Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

DIESEL CONSTRUCTION CO., G.R. No. 154885

INC.,
Petitioner,

- versus -

UPSI PROPERTY HOLDINGS, INC.,

Respondent.

x------------------------------------------------x
UPSI PROPERTY HOLDINGS, INC., G.R. No. 154937
Petitioner,
Present:
QUISUMBING, J., Chairperson,
- versus - CARPIO MORALES,
TINGA,
VELASCO, JR., and
CHICO-NAZARIO,* JJ.
DIESEL CONSTRUCTION CO., INC. Promulgated:
and FGU INSURANCE CORP.,
Respondents. March 24, 2008
x-----------------------------------------------------------------------------------------x

DECISION

VELASCO, JR., J.:

The Case

Before the Court are these petitions for review under Rule 45 separately interposed
by Diesel Construction Co., Inc. (Diesel) and UPSI Property Holdings, Inc. (UPSI) to set
 [1] [2]
aside the Decision dated April 16, 2002 as partly modified in a Resolution of
August 21, 2002, both rendered by the Court of Appeals (CA) in CA-G.R. SP No. 68340,
entitled UPSI Property Holdings, Inc. v. Diesel Construction Co., Inc., and FGU
Insurance Corporation. The CA Decision modified the Decision dated December 14,
2001 of the Arbitral Tribunal of the Construction Industry Arbitration Commission
(CIAC) in CIAC Case No. 18-2001, while the CA Resolution granted in part the motion
of Diesel for reconsideration and denied a similar motion of UPSI.
The Facts

The facts, as found in the CA Decision under review, are as follows:

On August 26, 1995, Diesel, as Contractor, and UPSI, as Owner, entered into a
[3]
Construction Agreement (Agreement) for the interior architectural construction works
for the 14th to 16th floors of the UPSI Building 3 Meditel/Condotel Project (Project)
located on Gen. Luna St., Ermita, Manila. Under the Agreement, as amended, Diesel, for
[4]
PhP 12,739,099, agreed to undertake the Project, payable by progress billing. As
stipulated, Diesel posted, through FGU Insurance Corp. (FGU), a performance bond in
[5]
favor of UPSI.

Inter alia, the Agreement contained provisions on contract works and Project completion,
extensions of contract period, change/extra works orders, delays, and damages for
negative slippage.

Tasked to oversee Diesels work progress were: Grace S. Reyes Designs, Inc. for interior
design and architecture, D.L. Varias and Associates as Construction Manager, and Ryder
[6]
Hunt Loacor, Inc. as Quantity Surveyor.

Under the Agreement, the Project prosecution proper was to start on August 2, 1999, to
run for a period of 90 days or until November 8, 1999. The parties later agreed to move
the commencement date to August 21, 1999, a development necessitating the
corresponding movement of the completion date to November 20, 1999.
Of particular relevance to this case is the section obliging the contractor, in case of
unjustifiable delay, to pay the owner liquidated damages in the amount equivalent to one-
[7]
fifth (1/5) of one (1) percent of the total Project cost for each calendar day of delay.

In the course of the Project implementation, change orders were effected and extensions
sought. At one time or another, Diesel requested for extension owing to the following
causes or delaying factors: (1) manual hauling of materials from the 14th to 16th floors;
(2) delayed supply of marble; (3) various change orders; and (4) delay in the installation
[8]
of shower assembly.

UPSI, it would appear, disapproved the desired extensions on the basis of the
foregoing causes, thus putting Diesel in a state of default for a given contract work. And
for every default situation, UPSI assessed Diesel for liquidated damages in the form of
[9]
deductions from Diesels progress payments, as stipulated in the Agreement.

Apparently irked by and excepting from the actions taken by UPSI, Diesel, thru its
Project manager, sent, on March 16, 2000, a letter notice to UPSI stating that the Project
has been completed as of that date. UPSI, however, disregarded the notice, and refused to
accept delivery of the contracted premises, claiming that Diesel had abandoned the
Project unfinished. Apart therefrom, UPSI withheld Diesels 10% retention money and
[10]
refused to pay the unpaid balance of the contract price.

