Section 47 (Disclosure of Relations)

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Section 47 (Disclosure of Relations)

Post by multigain on Sun Mar 15, 2009 12:25 pm

"... all bids shall be accompanied by a sworn affidavit of the bidder that it is not related to the head of the procuring entity by consanguinity or affinity up to the third civil degree..."

My brother-in-law (husband of my older sister) is the younger brother of our City Mayor. Am I automatically disqualified as a bidder? In other words, is the brother of my brother-in-law also my brother-in-law?

Also, my older brother is the City Vice Mayor. Am I correct in assuming he is not the Head of the Procuring Entity, being the head of the legislative body?
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Re: Section 47 (Disclosure of Relations)

Post by engrjhez® on Sun Mar 15, 2009 7:27 pm

multigain wrote:"... all bids shall be accompanied by a sworn affidavit of the bidder that it is not related to the head of the procuring entity by consanguinity or affinity up to the third civil degree..."
Consanguinity is relation by blood. Affinity is relation by law. This means, when referring to my father, I am related to the 1st degree of consanguinity to him. After I married, my wife shall be related as to the 1st degree of affinity.
multigain wrote:My brother-in-law (husband of my older sister) is the younger brother of our City Mayor. Am I automatically disqualified as a bidder? In other words, is the brother of my brother-in-law also my brother-in-law?
I am afraid YES. Your brother-in-law is related as to the 1st degree of consanguinity to the City Mayor (being his/her younger brother). Your sister, being the wife, is related as to the 1st degree of affinity. Now since she is your sister, you are now related as to the 2nd degree of affinity to the City Mayor. Even your wife (considered as 3rd degree of affinity) is not allowed by law to participate the procurement from which the said City Mayor is the Head of the Procuring Entity (HOPE).
multigain wrote:Also, my older brother is the City Vice Mayor. Am I correct in assuming he is not the Head of the Procuring Entity, being the head of the legislative body?
You are correct. The Local Chief Executive (the City Mayor) shall be by default, the HOPE. For additional discussions related to this topic, please click the link below.

http://gppb.topicsolutions.net/topics-on-the-draft-gpra-irr-f3/draft-irr-disclosure-of-relations-t48.htm
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Re: Section 47 (Disclosure of Relations)

Post by Mikel on Thu Mar 19, 2009 9:54 am

granting, arguendo, that multigain is related by affinity to the HOPE, i think that he is already a 4th civil degree relative of the mayor. i think lawyers have a 'funny' way of doing their math (no offense meant). however, i am of the view that multigain is not related to the mayor, either by affinity or consanguinity. the legal link extends only up to his sister who is married to the brother of the mayor.

please correct me if i'm wrong. anyone, please... thank you very much.

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Re: Section 47 (Disclosure of Relations)

Post by engrjhez® on Thu Mar 19, 2009 10:23 am

Mikel wrote:granting, arguendo, that multigain is related by affinity to the HOPE, i think that he is already a 4th civil degree relative of the mayor. i think lawyers have a 'funny' way of doing their math (no offense meant). however, i am of the view that multigain is not related to the mayor, either by affinity or consanguinity. the legal link extends only up to his sister who is married to the brother of the mayor.

please correct me if i'm wrong. anyone, please... thank you very much.
I think i have missed a spot in my explanation. The siblings of the Mayor already in the 2nd degree (because 1st degree nga pala pertains to direct relation as to ascendance or descendance). I have to return to this later due to today's commitment. The link below might help:

http://www.txstate.edu/effective/upps/upps-04-04-07-att1.html

PS. I hope i don't make a LAWYER'S impression doing the "funny math". We, engineers, do the MATH, the "easy but precise way". The idea presented above is based on my native (and conservative) intuition. I hope someone with great expertise make it to Layman's terms. Very Happy
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Re: Section 47 (Disclosure of Relations)

Post by RDV @ GP3i on Thu Mar 19, 2009 11:53 am

multigain wrote:... all bids shall be accompanied by a sworn affidavit of the bidder that it is not related to the head of the procuring entity by consanguinity or affinity up to the third civil degree..."

