Requesting Entity: Phil Pharmawealth, Inc.
Issues Concern: Forms of Bid and Performance Security; Applicability of Rule on Nepotism in Appointment of Bids and Awards Committee (BAC) Members by the Head of Procuring Entity (HoPE); Filing of Motion for Reconsideration on Decisions of the HoPE
1. Whether or not forms of Bid Security as provided under Section 27.2 and the forms of Performance Security under Section 39.2 of the 2016 revised Implementing Rules and Regulations (IRR) of Republic Act (RA) No. 9184 are fixed and exclusive, such that the procuring entity cannot remove from or add to, any of the forms provided in the 2016 revised IRR?
Under the 2016 IRR of RA 9184, the prospective bidder has the discretion to select the form of Bid Security to accompany its bid, and the Performance Security to guarantee the faithful performance of its obligations under the contract;
2. Whether or not the designation made by the Governor, as Head of the Procuring Entity of the Province, of his relative within the 4th degree of consanguinity or affinity as a member of the Bids and Awards Committee is valid?
Nepotism applies in appointments and designations made by the HOPE as regards their relatives within the prohibited degree of relationship.
3. Whether or not a motion for reconsideration on the decision of the HoPE denying a protest is necessary prior to filing a petition in court under Rule 65?
The Protest Mechanism under Section 55, Rule XVII, of the 2016 IRR must be exhausted prior to resorting to court action. The filing of a Motion for Reconsideration on the decision of the HoPE is not a condition sine qua non for the filing of a Petition for Certiorari under RA 9184 and the 2016 IRR vis-a-vis Rule 65 of the 1997 Revised Rules of Court.