It is upon the foregoing factual backdrop that Diesel filed a complaint before the
CIAC, praying that UPSI be compelled to pay the unpaid balance of the contract price,
plus damages and attorneys fees. In an answer with counterclaim, UPSI denied liability,
accused Diesel of abandoning a project yet to be finished, and prayed for repayment of
expenses it allegedly incurred for completing the Project and for a declaration that the
deductions it made for liquidated damages were proper. UPSI also sought payment of
[11]
attorneys fees.

After due hearing following a protracted legal sparring, the Arbitral Tribunal of the
CIAC, on December 14, 2001, in CIAC Case No. 18-2001, rendered judgment for Diesel,
albeit for an amount lesser than its original demand. To be precise, the CIAC ordered
UPSI to pay Diesel the total amount of PhP 4,027,861.60, broken down as follows: PhP
3,661,692.60, representing the unpaid balance of the contract price; and PhP 366,169 as
[12]
attorneys fees. In the same decision, the CIAC dismissed UPSIs counterclaim and
[13]
assessed it for arbitration costs in the amount of PhP 298,406.03.

In time, UPSI went to the CA on a petition for review, docketed as CA-G.R. SP

No. 68340. Eventually, the appellate court rendered its assailed Decision dated April 16,
2002, modifying that of the CIAC, thus:

WHEREFORE, premises considered, the petition is GRANTED and the questioned

Decision is MODIFIED in this wise:

a. The claim of [UPSI] for liquidated damages is GRANTED to the extent of

PESOS: ONE MILLION THREE HUNDRED NINE THOUSAND AND FIVE
HUNDRED (P1,309,500.00) representing forty-five (45) days of delay at P29,100 per
diem;
b. We hold that [Diesel] substantially complied with the Construction Contract
and is therefore entitled to one hundred percent (100%) payment of the contract price.
Therefore, the claim of [Diesel] for an unpaid balance of PESOS: TWO MILLION FOUR
HUNDRED FORTY-ONE THOUSAND FOUR HUNDRED EIGHTY TWO and SIXTY
FOUR centavos (P2,441,482.64), which amount already includes the retention on the
additional works or Change Orders, is GRANTED, minus liquidated damages. In sum,
[UPSI] is held liable to [Diesel] in the amount of PESOS: ONE MILLION ONE
HUNDRED THIRTY ONE THOUSAND NINE HUNDRED EIGHTY TWO and sixty
four centavos (P1,131,982.64), with legal interest until the same is fully paid;
c. The parties are liable equally for the payment of arbitration costs;
d. All claims for attorneys fees are DISMISSED; and
e. Since there is still due and owing from UPSI an amount of money in favor of
Diesel, respondent FGU is DISCHARGED as surety for Diesel.
Costs de officio.
[14]
SO ORDERED.

Therefrom, Diesel and UPSI each sought reconsideration. On August 21, 2002, the CA
issued its equally assailed Resolution denying reconsideration to UPSI, but partially
granting Diesels motion, disposing as follows:

WHEREFORE, the Motion for Reconsideration of [Diesel] is partially GRANTED.

The liquidated damages are hereby reduced to P1,146,519.00 (45 days multiplied by
P25,478.20 per diem). However, in accordance with the main opinion, We hold that [UPSI]
is liable to [Diesel] for the total amount of P3,661,692.64, representing the unpaid balance
of the contract price plus the ten-percent retention, from which the liquidated damages,
must, of course, be deducted. Thus, in sum, as amended, We hold that petitioner is still
liable to respondent Diesel in the amount of P2,515,173.64, with legal interest until the
 same is fully paid.

The main opinion, in all other respects, STANDS.

[15]
SO ORDERED.

Hence, these separate petitions are before us.

Per its Resolution of March 17, 2003, the Court ordered the consolidation of the
petitions.

