Requesting Entity: Department of Environment and Natural Resources Regional Office No. IV-A (DENR IV-A)
Issues Concern: Contract Approval and the Reservation Clause
Whether the Head of the Procuring Entity (HOPE) may validly exercise discretion to approve or disapprove the recommendation of the Bids and Awards Committee (BAC) even after the lapse of the mandatory period.
The decision to approve or disapprove the recommendation of the BAC remains a discretionary act of the HOPE even after the lapse of the mandatory period. To argue otherwise would mean that the HOPE will be obligated to approve the recommendation of the BAC despite the existence of possible irregularities in the bidding process, which is not the intention of RA 9184.
Whether the HOPE can invoke the Reservation Clause in case the HOPE disapproves the BAC recommendation to award a project based on the findings that the BAC failed to comply with the required bidding procedures.
It is explicit under Section 41 of the revised IRR of RA 9184 that the HOPE reserves the right to reject any and all bids, declare a failure of bidding, or not to award the contract if the BAC is found to have failed in following the prescribed bidding procedures among other grounds. To support this provision, the Invitation to Bid for all procurement projects includes a Reservation Clause to properly apprise the public about this reserved right of the HOPE.
If it is determined that the BAC failed to comply with the required bidding processes and procedures, the HOPE can exercise its reserved right not to award the contract.