2004-08-27

NPM 118-2004

Requesting Entity: General Santos City

Issues Concern: Queries on Republic Act No. 9184 (R.A. 9184) and its Implementing Rules and Regulations Part A (IRR-A

 

Details

1. Whether or not the act of changing the method that shall be used for a certain procurement by the Bids and Awards Committee (BAC), which method has already been approved by the head of the procuring entity is valid without passing through the latter again for approval or disapproval.

It is clear that the BAC may only recommend that resort to alternative methods of procurement be made in certain cases; while such recommendation is still subject to the approval of the head of the procuring entity as justified by the conditions set forth in R.A. 9184 and its IRR-A, and if consistent with the policy to promote economy and efficiency.

On the other hand, there is no categorical mention in the law that the BAC shall also recommend to the head of the procuring entity the use of competitive bidding considering that, such being the general rule, it is always presumed that all procurement shall be done through competitive bidding save only in cases provided under Rule XVI of the IRR-A. However, in a case where it has been approved by the head of the procuring entity that resort to alternative mode of procurement shall be made, but the BAC subsequently identifies that competitive bidding is more appropriate, and hence, recommends it, said recommendation should still be subject to the approval of the head of the procuring entity. This is so since any change in the procurement methods to be adopted as indicated in the Project Procurement Management Plan (PPMP) and the approved Annual Procurement Plan (APP), shall be reflected as an amendment or an update of the said PPMP and APP, which require and should bear the approval of the head of the procuring entity or a second-ranking official designated by him to act on his behalf.


2. Whether or not the head of the procuring entity has the discretion to disapprove the recommendations made by the BAC as regards the method of procurement to be used for all the agency’s procurements.

It is readily inferred from the discussion above that the power of the head of the procuring entity to approve or disapprove the recommendations made by the BAC in the entire procurement process is a “discretional act” as distinguished from a purely “ministerial act,” as these terms are applied to public functionaries.

If the law imposes a duty upon a public officer and gives him the right to decide how or when the duty shall be performed, such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires neither the exercise of official discretion or judgment.

Considering that the said function of the head of the procuring entity to approve any recommendation from the BAC is obviously one that requires the exercise of official discretion or judgment, it necessarily follows that it is incumbent upon the former to approve or disapprove the recommendations made by the BAC based on reasonable and justifiable grounds provided in the same procurement law, rules and regulations.


3. Whether or not the BAC may authorize an observer to negotiate and/or source out suppliers.

Nowhere from the aforecited responsibilities can the function of negotiating or dealing with prospective bidders in behalf of the procuring agency be associated. It must be noted that the role of the observers is to sit and monitor, as an independent body, in all stages of the procurement process conducted by the BAC. Observers are supposed to have independent reports and observations as to the procurement activities of the procuring agency, particularly, with respect to the compliance of the BAC with the prescribed procurement law, rules and regulations.

As such, the policy behind the law that the observers should be independent and free from undue influence of the procuring agency which they are tasked to monitor would be weakened and undermined if these observers would be allowed to have direct and active participation in the procurement negotiations and dealings of the same procuring agency.


4. Whether or not the BAC may be subject to the legal sanctions prescribed in Section 65 of R.A. 9184 and its IRR-A in cases of violation of the provisions of the said Act. Consequently, who may file the appropriate complaints or actions against any erring BAC official?

Undoubtedly, the members of the BAC including its Chairman are covered by the term “public officers” who are being referred to in the aforequoted provision (Section 65.1, IRR-A), considering that the aforementioned offenses basically relate to the responsibilities and functions of the BAC as provided under R.A. 9184 and its IRR-A. Hence, any member of the BAC including its Chairman, who is proved to have committed any of the offenses specified above shall be subject to the principal and accessory penalties so provided.

In this connection, further, any person who has a “cause of action” against the erring BAC officials may file the appropriate complaint with the regular courts of justice.