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HOPE discretion to award?

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HOPE discretion to award?

Post by jesteR on Sun Jan 17, 2010 8:55 am

The HOPE is supposed to just approve or disapprove the BAC's recommendation. But in the disapproval, the HOPE directed award to another supplier. On review, the BAC stood by its original recommendation, so the required award notice was issued under protest. The HOPE claims 1)there is no specific provision stating the HOPE has no discretion to award, and 2) cited the Generic Proc Manual, p. 69 on Methodology: How is a contract awarded:
...
5. ... In case of a disapproval of the recommendation of award, the Head of the Procuring Entity shall state the reason(s) for disapproval and instruct the BAC on the subsequent steps to be adopted.
...
The BAC reminded the HOPE that the directive to award after disapproval is highly irregular and will be disallowed in audit, but the HOPE isnsists he is ready to defend his decision until the Supreme Court.

Can you GPRA guys please share me your wisdom? Salamat!
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Re: HOPE discretion to award?

Post by fe a. araya on Sun Jan 17, 2010 10:53 am

Welcome to the forum, jester81. First of all, what was the reason for the disaproval of the BAC recom? W/ discretion or no discretion, I'd like to believe the HOPE has valid reason. But there seems to be conflict in the 2 reasons/justifications of the HOPE. While in # 1, the HOPE claims that there is no provision showing that the HOPE has no discretion to award, in #2, the BAC still was given by the HOPE the instruction to take the necessary steps to be adopted (even citing the provision in the GMP).

In the next step taken by the BAC, as guided by the IRR, I presumed that still their original recommendation was submitted,hence the reminder to the HOPE that the directive to award to another bidder is highly irregular unless there is a valid reason for the HOPE to disapprove pursuant to the IRR, otherwise the action of the HOPE of awarding to another is already his responsibility and not the BAC.
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Re: HOPE discretion to award?

Post by jesteR on Sun Jan 17, 2010 12:21 pm

Hi Fe, thanks for the quick reply... kasi i believe the Manual saying :...HOPE shall instruct subsequent steps to be adopted..." is either for the BAC to review again the TWG evaluation given the cited flaws, or to conduct re-bid, or to adopt negotiated proc (after 2failed bids), or even stop the bid... but NOT to direct award to another supplier. Always dapat award is backed by a BAC recommendation, di ba? Dahil meron BAC, award cannot be discretionary for the HOPE. Tama ba? Thanks again!
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Re: HOPE discretion to award?

Post by RDV @ GP3i on Sun Jan 17, 2010 8:32 pm

jester81 wrote:The HOPE is supposed to just approve or disapprove the BAC's recommendation. But in the disapproval, the HOPE directed award to another supplier. On review, the BAC stood by its original recommendation, so the required award notice was issued under protest. The HOPE claims 1)there is no specific provision stating the HOPE has no discretion to award, and 2) cited the Generic Proc Manual, p. 69 on Methodology: How is a contract awarded:
...
5. ... In case of a disapproval of the recommendation of award, the Head of the Procuring Entity shall state the reason(s) for disapproval and instruct the BAC on the subsequent steps to be adopted.
...
The BAC reminded the HOPE that the directive to award after disapproval is highly irregular and will be disallowed in audit, but the HOPE isnsists he is ready to defend his decision until the Supreme Court.

Can you GPRA guys please share me your wisdom? Salamat!

The HOPE's action on whether to approve the recommendation of the BAC to award or not to award or even declare a failure of bidding is limited to any of the situations provided under Sec. 41 of R.A. 9184 and its IRR.

It is correct that the HOPE has to state the reason or reasons for the disapproval of the BAC recommendation, but that reason(s) is/are limited to the situations stated therein. In other words, there is a limitation on the part of the HOPE. He may be ready to defend his decision to the court of law, but if it is not grounded on the limitations provided under Sec. 41, he risks being guilty of "grave abuse of discretion."
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Re: HOPE discretion to award?

Post by jesteR on Mon Jan 18, 2010 9:20 am

Sir RDV, yes, just the 3 situations nga... Salamat!
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Re: HOPE discretion to award?

Post by charlie brown on Mon Jan 18, 2010 3:08 pm

my understanding of what transpired was that after the HOPE disaaproved the BAC recom and directed the award instead to another bidder the BAC reviewed the action of the HOPE and awarded the contract under protest per instruction of the HOPE. iF that was what transpired, allow me to point out a few things:

1. The HOPE can only approve or disapprove a recom by the BAC. The award to another bidder was not recommended by the BAC thus, no approval can be made by the HOPE.
2. item 5 under page 69 of the Generic GPM states " In case of approval of the recommendation, the Head of the Procuring Entity, through
the procurement unit/office, issues the Notice of Award to the bidder with the
LCRB/SCRB, while the BAC accordingly notifies the losing bidders. In case of a
disapproval of the recommendation of award, the Head of the Procuring Entity shall
state the reason(s) for disapproval and instruct the BAC on the subsequent steps to
be adopted."
3. the instruction to the BAC for the subsequent steps to be undertaken in case of disapproval does not include issuance of the NOA as clearly stated above - more so since the approval was not based on the recom.
4. the BAC should not have issued the NOA (even under protest). It should be noted that section 41 pertains to reasons for not awarding the contract or declaring a failure of bidding. thus, even when the HOPE is on solid ground for disapproving the BAC recom it would merely result to a failed bidding and not an award to another bidder.
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Re: HOPE discretion to award?

