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Public institutions which work for the common good procure in this way and so do you and I
when we buy an appliance or a property, for example.
2. How do governments procure goods and services funded through official development assistance
(ODA)?
The Philippines, being one of the member countries of the World Bank, is represented in the
World Banks Board of Governors and the Board of Executive Directors. The Board of
Executive Directors approves policies, including those related to procurement. All member-
countries therefore follow the World Banks procurement policies and guidelines for World
Bank-assisted projects. This ensures fairness and equal treatment for firms and individuals
from all the eligible countries of the World Bank.
3. The procurement methods for WB-assisted projects vary. How is the procurement method
determined?
The volume, size, nature of contracts, with due consideration to economy and efficiency,
determine the procurement method to be applied to each contract. Worldwide, the most
common methods are International Competitive Bidding (ICB) and National Competitive
Bidding (NCB). In the case of the Philippines, however, the most common method is NCB
because the nature and scope of contracts are unlikely to attract international competition and
the advantages of ICB are outweighed by the administrative or financial burden involved.
Examples of these contracts are farm to market roads, school buildings, community hospitals
and health centers.
The Government of the Philippines and the World Bank have agreed on the appropriate
procurement methods for different types and amounts of contracts. For example, civil works
contracts estimated to cost less than USD5 million and goods contracts estimated to cost less
than USD1 million can be procured under NCB method. Selection of consultants for
contracts estimated to cost less than USD200,000 can be conducted through a shortlist
comprised of all national firms. The country thresholds for NCB had increased to more than
100% due to improved public procurement system as indicated in August 2005 Country
Procurement Assessment Report.
For specific projects, however, the ceiling and the procurement method are spelled out in the
Loan Agreement or Grant Agreement for the project.
General Agreement between the Philippines and World Bank on
Country Thresholds (Ceilings) and Procurement Method
Country Threshold Procurement Category Procurement
per Contract Method
Over US$5 Million or Works (e.g., highways, power International
its current equivalent plants, large bridges, etc.) Competitive
of Php248M above Php248M per contract Bidding (ICB)
Over US$1 Million or Goods (books, drugs,
its current equivalent equipment, etc. above
of Php48M Php48M per contract
Over US$200K up to Works (e.g., school buildings, National
$5M or its current rural roads, health clinics, Competitive
equivalent of etc.) Bidding (NCB)
Php248M Goods (books, drugs,
Over US100K up to equipment below Php48M per
$1M or its current contract
equivalent of Php48M
There have been many changes in the procurement process as a result of RA 9184 and
its associated IRR-A. Therefore, we thought it would be beneficial to publish the latest list of
frequently asked questions from the sessions being conducted by Director Antonio Molano,
Jr.
IRR-A of R.A. 9184 to effect last October 8, 2003, which means that all Locally Funded
projects advertised/posted for Invitation to Apply for Eligibility and to Bid starting October 8,
2003 should now be following the IRR-A of R.A. 9184.
2. When was the effectivity for the mandatory use of the Standard Bidding
Documents (SBDs) approved by the Government Procurement Policy Board
(GPPB)?
The SBDs for the procurement of Goods, Consulting Services and Civil Works as
approved by the GPPB shall be mandatorily used by all branches, agencies, departments,
bureaus, offices, or instrumentalities of the Government, including government-owned
and/or controlled corporations (GOCCs), government financial institutions (GFIs), state
universities and colleges (SUCs), and local government units (LGUs) starting July 2005.
Q What is the difference between IRR-A and IRR-B? What is its scope with respect to
: procurement projects?
A: IRR-A applies only to fully domestically funded projects. It took effect October 8, 2003.
IRR-B will apply to foreign-funded projects. However, for such projects, International
Financing Institutions (IFI) procurement rules and regulations shall be used and the GPRA
IRR-B, once issued, shall be applied suppletorily.
Q
What makes R.A. 9184 more transparent?
:
A: The agencies are now mandated to invite observers in all stages of procurement and
observers may report factual anomalies to the proper officials. Also, all procurement
opportunities of government are required to be posted in the Government Electronic
Procurement System (G-EPS).
Q What law should govern regarding projects conducted prior to the effectivity of the
: IRR?
A: The GPPB issued a resolution stating, among others, that prior to October 8, 2003,
government agencies may still use prior procurement rules and procedures.
