Requesting Entity: Department of Information and Communications Technology (DICT)
Issues Concern: Bids and Awards Committee (BAC) Composition
Can the BAC validly conduct business and make decision with four (4) members, three (3) of which are regular members and one (1) is a provisional member?
Section 11 of Republic Act (RA) No. 9184 and its 2016 revised Implementing Rules and Regulations (IRR) provide that members of the BAC shall be composed of at least five (5) members but not to exceed seven (7). Of the five (5) members, three (3) must be regular members and two (2) must be provisional members. Provisional members are designated to sit in the BAC for a particular procurement activity, while regular members sit in all the procurement activities of the agency.
The use of the word “shall” makes the designation of at least five (5) but not more than seven (7) members to the BAC mandatory. Thus, the designation of less than five (5) BAC members is not compliant with what the law and rules require as sufficient to constitute a valid BAC that is authorized to undertake procurement proceedings under RA No. 9184 and its IRR. Decisions made by a BAC with less than the required number of members are therefore ineffective in accordance with Article 5 of RA No. 386, which provides that acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity.