NPM 038-2004

Requesting Entity: Tanggapan ng Pambayang Inhinyero ng San Jose, Batangas

Issues Concern: Queries on the Provisions of R.A. 9184 and its IRR-A and its Repeal of Section 444 (b) of R.A. 7160



1. Whether or not R.A. 9184 and its IRR-A repealed Section 444(b) (vi) of R.A. 7160 which provides that upon authorization of the Sangguniang Bayan, the Local Chief Executive (LCE) has the power to represent the municipality in all its business transactions and sign on its behalf all bonds, contracts, and obligations and such other documents made pursuant to law or ordinance.

R.A. 9184, under Section 76 thereof, provides that it “amends Title Six, Book Two, of Republic Act No. 7160, otherwise known as the ‘Local Government Code of 1991.’” This covers Sections 355-383 of the said law. Section 75 of IRR-A of R.A. 9184, on the other hand, provides that the provisions on Chapter 5, Title I, Book I of R.A. 7160, specifically Sections 37 and 38, are repealed thereby.

Inasmuch as the above-mentioned Sections of R.A. 7160 were expressly repealed by either by R.A. 9184 or its IRR-A, we are of the opinion that Section 444(b)(vi) of R.A. 7160 was neither expressly nor impliedly repealed by R.A. 9184 and its IRR-A. However, our view on the matter notwithstanding, we have referred the matter for the proper interpretation and consideration of the Department of Interior and Local Government.

2. Whether or not posting at any conspicuous place reserved for the purpose sufficient to satisfy the conditions stated in Sections 21.2.3 and 21.2.4 of the IRR-A of R.A. 9184 when website is not available.

Based on the above-quoted provision (Section 21.2.1, IRR-A), in the event that the procuring entity has no available website, it is excused from complying with such requirement. However, the other modes of posting or advertisement should be complied with, i.e., (a) advertisement in a newspaper, if required, (b) the G-EPS, and (c) any conspicuous place reserved for the purpose in the premises of the procuring entity.

In view of the foregoing, posting at any conspicuous place reserved for the purpose in the premises of the procuring entity alone does not satisfy the posting and advertising requirements provided under Sections 21.2.1 and 21.2.3 of the IRR-A of R.A. 9184.

3. Whether or not the maximum amount of Php50,000.00 and Php250,000.00 stated in Section 52(b) of IRR-A of R.A. 9184 applicable for a period of one month, one year or per transaction.

Each acquisition of goods, infrastructure projects, and consulting services has to have an approved budget for the contract before the procurement therefor is commenced. This rule applies to all methods of procurement, i.e., public bidding or any of the alternative methods stated under Article XVI of R.A. 9184 and its IRR-A. Therefore, each procurement project is based on the approved budget allocated for its acquisition.

As such, the amounts mentioned under Section 52 of the IRR-A of R.A. 9184 should be considered as the maximum amount per procurement project.

The maximum allowable amount of procurement by shopping when there is an unforeseen contingency is P50,000.00. This means that for the unforeseen contingency requiring the immediate purchase of particular goods, the amount for its acquisition should not exceed P50,000.00. Should another immediate purchase be required due to another unforeseen contingency, the procurement of such goods may still be acquired through shopping, subject to the same limitation that it should not exceed P50,000.00. In the same manner, the procurement of office supplies and equipment not available in the Procurement Service (“PS”) is on a per project basis such that each supply or equipment needed by a procuring entity that is not available in the PS may be procured through shopping subject to the limit of P250,000.00.

4. Whether or not the cost/rate of bidding documents as provided under Section 17.5 of IRR-A subject to Sangguniang Bayan ordinance.

Section 17.5 of the IRR-A does not prescribe a standard fee or rate for the payment of bidding documents by prospective bidders. However, such fees should not be unconscionable, or should be fair enough to recover the cost of its preparation and development.

In this regard, considering that the procuring entity has the discretion to charge for acquiring copies of the bidding documents or to make them available to prospective bidders, a procuring entity may opt to prescribe the fees thru a Sangguniang Bayan ordinance.

5. Where to charge honoraria for BAC members and its legal limitations.

The guidelines for the grant of honoraria to Bids and Awards Committee (“BAC”) members, the Technical Working Group, and the BAC Secretariat was issued by the Department of Budget and Management through Budget Circular No. 2004-5, dated March 23, 2004. This includes the funding source from which the honoraria may be charged. Section 5.0 thereof provides as follows:

Agencies may retain fifty percent (50%) of their collections from:
•Sale of bid documents;
•Fees from contractor/supplier registry;
•Fees charged for copies of minutes of bid openings, BAC resolutions and other BAC documents;
•Protest fees;
•Liquidated damages; and
•Proceeds from bid/performance security forfeiture.