Requesting Entity: Office of the Municipal Engineer of Sablan
Issues Concern: Queries on Republic Act 9184 (R.A. 9184) and its Implementing Rules and Regulations-Part A (IRR-A)
Whether or not all projects and programs under the 5% calamity fund will no longer pass through the BAC, since the Sangguniang Bayan Resolution has already identified the mode of procurement.
Whether or not the 5% calamity funds are subject to the provisions of the procurement law.
A cursory reading of the foregoing provision of law (Section 4, R.A. 9184) yields the necessary inference that the procurement activity for which the 5% Calamity Fund is allotted – not the fund itself – is subject to the provisions of R.A. 9184. In other words, an appropriation for procurement, regardless of its character or source, intended for calamity or otherwise, is within the reach of the law for purposes of regulation. For as long as the same is utilized or is contemplated to be spent for any procurement activity, it shall, by force, fall within the ambit of the present procurement law; although, what remains to be at the middle of the statutory measure is the procurement activity itself.
Whether or not the Administrative Order instructing the BAC to make use of Negotiated Procurement on projects appropriated under the 5% calamity fund is in accordance with the provisions of R.A. 9184.
It is submitted that although the head of the procuring entity is empowered to identify the alternative mode of procurement which may be used by the procuring entity, the same cannot however, ipso facto, adopt a pre-identified alternative mode of procurement in as much as the law requires the attendance of certain exceptional conditions under which alternative mode of procurement may be resorted to. In other words, only under justified circumstances may competitive public bidding may be dispensed with and alternative mode of procurement be availed of. Necessarily, the resort to alternative mode of procurement may arise depending on the exigencies of the situation, and may be determined on a “case-to-case basis,” so to speak.
Hence, the Administrative Order subject of this query should, at most, be construed as an instruction for the use of the 5% Calamity Fund for the specific project contemplated, It should not in any way be a blanket authority for the resort to alternative mode of procurement; nor offer to be a basis for the pre-identification of the mode of procurement for all cases funded by the 5 % Calamity Fund. Interestingly, the conditions under R.A. 9184 providing for the basis for the resort to alternative methods of procurement may be differ in significant terms to those conditions that justify the use of the calamity fund.