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Approval of the Head of Procuring Entity on BAC Resolutions (Part 2 of 2)

20 Jul

There is only one (1) categorical instance when it is the BAC that approves:

  • Subject to the approval of the BAC, a pre-bid conference may also be conducted upon written request of any prospective bidder. (Sec.22.1)

In the second issue, the HOPE cannot be relieved of his/her accountability without altering the validity of the documents. Let us say for example where the BAC approves award in essence. Is the resolution valid? My answer is NO. If in the example the BAC approves in its resolution the Annual Procurement Plan (APP) or any of its amendments or supplements, is the resolution valid? Again it’s a NO.

Following the principle expressio unius est exclusio alterius, where the express mention of one person, thing or consequence implies the exclusion of all others, there can be no substitute to the approving authority. Having mentioned that it is the HOPE, and not the BAC, the law clearly identified the person and function. Further, approval can never be from the BAC as it is fundamental that:

In no case shall the Head of the Procuring Entity and/or the approving authority be the Chairman or a member of the BAC. (Sec.11.2.5)

This further strengthens the fact that the BAC is merely recommendatory in nature. Finally, let us quote a recent GPPB issued opinion relevant on this matter:

Number : NPM 34-2012
Subject : Delegation of Authority by the Bids and Awards Committee
Date : 2012-04-04
Requesting Entity : Supreme Court- Office of the Court Administrator
Issues Concern : Delegation of Authority by the Bids and Awards Committee
Details : Whether the Bids and Awards Committee (BAC) for the Halls of Justice of the Office of the Court Administrator may validly delegate its authority to a unit within the Supreme Court to handle Shopping and Small Value Procurement, specifically, on matters involving the Halls of Justice nationwide. 

  • [T]he BAC for the Halls of Justice may validly delegate its authority to a unit within the Supreme Court to handle shopping and small value procurement specifically on matters involving the Halls of Justice. Please be reminded however, that the delegation of the conduct of shopping and small value procurement may only be allowed provided that the BAC has rendered a decision to resort thereto. Furthermore, only those powers specifically delegated by the BAC may be exercised by the delegated unit.
  • [T]he powers delegated by the BAC do not include the power to award the procurement contract as this is vested with the Head of the Procuring Entity (HOPE). (underscoring supplied)

While the question raised was from delegation matters as stipulated under GPPB Resolution No. 09-2009 (Guidelines on Shopping and Small Value Procurement), the last paragraph of the opinion should already be self-explanatory. What will happen if the BAC resolution that requires the approval of the HOPE continues at large with just the “Noted” in it? Two major effects:

  1. The resolution had no effect or is deemed invalid, and,
  2. There is a violation in the prescribed procurement process/procedures, which may be subject to disallowance by the COA.

Let this (legal) opinion stand unless opposed by proper authorities.

 
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Posted by on July 20, 2012 in Government Procurement

 

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