Q In case an infrastructure project was implemented prior to the effectivity of RA 9184,
: which provisions will apply on termination of the contract and liquidated damages?
A: Prior to the effectivity of IRR/RA 9184, (October 8, 2003), the provisions of PD 1594 and
its IRR will apply to contract termination and contract implementation
In addition to that, the provision that the observers be notified, in writing, at least 2 days
before the bidding was advocated by PWI.
The minimal amount of authority given to the observers should not be a hindrance in the
performance of the observers functions. Observers should work with what is given to them
and in parallel to that, work for its strengthening.
Q: What are the observers defenses against whimsical and capricious exclusion of
observers previously invited?
A: The observer may question the BAC on the said exclusion and ask them the ground for such.
If there is no ground, then an issue may already be raised. There is nothing that bars the
observer from filing a legal action to stop the practice of whimsical and capricious exclusion
of observers. Also, observers can always file a report with the Office of the Ombudsman.
Q: Are the observers the same through out the bidding process? Can we let others sit
every now and then?
A: Observers are entitled to monitor procurement proceedings in accordance with Section 13 of
IRR/RA 9184. It is up to the agency whom they want to invite in their proceedings as long
as they meet the minimum requirements, that is: knowledge, expertise in the procurement or
in the subject matter of the contract to be bid, absence of direct or indirect interest in the
contract to be bid and any other criteria as may be determined by the BAC.
Q: What is the impact of the participation of the CSOs in the bidding process? What did
PWI learned from observing bidding activities?
A: The involvement of CSOs in the bidding procedures furthers the objective of the
government to promote transparency in government procurement. PWI discovered that some
BACs lack familiarity with the new procurement rules. Thus PWI seeks to reorient CSOs
with the GPRA so that they would be able to point out the deviations in the procurement
process, if theres any, and report it to the Office of the Ombudsman when necessary.
Q: What is the extent of the role of observers?
A: The role of the observers is to help ensure transparency in the bidding process. They are
non-voting members of the BAC in order to preserve and protect their independence.
Q Some of the observers have experienced being invited by agencies to observe their
: biddings at midnight and even late hours. How can we avoid this situation?
A: Section 13.3 of the IRR/R.A. 9184 provides that the observers should receive the notice of
invitation at least two (2) days before the stage of the procurement process which observers
shall be invited. This is to avoid similar situations wherein the observers are not given
enough time to prepare for the bidding activity after the receipt of the invitation.
Q: Section 13 of the Implementing Rules and Regulations (IRR) of Republic Act No. 9184
(RA 9184) requires that the observers should be registered with the Securities and
Exchange Commission (SEC). However, cooperatives are not registered with the SEC
but with the Cooperatives Development Authority (CDA). Does this mean that
cooperatives cannot observe bidding proceedings?
A: If the cooperative is not registered with the SEC, it is believed that the certification of
registration with the CDA will suffice. However, since there is a clear provision in the law as
to SEC registration, this matter may be elevated to the GPPB as a proposed amendment to
IRR-A.
Q: What is the extent of the participation of the CSOs in the bidding process?
A: The CSOs are purely observers of the proceedings of the BAC. However, observers are
tasked to prepare a diagnostic report on what transpired during the bidding and submit it to
the head of the procuring entity. If theres any deviation from the prescribed procedures, the
observer can submit a copy of the report to the Office of the Ombudsman.
Q: Can observers participate in the deliberations during the proceedings?
A: Yes. The observers can participate during the discussions. Some agencies even ask and
encourage the participation of the observers. However, observers have no voting powers.
Q: Can observers be entitled to honoraria?
A: The members of the BAC, the BAC Secretariat and the TWG are entitled to honoraria. The
procuring entity is not required to give the observers honoraria to maintain the latters
independence.
Q: Can a person who is a government employee, but also a member of an NGO, be an
observer?
A: Yes. A person who is a government employee but also a member of an NGO can be an
observer as long as he is representing the NGO and that the NGO meets the requirements
provided for under Section 13 of the IRR/R.A. 9184. However, he cannot represent the
NGO if it is observing a bidding activity in his government agency to avoid possible conflict
of interest.
Q: Will the proceeding be invalidated if the observer abstains to sign in the Abstract of
Bids?
