2004-04-16

NPM 051-2004

Requesting Entity: Government Arsenal

Issues Concern: Issuance of Letter of Credit and Other Matters

 

Details

1. For foreign importations where there are local suppliers with foreign manufacturers, who will be evaluated in the eligibility check?

There are instances when the IRR-A of R.A. 9184 and R.A. 5183 allow the participation of foreign entities in the procurement of goods, such as when the goods to be procured are not available in local sources, when there is a need to prevent situations that defeat competition or restrain trade, or when there is reciprocity. Furthermore, Section 21 of R.A. 9206 or the General Appropriations Act allows the importation of goods from foreign sources such as when the goods to be procured cannot be obtained locally.

Thus, in the foregoing cases allowed by law, it is the foreign entity that should be subjected to eligibility check notwithstanding the presence of its local agent in the Philippines, since such foreign entity is the prospective bidder that would have to satisfy the eligibility requirements. The Philippine agent merely acts as a representative in the business transactions of its principal as it may be authorized, with separate and distinct personality.


2. Section 61.1 states that all contracts shall be denominated and payable in Philippine currency. With this, are suppliers allowed to quote in foreign currency?

Although the IRR-A of R.A. 9184 mandates that all government contracts shall be denominated and payable in Philippine currency, it allows bids for such contracts to be denominated in foreign currency, provided that such shall be converted to Philippine currency at the prevailing rate on the day of the bid opening.


3. Section 42.5 states that no procuring entity shall be allowed to issue a letter of credit in favor of a Philippine entity or to any of the latter’s foreign manufacturers or suppliers, with respect to any procurement. Since the goods are imported are we allowed to issue foreign letters of credit (“LC's”) to foreign manufacturers? If we are allowed to issue foreign LC’s should foreign currency rates change during contract implementation, which rate will prevail? If the rate at the bidding date prevails, a discrepancy will arise at the time of the application for foreign LC. Since Land Bank, the issuing bank, will of course go with the prevailing rate at the time of application, what will be our recourse?

The prohibition against the issuance of a letter of credit in favor of a Philippine entity’s foreign manufacturer or supplier contemplates a situation where the Philippine entity acts as the distributor or local supplier of the foreign manufacturer or supplier, which directly participates in the bidding process and in whose name the contract is awarded.

However, the issuance of a letter of credit in favor of a foreign manufacturer or supplier in whose name the contract is awarded is not prohibited, what the provision disallows is the issuance of a letter of credit in favor of a foreign manufacturer or supplier of a Philippine entity.

However, as regards the issue of the exchange rate to be used in the issuance of a letter of credit, whether the prevailing rate at the time of bid opening or the rate at the time of the application of the letter of credit, the Government Procurement Policy Board-Technical Support Office (GPPB –TSO) cannot provide you with an immediate response at this point, since the matter has to be raised to the GPPB for resolution considering that such entails further construction of the procurement rules through a policy resolution from the GPPB.


4. Since Government Arsenal (GA) is a manufacturing plant with equipments (sic) sourced from various manufacturers and branded chemical supplies that had been tested as adaptable and acceptable for our operations and equipments (sic), are we now exempted from Section 18 which prohibits the use of brand names?

The prohibition against reference to brand names is absolute since the law does not provide for any exception.

Accordingly under the principle of statutory construction, “where the law speaks in clear and categorical language, there is no room for interpretation or construction; there is only room for application” In addition, reference to brand names is prohibited by law because it restricts competition.

Moreover, the prohibition against reference to brand names applies to all kinds of procurement. Stress must be made that in the present state of the law, procurement must be based on specifications and not in a particular brand. For this reason, the procuring entity must be able to prepare its own "technical specifications" for the goods it desires to procure.


5. For our Petroleum Oil and Lubricant Products (POL) products, we do a one time bidding with delivery on a staggered basis. The concern is, prices of petroleum products are subject to change. Is this allowed?

On the basis of the afore-cited provision (Section 61.1, IRR-A), it can be deduced that all bid prices are to be considered as fixed prices and cannot be altered or changed except under extraordinary circumstances to be determined by the GPPB. In this light, despite the fact that the price of POL products is unstable and highly dependent on prevailing market conditions, such circumstance does not justify price escalation since it is not an extraordinary circumstance contemplated by the IRR-A of R.A. 9184.