Requesting Entity: Department of Trade and Industry
Issues Concern: Applicable Procurement Procedure Pending Approval of the IRR of R.A. 9184
Which law shall be followed pending the finalization of the new Implementing Rules and Regulations (IRR) of Republic Act No. 9184 (R.A.9184), otherwise known as the "Government Procurement Reform Act?"
Pursuant to Section 78 of R.A. 9184 which provides for the date of its effectivity, it took effect on January 26, 2003, or fifteen (15) days following its publication. However, although there are self-executing provisions in R.A. 9184, the same cannot be fully implemented until the IRR is finally approved by the President and published for dissemination. The procedures embodied in Executive Order No. 40, Series of 2001 (E.O. 40), and its IRR shall still apply until the IRR of R.A. 9184 shall have been finally approved, provided that the provisions of the former law are not in direct conflict with the clear self-executing provisions of the latter law.
If ever the IRR of R.A. 9184 would become final, what law shall govern an on-going procurement activity, if the advertisement of the Invitation to Apply for Eligibility and to Bid is issued prior to the effectivity date of the new IRR?
All on-going procurement activities, including those for which the Invitation to Apply for eligibility and to Bid were already advertised prior to the effectivity of the IRR of R.A. 9184, shall be governed by the laws, rules and regulations applicable at that time, i.e. E.O. 40 and its IRR, except where these are contrary to the clear self-executing provisions of R.A. 9184. This is in consonance with the language of Article 4 of the Civil Code of the Philippines. Furthermore, since nothing in R.A. 9184 expressly provides for the retroactive application of its provisions, the general rule shall be reckoned with, that is, its provisions shall be applied prospectively. Statutory construction dictates that statutes are not to be construed to have a retroactive effect so as to affect pending projects or endeavors, unless such intent is expressly declared or clearly and necessarily implied from the language of the legislative enactment.