Requesting Entity: Integrated Computer Systems, Inc.
Issues Concern: Declaration of a Failure of Bidding
What is the effect of the oral manifestation by the BAC Chairperson during the opening of bids that he is acting as a member only representing the end-user unit, without official declaration by the Head of the Procuring Entity (HoPE) to that effect?
The oral manifestation by the BAC Chairperson during the opening of bids that he is acting as end-user representative converts his membership from a regular to a provisional member for the subject procurement on the basis of the Department of Information and Communications Technology (DICT) Special Order No. 97, dated 12 March 2018 wherein, in reconstituting the three (3) BACs of the DICT, the HoPE left the provisional member vacant as the same depends on the project being procured.
Section 11 of Republic Act (RA) No. 9184 and its 2016 revised Implementing Rules and Regulations 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.
What is material therefore is that the total BAC members should be at least five (5), and composed of at least three (3) regular members and two (2) provisional members. [T]he change in the nature of the membership of the Chairperson from a regular to a provisional member is of no moment if the BAC composition complies with the minimum five (5) members, with at least three (3) regular and two (2) provisional members.