The Issues

In its petition in G.R. No. 154885, Diesel raises the following issues:

1. Whether or not the [CA] has the discretion, indeed the jurisdiction, to pass upon
the qualifications of the individual members of the CIAC Arbitral Tribunal and
declare them to be non-technocrats and not exceptionally well-versed in the
construction industry warranting reversal and nullification of the tribunals findings.

2. Whether or not the [CA] may intervene to annul the findings of a highly
specialized agency, like the CIAC, on the ground that essentially the question to be
resolved goes to the very heart of the substantiality of evidence, when in so doing,
[CA] merely substituted its own conjectural opinion to that of the CIAC Arbitral
Tribunals well-supported findings and award.

3. Whether or not the [CA] erred in its findings, which are contrary to the findings of
[16]
the CIAC Arbitral Tribunal.

On the other hand, in G.R. No. 154937, UPSI presents the following issues:
I

Whether or not portion of the Decision dated April 16, 2002 of the Honorable [CA]
denying additional expenses to complete the unfinished and abandoned work of [Diesel], is
null and void for being contrary to clean and convincing evidence on record.

II

Whether or not portion of the Decision x x x of the [CA] finding delay of only forty five
(45) days is null and void for being not in accord with contractual stipulations upon which
the controversy arise.

III

Whether or not the resolution of the Honorable Court of Appeals denying the herein
petitioners motion for reconsideration and partially granting the respondents motion for
reconsideration is likewise null and void as it does not serve its purpose for being more on
 [17]
expounding than rectifying errors.
The issues shall be discussed in seriatim.

The Courts Ruling

We resolve to modify the assailed CA Decision.

First Issue

Diesel maintains that the CA erred in its declaration that it may review the CIACs
decision considering the doctrine on the binding effect of conclusions of fact of highly
specialized agencies, such as the CIAC, when supported by substantial evidence.

The above contention is erroneous and, as couched, misleading.

As is noted, the CA, in its assailed resolution, dismissed as untenable Diesels position
that the factual findings of the CIAC are binding on and concludes the appellate court.
The CA went to clarify, however, that the general rule is that factual conclusions of
highly specialized bodies are given great weight and even finality when supported by
substantial evidence. Given this perspective, the CA was correct in holding that it may
validly review and even overturn such conclusion of facts when the matter of its being
adequately supported by substantial evidence duly adduced on record comes to the fore
and is raised as an issue.

Well-established jurisprudence has it that [t]he consequent policy and practice underlying
our Administrative Law is that courts of justice should respect the findings of fact of said
administrative agencies, unless there is absolutely no evidence in support thereof or such
[18]
evidence is clearly, manifestly and patently insubstantial.
There can be no serious dispute about the correctness of the CAs above posture.
However, what the appellate court stated later to belabor its point strikes the Court as
specious and uncalled for. Wrote the CA:

This dictum finds greater application in the case of the CIAC because x x x as pointed out
by petitioner in its Comment, the doctrine of primary jurisdiction relied upon by [Diesel] is
diluted by the indubitable fact that the CIAC panel x x x is not at all composed of
technocrats, or persons exceptionally well-versed in the construction industry. For instance,
 its chair x x x is a statistician; another member, x x x a former magistrate, is a member of
the Bar. Doubtless, these two are preeminent in their fields, and their competence and
proficiency in their chosen professions are unimpeachable. However, when it comes to
determining findings of fact with respect to the matter before Us, the said panel which they
partly comprise cannot claim to have any special advantage over the members of this
[19]
Court.

The question of whether or not the findings of fact of the CIAC are supported by
substantial evidence has no causal connection to the personal qualifications of the
members of the arbitration panel. Surely, a persons undergraduate or postgraduate
degrees, as the case may be, can hardly be invoked as the sole, fool proof basis to
determine that persons qualification to hold a certain position. Ones work experiences
and attendance in relevant seminars and trainings would perhaps be the more important
factors in gauging a persons fitness to a certain undertaking.

