General Provisions of RA 9184

GENERAL PROVISIONS OF RA 9184 AND ITS REVISED IRR

EMILY R. MARUNDANEd.DELM 310 Educational Legislation

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Historical Background

Early laws on Procurement

In 1900, the United States Philippine Commission introduced the American practice of public bidding in procurement in the Philippines

Act No. 22 – Chief Engineer of US Army acted as the purchasing agent of government

Act No. 74 (1901) – mandated contracts for purchase of school supplies thru invitation to bid and the awarded to the lowest responsive bidder

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Historical Background

Act No. 82 (1901) – Provincial Governors and Municipal Mayors to enter into contracts for public works and purchase of office supplies thru competitive bidding

Act No. 146 – creating Bureau of Supply (supplies, materials, equipment etc)

EO 16 (1936) – No contract shall be entered into or renewed without public bidding

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Historical BackgroundThe Administrative Code of the Philippines

(1917) Procurement – acquisition of supplies,

materials and equipment for the various offices and branches of Government (Supply Law)

Bureau of Public Works – award of contracts for the construction and repair of national public works and improvements

Procurement and Supply Law Office of Insular Purchasing Agent (1910) Division of Purchase and Supply (1932) The Procurement Office (1947) Bureau of Supply under Department of General

Services (1958) 4

Historical BackgroundPre-Reform Procurement Legal Structures

1. Procurement of Civil Works – Presidential Decree No. 1594 (1978)

2. Procurement of Goods – EO No. 302 (1996), EO No. 201 (2000), as amended by EO 262 (2000)

3. Procurement of Consulting Services – NEDA guidelines (1998)

4. Procurement among LGUs – RA No. 7160 (1990)

5. EO 40 (2001) – Consolidated procurement rules and regulations for NGAs, GOCCs and GFIs

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Enactment of GPRA

Implementing Rules and

RegulationsExecutive

OrdersAdministrative Issuances

Memorandum Circulars

Over 100 Procurement Rules and Regulations

Government Procurement Reform Act

10 January 2003Implementing Rules and Regulations (IRR) Part A

8 October2003Revised IRR

2 September 2009

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Procurement Reforms

PROBLEMS REFORMS• Confusion caused by

fragmented legal system• Enactment of the

Government Procurement Reform Act (GPRA)

• Inconsistent policies, rules, and regulations due to lack of standards

• Creation of the Government Procurement Policy Board (GPPB)

• Lack of transparency • Use of PhilGEPS

• Lack of check and balance

• Participation of civil society

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Consolidation of House Bill 4809 and Senate Bill 2248

Signed into law on 10 January 2003

Published on 11 January 2003

Took effect on 26 January 2003

IRR Part A took effect on 8 October 2003

Revised IRR took effect on 2 September 2009

Enactment of GPRA

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Covers procurement of all government agencies General Rule is Public/Competitive Bidding Alternative Methods of Procurement allowed in

highly exceptional cases Use of the Approved Budget for the Contract (ABC)

as ceiling for the bid price Use of transparent, objective, and non-discretionary

criteria Increased transparency in the procurement process Professionalization of procurement officials Inclusion of Penal and Civil Liabilities

Key Features of GPRA

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Big procuring entities - defense, education, health, public works, transportation and communicationsOversight agencies - budget, planning, finance, trade, science and technology, interior and local government, energyPrivate Sector RepresentativeResource Persons (audit, anti-corruption agencies)

GPPB as an Inter-Agency Body

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Policy-Making Amend implementing rules & regulations of procurement

law (quasi-legislative function) Prepare generic procurement manual and standard

bidding forms

Capacity Development Establish a sustainable training program

Monitoring Assist procuring entities improve their compliance Review effectiveness of procurement law

GPPB Functions

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GPPB has no jurisdiction to rule over actual controversies with regard to the conduct of the bidding since it has no quasi-judicial functions under the law.

It is the prerogative and discretion of the procuring entity through its BAC to come up with the declaration since they are in the best position to determine the details of their Project. (NPM 56-2013)

GPPB Functions

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GPPB Website

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Serves as the primary and definitive source of information on all government procurementUtilized for the procurement of common-use supplies to take advantage of bulk purchasingFeatures of the PhilGEPS

Electronic Bulletin Board Electronic Registry Electronic Catalogue Virtual Store Electronic Payment Electronic Bid Submission

Philippine Government Electronic Procurement

System (PhilGEPS)

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§8.5.1 RA 9184 IRR requires suppliers, contractors, consultants to register with PhilGEPS. It does not qualify based on threshold.

Inapplicability of the posting requirement is not tantamount to a situation where PhilGEPS registration may also be dispensed with since the amount of the project is not a factor for the condition to apply.

Registration with PhilGEPS is absolute, and must be complied with regardless of the cost of procurement.

Reference: NPM 34-2013

PhilGEPS Registration

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Sections 23.4 and 24.4.3 allows the BAC of a procuring entity to “maintain a registry system using the PhilGEPS or its own manual or electronic system that allows submission and/or recording of eligibility requirements simultaneously with registration.” However, Prospective bidders not included in the registry system should not be precluded from participating in any procurement opportunity.


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This should not be considered an accreditation system, and is not tantamount to a finding of eligibility, nor a guarantee that the registered supplier, contractor, or consultant will be eligible for any particular procurement activity or contract award. (NPM 16-2013)


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During Public Bidding Participates as Observer in all stages

of the procurement process

During Contract Implementation National Text Book Delivery Program

“Text Book Count 1-2-3” Medicine Monitoring by NAMFREL

Participation of CSOs

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JSDF PROJECTR.A. 9184 applies to all branches and/or instrumentalities of the government:

1. National Government Agencies (NGAs) 2. State Universities and Colleges (SUCs)3. Government Owned or Controlled

Corporations (GOCCs)4. Government Financial Institutions (GFIs)5. Local Government Units (LGUs)

Scope and Coverage

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It shall apply to all procurement activities involving:

1.Goods and Services 2.Infrastructure Projects3.Consulting Services

Scope and Coverage

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Scope and CoverageSection 4, Revised IRR

All fully domestically-funded procurement activities

All foreign-funded procurement activities, unless otherwise provided in a treaty or int’l/executive agreement

As may be agreed upon by the GOP and IFI in their treaty or int’l/executive agreement

• Projects funded from foreign grants• Projects for International Competitive Bidding• Consulting Services for National Competitive Bidding

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EXCEPT:Procurement for goods, infrastructure projects, and consulting services funded from Foreign Grants covered by R.A. 8182, as amended by R.A. 8555, entitled “An Act Excluding Official Development Assistance (ODA) from the Foreign Debt Limit in order to Facilitate the Absorption and Optimize the Utilization of ODA Resources, Amending for the Purpose Paragraph 1, Section 2 of Republic Act No. 4860, as amended”, unless the GOP and the foreign grantor/foreign or international financing institution agree otherwise;

Acquisition of real property which shall be governed by R.A. 8974, entitled “An Act to Facilitate the Acquisition of Right-of-Way Site or Location for National Government Infrastructure Projects and for Other Purposes,” and other applicable laws;

Scope and Coverage

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Public-Private sector infrastructure or development projects and other procurement covered by R.A. 6957, as amended by R.A. 7718 (BOT Law), entitled “An Act Authorizing the Financing, Construction, Operation and Maintenance of Infrastructure Projects by the Private Sector, and for Other Purposes,” as amended;

Disposal of government properties;

1. Commission on Audit Circular No. 86-2642. National Budget Circular No. 425

Scope and Coverage

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Leasing out of publicly-owned real property for private use

- Transactions where a government agency leases out its real property for private use, such as in the case of a canteen or food concessionaire, are governed by Executive Order 301 (Series of 1987), particularly Section 7 thereof, and its associated guidelines.

- Implementing Guidelines for Lease of Privately-Owned Real Estate guidelines will only apply to lease of privately-owned real estate by government agencies for official use. (NPM 50-2013)

[ Consignment; and,

Scope and Coverage

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Formation of Joint Venture Partnerships between government corporations and private entities.

- Where a project pertains to a JV between a GOCC and a private entity in pursuit of development goals, the rules for such transaction are either covered by the Joint Venture Guidelines issued by NEDA pursuant to §8 of EO 423 (s. 2005); or by RA 6957 (BOT Law), as amended by RA 7718. RA 9184 and its IRR, including its associated guidelines, such as the Guidelines on the Sale of Bidding Documents, do not apply. (NPM 28-2013)

Scope and Coverage

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DEFINITION OF TERMS

What is PROCUREMENT?

Procurement refers to the acquisition of goods, consulting services, and the contracting for infrastructure projects by procuring entity.

(Sec. 5(aa), IRR, R.A. 9184)27

GOODSRefer to –All items, supplies and materialsIncluding general support servicesWhich may be needed in the project or activity, whether in the nature of equipment, furniture, stationery, or contractual services, such as:

1.repair and maintenance of equipment and furniture2.trucking, hauling, janitorial and security and other related and analogous services.

EXCEPT: consulting services and infrastructure projects

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Refer to - construction, improvement, rehabilitation, repair /restoration of

civil works components of :1. IT projects2. Irrigation3. flood control and drainage4. water supply5. sanitation, sewerage and solid waste management6. national buildings, hospital buildings, and other related constructions projects of the Government.

RA 9184 and its IRR does not apply to Public/Private Sector Infrastructure Projects under RA 6957 (Act Authorizing Financing, Construction, Operation and Maintenance of Infra Projects by the Private Sector.) as amended by R.A. 7718 (BOT Law)

INFRASTRUCTURE PROJECTS

CONSULTING SERVICESRefer to services for Infrastructure Projects and other types of projects or activities of the Government requiring adequate external technical and professional expertise that are beyond the capability and/or capacity of the Government to undertake such as, but not limited to:

(i) advisory and review services; (ii)pre-investment or feasibility studies; (iii)design; (iv)construction supervision; (v)management and related services; and (vi)other technical services or special studies.

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MIXED PROCUREMENT

In case of projects involving mixed procurements, the nature of the procurement, shall be determined based on the primary purpose of the contract.

Determination shall be made by the procuring entity.

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DETERMINATION OF TYPE OF PROCUREMENT

Classification of ICT Services

PE is in the best position to determine the correct classification of its procurement based on its identified needs and the best way by which these needs may be addressed, managed, and satisfied.

It is the motivation or intention of the PE in pursuing the project that will determine the primary purpose of a project.

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DETERMINATION OF TYPE OF PROCUREMENT

Classification of ICT Services

PE should be guided by the parameters and conditions in the relevant provisions of RA 9184 and its IRR on what should be considered as Goods, Infrastructure Projects or Consulting Services procurement. (NPM 11-2013)

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Principles of Public Procurement

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P ublic Monitoring Awareness and vigilance

A ccountability Responsibility over actions/decisions (“Answerable”)

C ompetitiveness Equal opportunity to all eligible bidders

T ransparency Wider dissemination of bid opportunities

S treamlined Process Uniformly applicable to all government agencies Effective and efficient method

Governing Principles

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1.Allows public involvement of qualified and eligible Civil Society Organizations (NGOs, PAs, academic institutions, and religious groups) to observe and monitor the procurement process until contract implementation.

2.Increased transparency of procurement transactions.

Essence of PUBLIC MONITORING

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Pertinent laws and the prescribed procedures must be faithfully complied with in the discharge of functions in all stages of the procurement process as well as the implementation of contracts.

Private parties that deal with government should also be held accountable for their actions.

ACCOUNTABILITY OF PUBLIC OFFICIALS

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As a rule, procurement must be conducted through competitive bidding process, unless otherwise provided under GPRA, its IRR and this Manual, then the Alternative Methods of Procurement can be resorted to.

This is to guarantee:1.Equitable and fair grounds for competition among bidders.2.That no single bidder significantly influences the outcome of the bidding.

How to ensure COMPETITIVENESS

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1. Posting in the Procuring Entity’s website,2. Posting in the PhilGEPS website, and3. Posting in a conspicuous place within the

premises of the PE is required for all procurements.

4. Each procurement transaction must be properly documented and such records must be maintained and made available to proper parties.