A: The proceedings will not be invalidated even if the observer abstains to sign the Abstract of
Bids. However, the bidder shall indicate in the diagnostic report the reason(s) why it did not
sign the Abstract of Bids and submit it to the proper officials.
Q: What is the protection available for BAC observers in case there is danger as to her life
and liberty because of its reports submitted to the Office of the Ombudsman?
A: The witness-protection program of the government will be available to those whose lives or
liberty are endangered because of the reports submitted to the Office of the Ombudsman
Q: How do we qualify as an observer? Who chooses the observers?
A: Section 13.2 of the IRR/R.A. 9184 provides that the observers shall come from an
organization duly registered with the SEC and should meet the following criteria:
knowledge, experience or expertise in procurement or in the subject matter of the contract to
be bid; absence of direct or indirect interest in the contract to be bid out; and any other
criteria that may be determined by the BAC. In all stages of the procurement process, it is
the BAC that chooses the observers.
Q: What is the rationale behind the Civil Society Organizations (CSOs) and private sector
being merely an observer in the bidding activities when previous laws allow them to
participate in the deliberations and are entitled to vote?
A: This is to strengthen the role of an observer as an independent body who objectively
monitors the bidding activities. The observers are tasked to prepare a diagnostic report on
what transpired during the bidding and submit it to the head of the procuring entity. If
theres any deviation from the prescribed procedures, the observer can even submit a copy
of the report to the Office of the Ombudsman.
Q: If the members of the BAC are not qualified, do vigilant groups have a right to
question the qualification and/or composition of the BAC?
A: The vigilant group may write the head of the procuring entity to suggest that only qualified
officials be assigned to the BAC.
Q: As the seats as observers are limited, what role can CSOs who do not act as observers
in the bidding activities play?
A: CSOs should encourage other CSOs to observe in the bidding activities. CSOs should
introduce themselves to agencies stating that the IRR/R.A. 9184 mandates the government
agency to invite observers in all the stages of the procurement process. They should present
themselves and say that they are a CSO who has knowledge on the procurement process.
Q: Can observers participate in the deliberations of the BAC?
A: The role of the observers in the bidding process is to monitor whether or not the agency is
following the prescribed procurement rules and procedures. They are encouraged to
participate in the deliberations if the topic falls under their expertise, except perhaps during
bid evaluation.
Q: Who will oversee as to the implementation of the projects?
A: There are certain non-government organizations that monitors contract implementation
namely Philippine Chambers of Commerce and Industry (PCCI), Volunteers and Crime and
Corruption (VACC), Government Watch (G-Watch), Concerned Citizens of Abra for Good
Governance (CCAGG), and Philippine Governance Forum (PGF), to name a few.
Q: Is there a minimum amount required before an observer would be invited to sit in the
BAC proceeding?
A: Section 13 of the IRR/RA 9184 provides that the BAC shall, in all stages of the procurement
process, invite, in addition to the representative of the COA, at least two (2) observers to sit
in its proceedings. There is no minimum amount required.
Q: Why are observers not entitled to honoraria?
A: Observers are discouraged from receiving honoraria in order to protect their independence
and integrity. This is to strengthen their roles as oversight in the bidding activity.
Q: How will the observers know that there is corruption taking place in the LGUs?
A: Deviations from the prescribed bidding procedure, or if the agency goes beyond what is
required by the law, may be indicators of corruption.
Q: Can the reports prepared by the observers be forwarded to the media?
A: It is encouraged that the observers exhaust all efforts first before divulging the information
to the media. We must respect the process of due process. Observers may submit their
reports to the Office of the Ombudsman and the Office of the Ombudsman will act on it if
they find merit in the compliant.
B. Commission on Audit
Q Commission on Audit (COA) Circular 2003-004 prohibits membership of accountants
: in the BAC. How do we reconcile this as the IRR of R.A. 9184 provides that one of the
regular members shall come from the financial area?
A: The GPPB already resolved this issue stating that all those members composing the financial
department, except the Chief Accountant and those under its office, may be designated as
BAC members.
Q
What is the role of the COA in the BAC deliberations?
:
A: In some agencies, COA representatives opt not to participate because they do not want their
presence to be misconstrued as meddling with the decision of the BAC. They simply say
that they will provide their comments during the post-audit. In other agencies, some COA
representative share their comments with the observers, like PWI, for them to voice out such
comments
C. BAC Secretariat
Q
Is there a set of rules that will determine the composition of the BAC Secretariat?