Correlatively, Diesel, obviously having in mind the disputable presumption of

regularity, correctly argues that highly specialized agencies are presumed to have the
necessary technical expertise in their line of authority. In other words, the members of the
Arbitral Tribunal of the CIAC have in their favor the presumption of possessing the
necessary qualifications and competence exacted by law. A party in whose favor the legal
presumption exists may rely on and invoke such legal presumption to establish a fact in
issue. One need not introduce evidence to prove that the fact for a presumption is prima
[20]
facie proof of the fact presumed.
To set the records straight, however, the CA did not cast aspersion on the
competence let alone the bona fides of the members of the Arbitral Tribunal to arbitrate.
In context, what the appellate court saidin reaction to Diesels negative commentary about
the CAs expertise on construction mattersis that the said members do not really enjoy a
special advantage over the members of the CA in terms of fleshing out the facts from the
evidence on record.

In any event, the fact remains that the CA stands justified in reviewing the CIAC
decision.

Second and Third Issues

The next two issues, being interrelated, shall be discussed jointly.
Diesel submits that the CA, in reaching its decision, substituted its own conjectural
opinion to that of the CIACs well-grounded findings and award.

Even as Diesels submission has little to commend itself, we deem it prudent to address its
concern by reviewing the incongruent determinations of the CIAC and CA and the
factual premises holding such determinations together.

As it were, the CA reduced the award for unpaid balance of the contract cost from PhP
3,661,692.60, as earlier fixed by the CIAC, to PhP 2,441,482.64, although it would
consider the reduction and revert to the original CIAC figure. Unlike the CIAC which
found the award of liquidated damages to be without basis, the CA was of a different
disposition and awarded UPSI PhP 1,309,500, only to reduce the same to PhP 1,146,519
in its assailed resolution. Also, the CA struck out the CIAC award of PhP 366,169 to
Diesel for attorneys fees. Additionally, the CIACs ruling making UPSI alone liable for
the costs of arbitration was modified by the CA, which directed UPSI and Diesel to
equally share the burden.

The CIAC found Diesel not to have incurred delay, thus negating UPSIs
entitlement to liquidated damages. The CA, on the other hand, found Diesel to have been
in delay for 45 days.

In determining whether or not Diesel was in delay, the CIAC and CA first turned on the
question of Diesels claimed entitlement to have the Project period extended, an excusable
delay being chargeable against the threshold 90-day completion period. Both were one in
saying that occurrence of certain events gave Diesel the right to an extension, but differed
on the matter of length of the extension, and on the nature of the delay, that is, whether
the delay is excusable or not. The CA deemed the delay, and the resulting extension of 14
days, arising from the manual hauling of materials, as undeserved. But the CIAC saw it
otherwise for the reason that Frederick W. Crespillo, the witness UPSI presented to refute
the allegation of Diesels entitlement to time extension for the manual hauling of
materials, was incompetent to testify on the issue. As CIAC observed, Crespillo lacked
personal knowledge of the real situation at the worksite.
The CIACs reasoning, however, is flawed, assuming that the onus rested on UPSI,
instead of on Diesel, to prove that the delay in the execution of the Project was excusable.
Diesel explained that there was no place for its own hoisting machine at the Project site
as the assigned location was being used by the General Contractor, while the alternative
location was not feasible due to power constraint. Moreover, Diesel could not use the site
elevator of the General Contractor as its personnel were only permitted to use the same
for one hour every day at PhP 600 per hour.

The provisions in the Agreement on excusable delays read:

2.3 Excusable delays: The Contractor shall inform the owner in a timely manner, of
any delay caused by the following:

2.3.a Acts of God, such as storm, floods or earthquakes.

2.3.b Civil disturbance, such as riots, revolutions, insurrection.
2.3.c Any government acts, decrees, general orders or regulations limiting the performance
of the work.
2.3.d Wars (declared or not).
2.3.e Any delays initiated by the Owner or his personnel which are clearly outside the
control of the Contractor.

