Requesting Entity: Scan Marine Inc.
Issues Concern: Two (2)-Stage Bidding for Procurement of Two (2) Multi-Purpose Attack Crafts (MPAC)
1. Whether or not the procurement of two (2) MPACs may be considered as procurement of infrastructure projects.
Considering that an MPAC, which in its generic sense is considered a “vessel,” is classified as a movable/personal property or one which can be transferred from place to place without being destroyed, the procurement thereof cannot be one of an infrastructure project. The fact that a vessel is considered personal property is supported by Article 585 of the Code of Commerce, which we quote hereunder, to wit:
For all purposes of law not modified or restricted by the provisions of this Code, vessels shall continue to be considered as personal property.
Hence, we are of the opinion that the MPAC may be regarded as a personal property which is needed in the pursuit of a government undertaking, project or activity, and which, appropriately falls under the term “goods” as mentioned above.
It may also be worthy to note that the procuring entity itself, preferred to employ a two (2)-stage bidding for the said project, which under Section 30.4 of the IRR-A of R.A. 9184, only applies to procurement of “goods”.
Moreover, as regards your contention that as a prospective bidder in the procurement of the MPAC for the Philippine Navy, which has an approved budget for the contract (ABC) of One Hundred Forty Five Million Four Hundred Forty Thousand Pesos (Php 145,440,000.00), you should be entitled to a maximum of sixty (60) calendar days from the last day of the issuance of the bidding documents before the opening of bids, in accordance with Section 21.2.2 (ii) of the IRR-A of R.A. 9184, for the procurement of infrastructure projects, we believe that the said provision is not applicable in your case since the MPAC does not fall under “infrastructure projects,” but under “goods.”
2. Whether or not the GPPB has the power to advise the Department of National Defense – Bids and Awards Committee (DND-BAC) to extend the period given to the prospective bidders in the submission of their bids before bid-opening as provided under Section 21.2.2 (ii) of the IRR-A of R.A. 9184, for the procurement of infrastructure projects.
The discretion on whether to shorten or extend the period for submitting the bids based on the allowable minimum and maximum periods prescribed under the same provision is incumbent upon the BAC of the concerned procuring entity, which in this case, is the DND-BAC.
Furthermore, although it is the GPPB’s function to ensure the proper implementation of R.A. 9184, the IRR-A and all other relevant rules and regulations pertaining to public procurement, the GPPB prefers not to interfere with the decisions made by the procuring entity in its actual conduct of procurement proceedings. Pursuant to its mandate to ensure the proper implementation of the new government procurement law, the GPPB exercises its recommendatory powers in rendering policy and non-policy opinions on specific queries regarding the application of R.A. 9184 and its IRR-A, and its “monitoring functions.”