Requesting Entity: Philippine Postal Corporation
Issues Concern: Constitution of the BAC, BAC Secretariat and TWG
1. In a government corporation, to whom is the power to constitute and appoint membership in the Bids and Awards Committee (BAC), BAC Secretariat and Technical Working Group (TWG) vested?
According to Section 220.127.116.11 par.2 of the Implementing Rules and Regulations Part-A (IRR-A) of Republic Act No. 9184, it is the Head of the Procuring Entity (HOPE) that shall designate the members of the BAC, including the Chairman and the Vice-Chairman
Likewise, it is the HOPE that shall also create a permanent BAC Secretariat which will serve as the main support unit of the BAC. For this purpose, it has the discretion of creating a new office or merely designating an existing organic office with such functions.
With regard to the creation of the TWG, however, it is within the legal mandate of the BAC to create the same from a pool of technical, financial, and/or legal experts to assist in the procurement process. TWG members tasked to aid, particularly, in the eligibility screening evaluation of bids and post-qualifications, may be selected on the basis of the proficiency required and the nature of the procurement to be undertaken.
2. Whether, the Head of the Procuring Entity authorized to designate the members of the BAC, refers to the head of the government corporation, the Postmaster General in this case, or the Board of Directors.
The definition of HOPE is clearly stated in Section 5 (m) Rule 1 of the IRR-A, thus it is the Board of Directors which has the authority to make the appointments in question, provided that the qualifications of the BAC members required under the law are validly complied with. The Postmaster General, therefore, cannot legitimately designate members of the BAC unless he is armed with the Board resolution duly authorizing him for said purpose.
3. What is the legal ramification of the designations to the BAC made by the Postmaster General if the Board of Directors is considered the HOPE?
[T]he Postmaster General may be said to have committed an ultra vires act, or an act beyond the scope of his authority, since it is the Board of Directors which is mandated by RA 9184 to perform the said task. This is in accordance with the primary rule under the corporate set-up that in the absence of authority from the board of directors, no person, not even the officers of the corporation, can validly bind the corporation.
In relation to the foregoing, and in view of the facts presented, it is the opinion of this Office, without prejudice to the provision of Republic Act. No. 7354 (RA 7354), and other relevant laws, that the designation of the BAC members made by the Postmaster General, shall be deemed voidable, unless they are ratified by the Board of Directors. Correspondingly, the designations of the TWG members are likewise annullable, unless ratified by the BAC members to be selected by the Board of Directors.