Requesting Entity: Office of the Provincial Attorney of Laguna

Issues Concern: Delegation of Authority for the Preliminary Examination of Bids and Grant of Honoraria

Details

1. Whether the authority to conduct the preliminary examination of bids may be delegated by the Bids and Awards Committee (BAC) to its Secretariat.

R.A. 9184 (Section 30) and its IRR-A (Section 30.1) categorically vests upon the BAC the authority to determine each bidder’s compliance with the required documents for purposes of eligibility. [Section 14.1, IRR-A] limits the responsibilities of the BAC Secretariat to exclusively clerical and secretariat functions. While it is limited to these functions, the conduct of a preliminary examination of bids where discretion and sound judgment is required cannot be considered as clerical or secretariat in nature; therefore, outside the functions of the BAC Secretariat.

Based on the foregoing, we are of the opinion that the BAC cannot delegate the authority expressly vested upon it by R.A. 9184 and its IRR-A to another entity such as the BAC Secretariat. However, this does not preclude the BAC from assigning to its Secretariat the mechanical act of opening and examining the presence or absence of the required documents of the bidders during the preliminary examination of bids provided such act is done in their presence and under their direct instruction and supervision.

2. Whether observers may be given honoraria for their participation in the procurement process.

Observers are invited in all stages of the procurement process in order to enhance transparency therein (Section 13.1, IRR-A), with the general responsibility of checking if each stage of the procurement process was conducted in accordance with the provisions of R.A. 9184 and its IRR-A.

It is imperative, then, for observers to maintain independence from any influence the body it monitors may assert so that the integrity of its observations will not be compromised or tainted with bias. To ensure this independence, we are of the opinion that observers should not be granted honoraria by the procuring entity for its participation in the procurement process.

This view is strengthened by Section 15 of R.A. 9184 and its IRR-A which categorically provides that payment of honoraria may be granted to the members of the Bids and Awards Committee (BAC), BAC Secretariat, and Technical Working Group. It will be noticed that in the enumeration of persons who may be granted payment of honoraria, observers are not included. Thus, this silence by R.A. 9184 and its IRR-A may be construed to mean that the law meant to exclude observers from the payment of honoraria.