Re:In-House Legal counsel

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Re:In-House Legal counsel

Post by sunriser431 on Mon May 18, 2009 3:16 pm

Can the In-House Legal counsel of Government agency render opinions matters that affect the RA#9184 and its IRR-A or is it through the GPPB? bounce
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Re: Re:In-House Legal counsel

Post by aljune70 on Mon May 18, 2009 6:20 pm

I think if the in-house legal counsel based his/her opinions on RA 9184 and its IRR, which the GPPB also use as reference, then there won't be any conflict.... in my humble opinion....

per our experience, we do not have an in-house legal counsel, that's why we often refer to our "procurement bible" or handbook and whatever it is that's not clear to us, we call GPPB for clarification or explanations. Very Happy Very Happy Surprised
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Re: Re:In-House Legal counsel

Post by RDV @ GP3i on Mon May 18, 2009 7:07 pm

sunriser431 wrote:Can the In-House Legal counsel of Government agency render opinions matters that affect the RA#9184 and its IRR-A or is it through the GPPB? bounce

Of course, your in-house Legal Counsel can render their own opinions. I just note that you mentions that their "opinion...affect R.A. 9184 and its IRR-A". Are you saying that their opinion could be different from what R.A. 9184 or its IRR-A? Of course, their opinion must be consistent with the spirit and letter of the law. In case their opinion is in conflict with what the law says, you can raise the matter with the GPPB (or here.)

We also give our opinions here, and we find nothing wrong with that (unless, of course, we start dispensing 'incorrect' opinions).
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Re: Re:In-House Legal counsel

Post by engrjhez® on Tue May 19, 2009 10:26 pm

sunriser431 wrote:Can the In-House Legal counsel of Government agency render opinions matters that affect the RA#9184 and its IRR-A or is it through the GPPB? bounce
The question of "can they...?" is for a sure "YES" answer. Of course they can. Their opinion matters as they understand the law better than any non-lawyer. But even lawyers have their own forte or expertise. A litigation lawyer is very different from a company/finance lawyer. While I spent most of the time discussing with our legal counsels (in our agency), they cannot fully extend their opinions/advise on matters regarding the provisions of RA.9184.

Here is where we need Procurement Lawyers. Only when a lawyer extends his/her focus to this particular law (GPRA) can they make more categorical statements of issues raised. And since lawyers were built on reputations in interpreting the law where unclear, and got a lot of legal reasonings, they can adapt well given the task and time to concentrate on the matter. (I hope this does not make any offending statement in any way - peace Very Happy)

Of course even non-lawyers may give sound opinions. This forum not only encourage such reasonings, but to enable each and everyone's law learning experience, as well. bounce
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Re: Re:In-House Legal counsel

Post by sunriser431 on Mon May 25, 2009 5:10 pm

RDV wrote:
sunriser431 wrote:Can the In-House Legal counsel of Government agency render opinions matters that affect the RA#9184 and its IRR-A or is it through the GPPB? bounce

Of course, your in-house Legal Counsel can render their own opinions. I just note that you mentions that their "opinion...affect R.A. 9184 and its IRR-A". Are you saying that their opinion could be different from what R.A. 9184 or its IRR-A? Of course, their opinion must be consistent with the spirit and letter of the law. In case their opinion is in conflict with what the law says, you can raise the matter with the GPPB (or here.)

We also give our opinions here, and we find nothing wrong with that (unless, of course, we start dispensing 'incorrect' opinions).

For reference, click this link http://www.gppb.gov.ph/opinions/view_opinion.asp?o_id=50

scratch
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Re: Re:In-House Legal counsel

Post by engrjhez® on Mon May 25, 2009 5:34 pm

sunriser431 wrote:
RDV wrote:
sunriser431 wrote:Can the In-House Legal counsel of Government agency render opinions matters that affect the RA#9184 and its IRR-A or is it through the GPPB? bounce

Of course, your in-house Legal Counsel can render their own opinions. I just note that you mentions that their "opinion...affect R.A. 9184 and its IRR-A". Are you saying that their opinion could be different from what R.A. 9184 or its IRR-A? Of course, their opinion must be consistent with the spirit and letter of the law. In case their opinion is in conflict with what the law says, you can raise the matter with the GPPB (or here.)