Post by sunriser431 on Mon Jan 18, 2010 4:05 pm

Excerpt from PD 1445 Section 106. Liability for acts done by direction of superior officer.
No accountable officer shall be relieved from liability by reason of his having acted under the direction of a superior officer in paying out, applying, or disposing of the funds or property with which he is chargeable, unless prior to that act, he notified the superior officer in writing of the illegality of the payment, application, or disposition. The officer directing any illegal payment or disposition of the funds or property shall be primarily liable for the loss, while the accountable officer who fails to serve the required notice shall be secondarily liable.

I believe the BAC has made the right choice in informing the HOPE in writing. Better save than sorry, who wants to be member of club 6115. bounce
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Re: HOPE discretion to award?

Post by charlie brown on Mon Jan 18, 2010 4:18 pm

yup, i agree that the BAC did the right thing in informing the HOPE of the ramifications of his actions. After all, the BAC members, some of whom are department heads are supposed to give sound advice to the HOPE. It should not have however, issued the NOA because first, it is not the function of the BAC and secondly, because doing so is tantamount to recapitulating to the intention of the HOPE of which the BAC has given its sounf advice to the contrary.
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Re: HOPE discretion to award?

Post by jesteR on Mon Jan 18, 2010 8:42 pm

Hi sunriser431 ,thanks. It's actually this PD1445 of COA, sec106 as basis for making reminders to the HOPE and which he resents. Under protest, the liability now rests with the HOPE. I as Chair gave the final instruction to the Secretariat to issue NOA, then due to pressure I offered my resignation as BAC CHair which the HOPE gladly accepted haha! (as afterthought, I should have resigned without the NOA!) Charlie brown, thanks for your comments... the HOPE is the President and not following order can be insubordination. The best you can do is to make reminder of illegality/irregularity of the transaction then do instructions under protest to remove from you liability. Logical question is what's the HOPE interest in insisting for that supplier? Sus, it's that GPM "...instruct subsequent steps to be adopted..." grabe to be interpreted the HOPE can instruct whatever he wants! Dapat tanggalin or issue clarification on the GPM ang GPPB? Altho Sec41 is the limitation nga... I am waiting for the DBM update seminar for gocc's in Region 1 so I can recommend mag attend ang HOPE. Thanks, guys!
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Re: HOPE discretion to award?

Post by sunriser431 on Tue Jan 19, 2010 9:18 am

jester81 wrote:Hi sunriser431 ,thanks. It's actually this PD1445 of COA, sec106 as basis for making reminders to the HOPE and which he resents. Under protest, the liability now rests with the HOPE. I as Chair gave the final instruction to the Secretariat to issue NOA, then due to pressure I offered my resignation as BAC CHair which the HOPE gladly accepted haha! (as afterthought, I should have resigned without the NOA!) Charlie brown, thanks for your comments... the HOPE is the President and not following order can be insubordination. The best you can do is to make reminder of illegality/irregularity of the transaction then do instructions under protest to remove from you liability. Logical question is what's the HOPE interest in insisting for that supplier? Sus, it's that GPM "...instruct subsequent steps to be adopted..." grabe to be interpreted the HOPE can instruct whatever he wants! Dapat tanggalin or issue clarification on the GPM ang GPPB? Altho Sec41 is the limitation nga... I am waiting for the DBM update seminar for gocc's in Region 1 so I can recommend mag attend ang HOPE. Thanks, guys!
You are welcome jester81,The GPPB is in the process of updating GPM manual, I too waiting for its release, and congratulations, lol! (no offense intended) at least you were able to muscle your way out of the BAC, considering the workload and the responsibilities.


Last edited by sunriser431 on Tue Jan 19, 2010 12:31 pm; edited 1 time in total
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HOPE discretion to award?

Post by fe a. araya on Tue Jan 19, 2010 10:45 am

I was saddened by the info of jester81 that he has to resign as BAC Chair because of that incident with his HOPE. It's just so unfortunate that we lose people like him in our "procurement world" who stood to the end for what he believes is right (with legal basis pa) CONGRATULATIONS!
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re: hope discretion to award

Post by charlie brown on Tue Jan 19, 2010 12:11 pm

hi jester81:

I admire your conviction to stand for what you believe is the right thing and for being brave enough to stake even your designation. Not a lot of people have that kind of conviction. dont lose hope (even though your HOPE has already abandoned you). Sabi nga nila weder weder lang yan. Im sure your bravery was not lost to a lot of your peers who may share your desire for better governance. Good luck to you
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Re: HOPE discretion to award?

Post by jesteR on Tue Jan 19, 2010 10:36 pm

Thanks guys for your kind words! Pity the HOPE can be hardheaded... Removed from the BAC, I still continue to browse topics here...dami makuha learnings how to handle situations in procurement. i have encouraged the Secretariat Head and staff to find time to join the forum...keep it up!
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