Justice (DOJ).

9. Help and assist ONLY in the preparation of defense of the officers of water districts charged with criminal violation or infraction. However, in no case shall the assisting OGCC lawyer sign any pleading, motion, or appeal to be filed before any court or tribunal.

Official representation of OGCC for the defense in criminal cases involving officers of water districts at any stage of a criminal case or in a civil suit for damages arising from a felony is prohibited under existing jurisprudence (Urbano vs. Chavez, 183 SCRA 347), as implemented through OGCC Office Order No. 065, Series of 2001 dated May 21, 2001.

Please be guided accordingly.

AGNES VST DEVANADERA
Government Corporate Counsel

Copy furnished:

Philippine Association of Water Districts (PAWD)
LWUA Building, Katipunan Road, Balara
Quezon City

ATTY. POMPEYO U. QUERUBIN
Chairman, PAWD Board of Governors
LWUA Building, Katipunan Road Balara,
Quezon City

MEMORANDUM CIRCULAR No. 02

FOR : THE CHAIRPERSON OF THE BOARD/ PRESIDENT/ CEO/ ADMINISTRATOR/ GENERAL MANAGER OF GOVERNMENT OWNED AND/ OR - CONTROLLED CORPORATIONS, GOVERNMENT CORPORATE ENTITIES AND GOVERNMENT INSTRUMENTALITIES WITH CORPORATE POWERS

ALL HEADS OF LEGAL DEPARTMENTS AND RETAINED COUNSEL OF GOCCS, GCES AND GICPS

FROM : ALBERTO C. AGRA
GOVERNMENT CORPORATE COUNSEL

RE : CLARIFYING AND DEFINING THE RELATIONSHIP BETWEEN THE OGCC AND LEGAL DEPARTMENTS AND RETAINED COUNSEL OF GOCCS, GCES AND GICPS

Supplement to Rule 5 of the OGCC IRR

This Memorandum Circular is issued by way of supplement to Rule 5 of the RULES GOVERNING THE EXERCISE BY THE OFFICE OF THE GOVERNMENT CORPORATE COUNSEL (OGCC) OF ITS FUNCTIONS AND POWERS AS PRINCIPAL LAW OFFICE OF ALL GOVERNMENT OWNED OR CONTROLLED CORPORATIONS issued by the OGCC on 28 February 2006.

Restatement of OGCC Statutory Mandate

In accordance with Section 10, Chapter 3, Title III, Book IV of the Administrative Code of 1987, Presidential Decree No. 242 and Executive Order No. 596 (2006) and relevant jurisprudence, the OGCC, being the statutory counsel and principal law office of all government owned and/ or controlled corporations, their subsidiaries, other corporate offsprings, government-acquired asset corporations (GOCCs), government, corporate entities (GCEs) and government instrumentalities with, corporate powers (GICPs) or government corporations in general (GCs), shall exercise control and supervision over all legal departments or divisions maintained separately by said corporations. The statutory role of the OGCC as principal law office and sole overseer of all state corporations is one of long-standing and such function part of public policy.

Coverage of Memorandum Circular

The OGCC shall exercise control and supervision over the litigation aspect of the work of the GCs' legal departments as well as the work of the law firms and lawyers retained by these GCs by authority of the OGCC. The OGCC's control and supervision extend to cases, actions and suits filed by or against GCs before regular courts, quasi-judicial bodies, administrative agencies and arbitration panels.

Definition of Supervision and Control

The power of supervision is the power of ensuring that laws are faithfully executed, or that subordinate officers act within the law. The supervisor or superintendent merely sees to it that the rules are followed, but he/ she does not lay down the rules, nor does he/ she have discretion to modify or replace them. The officer can only interfere in the affairs of the subordinate if he/ she finds that the latter has acted contrary to law.

The power of control is the power of an officer to alter, modify or set aside what a subordinate officer had done in the performance of duties and to substitute the judgment of the former-for the latter. An officer in control lays down the rules in the doing of an act. If they are not followed, the officer may in his/ her discretion order the act undone or re-done by the subordinate or the officer may even decide to do the act himself/ herself. The officer may alter the wisdom of a law-conforming judgment made by the subordinate.

Thus, by "virtue of the mandate of control and supervision exercised by the OGCC over the legal departments of GCs, there are permissible levels of delegation of authority the former may cede" to the latter without resulting in a "surrender or abdication of powers by the office charged by law with its performance." This Memorandum Circular sets forth the permissible levels of delegation of authority.

Supplement to Rules and Regulations

Scope of Control and Supervision

As a matter of office policy and in view of the OGCC's control and supervision over the legal departments and retained counsel of GCs, all cases, actions and suits involving GCs shall be actively and personally handled from commencement to termination by the OGCC. However, as the exigency of the service will dictate and in order to achieve an efficient and effective representation of the interests of all GCs, the OGCC may delegate to, collaborate and cooperate with the legal departments and retained counsel of GCs.

Important and Major Cases

As a general rule, the OGCC shall handle only important and major cases referred by or affecting GCs. The importance of cases may be inferred from issues and subject matters that:

1. affect the GCs charter or mandate or their operations;
2. assail the constitutionality or legality of laws, executive orders and issuances, and other official acts of the GC;
3. pertain to questions of law;
4. raise questions that may involve new jurisprudence and legal policy;
5. involve money claims or claims for damages in the amount of P500,000.00 and above; and
6. the Government Corporate Counsel (GCC) may deem important and critical.