2.3.1 Delays caused by the foregoing shall be excusable. A new schedule or adjustments in
contract time shall be negotiated with the Owner. As time is of the essence of this
[21]
agreement, all other delays shall not be excusable.
As may be noted, a common thread runs among the events listed above, that is, the
delaying event is unforeseeable and/or its occurrence is beyond the control of Diesel as
contractor. Here, the lack of a location to establish Diesels own hoisting machine can
hardly be tagged as a foreseeable event. As the CA aptly observed:

[U]nder the terms of the contract, it is Diesel that would formulate the schedule to be
followed in the completion of the works; therefore, it was encumbent upon Diesel to take
into account all factors that would come into play in the course of the project. From the
records it appears that the General Contractor x x x had been in the premises ahead of
Diesel; hence it would have been a simple matter for Diesel to have conferred with the
formers officer if the use of its equipment would be viable. Likewise, it would not have
been too much trouble for Diesel to have made a prior request from UPSI for the use of its
freight elevator in the face of the denial thereof, it could have made the necessary remedial
measures x x x. In other words, those delays were foreseeable on the part of Diesel, with
the application of even ordinary diligence. But Diesel did all of those when construction
was about to commence. Therefore, We hold that the delays occasioned by Diesels inability
to install its hoisting machine x x x [were] attributable solely to Diesel, and thus the
resultant delay cannot be charged against the ninety-day period for the termination of the
[22]
construction.
 There can be no quibbling that the delay caused by the manual hauling of materials
is not excusable and, hence, cannot validly be set up as ground for an extension. Thus,
the CA excluded the delay caused thereby and only allowed Diesel a total extension
period of 85 days. Such extension, according to that court, effectively translated to a
delay of 45 days in the completion of the project. The CA, in its assailed decision,
explained why:

7. All told, We find, and so hold, that [Diesel] has incurred in delay. x x x However,
under the circumstances wherein UPSI was responsible for some of the delay, it would be
most unfair to charge Diesel with two hundred and forty (240) days of delay, so much so
that it would still owe UPSI, even after liquidated damages have eaten up the retention and
unpaid balance, the amount of [P4,340,000.00]. Thus, based on Our own calculations, We
deem it more in accord with the spirit of the contract, as amended, x x x to assess Diesel
with an unjustifiable delay of forty-five (45) days only; hence, at the rate of 1/5 of one
percent as stated in the contract, [or at P1,309,500.00], which should be deducted from the
total unpaid balance of [P2,441,482.64], which amount already includes the retention on
[23]
the additional works or Change Orders.

The CA, in its questioned resolution, expounded on how it arrived at the figure of
45-day delay in this wise:
7. x x x We likewise cannot give Our assent to the asseveration of [Diesel] that Our
calculations as to the number of days of delay have no basis. For indeed, the same was
arrived at after taking a holistic view of the entire circumstances attendant to the instant
case. x x x

But prescinding from the above, the basis for Our ruling should not be hard to
discern. To disabuse the mind of [Diesel] that the forty-five day delay was plucked from
out of the blue, allow Us to let the records speak. The records will show that while the
original target date for the completion x x x was 19 November 1999 x x x, there is a total of
eighty-five (85) days of extension which are justifiable and sanctioned by [UPSI], to wit:
thirty (30) days as authorized on 27 January 2000 by UPSIs Construction Manager x x x;
thirty (30) days as again consented to by the same Construction Manager on 24 February
2000 x x x; and twenty-five (25) days on 16 March 2000 by Rider Hunt and Liacom x x x.
The rest of the days claimed by Diesel were, of course, found by Us to be unjustified in the
main opinion. Hence, the project should have been finished by February 12, 2000.
However, by 22 March 2000, as certified to by Grace S. Reyes Designs, Inc. the project
was only 97.56% finished, meaning while it was substantially finished, it was not wholly
finished. By 25 March 2000, the same consultant conditionally accepted some floors but
were still punch listed, so that from 12 February 2000 to 25 March 2000 was a period of
forty-one (41) days. Allowing four (4) more days for the punch listed items to be
accomplished, and for the general cleaning mentioned by Grace S. Reyes Designs, Inc., to
be done, which to Us is a reasonable length of time, equals forty-five (45) days.

