NPM No. 168-2015
Requesting Entity: Pangasinan State University
Issues Concern: Decision of the Bids and Awards Committee (BAC); Qualification of BAC Chairman; Internal Check and Balance; Conflict of Interest
1. Will the Decision of the BAC to recommend award be considered valid even without the presence and participation of the BAC Chairman? Can the Chair, by himself, invalidate the decision of the BAC?
Notwithstanding the absence of the BAC Chairman, the decision of at least majority of those present at the meeting, at which there is quorum, shall be valid and binding as an act of the BAC, provided that the Vice-Chairman is present to preside the meeting.
[T]he BAC Chairman cannot, by himself, overturn a decision of the BAC, as the power to approve or disapprove a BAC recommendation is vested solely upon the HOPE in accordance with Sections 37.1.2 and 37.1.3 of the revised Implementing Rules and Regulations (IRR) of Republic Act (RA) No. 9184.
2. Is the University Engineer qualified as BAC Chairman on the basis of the organizational structure ? Can the designation as BAC Chairman be based on trust, confidence and discretion of the University President?
The Head of the Procuring Entity has the discretion to designate the University Engineer as BAC Chairman as long as he has complied with the qualifications prescribed under Sections 11.2.1, 11.2.2 and 11.2.3 of the IRR of RA 9184.
3. Can the University Engineer be disqualified as BAC or Technical Working Group (TWG) member on the grounds of violation on the rule on internal check and balance, and conflict of interest, as he approves the Statement of Work Accomplished (SWA) by the contractors and issues the Certificate of Completion (COC), and allegedly continues to be a consultant to the contractors and suppliers who participate in the procurement activities of the University?
There seems to be no conflict between the functions of a BAC member who is at the same time the University Engineer. Decisions/ recommendations of the BAC, as a collegial body, rests upon the compliance of the lowest calculated/highest rated and responsive bidder with the legal, technical and financial requirements of the project, subject to HOPE's approval. On the other hand, the approval of SWA and issuance of COC by the University Engineer depends on the contractor's compliance with the Program of Work prescribed in the contract. Please note that even an official from the Engineering Office may be designated as a BAC member of the Local Government Unit , even though its office approves the SWA and COC.
- x x x -
A public official or employee shall avoid conflict of interest at all times. The BAC shall ascertain whether the relationship of the bidder to the Head of the Procuring Entity or any of its BAC, TWG, Secretariat, or officers or employees having direct access to information that may substantially affect the result of the bidding or any procurement processes, puts the bidder in a position to unduly influence or be given preference in the award of the contract.