:
A: The intention of the IRR is to have a permanent BAC Secretariat and it is the head of the
procuring entity that determines its composition. If there is an existing BAC Secretariat,
then it would have to be re-organized or some people would have to be reassigned.
Q Can a bidder, who did not pass the eligibility process, purchase the bidding documents
: and submit bids?
A: No. Although the bidder may purchase bidding documents, he cannot submit them because
he has already been declared by the BAC to be ineligible to participate in the bidding.
Q
Whose responsibility is it to ensure that uniform bidding documents are issued?
:
A: As the contents of the bidding documents are discussed during the pre-bid conference, it is
the BAC who is responsible for the release of a uniform bidding documents. However, as
the BAC Secretariat provides administrative support to the BAC, all documents will be in
their safekeeping
Q: If an agency has a project to be bid, is the agency expected to have prepared the
bidding documents before the bidding process is conducted?
A: Ideally yes. As early as pre-procurement conference, the bidding documents are already
items for discussions and clarifications. It is therefore assumed that the bidding documents
should be ready even before the bidding proper itself.
C. Pre-Bid Conference
Q
Why is it not mandatory for the prospective bidders to attend the pre-bid conference?
:
A: Some bidders, especially those who have experienced dealing with the government agency
prior to the bidding of the project, feel that they already know the bidding procedures
undertaken by the agency. They therefore feel that they will not gain anything from
attending the pre-bid conference. They will lose, though, the opportunity to request for
clarification on issues and specifications that pertain to the project to be bid.
Q Is there a restriction on the part of Medium and Large Category contractors that will
: prohibit them from participating in small-scale projects? Because if there is none, new
contractors would continuously be displaced in participating in projects.
A: : In Presidential Decree No. 1594, there was exclusivity of small projects to small
contractors. However, such provision was amended in 1995, wherein the exclusivity of
small projects to small contractors is no longer allowed. The small contractors should have
already graduated from being a small contractor. Further, new and/or small contractors are
not expected to be displaced by larger contractors as the latter are expected to have larger
overhead cost. This makes small projects unattractive to them.
Q Section 23.6 provides that a bidder should submit a letter authorizing the BAC or its
: duly authorized representative/s to verify any or all of the documents submitted for the
eligibility check. Does this letter allow the BAC to verify only Class A documents?
A: The intention of the law is to allow the BAC to verify both Class A and Class B
documents.
A. Credit Line
Q
What should be the validity period of a credit line?
:
A: The credit line should be valid for the duration of the contract.
Q If the Net Financial Contracting Capacity (NFCC) is sufficient, is there a need to
: submit a commitment from a licensed bank?
A: Section 23.11.1.3 and 23.11.2.5 of the IRR requires a prospective bidder to present, as part
of the eligibility requirements, a commitment from a licensed bank to extend to it a credit
line if awarded the contract to be bid, or a cash deposit certificate, in an amount not lower
than that set by the procuring entity, which shall be equal to ten percent (10%) of the ABC,
or must have an NFCC at least equal to the ABC. It is in the alternative. If NFCC is
sufficient, there is no more need to submit such commitment.
Q If a commitment from a licensed bank to extend to it a credit line is submitted already
: in the eligibility check, is it required to be submitted again as part of the technical
proposal, as provided for in Section 25.3.B.11?
A: If the bidder previously submitted such commitment as part of the eligibility requirement,
the said document will suffice. However if in the eligibility check, the computation of the
bidders NFCC is given instead, a commitment from a licensed bank to extend to it a credit
line if awarded the contract to be bid, or a cash deposit certificate, in an amount not lower
than that set by the procuring entity, which shall be equal to ten percent (10%) of the ABC,
shall still be required.
Q How would the bank commitment act as guaranty when there is no provision in the
: IRR that the bank commitment should be specific to a certain project?
A: The IRR provides that a commitment from a licensed bank to extend to the bidder a credit
line if awarded the contract to be bid, shall be submitted. In this light, the bank commitment
really refers to the contract because such credit line will be given only if awarded the
contract.
B. Black Listing
Q If a bidder is blacklisted in one government agency, is he blacklisted in the
: entire government?
A: Yes. A bidder who is blacklisted by an agency and is included in the GPPB
Consolidated Blacklisting Report shall not be allowed to participate in the
bidding of ALL government projects during the period of
suspension/disqualification.
