NPM No. 126-2017
Requesting Entity: NORTHERN BUILDERS
Issues Concern: Tailor-Fitting Specifications
Whether or not the Terms of Reference of MIAA, which allegedly have technical specifications pertaining to a particular brand is valid.
[S]ection 18 of Republic Act (RA) No. 9184, the Government Procurement Reform Act, and its 2016 revised Implementing Rules and Regulations (IRR), mandate that reference to brand names shall not be allowed and thus, specifications for the procurement of goods shall be based on relevant characteristics and/or performance requirements. This mandate cannot be circumvented by setting specifications that point out to only one brand of goods or items, though without mentioning the name of the brand. What is prohibited directly is prohibited indirectly.
We previously opined that while Procuring Entities (PEs) can make technical specifications in their bid documents more detailed, they cannot, however, “tailor fit” to a particular brand. We further stated that the inclusion in the bidding documents of such detailed design and technical descriptions that leave the PE no other option but to procure from a particular brand or supplier defeats the very essence and purpose of competitive bidding, and in such a case where a specific brand is necessary, indispensable and justified under the IRR, the applicable alternative modalities of procurement may be utilized.
It is important to note, however, that although the use of brand names is prohibited in the 2009 revised IRR, under Section 18 of the 2016 IRR of RA 9184, it was clarified that “[R]eference to brand names shall not be allowed except for items or parts that are compatible with the existing fleet or equipment of the same make or brand, and will maintain the performance, functionality and useful life of the equipment.”
Thus, as a rule, specifications for the procurement of goods shall be based on relevant characteristics and/or performance requirements. Reference to brand names, including tailor fitting, is not allowed. But where necessary to maintain the performance, functionality and useful life of the equipment, reference to brand names relative to the existing fleet or equipment is allowed.