Non-Policy Opinions

2004-02-26

NPM 021-2004

Requesting Entity: Office of the City Legal Services of Calbayog

Issues Concern: Queries on R.A. 9184 and its IRR

 

Details

1. Who will constitute the Bids and Awards Committee at the Barangay level? When shall it become effective? Can the various barangays still utilize the BAC of the city level pending the constitution of BAC at the Barangay level?

Republic Act No. 9184 (R.A. 9184) and its Implementing Rules and Regulations Part A (IRR-A) are silent as to the composition of the BAC in the barangay level. However, recognizing the need to create the barangay BAC, the matter was brought to the GPPB for appropriate action. At present, the BAC membership in the barangay is still being determined and studied by the Government Procurement Policy Board-Technical Support Office (GPPB-TSO) and the Department of Interior and Local Government (DILG). Meanwhile, pending the issuance of such guidelines, barangays may procure through “outsourcing,” an alternative method allowed under section 53 (e) of the IRR-A of R.A. 9184.


2. Are the members of the BAC Secretariat entitled to honoraria under IRR-A of R.A. 9184? How much will they receive?

Under R.A. 9184, the office of BAC Secretariat shall evolve as an organic or permanent office in the procuring entity, performing specific functions as provided for in Section 14 of the IRR-A of R.A. 9184. Thus, the payment of honoraria to BAC Secretariat members shall be considered as an additional compensation for the same functions, which is prohibited under Section 8, Article IX of the 1987 Constitution, to wit:

No elective or appointive public officer or employee shall receive additional, do uble compensation, unless specifically authorized by law, nor accept without the consent of the Congress, any present, emolument, office, or title of any kind from any foreign government. x x x x (Emphasis supplied)

Consequently, the procuring entity cannot grant honoraria to BAC Secretariat members if the head of the procuring entity has created an organic or permanent office to serve as BAC Secretariat. On the other hand, if the head of the procuring entity has designated an existing organic office within the procuring entity to serve as BAC Secretariat and perform the duties, responsibilities and functions thereof, in addition to the duties, responsibilities and functions of their present office and current position, the procuring entity may grant honoraria to such personnel designated as members of BAC Secretariat, subject to the availability of funds and the guidelines to be issued by the Department of Budget and Management on the matter.


3. Considering that the BAC Secretariat will evolve into an organic office, can its members be allowed to work in
his or her mother office?


Based on the above-cited provision (Section 14.1, IRR-A, R.A. 9184), the head of the procuring entity may either designate an existing organic office within the procuring entity to serve as BAC Secretariat or create an organic office for that purpose. The procuring entity's procurement activities shall determine the need to create an organic office for BAC Secretariat. Being an organic office, the members' time and effort shall be devoted in providing secretariat functions to the BAC members and in performing the functions as enumerated under Section 14.1 of IRR-A of R.A. 9184.


4. The Chairman of the Bids and Awards Committee is the City Administrator and at the same he was authorized by the City Mayor to act as the approving officer for and his behalf in all transactions not exceeding the amount of PHP 100,000.00. Is he allowed to do so? Did he infringe any existing provision of law with this set up?

Bearing in mind that the City Administrator is at the same time authorized by the City Mayor to act as the approving officer for and his behalf, in all transactions not exceeding the amount of Php 100,000.00, the City Administrator cannot be the Chairman of the Bids and Awards Committee (BAC), this proscription is sanctioned by Section 11.2.5 of the IRR-A of R.A. 9184, to wit:

In no case shall the head of the procuring entity and/or the approving authority be the Chairman or a member of the BAC (Emphasis supplied)

It is clear from the above-quoted provision that the City Administrator, being the approving authority, cannot be the Chairman of the BAC. This limitation on the approving authority is in line with the rules and principles of good internal control and to avert the possibility of conflict of interest.


5. What is the role of the General Services Office (GSO) an existing department in our local government office, particularly the Procurement Division, in the present system of procurement?

Based on the above-quoted provision (Section 11.2.2, IRR-A, R.A. 9184), a representative from the GSO can be designated by the local chief executive as a member of the BAC. Moreover, such representative may be elected as the Chairman or Vice-Chairman of the BAC, provided that he holds the position of at least a third (3rd) ranking permanent official.


6. Are those local dealers which are selling common and non-common supplies and not registered under the GEPS still allowed to participate in the procurement during emergency cases?

We believe that, as a general rule, procuring entities must procure only from registered manufacturers, suppliers, contractors or consultants, even in cases of alternative methods of procurement except only in exceptional circumstances contemplated by Section 52 (a) and 53 (b) of IRR-A of R.A. 9184, where immediate action is necessary.