NPM 159-2004

Requesting Entity: Office of the President

Issues Concern: Waiver by BAC of the eligibility requirement prescribed in Section of IRR-A



Whether the eligibility requirement for a single largest completed contract of at least fifty percent (50%) of the Approved Budget for the Contract may be waived taking into account the urgency of the procurement and the limited availability of the goods from the local market.

The eligibility requirements marked out in R.A. 9184 and its IRR-A are minimum standards imposed to limit public procurement policy to those who are fit and capable to transact with the government. These are statutory prescriptions which purport to ensure that the government deals only with those who have the capability to execute and deliver according to the formerís requirements and to keep safe its interests against undue prejudice by less-than-promising desirous contractors.

Such requirements are neither rights nor claims solely under the dominion and holding of any governmental entity which may be relinquished or dispensed with. They are ultimately tools for the protection and advancement of the interest of the public in general and, as such, are under public charge. As a matter of fact, having been embodied as a law, it becomes a command of sort and imposes a positive duty to all governmental entities which in the prosecution of their mandate may come around the ambit of the procurement law. Otherwise, waiver of the statutory criteria may only prove to negate the policy behind the legislation of our procurement law.

Waiver of the eligibility requirements cannot stand against the clear provisions of law and the dictates of public policy. The provisions of R.A. 9184 are meant to be implemented according to its letters and consonant to its intentions. Not even considerations of convenience and urgency prove sufficient to supplant or defeat the requirements it sets.