We also give our opinions here, and we find nothing wrong with that (unless, of course, we start dispensing 'incorrect' opinions).

For reference, click this link http://www.gppb.gov.ph/opinions/view_opinion.asp?o_id=50

scratch

Just wondering, is that a QUESTION? an ANSWER? or a COMMENT?
lol!
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Re: Re:In-House Legal counsel

Post by sunriser431 on Tue May 26, 2009 12:33 am

For discussion purpose Idea
Mode of Procurement: For Competitive Bidding
Contract Preparation: Contract agreement Form
Legal opinion Cool : To be adopted for Internal policy of the agency
For Contract amount less than A(xxx) no Formal contract agreement needed, But for contract amount more than A(xxx) Formal contract agreement is needed.
1. Contract amount less than A(xxx) Puchase order will suffice
2. Contract amount more than A(xxx) Formal contract agreement form is needed
Will the condition not violate any provision of the GPRA? Smile
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Re: Re:In-House Legal counsel

Post by engrjhez® on Tue May 26, 2009 5:50 pm

sunriser431 wrote:For discussion purpose Idea
Mode of Procurement: For Competitive Bidding
Contract Preparation: Contract agreement Form
Legal opinion Cool : To be adopted for Internal policy of the agency
For Contract amount less than A(xxx) no Formal contract agreement needed, But for contract amount more than A(xxx) Formal contract agreement is needed.
1. Contract amount less than A(xxx) Puchase order will suffice
2. Contract amount more than A(xxx) Formal contract agreement form is needed
Will the condition not violate any provision of the GPRA? Smile
This must be posted as a different topic.

Nevertheless, my opinion is... as long as Competitive (Public) Bidding is employed as a method of procurement, a Contract Agreement must be mandatory. Purchase Orders may find best suitability when resorting to Alternative Methods of Procurement. Section 42 (and its Annexes) specifically defines a CONTRACT AGREEMENT which is definitely not a Purchase Order.
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Re: Re:In-House Legal counsel

Post by sunriser431 on Thu May 28, 2009 10:56 am

engrjhez wrote:
sunriser431 wrote:For discussion purpose Idea
Mode of Procurement: For Competitive Bidding
Contract Preparation: Contract agreement Form
Legal opinion Cool : To be adopted for Internal policy of the agency
For Contract amount less than A(xxx) no Formal contract agreement needed, But for contract amount more than A(xxx) Formal contract agreement is needed.
1. Contract amount less than A(xxx) Puchase order will suffice
2. Contract amount more than A(xxx) Formal contract agreement form is needed
Will the condition not violate any provision of the GPRA? Smile
This must be posted as a different topic.

Nevertheless, my opinion is... as long as Competitive (Public) Bidding is employed as a method of procurement, a Contract Agreement must be mandatory. Purchase Orders may find best suitability when resorting to Alternative Methods of Procurement. Section 42 (and its Annexes) specifically defines a CONTRACT AGREEMENT which is definitely not a Purchase Order.

In my first post 1 quote"Can the In-House Legal counsel of Government agency render opinions matters that affect the RA#9184 and its IRR-A or is it through the GPPB?"

Majority responded affirmative

Aljune70 quote" I think if the in-house legal counsel based his/her opinions on RA 9184 and its IRR, which the GPPB also use as reference, then there won't be any conflict.... in my humble opinion.... "

RDV quote "Of course, their opinion must be consistent with the spirit and letter of the law. In case their opinion is in conflict with what the law says, you can raise the matter with the GPPB (or here.)"

Engrjhez quote "The question of "can they...?" is for a sure "YES" answer. Of course they can. Their opinion matters as they understand the law better than any non-lawyer."

I did provide example for discussion purpose in relation to my first question, since majority believe they can, now going back to the example and I'l be specific this time, Can the threshold amount be set say,
1. Contract amount less than P100,000.00 Puchase order will be use
2. Contract amount more than P100,000.00 Formal contract agreement form is use
Will the condition not violate any provision of the GPRA? Smile[/quote] I,m seeking clarification on this matter cause the internal policy is under study to be adopted by our agency. Smile
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Re: Re:In-House Legal counsel

Post by RDV @ GP3i on Thu May 28, 2009 12:59 pm

sunriser431 wrote:In my first post 1 quote"Can the In-House Legal counsel of Government agency render opinions matters that affect the RA#9184 and its IRR-A or is it through the GPPB?"

