Requesting Entity: National Food Authority (NFA)

Issues Concern: Officer-in-charge as Head of the Procuring Entity

Details

Whether an OIC of an agency may be considered as the Head of the Procuring Entity (HOPE).

An Officer-In-Charge of an Agency may be considered as the Head of the Procuring Entity (HOPE) in accordance with Section 5(t) of the IRR of RA 9184, provided that his designation does not contain specific reservations, limitations or qualifications which may run counter to the functions or authority of a HOPE.

Whether the OIC of an agency can sign/approve BAC Resolutions (i.e. recommending the change of procurement modality or amendment of APP), Notices of Award (NOA), Contract Agreements and Notice to Proceed, that were undertaken when he was the Vice-Chairperson of the BAC.

In NPM No. 16-2009, this office opined that the HOPE or his duly authorized authority may approve or disapprove the recommendation of the BAC as long as he is neither the Chairman nor a member of the BAC that rendered the recommendation. It bears stressing that the prohibition is intended to avoid any conflict of interest between the person who undertakes the procurement and recommends the award of the contract and the one who approves said transaction. This approach finds solace in the adage that one cannot have his cake and eat it too. We also noted that [t]he subject procurement is deprived of checks and balances as one of the persons conducting the bid evaluation and post-qualification, may have that degree of proclivity towards the recommended action of the BAC; thus, the subsequent award of contract may no longer enjoy the cold neutrality of an impartial HOPE.

[S]imilar to the recommendation of award of contract, the HOPE or his duly authorized representative may approve or disapprove the BAC’s recommendation to change the mode of procurement and amendment of APP.

As regards the issuance of NTP under Section 37.4.1 of the IRR of RA 9184, distinction must be made between the approval, signing of contracts and NTP, such that the first refers to the affirmation by the HOPE of the BAC’s recommendation, while the second and third pertain to the act of the HOPE in affixing his signature in the contract and the NTP. In an earlier opinion, this Office explained that the BAC Chairman, in his capacity as OIC General Manager, although bereft of authority to approve the award of contract, may sign the contract and issue the NTP, provided, that, the proper resolution is previously issued for the purpose. Thus, the OIC as HOPE may sign the NTP of a project that was procured when he was a BAC member, as long as the contract has been duly awarded by the previous HOPE.