My brother-in-law (husband of my older sister) is the younger brother of our City Mayor. Am I automatically disqualified as a bidder? In other words, is the brother of my brother-in-law also my brother-in-law?
Your brother-in-law is related to the 2nd degree by consanguinity to the HOPE, who is his brother. No question about that. You are also related to the 2nd degree by consanguinity to your sister.

Your question, however, is if you are related to the HOPE by AFFINITY, and in what degree, if ever.

To answer that, we have to know first what "affinity" means. Affinitity is the “Relationship of a husband to the blood relatives of his wife, or of a wife to the blood relatives of her husband" (source: Philippine Legal Encyclopedia, 1986 edition, by Jose Agaton R. Sibal). From that definition, it is clear that a spouse is related by affinity only to the blood relatives of his/her spouse.

From that definition, are you related, therefore, by affinity to the HOPE? The answer in NO. The HOPE is related by affinity only to your Sister, being a sister-in-law, but not to you. You did not marry into the family of the HOPE, only your sister.

multigain wrote:Also, my older brother is the City Vice Mayor. Am I correct in assuming he is not the Head of the Procuring Entity, being the head of the legislative body?
He is not the HOPE. The HOPE is the City Mayor.
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Re: Section 47 (Disclosure of Relations)

Post by engrjhez® on Thu Mar 19, 2009 12:47 pm

RDV,

I remember we did not discuss that up in the seminar because of time constraints, right? Does GPPB "always" refer to legal meanings (because we do have some wordings which may have dual or multiple meanings)?

Ex.
affinity - relationship by marriage or by ties other than those of blood (definition from Dictionary.com, which may be general in meaning)

affinity - kinship by marriage: a relationship by marriage, not by blood (definition by Encarta, MSN)

and there are still lateral legal definitions from the web like this article:

For the benefit of readers, does it follow that affinity is "non-extendable"? Very Happy
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Re: Section 47 (Disclosure of Relations)

Post by RDV @ GP3i on Thu Mar 19, 2009 1:06 pm

engrjhez wrote:RDV,

I remember we did not discuss that up in the seminar because of time constraints, right? Does GPPB "always" refer to legal meanings (because we do have some wordings which may have dual or multiple meanings)?

Ex.
affinity - relationship by marriage or by ties other than those of blood (definition from Dictionary.com, which may be general in meaning)

affinity - kinship by marriage: a relationship by marriage, not by blood (definition by Encarta, MSN)

and there are still lateral legal definitions from the web like this article:

Maybe I was not able to because of lack of time, but I always include 3 slides on relationship by affinity and consanguinity.

engrjhez wrote:For the benefit of readers, does it follow that affinity is "non-extendable"? Very Happy

What do you mean by "non-extandable"? Do you mean, you want to extend it to the other members of the family? For example, the sister is married to the brother of the mayor, you want to extend affinity to forumer 'multigain'? She did not marry into the family of the HOPE. Are they her in-laws? I don't think so.

Your definition, aside from the legal definition I quoted, also refers to relationship by marriage. Again, it was multigain's sister who was married, so that 'relationship by marriage' would only refer to her, not to multigain.

There are lawyers is this forum, I am not, but my research points to a no relationship by affinity. I got my "jurisprudence" from a decion of the CSC in a nepotism case under the provisions of the LGC. If you want the specific case, I can research it back for you. Unfortunately, I don't have it on my file anymore.
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Re: Section 47 (Disclosure of Relations)

Post by Mikel on Thu Mar 19, 2009 1:15 pm

still, the question which needs to be answered is whether or not multigain is related to the mayor by affinity within the 3rd civil degree? if my legal math is correct, multigain is already 4 degrees removed from the mayor. from the mayor to his ascendant - 1 degree, ascendant to the brother - 1 degree, brother's wife (multigains's sis) to her ascendant - 1 degree, ascendant to multigain (the bidder) 1 degree, that makes 4 degrees, is my counting right?