Majority responded affirmative

Aljune70 quote" I think if the in-house legal counsel based his/her opinions on RA 9184 and its IRR, which the GPPB also use as reference, then there won't be any conflict.... in my humble opinion.... "

RDV quote "Of course, their opinion must be consistent with the spirit and letter of the law. In case their opinion is in conflict with what the law says, you can raise the matter with the GPPB (or here.)"

Engrjhez quote "The question of "can they...?" is for a sure "YES" answer. Of course they can. Their opinion matters as they understand the law better than any non-lawyer."

I did provide example for discussion purpose in relation to my first question, since majority believe they can, now going back to the example and I'l be specific this time, Can the threshold amount be set say,
1. Contract amount less than P100,000.00 Puchase order will be use
2. Contract amount more than P100,000.00 Formal contract agreement form is use
Will the condition not violate any provision of the GPRA? Smile

I,m seeking clarification on this matter cause the internal policy is under study to be adopted by our agency. Smile

My reply on the opinion by in-house legal counsel is premised on the notion that the law is not clear. There are certain rules on statutory construction, such as when the law is clear, it must not be subject to interpretation. Also, when the law does not distinguish, you should not distinguish.

In your case, you set certain thresholds, separate from what the law provided. Therefore, it is violative of the GRPA.

Sec. 37.2.3 provides the documents which shall form part of the Contract. It did not set amount thresholds and therefore you cannot set your own which would exempt you from complying with the said requirements.

In orther words, whatever amount of the contract is, if it is done through competitive bidding, then you have to follow the form of contract as required. If done through any of the alternative methods which do not involve competitive bidding, you can use the simpler forms, such as Purchase Order.
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Re: Re:In-House Legal counsel

Post by sunriser431 on Thu May 28, 2009 1:46 pm

Thank you Sir RDV for that enlightenment
If in doubt go to the GPPB Very Happy cheers
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Re: Re:In-House Legal counsel

Post by engrjhez® on Thu May 28, 2009 7:05 pm

sunriser431 wrote:
In my first post 1 quote"Can the In-House Legal counsel of Government agency render opinions matters that affect the RA#9184 and its IRR-A or is it through the GPPB?"

Majority responded affirmative

Aljune70 quote" I think if the in-house legal counsel based his/her opinions on RA 9184 and its IRR, which the GPPB also use as reference, then there won't be any conflict.... in my humble opinion.... "

RDV quote "Of course, their opinion must be consistent with the spirit and letter of the law. In case their opinion is in conflict with what the law says, you can raise the matter with the GPPB (or here.)"

engrjhez quote "The question of "can they...?" is for a sure "YES" answer. Of course they can. Their opinion matters as they understand the law better than any non-lawyer."

I did provide example for discussion purpose in relation to my first question, since majority believe they can, now going back to the example and I'l be specific this time, Can the threshold amount be set say,
1. Contract amount less than P100,000.00 Puchase order will be use
2. Contract amount more than P100,000.00 Formal contract agreement form is use

Will the condition not violate any provision of the GPRA? Smile
I,m seeking clarification on this matter cause the internal policy is under study to be adopted by our agency. Smile
Is this the opinion you in-house consultant provided you? Because I never thought such opinion will be coming from an in-house-consultant. Anyway, by virtue of statutory construction (as RDV already explained), the spirit must always be over the letters of the law. If the law speaks in a categorical manner, then there must be no room for interpretation - only implementation. Very Happy
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Re: Re:In-House Legal counsel

Post by sunriser431 on Fri May 29, 2009 10:10 am

The reason for adopting this internal policy to minimize the voluminous paper works, save time, and man power, and govt funds, say for example the procurement of consumable and perishable goods were practicality shall apply. my two cents worth bounce
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Re: Re:In-House Legal counsel

Post by engrjhez® on Sun May 31, 2009 2:54 pm

sunriser431 wrote:The reason for adopting this internal policy to minimize the voluminous paper works, save time, and man power, and govt funds, say for example the procurement of consumable and perishable goods were practicality shall apply. my two cents worth bounce
I would like to re-quote RDV on this:
...There are certain rules on statutory construction, such as when the law is clear, it must not be subject to interpretation. Also, when the law does not distinguish, you should not distinguish.
The end doesn't justify the means. There are several ways to abide with the law. I am for the suggestion (this may be adopted as to decrease the voluminous paper works in bidding) that you consolidate items for bidding in one whole package (for the entire budget year).