Q: Who can blacklist a bidder?
A: An agency may blacklist bidders. The names of such shall be submitted to the Government
Procurement Policy Board (GPPB). These names would be consolidated and posted in the
G-EPS.
C. Nationality Requirement
Q What is the nationality requirement for corporations for the procurement of
: infrastructure projects?
A: Only corporations duly organized under the laws of the Philippines, and of which at least
seventy-five percent (75%) of the outstanding capital stock belongs to citizens of the
Philippines shall be allowed to participate in the bidding for infrastructure projects.
C. Subcontracting
Q
Is subcontracting allowed?
:
A: Subcontracting is allowed. However, names of these subcontractors
would have to be listed in the bidding documents to be submitted by
the bidder. These subcontractors have to be eligible to perform the
contract. Further, any subcontracting activity should have prior
approval of implementing agency.
B. Submission and Receipt of Bids
Q: Is the government allowed to accept an item that is offered free to the government?
A: The government is allowed to accept an item that is offered free as it is advantageous to the
government. However, the bidder must meet all the requirements of the agency.
Q Does the BAC consider the duration of the project? Suppose the
: required duration of the agency is 45 calendar days. The lowest
bidders duration is 65 calendar days while the second lowest
has a duration of 50 calendar days. Which is more
advantageous?
A: Both exceeded the requirement of the agency. Under the GPRA and
its IRR, both bidders should be disqualified for submitting non-
complying bids.
Q: We have missed two items in the Bill of Quantities distributed to
contractors and the lowest bidder conformed to work on two
items, without additional cost. Is this situation allowed?
A: It is allowed. In fact, it is advantageous to the government.
Q: In case a bidder wishes to offer a discount to the government, where
should this discount be placed?
A: Discounts should be submitted together with the financial proposal,
Otherwise, if it will be submitted when the bids are already opened then it
would amount to an improvement of the bid.
D. Bid Security
Q
When can a bidder withdraw its bid security?
:
A: Section 27.4 of the IRR/R.A. 9184 provides that no bid securities shall be returned to
bidders after the opening of bids and before contract signing, except those that failed to
comply with any of the requirements to be submitted in the first bid envelope.
Q Regarding the prohibition of talking to bidders, is this true for all types of
: conversation? What if the BAC happens to be talking about other matters and not
about the project?
A: Section 32.3 of the IRR/RA 9184 states that the members of the BAC, including its staff and
personnel, as well as the Secretariat, are prohibited from making or accepting any kind of
communication with any bidder regarding the evaluation of bids until the issuance of Notice
of Award. The confidentiality clause applies to matters relating to the bids.
VII. POST-QUALIFICATION
A. Failure of Bidding
b) After advertisement, more than one prospective bidder submits an LOI and/or applies for
eligibility check, in accordance with the provisions of this IRR-A, but only one bidder meets
the eligibility requirements or criteria, after which it submits a bid which is found to be
responsive to the bidding requirements; or
c) After the eligibility check, more than one bidder meets the eligibility requirements, but
only one bidder submits a bid, and its bid is found to be responsive to the bidding
requirements.
Q: Section 38 of the IRR of R.A. 9184 provides that the procurement process from the
opening of bids up to the award of contract shall not exceed three (3) months. Is this
period mandatory? What happens if the agency goes beyond the said period and
incurs delay? Are there any administrative or civil liabilities on the part of the
government?
A:
Yes, it is a mandatory provision. In case of non-compliance, there are different effects as
to the public officer concerned and the bidding itself. As to the public officer concerned,
R.A. 9184 does not provide for any administrative sanction. On the other hand, he may be
subjected to the internal administrative procedures as may be determined by the head of the
procuring entity. Depending upon the circumstances of the case, such public officer may be
held criminally liable for unjustified delay. It should be established that the delay is
unjustified. As to the procedure itself, under the Civil Code of the Philippines, the
particular activity shall be null and void. The Commission on Audit, on post-audit, may
determine the justification of the circumstances. If the delay is unjustified, COA can
declare it null and void and shall disapprove any disbursement for the contract.
Q: What is the guarantee that the government will pay on
time? Is there any sanction for the government if they
dont pay on time?
