NPM 026-2005

Requesting Entity: Butuan City Water District

Issues Concern: Clarification on the provisions of Republic Act 9184 (R.A. 9184) and its Implementing Rules and Regulations Part A (IRR-A)



1. Whether or not the BAC has the right to modify or contravene the substance of Section 36 of R.A. 9184.

Section 36 of the IRR-A of R.A. 9184 provides that a single calculated/rated and responsive bid shall be considered for award. Clearly, notwithstanding the fact that only one bidder is determined to have responded to the requirements of the procuring entity, this fact should not forestall the bidding process or justify a declaration of a failure of bidding. The only caveat in the provision is that, in all instances, the procuring entity shall ensure that the ABC reflects the most advantageous prevailing price for the government.

2. Whether or not the BAC is given the discretion to declare a failure of bidding if only one complying bidder passes the bidding process.

A failure of bidding may be declared only in the cases provided under Sections 35.1 and 41.1 of the IRR-A of R.A. 9184. Apparently, the law expressly enumerates and limits the specific instances when there may be a failure of bidding, as well as when a specific bidder may be disqualified or declared ineligible. The legislative intent is that there can be no other valid and justifiable grounds for such actions outside the aforesaid instances. Clearly, the BAC is not in any way, given discretion to declare a failure of bidding outside those expressly enumerated under the law.

Moreover, R.A. 9184 having been enacted for the advancement of public welfare undoubtedly contains mandatory provisions. The omission then to follow such rules renders the proceeding to which it relates illegal and void, or the violation of which makes the decision therein rendered invalid. Indisputably therefore, the BAC is not in any way given any discretion to modify, more so, to contravene the provisions of this procurement statute. Violation thereto is evidently tantamount to the penal sanctions provided for under the said law.