How to ensure TRANSPARENCY

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1. Uniform application to all government procurements.

2. Simple and adaptable to advances in modern technology in order to ensure an effective and efficient method of procurement.

GPPB conducts a periodic review of government procurement procedures, and whenever necessary, formulates and implements changes thereto.

Essence of STREAMLINED PROCUREMENT SYSTEM

Procurement Methods and Procedures

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All Procurement shall be done through competitive bidding except as provided in R.A. 9184.

Resort to alternative methods shall be made:

Only in highly exceptional cases

To promote economy and efficiency

Justified by conditions specified in R.A. 9184 and its IRR

Procurement Methods

Procurement Methods

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Bidding Process (Goods & Infra)

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Pre-BidConference

Pre-Procuremen

t Conference

Advertisement and/or Posting

Bid Evaluation Post-qualificationContract Award

Opening ofTechnical Proposal (incl. eligibility docs)

Opening ofFinancial Proposal

Bid Submission

Bidding Process (Consulting)

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Bid Evaluation(QBE or QCBE)

Post-qualification

Pre-Procuremen

t Conference

Advertisement and/or Posting

Opening ofBids

(QBE or QCBE)

Bid Submission

Contract

AwardNegotiation

Eligibility and Shortlisting

Pre-BidConference

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Procurement ORGANIZATIONS

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FUNCTIONS AND RESPONSIBILITIES:1. Establishes BAC and appoints its members

Ensures that BAC members give their utmost priority to duties

Ensures professionalization of members of the procurement organization

2. Approves the Annual Procurement Plan (APP)

3. Approves/Disapproves the Contract Award

4. Resolves Protests

HEAD OF PROCURING ENTITY (HOPE)

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As a general rule, HOPE must create a single BAC. However, separate BACs may be created under any of the following conditions:1.The items to be procured are complex or specialized; 2.If the single BAC cannot reasonably manage the procurement transactions as shown by delays beyond the allowable limits; or3.If the creation is required according to the nature of the procurement.

BIDS AND AWARDS COMMITTEE (BAC)

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PE’s creation of sub-BACs to be placed under a main BAC is not in compliance with the requirements under Sec 11 of the IRR of RA 9184.

PE may, however, establish separate BACs with the composition of the BAC members subject to the qualifications under Section 11.2.2 of the IRR of RA 9184. Each BAC shall not be considered as decentralized committees pursuant to Section 11.1.2 of the IRR since it will be headed by a single HOPE. (NPM 74-2013)


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FUNCTIONS AND RESPONSIBILITIES:

Recommends Procurement MethodCreates a Technical Working Group (TWG)Conducts the bidding activitiesResolves Requests for ReconsiderationRecommends Imposition of SanctionsInvites Observers during all stages of the procurement processConducts due diligence review or verifications of the qualifications of observersPrepares Procurement Monitoring Report


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MEMBERSHIP AND QUALIFICATIONS:

BAC members should occupy plantilla positions with the procuring entity concerned.

All members are regular members except the end-user member who is considered as a provisional member. The members, whether regular or provisional, are equally entitled to participate and to vote during deliberations.


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COMPOSITION: 5 but not more than 7 MEMBERS designated by the HOPE1.Regular Members:Chairperson (3rd Ranking Permanent Official);Member representing the Legal or Administrative areas (5th or 3rd Ranking Permanent Personnel);Member representing the Finance Area (5th or 3rd Ranking Permanent Personnel);

2. Provisional MembersOfficer possessing Technical expertise relevant to the procurement.End user unit Representative.


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The members including the Chairman shall be designated by the Head of the Procuring Entity.

Regular Members 1.Chairman (At least 3rd Ranking Permanent Official);2.Member representing the Legal or Administrative areas of the procuring entity; 3.Member representing the Finance Area of the Procuring Entity.

Provisional Members 1. An officer who has Technical expertise relevant to the procurement.2.Representative from the end user unit.

BAC for NGAs, GOCCs, GFIs and SUCs

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The Local Chief Executive shall designate the members of the BAC.

The BAC members shall elect among themselves who shall act as the Chairman and Vice-Chairman.

