2004-10-12

NPM 131-2004

Requesting Entity: Mactan Cebu International Airport Authority

Issues Concern: Request for clarification as to the definition of “procurement of goods” and “procurement of infrastructure projects”

 

Details

Definition of “procurement of goods” and “procurement of infrastructure projects”

It is unnecessary to belabor the meaning of the foregoing terms as cursory reading of the same (Sections 5(k) and (n), IRR-A) readily bears the import of their definitions, which for our purposes may just be emphasized, at most. The contemplation of “procurement of goods” and of “procurement of infrastructure projects” is well embraced in the foregoing definitions and no longer necessitates further discussion.

Paragraph (p), Section 5 of the IRR-A offers an answer to questions of classification in cases involving mixed procurements. It provides that the nature of the procurement is to be determined based on the primary purpose of the contract. Perforce, nomenclature assigned to the procurement or the relative amount of the goods or the infrastructure is not determinative of its nature. Hence, under the law, there is no basis to hold that “if 70% (or more) of the whole cost is that of goods it is considered as procurement of goods;” neither is there foothold to say that “if the nomenclature of the procurement is ‘supply and installation of xxx’, it is infrastructure.”

Whether an intended procurement is of goods or of infrastructure, the issue necessarily involves the determination of the primary intention for which the contract is sought to be undertaken. While the procurement may have been conceived for a number of purposes or uses, for the benefit of applying the provisions of R.A. 9184, that which is primary or foremost shall dictate in identifying its true nature.