NPM No. 130-2017
Requesting Entity: DEPARTMENT OF TRADE AND INDUSTRY
Issues Concern: Negotiated Procurement (Emergency Cases)
Whether the Bids and Awards Committee (BAC) may proceed to Negotiated Procurement through the Emergency Cases modality under RA 9184 and its 2016 revised IRR notwithstanding the cessation of the Marawi City siege, as a result of the declaration by President Rodrigo R. Duterte that it was already freed from the Maute group.
It is an established public policy, as well as a statutory mandate that all government procurement shall be done through competitive bidding. However, as an exception, in order to promote efficiency and economy, Article XVI of Republic Act (RA) No. 9184 provides for instances where resort to Negotiated Procurement modalities is allowed, e.g., Emergency Cases.
The BAC must justify why resort to Negotiated Procurement under Emergency Cases is warranted citing the applicable conditions and that upon determination that resorting to Negotiated Procurement is the most advantageous to the Government, recommend the same to the Head of the Procuring Entity for its approval. Upon determination, the BAC shall then recommend to the HoPE that resort to Negotiated Procurement under Emergency Case is most advantageous to the Government and upon approval of the latter, the Procuring Entity may negotiate and enter into a contract subject to the procedures provided in Annex “H” of the 2016 IRR of RA 9184.
It bears stressing that after the cessation of the siege, what comes after is the rehabilitation of the area destroyed by the conflict; restoration of the livelihood of the local residents; including providing health services that are essential in giving due and proper treatment and care, physically and emotionally, to the affected residents especially children still residing in the evacuation centers and temporary shelters. These are the sorry consequences of war, which should be addressed immediately so as not to prolong the hardship and agony of the local residents, not to mention the prevention of further damage to or loss of life or property. Thus, the cessation of the siege does not necessarily mean that the emergency sought to be addressed is no longer present; or the procurement under emergency cases may no longer be resorted to. If upon determination of the PE that the conditions to adopt emergency procurement are still present, then the said modality may still be adopted. Necessarily, PEs will have to determine the propriety of entering into Negotiated Procurement under Emergency Cases as warranted by valid, lawful, reasonable and justifiable conditions and circumstances.
Based on the foregoing, we are of the view that the Head of the Procuring Entity and the Bids and Awards Committee of the Procuring Entity are in the best position to verify the existence of conditions and circumstances that warrant the use of Negotiated Procurement through the Emergency Cases modality, including the validation of attending circumstances that will support immediate and urgent action that shall address the needs of the government and ultimately of the citizens and constituents terribly affected by the armed atrocities.