NPM 127-2004

Requesting Entity: Philippine Atmospheric, Geophysical and Astronomical Services Administration

Issues Concern: Applicability of Republic Act 9184 and its Implementing Rules and Regulations Part A to Foreign-Funded Procurement Activities



Whether Republic Act 9184 and its Implementing Rules and Regulations Part A are applicable to Foreign-Funded Procurement Activities.

Although R.A. 9184 covers all types of government procurement, regardless of source of funds, it recognizes the Governmentís international commitments and obligations in requiring that any treaty or international or executive agreement be observed. For this reason, R.A. 9184 will have two (2) IRRs, namely, IRR-A and IRR Part B (IRR-B). Pursuant to Section 1 of the IRR-A of R.A. 9184, procurement activities that are fully domestically-funded shall be governed by IRR-A, while procurement activities that are foreign-funded shall be governed by IRR-B.

Considering that foreign-funded procurement activities are governed by R.A. 9184 through its IRR-B, and considering further that the said IRR-B has not yet been promulgated, foreign-funded procurement activities may be conducted following the guidelines set by the lending institution concerned. Hence, the procurement of the EMDSC Phase III Project shall be conducted following the specific guidelines provided under the French loan agreement.

In view of the foregoing, we are of the opinion that the propriety or validity of pursuing a negotiation with the supplier in the first two phases of the said project rests on the determination by the lending institution concerned. However, emphasis should be made that if the French loan agreement does not specify a particular procurement procedure to be used, the procurement project shall be conducted following the provisions of R.A. 9184 and its IRR-A; in which case, the more appropriate procedure is to conduct a public bidding therefore.