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Reference to Brand Name is not allowed. Reference to location where the goods manufactured is allowed?

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Reference to Brand Name is not allowed. Reference to location where the goods manufactured is allowed?

Post by attyh on Wed Oct 17, 2012 1:19 pm

Reference to Brand Name is not allowed as specifically mentioned in RA 9184.

1) But what about the reference of location or place where the goods manufactured? Can the procuring entity specified as their requirements, for example, "made in Japan only" or "Japanese technology only"?

2) Can they specified "Top five (5) brands only"? (We referring to high-quality brand known and common to market)

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Re: Reference to Brand Name is not allowed. Reference to location where the goods manufactured is allowed?

Post by mojacko on Wed Oct 17, 2012 2:01 pm

By stating that the items should be "made in Japan" is tantamount to stating the brand names because other same products that are made from other manufacturers will be barred from joining the procurement activity.

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Re: Reference to Brand Name is not allowed. Reference to location where the goods manufactured is allowed?

Post by attyh on Wed Oct 17, 2012 2:54 pm

mojacko wrote:By stating that the items should be "made in Japan" is tantamount to stating the brand names because other same products that are made from other manufacturers will be barred from joining the procurement activity.

Thanks. And if that is so, I hope that there should be a clear cut regulation regarding this matter, so that there will be no problem with the bidders and the procuring entity and we do not need to interpret this gray area. In my opinion, it should be specifically stated in RA 9184 and so that no one will question or be subject to question. Again, thank you for that information.

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Re: Reference to Brand Name is not allowed. Reference to location where the goods manufactured is allowed?

Post by brunomars on Wed Oct 17, 2012 4:16 pm

please specify under what provision that your opinion is prescribe under the existing revised IRR of RA9184.
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Re: Reference to Brand Name is not allowed. Reference to location where the goods manufactured is allowed?

Post by attyh on Wed Oct 17, 2012 5:12 pm

brunomars wrote:please specify under what provision that your opinion is prescribe under the existing revised IRR of RA9184.

Brand name of the goods is totally different from where the goods was manufactured. Interpreting the Law, what is expressly excluded should not be included. Expressio unius est exclusio alterius So when there is an express mention of one thing, it excludes all others not mentioned. If it includes no reference to brand names, it doesn't mean that it should also be interpreted that location where the goods are manufactured is also referring to brand names. Manufacturer's name was not mentioned, also brand names was also not mentioned. Therefore, it is in accordance and in compliance with the provision of IRR of RA 9184 Section 18.


Last edited by attyh on Thu Oct 18, 2012 9:16 am; edited 1 time in total

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Re: Reference to Brand Name is not allowed. Reference to location where the goods manufactured is allowed?

Post by elib on Wed Oct 17, 2012 5:27 pm

hi all,


i believe that every other law including ra 9184 are not all well water tight, meaning clear in every respect.

if there are provisions that can be construed as misleading or the law is somewhat silent about it, then i would suggest to reconsider its guiding principles.....

for the issue at hand, this is one of the guiding principles of 9184



Competitiveness by extending equal opportunity to enable private contracting parties who are eligible and qualified to participate in public bidding.

just my opinion....

cheers.....
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Re: Reference to Brand Name is not allowed. Reference to location where the goods manufactured is allowed?

Post by regina avelino on Wed Oct 17, 2012 5:50 pm

I agree with sir elib. likewise, please refer to NPM 125-2012, NPM 086-2012 and NPM 013-2011. thanks.

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Re: Reference to Brand Name is not allowed. Reference to location where the goods manufactured is allowed?

Post by attyh on Thu Oct 18, 2012 8:39 am

regina avelino wrote:I agree with sir elib. likewise, please refer to NPM 125-2012, NPM 086-2012 and NPM 013-2011. thanks.
-------------------------
IRR of RA 9184
Section 43. Procurement of Domestic and Foreign Goods. - Consistent with the country's obligations under international treaties or agreements, Goods may be obtained for domestic or foreign sources and the procurement thereof shall be open to all eligible suppliers, manufacturers and distributors. However, in the interest of availability, efficiency and timely delivery of Goods, the Procuring Entity may give preference to the purchase of domestically-produced and manufacturer goods, supplies and materials that meet the specified or desired quality.

NPM 013-2011
(3) Whether Section 18 of the revised Implementing Rules and Regulations (IRR) of Republic Act (RA) 9184 prohibiting reference to brand names applies as well as to specifications based on country of origin.

Section 18 of the IRR is limited to the prohibition on specifying the brand name of the items to be procured and does not apply to prohibition on restriction of sources by country of origin.
------------------------
The law is very clear and the non-policy opinion is also very clear. Thank you.

But what about "Japanese technology only"? Is this a violation on the preference of the country of origin as stated in the provision of IRR of RA 9184? Example, many countries manufactures Japan technology, although not made in Japan. Is there a provision on restricting specifying the technology? It should be made clear cut.

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Re: Reference to Brand Name is not allowed. Reference to location where the goods manufactured is allowed?

Post by elib on Thu Oct 18, 2012 10:26 am

hi attyh,

haven't read the npm mentioned above but would like to comment....

i am in agreement with you that section 18 of the irr is silent with regards to the prohibiton on the aspect of the country of origin. and reading section 43, the irr somehow encourages it, but, this has certain limitations.... as long as you don't specifically specify the country of origin of that goods in any of the contract docs, i think that will be ok, this is to satisfy the principle of competetiveness....

i am also of the opinion that it is the suppliers/contractors choice wether he will opt to get it from anywhere outside the country, for as long as it satisfies its specifications and required quality and standards.


cheers....
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Re: Reference to Brand Name is not allowed. Reference to location where the goods manufactured is allowed?

Post by attyh on Thu Oct 18, 2012 11:06 am

elib wrote:hi attyh,

haven't read the npm mentioned above but would like to comment....

i am in agreement with you that section 18 of the irr is silent with regards to the prohibiton on the aspect of the country of origin. and reading section 43, the irr somehow encourages it, but, this has certain limitations.... as long as you don't specifically specify the country of origin of that goods in any of the contract docs, i think that will be ok, this is to satisfy the principle of competetiveness....

i am also of the opinion that it is the suppliers/contractors choice wether he will opt to get it from anywhere outside the country, for as long as it satisfies its specifications and required quality and standards.


cheers....

Yes. Anyway, this issue may be raise during the pre-bidding conference. The procuring entity and prospective the bidders will be in agreement to solve this matter before the actual bidding.

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