This is why We find the [conclusion] made by the CIAC, x x x that there was no
delay whatsoever in the work done by [Diesel], too patently absurd for Us to offer Our
[24]
unconditional assent.
 Aside from the fact that the CA seemingly assumed contradictory positions in the
span of two paragraphs, its holding immediately adverted to above is patently erroneous.
The CA completely failed to factor in the change orders of UPSI to Dieselthe directives
effectively extending the Project completion time at the behest of UPSI.

Section V of the Agreement on the subject Change Orders reads:

V. CHANGES IN SCOPE OF WORK AND EXTRA WORK

Any changes or extra work in the SCOPE OF WORK recommended by the

INTERIOR DESIGNER/ARCHITECT or directed and approved by the OWNER shall be
presented to the CONTRACTOR. Within the shortest time possible, the CONTRACTOR x
x x shall also inform the OWNER if such changes shall require a new schedule and/or
revised completion date.

The Parties shall then negotiate mutually agreeable terms x x x. The

CONTRACTOR shall not perform any change order or extra work until the covering terms
[25]
are agreed upon [in writing and signed by the parties].

Pursuant thereto, UPSI issued Change Order (CO) Nos. 1 to 4 on February 3, 2, 8,

and 9, 2000 respectively. Thereafter, Diesel submitted a Schedule of Completion of
[26]
Additional Works under which Diesel committed to undertake CO No. 1 for 30 days
from February 10, 2000; CO No. 2 for 21 days from January 6, 2000; CO No. 3 for 15
days, subject to UPSIs acceptance of Diesels proposal; and CO No. 4 for 10 days after
the receipt of the items from UPSI.

The CIAC found that the COs were actually implemented on the following dates:

CO No. 1 February 9 to March 3, 2000

CO No. 3 February 24 to March 10, 2000
[27]
CO No. 4 March 16 to April 7, 2000

Hence, as correctly held by the CIAC, UPSI, no less, effectively moved the
completion date, through the various COs, to April 7, 2000.
 Moreover, as evidenced by UPSIs Progress Report No. 19 for the period ending
March 22, 2000, Diesels scope of work, as of that date, was already 97.56% complete.
[28]
Such level of work accomplishment would, by any rational norm, be considered as
substantial to warrant full payment of the contract amount, less actual damages suffered
by UPSI. Article 1234 of the Civil Code says as much, If the obligation had been
substantially performed in good faith, the obligor may recover as though there had been a
strict and complete fulfillment, less damages suffered by the obligee.

The fact that the laborers of Diesel were still at the work site as of March 22, 2000
is a reflection of its honest intention to keep its part of the bargain and complete the
Project. Thus, when Diesel attempted to turn over the premises to UPSI, claiming it had
completed the Project on March 15, 2000, Diesel could no longer be considered to be in
delay. Likewise, the CIAC cited the Uniform General Conditions of Contract for Private
Construction (CIAP Document 102), wherein it is stated that no liquidated damages for
delay beyond the completion time shall accrue after the date of substantial completion of
[29]
the work.

In all, Diesel cannot be considered as in delay and, hence, is not amenable under
the Agreement for liquidated damages.

As to the issue of attorneys fees, Diesel insists that bad faith tainted UPSIs act of
imposing liquidated damages on account of its (Diesels) alleged delay. And, this
prompted Diesel to file its petition for arbitration. Thus, the CIAC granted Diesel an
award of PhP 366,169 as attorneys fees. However, the CA reversed the CIAC on the
award, it being its finding that Diesel was in delay.

