Clarification of 3.a of GPPB Reso 09-2009 dtd 23 Nov 2009 on brandnames

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Clarification of 3.a of GPPB Reso 09-2009 dtd 23 Nov 2009 on brandnames

Post by dell1978 on Tue Jun 26, 2012 11:54 am

Is Sec. 18 of RA 9184 on the prohibition of Reference to brand names applicable to Shopping and Small Value Procurement under GPPB Reso 09-2009?

The way I look at it, Sec. 18 is applicable only to Procurement of Goods in Competitive or Public Bidding.

In addition, there is no express prohibition on reference to brand names under Sec. 3.a of GPPB Reso 09-2009.

I would appreciate your help on this matter. Thank you.

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Re: Clarification of 3.a of GPPB Reso 09-2009 dtd 23 Nov 2009 on brandnames

Post by regina avelino on Tue Jun 26, 2012 12:16 pm

the prohibition against reference to brand names applies to all kinds of procurement as per NPM 051-2004

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Re: Clarification of 3.a of GPPB Reso 09-2009 dtd 23 Nov 2009 on brandnames

Post by dell1978 on Tue Jun 26, 2012 1:05 pm

First of all, thank you for posting.

Please allow me to discuss further re no. 4 of NPM 051-2004....

I may agree to the principle that “where the law speaks in clear and categorical language, there is no room for interpretation or construction; there is only room for application”, but ascertaining the intent of the legislature includes the reading of of the full text of the law including what chapter or section the subject provision belongs.

Sec. 18 is under Article VI on Preparation of Bidding Documents which speaks of Competitive or Public Bidding. If you would note, Sec. 17 explicitly refers to bidding documents. Had it been the intent of the legislature to extend the prohibition to small value procurement, it has done so otherwise.

To my conclusion, Sec. 18 does not apply to shopping method.

Please enlighten this representation. Thank you and I anticipate your kind disquisition.

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Re: Clarification of 3.a of GPPB Reso 09-2009 dtd 23 Nov 2009 on brandnames

Post by engrjhez® on Tue Jun 26, 2012 6:50 pm

dell1978 wrote:Is Sec. 18 of RA 9184 on the prohibition of Reference to brand names applicable to Shopping and Small Value Procurement under GPPB Reso 09-2009?

The way I look at it, Sec. 18 is applicable only to Procurement of Goods in Competitive or Public Bidding.

In addition, there is no express prohibition on reference to brand names under Sec. 3.a of GPPB Reso 09-2009.

I would appreciate your help on this matter. Thank you.

The issue is whether or not the prohibition on brand names under Sec.18 of RA 9184 covers the term "specifications" as mentioned under Sec.3.a of GPPB Reso 09-2009.

My opinion held: Reference to brand names shall apply to "specfications" for Shopping but may not apply to Small Value Procurement as mentioned under Sec.3.a of GPPB Reso 09-2009.

Ratio:
  1. In statutory construction, "ubi lex non distinguit nec nos distinguire debemus" applies to this matter. Where the law does not distinguish, we should not distinguish. Since the general rule prohibiting reference to brand names apply only to "goods", those that will be procured thru SVP need not be restricted with the same. Note that SVP items cannot be items under Shopping at the same time;
  2. Also in statutory construction, "noscitur sociis". The law (RA 9184) as a whole speaks of "government procurement" and precluding that a certain section is to be treated independently on its modes of procurement without expressed stipulation is deviating from the true meaning of its legislative intent. In Section 18, it will be the classification, not the mode of procurement that will govern in its application;
  3. Guiding principles of government procurement (Sec.3, RA 9184) particularly "competitiveness" and reference to brand names defeats this purpose, where free enterprise on common items will be narrowed down to few by mentioning brand names;
  4. A statute is superior to an administrative issuance. Thus, GPPB Reso 09-2009 adopts the pertinent provisions of RA 9184 and its IRR as it still applies. The former, even having not mentioned of the same prohibition is assumed to have inherited the rule, as it cannot repeal the latter.

I hope it cleared and resolved the issue. Smile
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