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BAC Quorum

Post by Tess on Fri Dec 25, 2009 7:05 pm

Hello again!

RA 9184 and its IRR (old and new) underscores/requires presence of quorum of BAC members in all of its activities, much more during receipt and opening of sealed bids.

In the absence of the Regional Director/HOPE, the Asst. Regional Director (who is the BAC chairman), ex officio, assumes responsibilities as OIC thereby automatically is vested with the responsibilities, accountabilities and authorities of the HOPE.

There are 5 members of the BAC, including the Chairman. In one bid opening, only the vice chairman and one BAC member were around. To complete the required quorum, the BAC chairman (ARD) sat during bid opening (where she is the OIC HOPE). . . . just to complete a quorum? Is the activity (bid opening) valid?

Thanks for enlightening me!!!

Embarassed
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Re: BAC Quorum

Post by amang'65 on Fri Dec 25, 2009 8:45 pm

of course it is valid, as far as quorum is concerned, generally 50% + 1 and besides based in your statement, both the chairman and vice are present including one member therefore it is very much valid. however, what concerns me is about your agency's setup, if your ARD is the acting HOPE at the same the BAC chairman, who now approves your contract? because RA9184 strictly prohibits the BAC chairman being the same approving person for contracts/POs.
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Re: BAC Quorum

Post by sunriser431 on Fri Dec 25, 2009 11:39 pm

amang1965 wrote:of course it is valid, as far as quorum is concerned, generally 50% + 1 and besides based in your statement, both the chairman and vice are present including one member therefore it is very much valid. however, what concerns me is about your agency's setup, if your ARD is the acting HOPE at the same the BAC chairman, who now approves your contract? because RA9184 strictly prohibits the BAC chairman being the same approving person for contracts/POs.
For info only, click this link http://www.gppb.gov.ph/opinions/view_opinion.asp?o_id=537
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Re: BAC Quorum

Post by Tess on Sat Dec 26, 2009 9:41 am

Thanks to the both of you guys. Opinion well taken.

Happy Christmas!!!
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Re: BAC Quorum

Post by engrjhez® on Sat Dec 26, 2009 1:28 pm

Tess wrote:Hello again!

RA 9184 and its IRR (old and new) underscores/requires presence of quorum of BAC members in all of its activities, much more during receipt and opening of sealed bids.

In the absence of the Regional Director/HOPE, the Asst. Regional Director (who is the BAC chairman), ex officio, assumes responsibilities as OIC thereby automatically is vested with the responsibilities, accountabilities and authorities of the HOPE.

There are 5 members of the BAC, including the Chairman. In one bid opening, only the vice chairman and one BAC member were around. To complete the required quorum, the BAC chairman (ARD) sat during bid opening (where she is the OIC HOPE). . . . just to complete a quorum? Is the activity (bid opening) valid?

Thanks for enlightening me!!!

Embarassed
If the case so happens that the absence of the RD is temporary, and that it is definite that the BAC Resolution recommending the award is still addressed to the discretion of the RD, the case can be considered QUORUM.

However, if the assumption of the ARD as OIC-RD shall be extended to the approval of the award, this case constitutes NO QUORUM and that the activity is not valid. The IRR is clear on the issue:
11.2.5. In no case shall the Head of the Procuring Entity and/or the approving authority
be the Chairman or a member of the BAC.
The underlined is to emphasize that "under no circumstances" the HOPE and/or the approving authority be a BAC Chair or even represent as BAC member. Very Happy
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Re: BAC Quorum

Post by Tess on Sat Dec 26, 2009 6:37 pm

I think got the point clear Engr Jhez.