The Court resolves to reinstate the CIACs award of attorneys fees, there being
sufficient justification for this kind of disposition. As earlier discussed, Diesel was not
strictly in delay in the completion of the Project. No valid reason, therefore, obtains for
UPSI to withhold the retention money or to refuse to pay the unpaid balance of the
contract price. Indeed, the retention and nonpayment were, to us, as was to the CIAC,
resorted to by UPSI out of whim, thus forcing the hand of Diesel to sue to recover what is
rightfully due. Thus, the grant of attorneys fees would be justifiable under Art. 2208 of
the Civil Code, thus:

Article 2208. In the absence of stipulation, attorneys fees and expenses of litigation
x x x cannot be recovered, except:

xxxx

(5) Where the defendant acted in gross and evident bad faith in refusing to satisfy
the plaintiffs plainly valid, just and demandable claim.

And for the same reason justifying the award of attorneys fees, arbitration costs
ought to be charged against UPSI, too.

Fourth Issue

UPSI urges a review of the factual basis for the parallel denial by the CIAC and
CA of its claim for additional expenses to complete the Project. UPSI states that the
reality of Diesel having abandoned the Project before its agreed completion is supported
by clear and convincing evidence.

The Court cannot accord the desired review. It is settled rule that the Court, not
being a trier of facts, is under no obligation to examine, winnow, and weigh anew
evidence adduced below. This general rule is, of course, not absolute. In Superlines
Transportation Company, Inc. v. Philippine National Construction Company, the Court
enumerated the recognized exceptions to be:

x x x (1) when the findings are grounded entirely on speculation, surmises or

conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3)
when there is grave abuse of discretion; (4) when the judgment is based on a
misapprehension of facts; (5) when the findings of facts are conflicting; (6) when in
making its findings the [CA] went beyond the issues of the case, or its findings are contrary
to the admissions of both the appellant and the appellee; (7) when the findings are contrary
to the trial court; (8) when the findings are conclusions without citation of specific
evidence on which they are based; (9) when the facts set forth in the petition as well as in
the petitioners main and reply briefs are not disputed by the respondent; (10) when the
findings of fact are premised on the supposed absence of evidence and contradicted by the
evidence on record; and (11) when the Court of Appeals manifestly overlooked certain
relevant facts not disputed by the parties, which, if properly considered, would justify a
 [30]
different conclusion. (Emphasis supplied.)

In the instant case, the factual findings of the CIAC and CA, with regard to the
completion of the Project and UPSIs entitlement to recover expenses allegedly incurred
to finish the Project, do not fall under any one of these exceptions. As things stand, the
factual findings of the CIAC and CA are supported by evidence presented during the
hearing before the Arbitral Tribunal. Consider what the CIAC wrote:
This Tribunal finds overwhelming evidence to prove that accomplishment as of the
alleged period of takeover was 95.87% as of March 3, 2000 and increased to 97.56% on
March 15, 2000 based on Progress Report # 18. x x x This is supported by the statement of
[UPSIs] witness, Mr. Crespillo x x x where he conceded that such admissions and
statements bound [UPSI, the Owner]. By that time, [Diesel] had substantially completed
[31]
the project and only needed to correct the items included in the punchlist.

The CA seconded what the CIAC said, thus:

6. Neither are We prepared to sustain UPSIs argument that Diesel left the
work unfinished and pulled-out all of its workmen from the project. This claim is belied by
the assessment of its own Construction Manager in Progress Report No. 19 for the period
ending 22 March 2000, wherein it was plaintly stated that as of that period, with respect to
Diesel, there were still twenty-three laborers on site with the project 97.56% complete x x
x. This indicates that the contracted works of Diesel were substantially completed with
only minor corrections x x x, thus contradicting the avowal of UPSI that the work was
abandoned in such a state that necessitated the engagement of another contractor for the
project to be finished. It was therefore not right for UPSI to have declined the turn-over and
[32]
refused the full payment of the contract price, x x x.

Given the 97.56% work accomplishment tendered by Diesel, UPSIs theory of

abandonment and of its having spent a sum to complete the work must fall on its face.
We can concede hypothetically that UPSI undertook what it characterized as additional or
rectification works on the Project. But as both the CIAC and CA held, UPSI failed to
show that such additional or rectification works, if there be any, were the necessary result
of the faulty workmanship of Diesel.

