NPM 117-2012

Requesting Entity: Bases Conversion and Development Authority (BCDA)

Issues Concern: Posting of Warranty Security under Section 62 of Republic Act 9184



Which version of the Implementing Rules and Regulations (IRR) of RA 9184 shall be applied to R.D. Policarpio and Company, Inc. (RDPCI) in posting the warranty security for a project that commenced in the year 2006?

[T]he revised IRR took effect on 2 September 2009, thus, its provisions shall apply to all procurement activities where the Invitations to Bid were posted on or after this date. x x x in the case of Lepanto Consolidated v. WMC Resources, wherein the Supreme Court held that, "in order that a law may have retroactive effect it is necessary that an express provision to this effect be made in the law, otherwise nothing should be understood which is not embodied in the law". It should be emphasized that nothing in the revised IRR provides for its retroactive application. On the contrary, Section 77 thereof recognizes the application of prior laws, rules and regulations for procurement projects advertised or posted prior to the effectivity of the revised IRR.

[C]onsidering that the IRR of RA 9184 does not provide for retroactive application, we are of the view that Section of the revised IRR should be applied prospectively to BCDA's infrastructure contracts. Hence, infrastructure projects implemented using IRR-A, but completed under the revised IRR, shall continue to require the renewal of warranty security based on Section 62.2 of the IRR-A, on the assumption that the Invitation to Bid were posted before 2 September 2009.