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Re: Section 47 (Disclosure of Relations)

Post by engrjhez® on Thu Mar 19, 2009 1:22 pm

RDV wrote:
What do you mean by "non-extandable"? Do you mean, you want to extend it to the other members of the family? For example, the sister is married to the brother of the mayor, you want to extend affinity to forumer 'multigain'? She did not marry into the family of the HOPE. Are they her in-laws? I don't think so.
I used to think that, in the same manner a decendant is rated by a degree depending on the "generation" level like if you are within the family as siblings, you belong to the 1st degree with the parents (my first statement).

When I got my second look this time on the slides you provided us (in the seminar) I saw the degree of consanguinity as the number of "trippings" from the point of origin (like example from me to my father then back to my brother counted as 2).

Now, I got this intuition that if "generation-wise" consanguinity is established, maybe true to affinity as well. But of course that's just me.

This leads now to the conclusion that bilas (the relation of spouses of siblings) do not constitute affinity. Is this right? Wink
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Re: Section 47 (Disclosure of Relations)

Post by engrjhez® on Thu Mar 19, 2009 1:24 pm

Mikel wrote:still, the question which needs to be answered is whether or not multigain is related to the mayor by affinity within the 3rd civil degree? if my legal math is correct, multigain is already 4 degrees removed from the mayor. from the mayor to his ascendant - 1 degree, ascendant to the brother - 1 degree, brother's wife (multigains's sis) to her ascendant - 1 degree, ascendant to multigain (the bidder) 1 degree, that makes 4 degrees, is my counting right?
While waiting for reactions, I believe, based on the definitions provided, the degree (whether 3rd of 4th) is immaterial because... he is NOT related at all! right? (or left?) Very Happy
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Re: Section 47 (Disclosure of Relations)

Post by RDV @ GP3i on Thu Mar 19, 2009 1:34 pm

engrjhez wrote:
RDV wrote:
What do you mean by "non-extandable"? Do you mean, you want to extend it to the other members of the family? For example, the sister is married to the brother of the mayor, you want to extend affinity to forumer 'multigain'? She did not marry into the family of the HOPE. Are they her in-laws? I don't think so.
I used to think that, in the same manner a decendant is rated by a degree depending on the "generation" level like if you are within the family as siblings, you belong to the 1st degree with the parents (my first statement).

When I got my second look this time on the slides you provided us (in the seminar) I saw the degree of consanguinity as the number of "trippings" from the point of origin (like example from me to my father then back to my brother counted as 2).

The counting, by degree or level, whether in consanguinity and affinity are the same. For example, your father is related to you, by consanguinity, by the first degree. Your father-in-law is also related to you, by affinity, in the first degree. Your brother is related to you, also by consanguinity, in the second degree and your sister-in-law is related to you, by affinity, also in the second degree.

engrjhez wrote:[Now, I got this intuition that if "generation-wise" consanguinity is established, maybe true to affinity as well. But of course that's just me.

This leads now to the conclusion that bilas (the relation of spouses of siblings) do not constitute affinity. Is this right? Wink

Bilas is not related because a bilas (asawa ng sister-in-law or brother-in-law) is not related by blood you your wife. The same in the case of multigain. There is no relationship by affinity to multigain because her/his spouse is not related by blood to the HOPE. It is multigain's sister who is related by affinity to the HOPE.
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Re: Section 47 (Disclosure of Relations)

Post by shobe on Mon Mar 23, 2009 4:00 pm

For those who are interested to read the CSC resolution referred to by Sir RDV, kindly click the link below

http://www.csc.gov.ph/mread00/res-002396.html

RESOLUTION NO. 002396
Rationale of the decision is as follows:

Since definitely, Bugnosen and Governor Mayaen are not blood relatives ("consanguinity'), can they be properly considered as relatives by "affinity"? For that reason, what is particularly important is the definition of "affinity". According to the Philippine Legal Encyclopedia, 1986 edition, by Jose Agaton R. Sibal (p.300) affinity has been defined as the "relationship of a husband to the blood relatives of his wife, or of a wife to the blood relatives of her husband". It is thus clear that a spouse is related by affinity only to the blood relatives of his/her spouse.

