NPM No. 012-2016
Requesting Entity: Speedex Construction and Development Corp.
Issues Concern: Delayed Award of Contract
[T]he power of the HOPE to approve or disapprove the recommendations made by the BAC in the entire procurement process is a discretionary act as distinguished from a purely ministerial act . The decision to award a contract rests within the sole discretion of the HOPE. Within a period not exceeding seven (7) calendar days from the date of receipt of the recommendation of the BAC relative to the award of contract, the HOPE is given the discretion to approve or disapprove such recommendation.
Failure to Award Contract within the Mandatory Period
[T]he Supreme Court in the case of Jacomille v. Abaya, ruled that failure to comply with the mandatory periods set forth in Section 37 is an irregularity which renders the procurement process null and void. Thus:
The Court does not agree with the OSG that the 3-month period is merely directory. The said provision contains the word "shall" which is mandatory in character. Such period was placed in a separate provision under Section 38, rather than compressed with Section 37, to emphasize its importance. There is nothing in the law which states that the 3-month period can be disregarded. Non-compliance with the period will certainly affect the validity of the bidding process. In fact, Section 38.1 of the IRR of R.A. No. 9184 reaffirms the obligatory 3-month period:
The procurement process from the opening of bids up to the award of contract shall not exceed three (3) months, or a shorter period to be determined by the procuring entity concerned. All members of the BAC shall be on a "jury duty" type of assignment until the Notice of Award is issued by the Head of the Procuring Entity in order to complete the entire procurement process at the earliest possible time. (Emphasis supplied)