2011-03-02

NPM 002-2011

Requesting Entity: Laguna Lake Development Authority

Issues Concern: Validity of Contract Award, Construction Agreement and Notice to Proceed

 

Details

Whether the contract of award, construction agreement and notice to proceed issued to the contractor on the absence of a confirmatory resolution from the Board of Directors (BoD) of the Laguna Lake Development Authority (LLDA) legal and valid.

[T]he Government Procurement Policy Board has no jurisdiction to rule over actual controversies with regard to the conduct of the bidding process considering that it has no quasi-judicial functions under RA 9184. The determination of the legality and/or validity of the actions and decisions of the BAC including contracts emanating therefrom is not within the expressed mandate of the GPPB.

For guidance, please be advised that perusal of Section 38.3 of the Implementing Rules and Regulations (IRR) of Republic Act (RA) 9184 and the BoD resolution leads us to infer that there appears to be no conflict between the LLDA-BoD and the said provision. The latter provision aims to facilitate and expedite the procurement by allowing inaction by the HOPE or the appropriate approving authority to be tantamount to an approval. On the other hand, the LLDA-BoD resolution which requires a confirmatory resolution from the LLDA Board may be construed as merely identifying the higher authority for approval of awarded contracts in connection with the procurement activity.

This means that an awarded contract x x x may be deemed approved despite the absence of a confirmatory resolution from the LLDA Board if there was no action on its part within the applicable period provided in Section38.3 of the IRR of RA 9184.

It goes without saying that the determination of whether there was no action by the HOPE or appropriate approving authority is within the responsibility of the procuring entity since it is in the best position to identify the facts and circumstances surrounding the matter.