NPM 109-2004

Requesting Entity: Commission on Audit Regional Office VI

Issues Concern: Conduct of Bidding for the Procurement of Common-Use Supplies of the Municipality of Buenavista, Province of Guimaras



1. Whether or not there can be a failure of bidding even if the Bids and Awards Committee (BAC) had already recommended an award to the head of the procuring entity.

Although it is not clearly manifested in your letter that the BAC has failed in following the prescribed bidding procedures under R.A. 9184 and its IRR-A in the procurement of the aforesaid common-use supplies, we believe that it is worthy to mention the abovequoted provision (Sec. 41.1(b), IRR-A) as a legal justification for the refusal of the head of the procuring entity to award the contract or declare a failure of bidding in case any of the aforementioned instances occurs. As such, the Municipal Mayor of the Municipality of Buenavista may declare a failure of bidding if the BAC was, indeed, found to have failed in complying with the procurement rules and procedures provided under the law.

2. Whether or not the head of the procuring entity may disapprove the recommendation of the award of contract made by the BAC beyond the period prescribed in Section 37.2.1 of the Implementing Rules and Regulations Part A (IRR-A) of Republic Act No. 9184 (R.A. 9184).

Although the aforesaid provision (Sec. 37.2.1, IRR-A) mandates the head of the procuring entity or his duly authorized representative to issue the Notice of Award to the winning bidder as recommended by the BAC, which gives the impression that the head of the procuring entity should act on the recommendation by the BAC within the said fifteen (15)-day period whether it be an approval or disapproval, we believe that such period does not limit or restrict the procuring entity to exercise its right under the aforementioned Section 41.1 of the IRR-A of R.A. 9184.

As such, we are of the opinion that the procuring entity, through its head, may avail of its right to reject any and all bids, declare a failure of bidding, or not award the contract to the winning bidder when justified by the circumstances mentioned in the aforecited Section 41.1 of the IRR-A of R.A. 9184, even beyond the 15-day period mentioned in Section 37.2.1 of the same IRR-A.