Prior Approval Is Paramount: DSWD Contract Faces Scrutiny Over COA Concurrence

The Supreme Court has affirmed that government agencies must secure the prior written conformity of the Solicitor General and the concurrence of the Commission on Audit (COA) before hiring private legal counsel. In Department of Social Welfare and Development v. Commission on Audit (G.R. No. 254871, December 6, 2022), the Court dismissed the DSWD's petition and upheld the COA's refusal to concur in a contract that was executed and completed without the required approvals.

The Facts of the Case

The DSWD Field Office No. 10 had engaged Atty. Melanie D. Ortiz-Rosete as its private legal retainer in 2015 and 2016, with the Solicitor General's approval and the COA's concurrence. In November 2016, the DSWD executed a Contract of Service rehiring her for the period of January 1 to December 31, 2017.

The DSWD requested the Solicitor General's approval on December 5, 2016, which was granted on May 22, 2017. However, the DSWD only requested the COA's concurrence on January 5, 2018—after the contract had already expired.

The COA denied the request, noting that concurrence must be obtained prior to hiring or, in exceptional cases, before the contract's expiration. The DSWD moved for reconsideration, citing the central office's limited legal manpower, the lawyer's expertise, and prior concurrences for earlier contracts. The COA Proper denied the motion, and the DSWD elevated the matter to the Supreme Court.

The Issue

Did the COA Proper commit grave abuse of discretion in refusing to concur in the 2017 Contract due to the lack of prior written conformities from the Solicitor General and the COA?

The Ruling

The Court dismissed the petition for lack of merit on two grounds.

Procedural deficiency. The Court noted that a Rule 64 petition requires a prima facie showing of grave abuse of discretion—acts that are unauthorized, whimsical, or capricious. The DSWD's arguments alleged only errors of judgment, which are beyond the scope of certiorari proceedings.

Substantive deficiency. Even on the merits, the Court found the COA's refusal proper. Under COA Circular No. 86-255, as amended by COA Circular No. 95-011, public funds shall not be used to pay private lawyers unless the written conformity of the Solicitor General and the written concurrence of the COA are first secured before hiring. The rule requires strict, timely, and complete compliance.

The Court found the DSWD's compliance both belated and incomplete. The contract was executed on November 2, 2016; the request to the Solicitor General was sent on December 5, 2016; the Solicitor General approved on May 22, 2017; and the request for COA concurrence was made only on January 5, 2018—after the contract period ended. The Court also rejected the DSWD's reliance on a COA Director's favorable recommendation, noting that only the COA Proper may issue a written concurrence, and a subordinate's advice is merely recommendatory.

The Court distinguished the case from Power Sector Assets and Liabilities Management Corp. v. Commission on Audit (G.R. No. 247924, November 16, 2021), where the concurrence requirement was relaxed because the COA itself caused unreasonable delay. Here, the DSWD executed and completed the contract without even requesting the COA's conformity.

Practical Takeaways

• Secure approvals before signing. The Solicitor General's approval and the COA's concurrence must be obtained prior to hiring a private legal counsel. Post-hoc requests, even if eventually approved, do not cure the defect.
• Both approvals are required. A favorable recommendation from a subordinate COA official does not substitute for the COA Proper's written concurrence.
• Prior concurrences do not carry over. The COA's concurrence for a lawyer's engagement in previous years does not automatically apply to subsequent contracts.
• The exception is narrow. The concurrence requirement may only be relaxed where the COA itself is guilty of inordinate delay in acting on a timely-filed request.
• Officials may be personally liable. Expenditures from hiring private lawyers without the required approvals may be considered irregular, and the officials who authorized the contract may be held personally liable under Section 103 of Presidential Decree No. 1445.

This article is general information and not legal advice. For your specific situation, consult a lawyer or ask ASG Legal AI.