Members:1.Administrator’s Office2.Budget Office3.Legal Office4.Engineering Office5.General Services Office6.End User Office

BAC for Local Government Units

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Same qualifications as their principals.Same term as the principal.Presence of alternate BAC members in BAC meetings are considered for purposes of quorum.The relationship of the principal and the alternate is of co-equal nature, rather than hierarchical.Accountability shall be limited to their respective acts and decisions.Shall be entitled to the corresponding honoraria for attendance in meetings.

Alternate BAC Members

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TERMS OF MEMBERSHIP:

The BAC members shall be designated for a term of one (1) year only, reckoned from the date of designation. However, the HOPE may renew or terminate such designation at his discretion.

Upon expiration of the terms of the current members, they shall continue to exercise their functions until new BAC members are designated.


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TERMS OF MEMBERSHIP:

In case of resignation, retirement, separation, transfer, re-assignment, or removal of a BAC member, the HOPE shall designate a replacement that has similar qualifications as the official replaced. The replacement shall serve for the unexpired term. In case of leave or suspension, the replacement shall serve only for the duration of the leave or suspension.


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1.Head of the Procuring Entity

2.Official who approves procurement contracts;

Designation of the HOPE’s Executive Assistant (EA) as Provisional Member of the BAC - only when the EA is an approving authority that it is disqualified under §11.2.5 of the IRR of RA 9184 from becoming a BAC member. (NPM 32-2013)

PROHIBITED BAC MEMBERS

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3. Chief Accountant or Head of the Provincial/City/Municipal Accounting Office and his/her staff, unless the Accounting Department is the end-user unit, in which case the Chief Accountant, Head of the Accounting Department or his/her staff may be designated as an end-user member. (COA Circular Letter No. 2004 – 3)

PROHIBITED BAC MEMBERS

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Conflict of interest arises when, in the case of the subject matter of the inquiry, the Chairman of the BAC that conducted the earlier procurement was eventually designated as OIC-HOPE.

The subject procurement is deprived of checks and balances as one of the persons conducting the bid evaluation and post-qualification, who is no less than the BAC Chair, 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. (NPM 14-2013)

CONFLICT OF INTEREST

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HOPE may create a new office or designate an existing organic office to act as BAC SecretariatThere is no minimum or maximum number of members of the BAC Secretariat.Head of the BAC SEC must be at least a 5th or 3rd ranking permanent employee or, if not available, a permanent official of the next lower rank

BAC SECRETARIAT

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FUNCTIONS:Provide administrative support to the BACOrganize BAC meetings and conferencesTake custody of procurement documents and other recordsManage the sale and distribution of bidding documentsAdvertise/post bidding opportunities and notices of awards

BAC SECRETARIAT

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FUNCTIONS:

Assist in managing the procurement processMonitor procurement activities and milestonesConsolidate PPMPsAct as central channel of communications

BAC SECRETARIAT

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FUNCTIONS:

Assist in managing the procurement processMonitor procurement activities and milestonesConsolidate PPMPsAct as central channel of communications

BAC SECRETARIAT

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BAC Secretariat Head cannot notarize resulting contract of the procurement activities. (NPM 66-2013)-The BAC Sec provides a vital supporting role for the PE in the procurement process. If the BAC Sec Head is to notarize the resulting contract, she would then take on a more central role by bestowing upon the contract the imprimatur of a legal attestation by a third person.

-This may invite suspicion of unfaithfulness, conflict of interest, which may cast doubt on the contract in particular, and the entire procurement activity as a whole.

BAC SECRETARIAT

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•BAC Secretariat Head’s authority to sign procurement-related documents should be confined to those that are within the scope of her duties and responsibilities under RA 9184 and its IRR, and should exclude those that require the exercise of discretion, consent or approval on matters under the jurisdiction of a different authority. (NPM 66-2013)

BAC SECRETARIAT

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Section 14 of RA 9184 and its IRR limits the responsibilities of the BAC Secretariat to administrative support functions and primarily ministerial duties. Since the BAC Secretariat is limited to these functions, the conduct of opening and preliminary examination of bids, where discretion and sound judgment is required, cannot be considered as clerical or secretariat nature; therefore, outside the functions of the BAC Secretariat. (NPM 69-2013)

