2004-08-18

NPM 116-2004

Requesting Entity: Office of the Municipal Accountant of Boljoon, Cebu

Issues Concern: Deferment of the Implementation of R.A. 9184 and its IRR-A, Composition of BAC for Barangays and Implementation of Projects “By Administration”

 

Details

1. Whether or not the implementation of R.A. 9184 and its IRR-A may be deferred.

We wish to inform you that the Government Procurement Policy Board (“GPPB”), under Policy Matter 004-2004 dated March 25, 2004, was of the opinion that the implementation of R.A. 9184 and its IRR-A is absolute and mandatory after its effectivity on October 8, 2003. Furthermore, it was mentioned therein that the GPPB has no authority to grant exemptions from the implementation of R.A. 9184 and its IRR-A as it is “bereft of a legislative delegated authority to determine within its discretion or ‘to ascertain, under and pursuant to law, some circumstances on which the law by its own terms, makes its own action depend, or to find the facts or conditions properly prescribed under which a law as passed will or will not operate, that is, for putting in effect, applying or suspending a law.’”

As such, deferment of the implementation of the provisions of R.A. 9184 and its IRR-A as requested by your municipality through its Resolution No. 42-’04 cannot be granted preferable action.


2. Whether or not Barangays may procure following the provisions of Republic Act 7160 (R.A. 7160).

Based on the mandatory application of R.A. 9184 and its IRR-A as discussed above, procurement activities of Barangays should follow the rules and regulations provided therein regardless of their inability to constitute their own Bids and Awards Committee (“BAC”). Although R.A. 9184 and its IRR-A did not expressly provide for the specific composition of the BAC for barangays, it nevertheless did not fail to recognize the existence and importance of the smallest unit of the local government.

Moreover, in view of numerous requests from Barangays regarding their inability to constitute a BAC in compliance with the above-quoted provision, the GPPB clarified the composition of BAC for Barangays through GPPB Resolution No. 01-2004, dated March 10, 2004, a copy of which is attached hereto as Annex “B”. In this regard, concerns such as the one being raised by your office, will now be addressed since Barangays can now constitute their own BAC and not resort to outsourcing of its procurement through their respective municipalities, cities or provinces.

As a final note on this issue, we reiterate that procurement by Barangays cannot be made using the provisions of R.A. 7160 inasmuch as Title Six Book Two of R.A. 7160 which includes Section 364 was repealed by R.A. 9184 as clarified under Section 75 of its IRR-A. Having been effectively repealed by R.A. 9184 and its IRR-A, Section 364 of R.A. 7160 cannot be used as a legal basis for the constitution of BACs for Barangay level.


3. Whether or not implementation of projects “by administration” is allowed under R.A. 9184 and its IRR-A.

We quote hereunder the pertinent portion of NPMs 064-2004 and 073-2004, to wit:

The IRR-A of R.A. 9184 provides that procuring entities have the option to undertake projects “by administration” in the cases mentioned in Section 53(b) thereof, to wit:

In case of imminent danger to life or property during a state of calamity, or when time is of the essence arising from natural or man-made calamities or other causes where immediate action is necessary to prevent damage to or loss of life or property, or to restore vital public services, infrastructure projects, the procuring entity has the option to undertake the project through negotiated procurement or by administration or, in high risk areas, through the AFP; (Emphasis supplied)

It appears from the above-quoted provision that procuring entities may opt to undertake projects “by administration” only in the cases specified therein. These are as follows: (a) imminent danger to life or property during a state of calamity; (b) time is of the essence arising from natural or man-made calamities; (c) other causes where immediate action is necessary to prevent damage to or loss of life or property; or (d) to restore vital public services.

Applying the principle of expressio unius est exclusio alterius (express mention is implied exclusion) which means that the express mention of one thing, will as a general rule, exclude others not mentioned, procuring entities cannot undertake a project “by administration” other than in the cases specifically mentioned in Section 53(b) of the IRR-A of R.A. 9184.