The Court perceives of no reason to doubt, much less disturb, the coinciding
findings of the CIAC and CA on the matter.

The foregoing notwithstanding and considering that Diesel may only be credited
for 97.56% work accomplishment, UPSI ought to be compensated, by way of damages,
in the amount corresponding to the value of the 2.44% unfinished portion (100% 97.56%
= 2.44%). In absolute terms, 2.44% of the total Project cost translates to PhP 310,834.01.
This disposition is no more than adhering to the command of Art. 1234 of the Civil Code.

The fifth and sixth issues have already been discussed earlier and need not detain
us any longer.

WHEREFORE, Diesels petition is PARTIALLY GRANTED and UPSIs Petition

is DENIED with qualification. The assailed Decision dated April 16, 2002 and
Resolution dated August 21, 2002 of the CA are MODIFIED, as follows:

(1) The award for liquidated damages is DELETED;

(2) The award to Diesel for the unpaid balance of the contract price of PhP
3,661,692.64 is AFFIRMED;
(3) UPSI shall pay the costs of arbitration before the CIAC in the amount of PhP
298,406.03;
(4) Diesel is awarded attorneys fees in the amount of PhP 366,169; and
(5) UPSI is awarded damages in the amount of PhP 310,834.01, the same to be
deducted from the retention money, if there still be any, and, if necessary, from the
amount referred to in item (2) immediately above.

In summary, the aggregate award to Diesel shall be PhP 3,717,027.64. From this
amount shall be deducted the award of actual damages of PhP 310,834.01 to UPSI which
shall pay the costs of arbitration in the amount of PhP 298,406.03.

FGU is released from liability for the performance bond that it issued in favor of
Diesel.

No costs.

SO ORDERED.
PRESBITERO J. VELASCO, JR.
Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice
Chairperson
 CONCHITA CARPIO MORALES DANTE O. TINGA
Associate Justice Associate Justice

MINITA V. CHICO-NAZARIO
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons
Attestation, I certify that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Courts
Division.

REYNATO S. PUNO
Chief Justice

* Additional member as per Special Order No. 494 dated March 3, 2008.
[1]
Rollo (G.R. No. 154885), pp. 62-75. Penned by Associate Justice Romeo A. Brawner (Chairperson) and concurred in
by Associate Justices Jose L. Sabio, Jr. and Sergio L. Pestao.
[2]
Id. at 51-60.
[3]
Id. at 98-125.
[4]
Id. at 100.
[5]
Id. at 77.
[6]
Id. at 64.
[7]
Id. at 99-100.
[8]
Id. at 85-89.
[9]
Id. at 64-65.
[10]
Id. at 65.
[11]
Id. at 77.
[12]
Id. at 96.
[13]
Id. at 97.
[14]
Supra note 1, at 73-74.
[15]
Supra note 2, at 59.
[16]
Rollo (G.R. No. 154885), p. 24.
[17]
Rollo (G.R. No. 154937), pp. 63-64.
[18]
Blue Bar Coconut Philippines v. Tantuico, No. L-47051, July 29, 1988, 163 SCRA 716, 729; citations omitted.
[19]
Supra note 2, at 56.
[20]
Tison v. Court of Appeals, G.R. No. 121027, July 31, 1997, 276 SCRA 582, 593.
[21]
Supra note 3, at 99.
[22]
Supra note 1, at 66.
[23]
Supra note 1, at 71-72.
[24]
Supra note 2, at 57-59.
[25]
Supra note 3, at 104.
[26]
Rollo (G.R. No. 154885), p. 165.
[27]
Id. at 94.
[28]
Id. at 71.
[29]
Id. at 94.
[30]
G.R. No. 169596, March 28, 2007, 519 SCRA 432, 441; citations omitted.
[31]
Rollo (G.R. No. 154885), p. 91.
[32]
Supra note 1, at 71.