In the instant case, the relative by affinity of Governor Mayaen is only limited to the blood relatives of his wife, thus including her sister but not her brother-in-law who in this case is Bugnosen.


PS
Engrjhez: Lawyers don't do the funny math. We hardly understand it, so I guess it would be difficult for us to make it funny.
lol!
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Re: Section 47 (Disclosure of Relations)

Post by engrjhez® on Mon Mar 23, 2009 8:42 pm

Shobe,

Funny 'coz it's not me who mentioned the "funny" and math thing:
Mikel wrote:granting, arguendo, that multigain is related by affinity to the HOPE, i think that he is already a 4th civil degree relative of the mayor. i think lawyers have a 'funny' way of doing their math (no offense meant). however, i am of the view that multigain is not related to the mayor, either by affinity or consanguinity. the legal link extends only up to his sister who is married to the brother of the mayor...
What makes it funny is that most people (not only lawyers) hate math, though inevitably used in our daily lives.

Peace Very Happy
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Re: Section 47 (Disclosure of Relations)

Post by RDV @ GP3i on Tue Mar 24, 2009 11:15 am

shobe wrote:For those who are interested to read the CSC resolution referred to by Sir RDV, kindly click the link below

http://www.csc.gov.ph/mread00/res-002396.html

RESOLUTION NO. 002396
Rationale of the decision is as follows:

Since definitely, Bugnosen and Governor Mayaen are not blood relatives ("consanguinity'), can they be properly considered as relatives by "affinity"? For that reason, what is particularly important is the definition of "affinity". According to the Philippine Legal Encyclopedia, 1986 edition, by Jose Agaton R. Sibal (p.300) affinity has been defined as the "relationship of a husband to the blood relatives of his wife, or of a wife to the blood relatives of her husband". It is thus clear that a spouse is related by affinity only to the blood relatives of his/her spouse.

In the instant case, the relative by affinity of Governor Mayaen is only limited to the blood relatives of his wife, thus including her sister but not her brother-in-law who in this case is Bugnosen.

Atty. Shobe:

Thank you for providing the link to the CSC Resolution, which was the basis of my opinion on the query of multigain.
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Re: Section 47 (Disclosure of Relations)

Post by riddler on Fri May 15, 2009 12:48 pm

Suppose a BAC Member is only a member of certain Cooperative that enters into a Bidding with the pROCURing Entity, would it be a ground for disqualification for the Cooperative under the Disclosure of Relations? or Is the Cooperative allowed to Bid?
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Re: Section 47 (Disclosure of Relations)

Post by RDV @ GP3i on Fri May 15, 2009 1:47 pm

ruel t. wrote:Suppose a BAC Member is only a member of certain Cooperative that enters into a Bidding with the pROCURing Entity, would it be a ground for disqualification for the Cooperative under the Disclosure of Relations? or Is the Cooperative allowed to Bid?

If he/she is only a member of the Cooperative, not an officier or employee, or holding substantial interest or cooperative share (maybe he has only one vote in the cooperative which is composed of hundreds or thousands of members), I don't think it could be ground for disqualification.

Being a 'member' only, he/she could not be equated to the cooperative, neither could he/she represent the interest of the cooperative not being an officer. Remember, the disclosure states something like this: "the bidder (the cooperative) is not related to the HOPE or to any member of the BAC...). From that disclosure statement, the cooperative is definitely not the BAC member, or vice versa.
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Re: Section 47 (Disclosure of Relations)

Post by engrjhez® on Sat May 16, 2009 2:30 pm

ruel t. wrote:Suppose a BAC Member is only a member of certain Cooperative that enters into a Bidding with the pROCURing Entity, would it be a ground for disqualification for the Cooperative under the Disclosure of Relations? or Is the Cooperative allowed to Bid?
Going back to Section 47, considering that a certain Cooperative is the bidder, the provision shall apply to the following persons:

  • a) If the bidder is an individual or a sole proprietorship, to the bidder himself;
  • b) If the bidder is a partnership, to all its officers and members;
  • c) If the bidder is a corporation, to all its officers, directors, and controlling stockholders; and
  • d) If the bidder is a joint venture, the provisions of items (a), (b) or (c) of this Section shall correspondingly apply to each of the members of the said joint venture, as may be appropriate.

If a Cooperative is considered as a partnership (please confirm), the bidder shall NOT be allowed to participate. Otherwise, the Cooperative may be allowed.
Very Happy
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Re: Section 47 (Disclosure of Relations)

Post by shobe on Mon May 18, 2009 12:37 pm

If a Cooperative is considered as a partnership (please confirm), the bidder shall NOT be allowed to participate. Otherwise, the Cooperative may be allowed.

I think it is highly legally improbable that a cooperative be likewise considered a partnership. By their very nature, the two entities are different; their creation, as well the law, governing these entities is likewise different.

I share the view of Sir RDV though, that if the BAC member is indeed not holding substantial interest or cooperative share, then his membership to the said cooperative should not be ground for disqualification under the disclosure provision of the IRR-A of R.A. 9184.

In support thereto, Section 3 (i) of Republic Act 6713 (Establishing a Code of Conduct and Ethical Standards for Public Official and Employees) provides that a "Conflict of interest" arises when a public official or employee is a member of a board, an officer, or a substantial stockholder of a private corporation or owner or has a substantial interest in a business, and the interest of such corporation or business, or his rights or duties therein, may be opposed to or affected by the faithful performance of official duty.

However, I would still advise said BAC member to be cautious nonetheless on the strict provisions of R.A. 3019 (The Anti-Graft and Corrupt Practices Act) which, on the other hand, provides:

Section 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

(a) Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or offense.
xxx

(i) Directly or indirectly becoming interested, for personal gain, or having a material interest in any transaction or act requiring the approval of a board, panel or group of which he is a member, and which exercises discretion in such approval, even if he votes against the same or does not participate in the action of the board, committee, panel or group.

Interest for personal gain shall be presumed against those public officers responsible for the approval of manifestly unlawful, inequitable, or irregular transaction or acts by the board, panel or group to which they belong.

(k) Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date.

Thus, although said BAC member “may be” excused under the provisions of the Procurement Act, his/her actions may still fall within the scope of the prohibited acts under other governmental issuances.
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Re: Section 47 (Disclosure of Relations)

Post by riddler on Mon May 18, 2009 2:17 pm

Shob, can the BAC now categorically deny the application of eligibilty of those cooperative whose members are also the members of the BAC using RA 3019 you mentioned?
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Re: Section 47 (Disclosure of Relations)

Post by RDV @ GP3i on Mon May 18, 2009 6:57 pm

ruel t. wrote:Shob, can the BAC now categorically deny the application of eligibilty of those cooperative whose members are also the members of the BAC using RA 3019 you mentioned?

Although your question is addressed to atty shobe, let me give a little contribution, at least to differentiate the provisions of Sec. 47 of RA 9184 against Sec. 3 of R.A 3019 (Anti-Graft Law).

Under Sec. 47, disqualification is automatic. If the bidder is related within the 3rd degree or consanguinity or affinity to the HOPE or to any officers or employees of the procuring entity which has direct access to information on the project which may substantially affect the results of the bidding, he is automatically disqualified.

Under Sec. 3 of R.A. 3019, the reason of relationship does not automatically mean conflict of interest, which could make him liable. Those acts enumerated therein, which constitute corrupt practices, still have to be proved against public officers. Hence, there is no automatic disqualification or automatic proof of guilt here.

And by the way, this provision applies to public officers, while Sec. 47 applies to private individuals (bidders).

