Requesting Entity: Department of Budget and Management Regional Office No. VII (DBM RO VII)

Issues Concern: Attendance of Bidders or their Duly Authorized Representative During Bid Opening

Details

Whether the presence of the bidder’s representative is necessary during the bid opening.

As expressly provided in Section 29 of the Implementing Rules and Regulations of Republic Act 9184, bidders or their duly authorized representative may attend the opening of the bids. The word “may” when used in a statute is permissive only and operates to confer discretion; while the word “shall” is imperative, operating to impose a duty which may be enforced. “May” is an auxiliary liberty, opportunity, permission, and possibility. Its use in a provision shows that the act is discretionary, not mandatory. As such, we wish to point out that the attendance of the bidders during bid opening is not mandatory, but merely discretionary or optional.

We wish to clarify that although Clause 6.2 (h) of the ITB and Paragraph 2 of the OSS require a document showing proof of authorization of the designated person, it does not require that the authorized person be the one to attend the bid opening. There is nothing in the requirement that mandates the authorized person to attend the bid opening.

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In this regard, bearing in mind that the attendance of the bidders in the opening bids is optional, it follows that the afore-stated proof of authorization is not necessary whenever a bidder’s representative, other than the one authorized in the OSS, attends the bid opening. As such, we are of the view that it is not necessary for the bidder’s authorized representative as reflected in the OSS to attend the bid opening. Corollary to this, the attendance of a representative, other than the one authorized by the bidder in its OSS, is not a ground for disqualification.