NPM 139-2004

Requesting Entity: Department of Justice

Issues Concern: Opinion on Philippine Ports Authority’s Request for Exemption from the Conduct of Public Bidding for its Proposed Extension of Berth and Berthing Facilities at the Batangas Port Development Project, Phase 2



1. Whether or not the proposed extension of berth and berthing facilities at the BPDP2 may be exempted from the conduct of public bidding as required under Republic Act 9184 (R.A. 9184).

Based on the afore-quoted provision (Section 4, R.A. 9184), although R.A. 9184 covers all types of government procurement regardless of source of funds, it recognizes the Government’s international commitments and obligations in requiring that any treaty or international or executive agreement be observed. Concomitantly, the Implementing Rules and Regulations (IRR) for R.A. 9184 shall be divided in two (2) parts, namely, IRR Part A (IRR-A) and IRR Part B (IRR-B). Procurement activities that are fully domestically-funded shall be governed by IRR-A, while procurement activities that are foreign-funded shall be governed by IRR-B.

Considering that foreign-funded procurement activities are governed by R.A. 9184 through its IRR-B, and considering further that the said IRR-B has not yet been promulgated, foreign-funded procurement activities may be conducted following the guidelines set by the lending institution concerned in the loan agreement. It should be emphasized, however, that in case such loan agreement is silent as to the governing guidelines, the provisions of the IRR-A of R.A. 9184 shall apply.

2. Whether or not compliance with the requirements provided for in Section 4 of E.O. 109-A is necessary for projects funded out of loan agreements.

As differentiated from the rules and procedures for modes of acquiring government contracts, E.O. 109-A provides for the rules and procedures in the review and approval of all government contracts. It is expressed on general terms; and notwithstanding the lack of a provision pertaining to its scope and application, it is apparent that it does not make any distinction with respect to its applicability to government contracts. Apparently, its title is categorical on this note.

It has been repeatedly declared by the courts that where the law speaks in clear and categorical language, there is no room for interpretation or construction; there is only room for application. As such, considering that E.O. 109-A is categorical on its application, the rules and procedures provided therein shall apply to all government contracts regardless of the funding source or mode of its acquisition.