In the handling of these cases, the OGCC shall:

1. enter its appearance;
2. adopt the legal strategy;
3. sign all pleadings;
4. actively prosecute the case from commencement to termination;
5. advice the GC as to the legality and propriety of entering into compromise agreements and if expressly authorized to do so, enter into such agreements on behalf of the GC;
6. conduct extensive research;
7. undertake regular consultations; and
8. render periodic reports to the GC concerned.

The OGCC shall consult with the GC concerned regarding the official position or policy the former shall adopt. In case of conflict, the decision of the GC shall prevail.

However, the GCC can allow in writing the legal departments and retained counsel of GCs to participate in the case-handling. In which case:

1. The OGCC shall be the principal or lead counsel; and
2. The legal departments or retained counsel of the GC concerned can appear as collaborating lawyers, and research, draft, prepare and co-sign pleadings subject to the review and approval by the OGCC.

Other Cases

All other cases not enumerated above may be handled by the legal departments and retained counsel of GCs even without the OGCC entering its formal appearance and without the OGCC signing pleadings provided that:

1. The OGCC consents in writing to the filing of the case;
2. A written delegation and authority to handle the case is conferred by the GCC or his/ her duly authorized representative to the legal department or retained counsel concerned;
3. Prior to the filing of the initiatory or responsive pleading, the theory of the case and legal strategy must be communicated to the OGCC for the latter's approval which could be express or if the OGCC does not reply, the approval is presumed after three (3) days from receipt of the communication;
4. The OGCC shall approve in writing and pass upon the terms and conditions of any compromise agreement the GC may enter into with any adverse party;
5. The legal department or retained counsel concerned shall periodically update the OGCC on the status of the case; and
6. Regular discussions, strategizing, updating and consultations will be conducted between the OGCC and the legal department or retained counsel concerned.

In such cases, the OGCC can, at any time, assume the active and personal representation of the case.

In cases handled or co-handled by legal departments and retained counsel, they should regularly prepare executive summaries, status reports and case updates and submit copies of the case records.

When appropriate or necessary or when required by the court, quasi-judicial body, administrative agency and arbitration panel, the OGCC may validate or ratify the acts of the legal departments or retained counsel. The absence of a written countermand on the part of OGCC presumes that the acts of the legal departments or retained counsel were ratified by the former.

Effect of Non-Compliance

Depending on the nature of the violation of the foregoing rules and regulations and the extent of participation of the responsible officer(s), appropriate cases and charges may be filed and sanctions imposed on the GC or officer concerned by the proper authority, agency or court. Non-compliance with these rules shall be presumed to be in violation of audit regulations and any and all expenses incurred relative thereto shall be for the account of the officer(s) concerned.

MEMORANDUM CIRCULAR No. 03
August 24, 2007

FOR : THE CHAIRPERSON OF THE BOARD/PRESIDENT/CEO/ ADMINISTRATOR/GENERAL MANAGER OF GOVERNMENT OWNED OR CONTROLLED CORPORATIONS, GOVERNMENT CORPORATE ENTITIES AND GOVERNMENT INSTRUMENTALITIES WITH CORPORATE POWERS ALL HEAD O'F LEGAL DEPARTMENTS AND RETAINED COUNSELS OF GOCCs, GCEs AND GICPs

FROM : ATTY. ALBERTO C. AGRA
GOVERNMENT CORPORATE COUNSEL

RE : SUPPLEMENT TO RULE 12 - PROCEDURE IN ARBITRATION OF THE IMPLEMENTING RULES AND REGULATIONS OF THE OFFICE OF THE GOVERNMENT CORPORATE COUNSEL

Supplement to Rule 12 of OGCC IRR

'This Memorandum Circular is issued by way of supplement to Rule 12 Procedure in Arbitration of the Implementing Rules and Regulations of the Office of the Government Corporate Counsel. Thus, the following sections shall be added:

"SECTION 12.29 Arbitration Expenses. - Arbitration expenses shall include the Filing fee and Arbitrator's fees; fee and expenses of the expert, and others, if necessary, which may be imposed by the OGCC.

The Filing fees and the Arbitrator's fees shall be computed on the basis of the sum in dispute and fixed in accordance with the Table of Filing Fees and Arbitrator's Fees. The OGCC, however, may increase the arbitration fee at any time prior to the arbitral award if, at its discretion, the same is necessary depending upon the complexity of the issues to be resolved.

SECTION 12.30 Payment to Cover Arbitration Expenses. - The OGCC shall be authorized to fix the amount to be paid equivalent to the arbitration expenses. The payment of said amount in accordance with the Table of Filing Fees and Arbitrator's Fees shall be made to the OGCC Cashier before the arbitration proceedings shall commence. The payment of the amount of deposit for the arbitration expenses shall be paid for by the petitioner.

SECTION 12.31 The Arbitrators shall have power to include in their award the arbitration expenses of .any party against another. The arbitral award therefore, shall specifically determine whether payment shall either be shared equally by the parties or be paid by any of them depending on which of the parties shall prevail. In the event the petitioner prevails in the arbitration case the arbitration expenses shall form part of the damages assessed against the respondent; if the respondent prevails in the arbitration case, the arbitration expenses shall be deducted from the award assessed against petitioner. Consequently, any amount advanced by petitioner as arbitration expenses shall be added or deducted in the arbitral award, as the case may be.

TABLE

FILING FEE

10% - 1.0 Million to 10.0 Million
20% - 10.0 Million and above
20% - if not capable of pecuniary estimate

ARBITRATION FEE

Sole Arbitrator - P25,000.00
Arbitral Tribunal
Chairman - P20,000.00
Member - P15,000.00"