With the Commission on Election’s parallel biddings for the refurbishment of the existing Precinct Count Optical Scan (PCOS) machines and the lease of new optical mark reader (OMR) units, the implementation of Republic Act No. 9184, otherwise known as the “Government Procurement Reform Act”, is again put to a test.
The challenges that the implementation of the law is facing continue with the various public-private partnership (PPP) projects under procurement.
These PPP projects include the Regional Prison Facilities in Nueva Ecija to be implemented by the Department of Justice with indicative project cost of P50.18 billion; Laguna Lakeshore Expressway Dike Project of the Department of Public Works and Highways with indicative cost of P122.8 billion; Davao Sasa Port Modernization Project of the Department of Transportation and Communications (DoTC) and the Philippine Ports Authority (PPA), which reaped strong opposition from the local business sector “because it is too costly” at P18.99 billion; and the South Line of the North-South Railway Projects to be implemented by the DoTC, which is touted as the biggest PPP deal to date, costing P170.7 billion.
The government procurement process covers the phases identified under the Republic Act (RA) 9184 and its Revised Implementing Rules and Regulation (IRR) -- from preparation of bidding documents, invitation to bid, receipt and opening of bids, bid evaluation, post-qualification, until the contract is awarded and implemented. In all these phases, the Bids and Awards Committee (BAC) of the procuring entity is at the helm.
The chances are relatively high, particularly in huge projects, that a bidder will raise a question at any phase of the process.
PROTEST MECHANISM UNDER RA 9184 AND THE REVISED IRR
In the spirit of transparency, competition, and accountability, RA 9184, under Article XVII thereof, provides the mechanism in the event of any such protest.
Decisions of the BAC at any stage of the procurement process may be questioned by filing a request for reconsideration within three (3) calendar days upon receipt of written notice (that is, notice of eligibility, disqualification) or upon verbal notification (during opening of bids). The BAC shall decide on the request for reconsideration within seven (7) calendar days from receipt thereof. If the BAC denies the request for reconsideration, parties may still file a protest against the decision by writing to the Head of the Procuring Entity (HOPE). Note that a request for reconsideration is a requisite before filing a protest.
The protest must be filed within seven calendar days from receipt of the BAC decision denying the request for reconsideration. The protest may be made by filing a verified position paper, accompanied by a non-refundable protest fee, with the HOPE. The HOPE shall resolve the protest, strictly on the basis of the records of the BAC, within seven calendar days from receipt of the protest.
RA 9184 states that “up to a certain amount to be specified in the IRR, the decisions of the Head of the Procuring Entity shall be final.” The IRR, however, does not specify any amount to ascertain when the decision of the HOPE is considered final; it only states, albeit vaguely: “Subject to the provisions of existing laws on the authority of Department Secretaries and the heads of agencies, branches, constitutional commissions, or instrumentalities of the GOP (Government of the Philippines) to approve contracts, the decisions of the Head of the Procuring Entity concerned shall be final up to the limit of his contract approving authority.”
So, who is the “Head of the Procuring Entity”?
The answer to this question is vital because it determines the eligibility of the protesting bidder to proceed to the next remedy provided under RA 9184, which is judicial intervention.
JUDICIAL INTERVENTION UNDER RA 9184 AND REVISED IRR
Court action may be resorted to only after the protests contemplated in Article XVII of RA 9184 shall have been completed. Cases filed in violation of the process specified in the said article shall be dismissed for lack of jurisdiction.
Without prejudice to any law conferring on the Supreme Court sole jurisdiction to issue temporary restraining orders and injunctions relating to government infrastructure projects, RA 9184 confers on the Regional Trial Court jurisdiction over final decision of the Head of the Procuring Entity. Court actions shall be governed by Rule 65 of the 1997 Rules of Civil Procedure; Rule 65 refers to petitions for certiorari, prohibition, and mandamus.
HEAD OF THE PROCURING ENTITY
RA 9184 defines “Head of the Procuring Entity” as “(i) the head of the agency or his duly authorized official, for national government agencies; (ii) the governing board or its duly authorized official, for government-owned and/or-controlled corporations; or (iii) the local chief executive, for local government units.” The definition however has a proviso: “in a department, office or agency where the procurement is decentralized, the Head of each decentralized unit shall be considered as the Head of the Procuring Entity subject to the limitations and authority delegated by the head of the department, office or agency.”
There appears to be no issue on who the HOPE is in national government agencies, government-owned and/or-controlled corporations, and local government units, as it is specified in the law. The protesting bidder may resort to court action after the HOPE in such offices renders his decision, which is considered final, on the protest.
The determination of the HOPE in departments, offices or agencies where procurement is decentralized, however, poses a problem for a protesting bidder; this is true in procurements by bureaus and field offices of departments, offices or agencies, with regionalized procurements.
While RA 9184 says that the “Head of each decentralized unit” shall be considered as the HOPE, it also says that the “decisions of the HOPE shall be final up to the limit of his contract approving authority.” The law appears to require a determination of the contract approving authority of the HOPE, i.e., Head of the decentralized unit, under existing laws, before a protesting bidder may resort to court action from the HOPE’s decision.
This is no mean feat for a protesting bidder, who, with the limited time to seek judicial intervention, must first determine the limit of the contract approving authority of the HOPE before considering the latter’s decision on the protest “final”.
One likely source for such information may be the Administrative Code of 1987 (Executive Order No. 292), which provides for the limitations on the authority of particular departments or offices on certain contracts.
Other sources may be the laws creating particular offices or agencies of the government, rules and regulations, or other issuances on their authority. While RA 9184 refers to the Government Procurement and Policy Board (GPPB) as the repository of all information relating to government procurement, GPPB’s Web site can only hold so much information as may be made available to it by the departments, offices and agencies of the government.
If the contract approving authority of the HOPE is lesser than the project cost, i.e., Approved Budget for the Contract (ABC), RA 9184 suggests that a protesting bidder cannot resort to court action from the final decision of the HOPE, but must exhaust his remedies within the decentralized department, office or agency. This, unfortunately, is not clearly stated in RA 9184 and the IRR, which only vaguely suggest under Section 56 thereof, that “subject to the provisions of existing laws on the authority of Department Secretaries and the heads of agencies, branches, constitutional commissions, or instrumentalities of the GOP to approve contracts, the decisions of the Head of the Procuring Entity concerned shall be final up to the limit of his contract approving authority.”
This lack of clarity in the law certainly puts an unwitting bidder at a disadvantage. But then, there is no better recourse for a bidder to gain a chance of hope in his protest relating to government procurements than to know the HOPE.
(References: RA 9184 and its Revised IRR; Pipeline of Projects (ppp.gov.ph); DCCCII President Antonio F. dela Cruz, as quoted in BusinessWorld article “DoTC, PPA invited to local consultations on Sasa Port modernization”, June 22, 2015; BusinessWorld article “Biggest PPP deal to date lures firms”, July 16, 2015; Executive Order No. 292)
Myra S. Montecalvo-Quilatan is a Senior Associate of the Angara Abello Concepcion Regala & Cruz Law Offices (Davao Branch).
(082) 224-0996
msmontecalvo@accralaw.com
source: Businessworld
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