Requesting Entity: Municipality of Sablan, Benguet
Issues Concern: Authority to Award the Contract to the Winning Bidder and Undertaking Procurement Projects “By Administration"
1. Who has the authority to award the contract to the winning bidder, the Local Chief Executive (LCE) as the head of the procuring entity or the Bids and Awards Committee (BAC)?
Based on the foregoing citations (Sections 37.2.1 and 12, IRR-A), it is clear that the conduct of the aforementioned steps which constitute the entire bidding process for procurement projects is lodged with the BAC except for the act of awarding the contract to the winning bidder, which responsibility is exclusively given to the head of the procuring entity or his duly authorized representative. While the BAC recommends to the head of the procuring entity the award of the contract to the winning bidder after thorough and careful evaluation of bids and post-qualification of the Lowest Calculated Bid (LCB) or the Highest Rated Bid (HRB); it is still the head of the procuring entity or the LCE, in the case of local government units (LGUs), who has the sole authority to award the contract by approving the recommendation made by the BAC and consequently, issuing the Notice of Award to the bidder with the Lowest Calculated Responsive Bid or the Highest Rated Responsive Bid.
However, the head of the procuring entity may exercise the discretion of not approving the recommendation made by the BAC, only under any of the justifiable circumstances mentioned in Section 41 of R.A. 9184 and its IRR-A. Accordingly, if the head of the procuring entity refuses to award the contract notwithstanding the recommendation made by the BAC outside the aforecited justifiable circumstances, we believe that the same may be considered as an act of “Abuse by the Head of the Procuring Entity to reject any and all bids under Section 41 of R.A. 9184 and its IRR-A,” which is an offense punishable under Section 65 (a)(5) of R.A. 9184 and Section 65.1 (5) of its IRR-A.
2. May the Municipality of Sablan undertake infrastructure projects in the amount of Five Hundred Thousand Pesos (Php500,000.00) and below “by administration”?
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.
In view of the foregoing, we are of the opinion that projects may still be implemented “by administration,” provided however, that any of the situations specified in Section 53(b) of the IRR-A of R.A. 9184 is present and subject to the Guidelines that will be issued by the Government Procurement Policy Board (“GPPB”).