In the case when delivery of perishable goods or when there is no storage facility available, the contract may be adjusted so as to allow partial delivery and partial billings. One (1) bidding, multiple billings. There should be no problem at all because the awarded bidder shall only be paid of the items delivered. One (1) ObR, one (1) contract, and one (1) set of bidding paperworks. The rest shall be for the monitoring of the End User (requesting agency) and the Accounting Office. Very Happy
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Re: Re:In-House Legal counsel

Post by sunriser431 on Mon Jun 01, 2009 2:59 pm

Actually we have done it before,Single contract, multiple deliveries(billings), using as guide in Section V1 Schedule of Requirements, But the Resident Auditor issued observation, on the premise that Section 1V General Condition of Contract (procurement of Goods) and Setion V Special Conditions of Contract does not provide contract specific information in relation to Partial payment vis a vis Partial Deliveries. Crying or Very sad
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Re: Re:In-House Legal counsel

Post by engrjhez® on Mon Jun 01, 2009 8:50 pm

sunriser431 wrote:Actually we have done it before,Single contract, multiple deliveries(billings), using as guide in Section V1 Schedule of Requirements, But the Resident Auditor issued observation, on the premise that Section 1V General Condition of Contract (procurement of Goods) and Section V Special Conditions of Contract does not provide contract specific information in relation to Partial payment vis a vis Partial Deliveries. Crying or Very sad
That constitutes a mistake on the preparation of PBDs. You should have indicated it beforehand. If left unchanged, of course, you cannot enforce such. There is nothing that restricts us from introducing procurement specific conditions and other details. Only Section II (Instruction to Bidders) and Section IV (General Conditions of the Contract) were supposed to be left unchanged. Very Happy
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Re: Re:In-House Legal counsel

Post by sunriser431 on Tue Jun 02, 2009 1:48 pm

engrjhez wrote:
sunriser431 wrote:Actually we have done it before,Single contract, multiple deliveries(billings), using as guide in Section V1 Schedule of Requirements, But the Resident Auditor issued observation, on the premise that Section 1V General Condition of Contract (procurement of Goods) and Section V Special Conditions of Contract does not provide contract specific information in relation to Partial payment vis a vis Partial Deliveries. Crying or Very sad
That constitutes a mistake on the preparation of PBDs. You should have indicated it beforehand. If left unchanged, of course, you cannot enforce such. There is nothing that restricts us from introducing procurement specific conditions and other details. Only Section II (Instruction to Bidders) and Section IV (General Conditions of the Contract) were supposed to be left unchanged. Very Happy

All information about the terms and conditions were incorporated beforehand in Section V1 Schedule of Requirements, but what the Resident auditor trying to enphasize is the Section 1V General condition of contract (for info. the GCC herein shall not be altered) did not provide contract specific information in relation to Partial payment vis a vis Partial Deliveries. Sad
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Re: Re:In-House Legal counsel

Post by RDV @ GP3i on Tue Jun 02, 2009 5:27 pm

sunriser431 wrote:
engrjhez wrote:
sunriser431 wrote:Actually we have done it before,Single contract, multiple deliveries(billings), using as guide in Section V1 Schedule of Requirements, But the Resident Auditor issued observation, on the premise that Section 1V General Condition of Contract (procurement of Goods) and Section V Special Conditions of Contract does not provide contract specific information in relation to Partial payment vis a vis Partial Deliveries. Crying or Very sad
That constitutes a mistake on the preparation of PBDs. You should have indicated it beforehand. If left unchanged, of course, you cannot enforce such. There is nothing that restricts us from introducing procurement specific conditions and other details. Only Section II (Instruction to Bidders) and Section IV (General Conditions of the Contract) were supposed to be left unchanged. Very Happy

