Requesting Entity: Department of Information and Communications Technology (DICT)
Issues Concern: Bids and Awards Committee (BAC) Composition
Whether a fifth BAC member may be designated before issuing the notice to the bidder with the Lowest Calculated Bid or should failure of bidding be declared by virtue of Sec. 41 (b) of the 2016 revised Implementing Rules and Regulations (IRR) of Republic Act (RA) No. 9184.
Section 11 of RA No. 9184 and Section 11.2.1 of its 2016 IRR state that the Head of Procuring Entity (HoPE) shall designate at least five (5) but not more than seven (7) members to the BAC of unquestionable integrity and procurement proficiency. Provisional members are designated to sit in the BAC for a particular procurement activity, while regular members sit in all the procurement activities of the agency. The use of the word “shall” makes the designation of at least five (5) but not more than seven (7) members to the BAC mandatory. Decisions made by a BAC with less than the required number of members are therefore ineffective in accordance with Article 5 of RA No. 386, which provides that acts executed against the provisions of mandatory or prohibitory laws shall be void. Accordingly, correcting this infirmity by adding a fifth BAC member in the middle of a procurement proceeding will not validate the previous actions made by the BAC with less than the required members. The determination by the HoPE that there exists any of the grounds for a declaration of a failure of bidding under Section 41 (b) of the 2016 IRR of RA No. 9184 cannot be supplanted by an opinion by the GPPB or its TSO, as doing so would encroach upon or interfere with the exercise of the authority reserve by law to the HoPE.