2005-02-15

NPM 012-2005

Requesting Entity: Clark Development Corporation

Issues Concern: Disclosure of Relations in light of Section 47 of the IRR-A of R.A. 9184

 

Details

1. Whether or not the prohibition referred to in Section 47 of the IRR-A of R.A. 9184 with regard to disclosure of relations is applicable when the President of a bidder is related by consanguinity to an officer of the End-User Agency.

The mandate of the law is to disqualify prospective bidders from participating in any public bidding where any relation, by affinity or consanguinity, will most likely affect the result of the bidding process. x x x

The law requires that a prospective bidder submit as part of his documentary compliance an affidavit that he is not related to any of the persons referred to; otherwise, he fails in pain of disqualification pursuant to Section 30 of IRR-A.

The implication of the requirement is to bar any bidder related to the head of the procuring entity or any of the procuring entity’s officers or employees having direct access to any substantial information relative to the bidding from participating in the bidding process. The fact of relationship puts the bidder in a situation of a constricted choice of either misrepresenting such fact in pain of perjury or false representation or absolutely abandoning intentions of participating in the procurement activity. This condition of a related bidder practically renders him ineligible to bid.

2. Whether or not the inhibition of the officer of the procuring entity from any part of the bidding process cures the prohibition abovementioned.

The predicament of a bidder under the circumstance mentioned above is not salvaged by the inhibition of his relative from participating in the procurement proceedings. We stress, the wisdom behind the provision is to avoid the imminent evil of the project being tailored to favor the interest of a pre-determined bidder or the danger of allowing room for collusion or influence peddling to advance the bid of a particular bidder. This evil or danger is not averted by the mere act by the officers or employees of inhibiting themselves from the procurement process.

x x x x

Moreover, the context of Section 47 of IRR-A is clear as to the legal import of relationship in the cases and conditions therein mentioned. The bidder is disqualified by mere fact of relationship. Thus, notwithstanding the inhibition made by the officers or employees, the cause-and-effect link between relationship and disqualification is not severed by the supposed corrective measure.