NPM No. 008-2018
Requesting Entity: Commission On Elections (COMELEC)
Issues Concern: Warranty Security; Application of 2016 Revised Implementing Rules and Regulations (IRR) of Republic Act (RA) No. 9184
Whether Section 77.2 of the 2016 IRR of RA 9184 is applicable to a new contract to be executed but which is an offshoot of contracts procured under the 2009 revised IRR of RA 9184.
Section 77.2 of the 2016 IRR provides that “[i]n cases where the advertisements or invitations for bids were issued before the effectivity of this IRR, Procuring Entities may continue adopting the procurement procedures, rules, and regulations provided in the revised IRR of 2009 or other applicable laws, as the case may be.”
The use of the word “may” in Section 77.2 of the 2016 IRR of RA 9184 gives the Procuring Entity the authority to continue adopting the procurement procedures, rules and regulations provided in the 2009 IRR of RA 9184 and other applicable laws, in the event that the advertisements or invitations to bid were issued before the effectivity of the IRR. The said provision does not in any way permit a retroactive application of the 2016 IRR of RA 9184. It simply means that if a procurement project was advertised prior to the effectivity of the 2016 IRR of RA 9184, Procuring Entity may continue adopting previous procurement rules as advertised and posted through the Bidding Documents.
There is no cogent reason to deviate from the established rule on the prospective application of the 2016 IRR of RA 9184. We note that under its Section 78, the 2016 IRR of RA 9184 shall take effect sixty (60) calendar days after its publication in the Official Gazette or in a newspaper of general nationwide circulation and upon filing with the University of the Philippines Law Center of three (3) certified copies of this IRR, i.e., 28 October 2016. Similar with the first two (2) IRRs of RA 9184, the 2016 IRR of RA 9184 does not provide for a retroactive effect, and thus, should be applied prospectively.
Whether or not the rate of warranty security under the 2009 revised IRR of RA 9184 finds application in new contracts which are offshoots of contracts procured under the 2009 revised IRR of RA 9184, but exercised during the effectivity of the 2016 IRR of RA 9184.
Since the 2016 IRR of RA 9184 does not provide for a retroactive application, the prescribed rate for the warranty security in the procurement of goods under Section 62.1 of the 2016 IRR of RA 9184, including its amendment through GPPB Resolution No. 30-2017, shall be applied prospectively in all government procurement contracts. For contracts procured before the effectivity of the 2016 IRR of RA 9184 and its subsequent amendments, the old rate of at least 10% shall apply.