A: In case after complete documentations and after a prescribed
period of time, the contractor is still not paid, the
contractors could suspend their work. This suspension of
work usually results to time extension so as not to prejudice
the contractor. Any form of cash outlay is currently being
studied by the government.
Q When the law talks of delivery time, does it speak of calendar or
: working days?
A: IT DEPENDS, if the provision does not specify if it is calendar or
working day, it is presumed to be referring to calendar day.
B. Defects
Q What happens if the contractor is no longer available during the time that the
: contractor is found to be in defect of his project? Can this matter be brought to the
court?
A: During the warranty period, the contractor is liable for
structural defects and/or failure if the defect is due to
improper construction and use of substandard material. The
court however, will have to determine who is liable. If the
contractor can no longer be found, such defects will be fixed
by the implementing agency and the court will determine
from whom such agency may get reimbursement. The law
provides for garnishment proceedings as a remedy. If the
defect is due to normal wear and tear, the contractor will not
be liable.
Q What happens if there is a defect in the construction of the
:
project?
A: The Government shall undertake the necessary restoration or
reconstruction works and shall be entitled to full reimbursement by
the parties found to be liable, of expenses incurred therein upon
demand, without prejudice to the filing of appropriate administrative,
civil, and/or criminal charges against the responsible persons as well
as the forfeiture of warranty securities posted in favor of the
Government.
C. Notice to Proceed
Q
Who will issue notice to commence work or the Notice to Proceed (NTP)?
:
A: The procuring entity will issue the NTP. For some agencies, they consider the
level of the contract amount; the higher the cost, the higher the level of official issuing the
NTP. In DPWH, it is the implementing office that issues the Notice of Award if it is within
their authority, normally, it is the Undersecretary or the Assistant Secretary in charge of its
operations who issues such notice.
D. Multi-Awarding
Q
How do we eliminate price manipulations by suppliers?
:
A: It is very difficult to prove that there is manipulation by suppliers. In case of multi-
awarding, as long as the suppliers offer a price, which is lower than the ABC for the project,
then the agency is not losing anything.
Q
Who is a provincial bidder?
:
A: A provincial bidder is a contractor who participates in the bidding of provincial priority
programs and infrastructure projects, whose principal office is within the same province.
The location of the principal office is determined from the information provided in the
bidders articles of incorporation.
Q What are the two views regarding provincial bidders given the opportunity to match
: Lowest Calculated Bid of a bidder with a principal office outside the said province?
A: The first view is that the provincial bidder would be given the opportunity to grow in their
respective provinces. The second view is that it is too simplistic and in the long run will
defeat competition because the provincial bidders would be confined in their own province,
since other provinces will also have its own provincial bidders to give priority to.
Q Is the right given to a provincial bidder to match the bid of a non-provincial bidder
: available only for GAA funded projects? If yes, then the bidders from the locality may
have difficulty in winning over bidders from outside the locality.
A: The law provides that it is applicable to GAA funded projects. However, since the principle
of leveling the playing field may also apply to LGU projects, this may then be recommended
as a proposed amendment to the law or to its IRR.
X. DISCLOSURE OF RELATIONS
Q The law mandates agencies to procure common used supplies and materials in the
: Procurement Service (PS). Will it constitute a violation of the law if the agency or LGU
procure from a supplier, which offers the item at a lower cost than what the PS has?
A: NOT NECESSARILY. In the case of LGIs, which are far from Manila, if they could buy
their items at a lower price than what it prescribed in the PS, then it is justified. Moreover, a
supplier that can offer a lower cost than what is prescribed by the PS is encouraged to
participate in the bidding conducted by the PS for that particular item.
Q On negotiated contracts for LGUs, even if all requirements are satisfied, will it
: continue to get the approval of the Sangguniang Panlalawigan/ Panglungsod or will the
approval of the procuring entity suffice?
A: The IRR/RA 9184 states that the prior approval of the procuring entity will suffice.
However, if there is a resolution of the LGU that it will also require the prior approval of
their Sanggunian, then it must be complied with.
During discussions with the Philippine League of Local Budget Officers, it was clarified that
local projects which were already approved by the Sanggunian do not have to pass through
the Sanggunian anymore.
Q As negotiated procurements may open the possibility of corruption in procurement
: process, how can we prevent it?
