To bid or not to bid? That is the question.
I already have answered this question a many times but still the question never died in the hearts and minds of the skeptics.
Primary contention: “Why do we have to bid items (text books) that can be directly contracted?”
My answer is a question: “Why can’t we bid those items?”
The reason I answered that way is because the question is not in its proper sense. It is just like asking “Which came first? The chicken or egg?” We are no more kids who lack knowledge and wisdom. We can answer the question with complete certainty that it is indeed the chicken that came first. In the case at hand, we should be able comprehend just the same.
Republic Act No. 9184 speaks in a very definite manner under Sec.10:
SEC. 10. Competitive Bidding. – All Procurement shall be done through Competitive Bidding, except as provided for in Article XVI of this Act.
What is the exception being argued upon? In case of textbooks, Sec. 50(a) and 50(c) are commonly being invoked:
SEC. 50. Direct Contracting. – Direct Contracting may be resorted to only in any of the following conditions:
(a) Procurement of Goods of proprietary nature, which can be obtained only from the proprietary source, i.e. when patents, trade secrets and copyrights prohibit others from manufacturing the same item;
x x x
(c) Those sold by an exclusive dealer or manufacturer, which does not have sub-dealers selling at lower prices and for which no suitable substitute can be obtained at more advantageous terms to the government.
At first glance, the provisions are appealing and inviting. For how can anyone bid for certain books if there is only one publisher of it that has exclusive copyright of the contents, or if there is only one exclusive dealer of such books or materials? Surely, only that exclusive publisher having the copyright can provide such books. However, careful reading of the entirety of the law will reveal the legislative intent which should be realized as the spirit of the law.
SEC. 18. Reference to Brand Names. – Specifications for the Procurement of Goods shall be based on relevant characteristics and/or performance requirements. Reference to brand names shall not be allowed.
If we will insist that certain books being offered by a publisher should be directly contracted, we are exercising unwarranted discretion where the law provides the contrary in a general rule. If we will refer to book tiles, it will be tantamount to referring to a brand name which is prohibited under the law. In an analogous example of dispensing public bidding for items of intellectual property such as inventions, the GPPB issued NPM 017-2007, NPM 042-2012, and more recently NPM 052-2012 to explain the manner on how Direct Contracting can be resorted legally.
In fact, in the Supreme Court decision of Department of Budget and Management Procurement Service (DBM-PS) and the Inter-Agency Bids and Awards Committee (IABAC) Vs. Kolonwel Trading.(G.R. No. 175608, June 8, 2007), public bidding was never questioned by any publisher participating therewith. All participating publishers have strictly adhered with the requirements of R.A No. 9184. In applying the governing principles of government procurement (Sec.3, R.A. 9184):
x x x
(b) Competitiveness by extending equal opportunity to enable private contracting parties who are eligible and qualified to participate in public bidding
x x x
Article 28 of the New Civil Code is clear in preventing unfair competition and where the law cannot countenance. Democracy becomes a veritable mockery if any person or group of persons by any unjust or highhanded method may deprive others of fair chance to engage in business or to earn a living. (Report of the Code Commission, page 31)
Art. 28. Unfair competition in agricultural, commercial or industrial enterprises or in labor through the use of force, intimidation, deceit, machination or any other unjust, oppressive or highhanded method shall give rise to a right of action by the person who thereby suffers damage.
Finally, looking in the Department of Education’s take on the procurement of textbooks, we can infer from their Department Order No. 112-2009 regarding the list of supplementary materials and its guidelines. Quoting from the text of the said issuances, particularly Par.1.b.:
DepEd offices may purchase materials included in the enclosed non-exclusive list in accordance with Republic Act No. 9184, otherwise known as Government Procurement Reform Act, and its Revised IRR, and its revised Implementing Rules and Regulations (IRR). It is understood that in procuring such materials, it shall not limit the bidding opportunity to those referred to in the enclosed list but shall extend to other contracting publishers/ suppliers/ distributors who are capable of complying with Department’s requirements based on the same standard/criteria used in the evaluation of the enclosed list of supplementary and reference materials. The enclosed non-exclusive list shall be regularly updated in accordance with the evaluation standards and criteria set by the DepEd Instructional Materials Council Secretariat (IMCS); (emphasis and underscoring supplied)
The adherence to R.A 9184 was further stressed thru issuance of Department Order No.119-2009. Nowhere in the DepEd guidelines can we find a directive to adopt Direct Contracting as a generally accepted mode of procurement of text books as against Public Bidding. If DepEd is not inclined with the former, why can’t we just adopt the latter? There can only be one compound reason to my mind and I will rest my case thereafter – PERSONAL AND CONFLICTING INTEREST.