All information about the terms and conditions were incorporated beforehand in Section V1 Schedule of Requirements, but what the Resident auditor trying to enphasize is the Section 1V General condition of contract (for info. the GCC herein shall not be altered) did not provide contract specific information in relation to Partial payment vis a vis Partial Deliveries. Sad

If that was not clear in the Contract, and so as not to disadvantage also the supplier, the contracting parties can agree to clarify/amend the contract provisions to allow partial payment for partial deliveries based on the schedule of requirement.
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Re: Re:In-House Legal counsel

Post by riddler on Wed Jun 03, 2009 10:12 am

RDV wrote:

If that was not clear in the Contract, and so as not to disadvantage also the supplier, the contracting parties can agree to clarify/amend the contract provisions to allow partial payment for partial deliveries based on the schedule of requirement.

RDV amendment to Contracts for LGU is very difficult considering that it has to pass through the Local Sanggunian.. Can the GPPB make a Resolution Re: After the SP authorized the LCE to sign into a Contract, any amendment thereon within the scope of the Contract can be approved by the LCE wihout going back to the SP?
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Re: Re:In-House Legal counsel

Post by RDV @ GP3i on Wed Jun 03, 2009 10:47 am

ruel t. wrote:
RDV wrote:

If that was not clear in the Contract, and so as not to disadvantage also the supplier, the contracting parties can agree to clarify/amend the contract provisions to allow partial payment for partial deliveries based on the schedule of requirement.

RDV amendment to Contracts for LGU is very difficult considering that it has to pass through the Local Sanggunian.. Can the GPPB make a Resolution Re: After the SP authorized the LCE to sign into a Contract, any amendment thereon within the scope of the Contract can be approved by the LCE wihout going back to the SP?

I don't think that would be touched by the GPPB. I would just suggest that in the local sanggunian authorization it should already include a proviso allowing the LCE the sign also any amendment/s to the contract, subject to certain limitations the local sanggunian may set.
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Re: Re:In-House Legal counsel

Post by sunriser431 on Thu Jun 04, 2009 4:01 pm

RDV wrote:
sunriser431 wrote:
engrjhez wrote:
sunriser431 wrote:Actually we have done it before,Single contract, multiple deliveries(billings), using as guide in Section V1 Schedule of Requirements, But the Resident Auditor issued observation, on the premise that Section 1V General Condition of Contract (procurement of Goods) and Section V Special Conditions of Contract does not provide contract specific information in relation to Partial payment vis a vis Partial Deliveries. Crying or Very sad
That constitutes a mistake on the preparation of PBDs. You should have indicated it beforehand. If left unchanged, of course, you cannot enforce such. There is nothing that restricts us from introducing procurement specific conditions and other details. Only Section II (Instruction to Bidders) and Section IV (General Conditions of the Contract) were supposed to be left unchanged. Very Happy

All information about the terms and conditions were incorporated beforehand in Section V1 Schedule of Requirements, but what the Resident auditor trying to enphasize is the Section 1V General condition of contract (for info. the GCC herein shall not be altered) did not provide contract specific information in relation to Partial payment vis a vis Partial Deliveries. Sad

If that was not clear in the Contract, and so as not to disadvantage also the supplier, the contracting parties can agree to clarify/amend the contract provisions to allow partial payment for partial deliveries based on the schedule of requirement.


Sir RDV can we ask the resident auditor to be present during the Pre-procurement conference meeting, so next time around we could ask or seek opinion from them matters that affect the contract preparation?
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Re: Re:In-House Legal counsel

Post by RDV @ GP3i on Thu Jun 04, 2009 6:01 pm

sunriser431 wrote:
Sir RDV can we ask the resident auditor to be present during the Pre-procurement conference meeting, so next time around we could ask or seek opinion from them matters that affect the contract preparation?

Yes, that is not prohibited. You could seek advice from the Auditor before you proceed with the procurement activities during the pre-proc.
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Re: Re:In-House Legal counsel

Post by sunriser431 on Fri Jun 05, 2009 9:28 pm

What can I say .. Thanks Sir RDV
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