A: Negotiated procurements may be conducted subject to prior approval of the head of the
procuring entity or his duly authorized representative, and whenever justified by conditions
provided for in the IRR/R.A. 9184. Only newspaper advertisement is dispensed with. It
should still be posted at conspicuous places, at the website of the procuring entity and at the
Government Electronic Procurement System (G-EPS). Negotiated procurements should be
resulted to only in cases provided for in Section 53 of the IRR/R.A. 9184.
Q
Is procurement by administration still available in the GPRA?
:
A: Yes. Section 53(b) of the Implementing Rules and Regulations (IRR) of the GPRA states,
In the case of infrastructure projects, the procuring entity has the option to undertake the
project through negotiated procurement or by administration or in high risk areas, through
the AFP. However, it is subject to conditions enumerated in Section 54 of the IRR
Q
Are price adjustments allowed?
:
A: Section 61.2 of the IRR/R.A. 9184 provides that any request for price escalation under
extraordinary circumstances shall be submitted by the concerned entity to the
National Economic and Development Authority (NEDA) with the endorsement
of the procuring entity. The burden of proving the occurrence of extraordinary
circumstances that will allow for price escalation shall rest with the entity
requesting for such escalation. NEDA shall only respond to such request after
receiving the proof and the necessary documentation.
Q Is the Local Chief Executive the only person to be prosecuted in case the city does not
: adopt the GPRA?
A: It will depend on the violation. If the activity is solely within the main function of the BAC
or its secretariat, they will be liable. It such actions does not require the intervention of the
Local Chief Executive, then the corresponding official shall be liable. But if there is abuse
of authority by disqualifying the lowest bidder to favor a bidder closely related to him or
unduly influencing the members of the BAC to favor or to give preference to a particular
bidder, then the Local Chief executive will be liable.
Q Will there be any penalty if the bidding timelines are not followed and it results to
: delay?
A: The head of the procuring entity may declare a failure of bidding if the BAC is found to
have failed in following the prescribed bidding procedures, including the timelines. There is
also a provision found in the annex of the IRR/R.A. 9184 regarding delay in contract
implementation. However, provisions on such will be more clear and detailed once the
procurement manuals are released.
Q If anomalies happened during the term of an official, yet it was discovered only after
: he vacated the position, can he still be held liable?
A: Yes he is still liable. The fact that he is no longer in the BAC does not exempt him from
criminal and civil liabilities.
Q Section 65.2.4 of the IRR of R.A. 9184 provides that a bidder may be criminally liable
: when, by himself or in connivance with others, he employs schemes which defeat
competition. How can you prove connivance?
A: Connivance will enter into the concept of conspiracy wherein the act
of one is the act of all. It is a matter of intent. Intent is the act
committed in order to perpetrate the crime. Each and every element
should be proven. However, in criminal law, intent is very hard to
prove. Documentary pieces of circumstantial and corroborative
evidence shall be gathered and presented to the court.
XIV. INDEMNIFICATION OF BAC MEMBERS
Q When is the indemnification package available to the BAC, BAC Secretariat and
: Technical Working Group (TWG) members?
A: These packages are available to them only if they perform functions pursuant to their office
as such and provided further that the said official is not liable for gross negligence,
misconduct, or grave abuse of discretion or otherwise held liable or guilty of the complaints
or charges.
XV. POLICIES
Q In case a person wants to complain about certain anomalies such as overpricing, where
: do we file our complaint?
A: Complains should be filed with the Office of the Ombudsman.
Q
Is there a possibility to shift from post-audit to pre-audit?
:
A: One of the objectives of the GPRA is to speed up the procurement process. Since pre-audit
usually takes much more time, shifting back to pre-audit is not favored.
Q Will the LGUs be faulted if the BAC observes the bidding procedure even if the
: contract amount is not within the cost thresholds as provided for in the IRR/RA 9184?
For example, a project costing less than two million pesos for procurement of goods?
A: Competitive bidding is encouraged for all types of procurement. The IRR/RA 9184 does not
provide for a minimum contract amount that will require public bidding. If the contract
amount is small, then the procuring entity may opt to use an alternative method of
procurement whenever applicable, as long as the procuring entity follows the conditions
provided for under IRR/RA 9184
Q
When the law talks of delivery time, does it speak of calendar or working days?
:
A: if the provision does not specify if it is calendar or working day, it is presumed to be
referring to calendar day.
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