2007-09-14

NPM 051-2007

Requesting Entity: Bases Conversion Development Authority

Issues Concern: Subic-Clark-Tarlac Expressway Project

 

Details

1. Confirmation of the OGCC opinion that BCDA may hire an interim Operations and Management (O&M) Operator for the Subic-Clark-Tarlac Expressway Project through negotiated procurement under Section 53(a) and (b) of R.A. 9184 and its IRR-A.

We confirm that under Section 53 of R.A. 9184 and its IRR-A, the alternative mode of procurement may be resorted to when there has been a failure of public bidding for the second time (Section 53[a] in relation with Section 35 of the IRR-A). Negotiated procurement is also justified and resorted to in case of imminent danger to life or property during a state of calamity, or when time is of the essence arising from natural or man-made calamities or other causes where immediate action is necessary in order to:

  1. prevent damage to or loss of life or property;

  2. restore vital public services, infrastructure facilities and other public utilities (Section 53[b] of the IRR-A; GPPB Circular 03-2006).

It bears stressing, however, that the determination and accountability for use of any of the alternative methods of procurement rest with the head of the procruing entity, upon the recommendation of the BAC (Section 12, R.A. 9184; Section 48, IRR-A). In the instant case, if BCDA is convinced, after taking into account the purpose of the project, the possible losses to the Government, the time schedule available, and other relevant circumstances, that the procurement of the services of an interim O&M Operator through negotiated procurement is justified under Section 53(a) or (b) of the IRR-A of R.A. 9184, then it may resort to negotiated procurement.

2. Confirmation of the OGCC opinion that BCDA is not required to follow the same Terms of Reference used in the two (2) previous failed biddings in the conduct of the negotiated procurement.

If BCDA resorts to negotiated procurement under Section 53(a), it may only change the scope of work or the cost estimates or specifications as prescribed in the Terms of Reference used in the two (2) previous failed biddings. However, if BCDA adjusts the ABC, it must conduct re-bidding. (GPPB Resolution 007-2005)

On the other hand, if BCDA resorts to negotiated procurement under Section 53(b), negotiations will be governed by a totally new set of terms and conditions considering that this alternative mode of procurement is resorted to only in emergency situations.

3. Confirmation of the OGCC opinion that the interim O&M Operator is not disqualified from participating in the public bidding for the permanent O&M Operator.

We confirm the opinion of the OGCC that there is no prohibition under R.A. 9184 and its IRR-A for the interim O&M Operator to participate in the public bidding for the permanent O&M Operator.

[A]llow us to note that, while we respect BCDA's right to avail of its legal options under R.A. 9184 in the engagement of its interim O&M Operator, we believe that public bidding for the hiring of a permanent O&M Operator remains to be the most commendable course of action.