The assumption of the ARD as OIC-RD is extended up to the approval of the award, perfection of contract and service of ntp. Hence, the opening of sealed bid(s) is void (ab initio) for lack of quorum. (?????) Sad
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Re: BAC Quorum

Post by amang'65 on Mon Dec 28, 2009 8:45 pm

in my opinion for this particular scenario, as far as the opening of bids is concerned it is valid because there was quorum since the BAC chairman together with her vice and a member was present, the personaltiy of the oic RD during the opening of bids was the BAC chairman. however her personality as the approving authority is the question because she cannot be both the BAC chairman and the approving authority that clearly violates the RA. therefore the process stops in the approval. i think one remedy for this is to let your central office approve of the contracts/resolution etc., yun nga lang medyo bureaucratic and proceso in seeking approval from central office. i believe you are with the national government so you could seek assistance from your central office, that is if urgent ang project implementation, otherwise hold the award until an RD is appointed to approve of the award. (pero matagal pa yun kasi may election ban na, freeze pa ang new appointments).
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Re: BAC Quorum

Post by engrjhez® on Tue Dec 29, 2009 11:02 am

Tess wrote:I think got the point clear Engr Jhez.

The assumption of the ARD as OIC-RD is extended up to the approval of the award, perfection of contract and service of ntp. Hence, the opening of sealed bid(s) is void (ab initio) for lack of quorum. (?????) Sad

The answer to your question should be YES since the prohibition is clear that the HOPE can never be Chairman or a BAC member.

Having acquired the position of the HOPE (the OIC-RD), he must appoint a replacement for his position as BAC member. The appointment shall be vested to him as OIC-RD (hence, the HOPE) and not as the RD in the organization (if you may confuse). The new member shall assume his post as BAC Chair unless sooner terminated once the RD is established, and he, as ARD returns as the BAC Chair again.

Very Happy
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Re: BAC Quorum

Post by sunriser431 on Tue Dec 29, 2009 1:27 pm

engrjhez wrote:
Tess wrote:I think got the point clear Engr Jhez.

The assumption of the ARD as OIC-RD is extended up to the approval of the award, perfection of contract and service of ntp. Hence, the opening of sealed bid(s) is void (ab initio) for lack of quorum. (?????) Sad

The answer to your question should be YES since the prohibition is clear that the HOPE can never be Chairman or a BAC member.

Having acquired the position of the HOPE (the OIC-RD), he must appoint a replacement for his position as BAC member. The appointment shall be vested to him as OIC-RD (hence, the HOPE) and not as the RD in the organization (if you may confuse). The new member shall assume his post as BAC Chair unless sooner terminated once the RD is established, and he, as ARD returns as the BAC Chair again.

Very Happy
For purpose of discussion
Section 204. Appointment issued by an Officer-in-charge
A person designated in an acting capacity may be differentiated from one who is designated merely as an Officer-in-charge (OIC). In the latter case, the OIC enjoys limited powers which, are confined to functions of administration and ensuing that the office continues its usual activities. The OIC may not be deemed to possess the power to appoint employees as the same involves the excercise of discretion which is beyond the power of an OIC. any comment/opinion are welcome. bounce Peace
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Re: BAC Quorum

Post by engrjhez® on Wed Dec 30, 2009 2:04 am

sunriser431 wrote:
For purpose of discussion
Section 204. Appointment issued by an Officer-in-charge
A person designated in an acting capacity may be differentiated from one who is designated merely as an Officer-in-charge (OIC). In the latter case, the OIC enjoys limited powers which, are confined to functions of administration and ensuing that the office continues its usual activities. The OIC may not be deemed to possess the power to appoint employees as the same involves the excercise of discretion which is beyond the power of an OIC. any comment/opinion are welcome. bounce Peace

Section 204 above refers to the Government Accounting and Auditing Manual (right?). As such, the "appointment" being referred to with this prohibition is from Civil Service rules. On the other hand, the "appointment" I have mentioned in my post actually refers to designation with no change in the plantilla or the organization. I don't see any harm for an OIC in designating a BAC member to avoid violating RA.9184. Even the SC jurisprudence (as in the CRIM. CASES NOS. 25465-66, PP vs. Posadas and Dayco) emphasize the criminal acts:

...acted with manifest partiality, evident bad faith or gross inexcusable negligence, and...action caused any undue injury to any party, including the government,or gave any private party unwarranted benefits, advantage or preference in the discharge of his functions...
The power to appoint is inherent with the official discharge of regular functions and does not recognize permanence in its course. In the same way that the absence of the RD requires the ARD be the OIC-RD, the power vested as HOPE was also inherited. The suggested action shall only be valid during the term of his assumption - no more, no less.
Very Happy
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