BAC SECRETARIAT

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Created by the BAC from a pool of legal, technical and financial experts -those experts outside the procuring entity concerned may be included, i.e. government personnel and officials and consultants from the private sector and academe with proven expertise on the sourcing of goods, works or consulting services. (GPPB Resolution No. 07-2012, GPPB Circular No. 02-2012)BAC may create separate TWGs to handle different procurements

TECHNICAL WORKING GROUP (TWG)

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FUNCTIONS:1.Assist BAC in the following activities:

Preparation of bidding documents Eligibility check/short-listing Bid evaluation and preparation of reports Post-qualification Preparation of post-qualification summary

report1.Assist BAC and BAC Secretariat in preparing BAC Resolutions

TECHNICAL WORKING GROUP (TWG)

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Observers represent the public, the taxpayers who are interested in seeing to it that procurement laws are observed and irregularities are averted.In all stages of procurement process BAC must invite, in writing, at least three (3) Observers, at least 3 calendar days before the date of the procurement stage/activity, who shall be:

Representative from COADuly recognized private group in the sector or discipline of the particular type of procurement involvedNon-Government Organization (NGO)

OBSERVERS

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BAC is mandated to invite Observers in all stages of the procurement process, including post-qualification stage. (See §13 of RA 9184)

GPM enumerates the parties who are to conduct post-qualification. Although Observers do not conduct post-qualification of the bidder, they are not precluded from being invited and be present in the meeting. (NPM 05-2013)

OBSERVERS

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Observers shall be allowed access to the following documents upon their request, subject to signing of a confidentiality agreement:

1.Minutes of BAC meetings; 2.Abstract of Bids; 3.Post-qualification summary report; 4.APP and related PPMP; and 5.Opened proposals

OBSERVERS

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RESPONSIBILITIES:

1.Prepare report (jointly or separately) indicating their observations on the procurement activities

2.Submit report to the PE and furnish a copy to the GPPB and the Office of the Ombudsman/Resident Ombudsman3.Immediately inhibit and notify in writing the PE of any actual or potential conflict of interest

OBSERVERS

GRANT OF HONORARIAPE is authorized to grant honoraria to the members of the BAC, the TWG, and the BAC Secretariat provided the amount so granted does not exceed twenty-five percent (25%) of their respective basic monthly salary, subject to the following conditions:

• funds are available for the purpose; and• the grant of honoraria conforms to the

guidelines promulgated by the DBM. (Section 15, IRR of R.A. 9184)

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GUIDELINES ON THE GRANT OF HONORARIA

Budget Circular No. 2004-5A, dated 7 October 2005 As amended by Budget Circular No. 2007-3, dated 29 November 2007.

Only for successfully completed procurement projectsLimited to procurement that involves competitive bidding.Granted to Chair or Members of the BAC or the TWG by the LCE concerned.

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GUIDELINES ON THE GRANT OF HONORARIA

BAC Secretariat performing attendant functions in addition to their regular duties and functions may be paid honoraria at the same rate as the TWG Chair and Members

Those who are receiving honoraria shall no longer be entitled to overtime pay for procurement-related services rendered.

Payment of overtime services may be allowed for the administrative staff, (clerks, messengers and drivers supporting the BAC, the TWG and the Secretariat), for procurement activities rendered in excess of official working hours.

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FUNDING SOURCE Collections from successfully completed procurement projects, limited to activities prior to the awarding of contracts to winning bidders:proceeds from sale of bid documents;fees from contractor/supplier registry;fees charged for copies of minutes of bid openings, BAC resolutions and other BAC documents;protest fees; liquidated damages; andproceeds from bid security forfeiture

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CEILING FOR HONORARIA

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Maximum Honorarium rate per procurement

projectBAC Chair Php 3,000.00

BAC Members Php 2,500.00

BAC SecretariatTWG Chair and Members

Php 2,000.00

Members of the BAC Secretariat whose positions are in the Procurement Unit of the agency shall not be entitled to honoraria although the payment of overtime services may be allowed, subject to existing policy on the matter.

THANK YOU!!