“TO BID, or not to bid, that is the question.” It may not be Shakespeare’s famous soliloquy, but definitely it is the General Services Office’s most famous mantra as it takes charge of procurement and property management for the local government unit.
As a general rule, all government procurement must undergo competitive bidding. This ensures transparency, competitiveness, efficiency, and public accountability in the procurement process. However, the government entity may, subject to certain conditions, resort to alternative methods of procurement, namely: (1) limited source bidding, (2) direct contracting, (3) repeat order, (4) shopping, and (5) negotiated procurement. The procuring entity must ensure that in any of these methods, it secures the most advantageous price for the government.
Resorting to negotiated procurement is allowed but only under particular instances. First, in cases of two failed biddings, negotiated procurement is allowed after a showing that there are (1) no bids received, (2) no bid qualifies as the lowest calculated responsive bid, or (3) when the bidder with the lowest calculated responsive bid refuses, without justifiable cause, to accept the award of contract. Under these circumstances, the project shall be re-advertised and re-bid. After the failure of the second bidding, negotiated procurement may be availed by the Bids and Awards Committee.
Another instance when negotiated procurement is allowed is when there are cases of imminent danger to life or property during a state of calamity, or when time is of the essence arising from natural or manmade calamities or other causes where immediate action is necessary to prevent damage to or loss of life or property, or to restore vital public services, infrastructure facilities and other public utilities.
During the pandemic situation, most purchases were negotiated procurement as the situation calls for immediate action. As provided under the Republic Act No. 11494, otherwise known as the Bayanihan to Recover as One Act, procurement of goods which include PPEs, gloves, masks, surgical equipment, medicines, testing kits, etc. are to be procured through the most judicious, economical and expeditious manner, as exemptions from the provisions on bidding process provided under Republic Act No. 9184 otherwise known as the Government Procurement Reform Act Law and other relevant laws. In other words, during the pandemic, the situation called for negotiated procurements on the goods that are deemed essentials in the fight against co-vid.
In instances of take-over of contracts which have been rescinded or terminated, negotiated procurement can apply t0 action is necessary to prevent damage to or loss of life or property, or to restore vital public services, infrastructure facilities and other public utilities. In addition, negotiated procurement also applies when the subject contract is adjacent or contiguous to an on-going infrastructure project, as defined in the IRR: provided, however, that the original contract is the result of a Competitive Bidding.
As it is, procurement is not an easy task. Each step of the bidding process and each document is properly scrutinized to ensure that it conforms with the provisions of Republic Act No. 91843. The bidding process must always be governed by the principles of transparency, competitiveness, simplicity and accountability. In the absence of any of these principles, the bidding process becomes questionable, to the extent of being tainted with irregularity.
In the celebrated case of Amado Arias vs Sandiganbayan, the acquisition of several parcels of land needed for the Mangahan Floodway Project was questioned. Arias, who was then the Auditor of Rizal Engineering District, Pasig, Metro Manila, passed upon and approved in audit the negotiated procurement of the said lands at a market value of P80.00 per square meter when it truth, the said lands are actually riceland with a true and actual market value of P5.00 per square meter only. Hence, the trial court found Arias guilty of conspiring and confederating with the other accused in violation of Section 3, paragraph (e), of the Anti Graft and Corrupt Practices Act which reads that;
SEC. 3. Corrupt Practices of Public Officers-In addition to acts or omissions of public officers already penalized by existing law. the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:
x x x x x x x x x
(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.
On appeal, the Honorable Supreme Court ruled that conspiracy was not adequately proven and there was no unity of purpose in the execution of the controversial procurement. Arias admitted that he did not check or verify the papers supporting the general voucher that was submitted to him for payment, neither did Arias question any person for the purpose of determining the accuracy and integrity of the documents submitted to him and the reasonableness of the price that the Government was paying.
The Arias doctrine espouses the general rule that all heads of office cannot be convicted of a conspiracy charge just because they did not personally examine every single detail before they, as the final approving authority, affixed their signatures on the subject document. Absent clear proof of conspiracy, absolves any liability.
However, in another controversial case of Ramon Lihaylihay vs. People of the Philippines, the Honorable Supreme Court ruled that the Arias doctrine is not applicable. In the Lihaylihay case, the questioned purchases were combat, clothing and individual equipment worth Php 133,000,000.00. A perusal of the documents involved in the procurement, there appeared tampered dates on the receipts which should have prompted Lihayhay and the other officers to exercise a higher degree of circumspection. “In this relation, it must be clarified that the ruling in Arias v. Sandiganbayan29 (Arias) cannot be applied to exculpate petitioners in view of the peculiar circumstances in this case which should have prompted them to exercise a higher degree of circumspection, and consequently, go beyond what their subordinates had prepared. In particular, the tampered dates on some of the RIVs, the incomplete certification by GSC SAO Mateo on the date of receipt of the CCIE items, the missing details on the Reports of Public Property Purchased and the fact that sixteen checks all dated January 15, 1992 were payable to PNP SSS should have aroused a reasonable sense of suspicion or curiosity on their part if only to determine that they were not approving a fraudulent transaction.”
In a similar case where the documents in question bore irregularities too evident to ignore, the Court in Cruz v. Sandiganbayan carved out an exception to the Arias doctrine and as such, held that, “(U)nlike in Arias, however, there exists in the present case an exceptional circumstance which should have prodded petitioner, if he were out to protect the interest of the municipality he swore to serve, to be curious and go beyond what his subordinates prepared or recommended. In fine, the added reason contemplated in Arias which would have put petitioner on his guard and examine the check/s and vouchers with some degree of circumspection before signing the same was obtaining in this case.”
Simply stated, in procurement process, due diligence is required in inspecting and verifying each document involve in the process. Should there be a tinge of doubt, a higher degree of circumspection is required. As it is, the duty of the General Services Office and the Bids and Awards Committee is to protect the local government unit they represent.
Even Shakespeare would not want it any other way. As Angelo said in Measure for Measure, “We must not make a scarecrow of the law, setting it up to fear the birds of prey, and let it keep one shape till custom make it their perch and not their terror.”
