NPM 064-2009

Requesting Entity: Departmend of Education (DepEd)

Issues Concern: Procurement of Fortified Instant Noodles



Seeking opinion on the interpretation and application of certain provisions of Republic Act (RA) 9184 and its Implementing Rules and Regulations relative to the bidding conducted by the DepEd for the procurement of "fortified instant noodles."

The GPPB, cannot dictate to the Bids and Awards Committee (BAC) or to the Head of the Procuring Entity (HOPE) which bidders should be declared as eligible, which bid should be accepted as the lowest calculated responsive bid, and to whom should the contract be awarded, or, as in the instant case, not to award the contract on any of the grounds provided for under Section 41 RA 9184.. We adhere to the view that the functions of the BAC and the HOPE cannot be interfered with by any government agency since these solely fall within their authority as sanctioned by law, but with the concomitant responsibility that they perform such functions with judiciousness, adhering to the principles of transparency, accountability, equity, efficiency and economy in the procurement process that it carries out for the procuring entity.

Nonetheless, for guidance purposes, we would like to point out the following:

1. The use of Section 41 (c) of RA 9184 as basis for not awarding the contract is dependent on the sound determination by the HOPE that the award of contract will not redound to the benefit of the GOP, under any of the three (3) conditions stated therein;

2. The enumeration of the grounds under Section 41 (c) is meant to be restrictive so as to prevent any potential abuse on the reservation clause provision of RA 9184. Nonetheless, the determination of whether the ground/s relied upon by the HOPE in exercising the right to cancel or not to award the contract is/are within the purview of said Section 41(c) requires a factual determination which this office cannot adjudicate on;

3. In cases where further approval of higher authority is required, the maximum period of twenty (20) days within which said authority should approve or disapprove the contract, as provided under Section 37 of RA 9184, shall be reckoned from the date when the indorsement of the contract, together with the contract, has been received by said authority; and

4. The provision under Section 38.2 of RA 9184 stating that "If no action on the contract is taken by the HOPE within the period specified in Section 37.4 of the IRR-A, the contract shall be deemed approved:xxx" requires positive and unequivocal proof of inaction before the same may be rendered operative. The fact that said provision is by itself clear and unambiguous does not merit its automatic application sans evidence of the inaction relied on.