From the foregoing, my answer to your question is NO.
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Re: Section 47 (Disclosure of Relations)

Post by riddler on Mon May 18, 2009 8:53 pm

thanks RDV. may kakampi na ako.
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Re: Section 47 (Disclosure of Relations)

Post by shobe on Tue May 19, 2009 11:25 am

Shob, can the BAC now categorically deny the application of eligibilty of those cooperative whose members are also the members of the BAC using RA 3019 you mentioned?

Dear Ruel T:

Please note that in the second paragraph of my previous post, I have stated that if the BAC member is not holding substantial interest in the Cooperative which is about to join in a procurement activity, then his membership in said organization should not be considered as an automatic disqualification.

My advice, considering that Sir RDV has already extensively answered your query, was more from the legal point of view in protecting the said BAC member and the purported procurement transaction of your good agency.

Although, the Cooperative cannot be automatically denied of participating in the procurement activity, the action/decision of the BAC as a group may always nonetheless be questioned vis-ŕ-vis the Anti-Graft and Corrupt Practices Act in any court of law.

Likewise, please note that Section 3 (k) of R.A. 3019 states:

k) Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date.

xxx

The (private) person giving the gift, present, share, percentage or benefit referred to in subparagraphs (b) and (c); or offering or giving to the public officer the employment mentioned in subparagraph (d); or urging the divulging or untimely release of the confidential information referred to in subparagraph (k) of this section shall, together with the offending public officer, be punished under Section nine of this Act and shall be permanently or temporarily disqualified in the discretion of the Court, from transacting business in any form with the Government.

PS
Like any day in court though, the criminal act would have to be proven beyond reasonable doubt.
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Re: Section 47 (Disclosure of Relations)

Post by riddler on Tue May 19, 2009 12:34 pm

Hirap din ano? alam mo Shob this has been a common practice in our LGU (I believed other LGU too!)

Some employees of a Department or LGU formed themselves as Cooperatives cornering the "Meals and Snacks" procurements of the trainings they themeselves conducted. Although, it only involved a meager amount and procured through Alternative Mode kaya di na nire-require yung mga "Articles of Cooperatives", Baka tama ka nga Shob, at some of its Board of Directors eh Member ng BAC or TWG.

ill check it out. pale
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Re: Section 47 (Disclosure of Relations)

Post by engrjhez® on Tue May 19, 2009 7:42 pm

ruel t. wrote:Hirap din ano? alam mo Shob this has been a common practice in our LGU (I believed other LGU too!)

Some employees of a Department or LGU formed themselves as Cooperatives cornering the "Meals and Snacks" procurements of the trainings they themeselves conducted. Although, it only involved a meager amount and procured through Alternative Mode kaya di na nire-require yung mga "Articles of Cooperatives", Baka tama ka nga Shob, at some of its Board of Directors eh Member ng BAC or TWG.

ill check it out. pale

I second the fact. Meals ba kamo? Gutom na ko eh, hehe.
(office pa ko, waaaah!)
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Re: Section 47 (Disclosure of Relations)

Post by zed on Mon Jan 31, 2011 12:11 pm

Section 47. Disclosure of Relations
All bids shall be accompanied by a sworn affidavit of the bidder that it is not related to the
Head of the Procuring Entity, members of the BAC, the TWG, and the BAC Secretariat, the
head of the PMO or the end-user unit, and the project consultants, by consanguinity or
affinity up to the third civil degre
e. Failure to comply with the aforementioned provision
shall be a ground for the automatic disqualification of the bid in consonance with Section 30
of this IRR. For this reason, relation to the aforementioned persons within the third civil
degree of consanguinity or affinity shall automatically disqualify the bidder from participating
in the procurement of contracts of the procuring entity. On the part of the bidder, this
provision shall apply to the following persons:

" I HAVE A QUERY ON THIS MATTER..I WOULD LIKE TO ASK IF THIS REVISED PROVISION IS APPLICABLE TO THE ACCOUNTANT OF OUR MUNICIPALITY, HE IS NOT MEMBER OF THE BAC NOR PART OF BAC SECRETARIATE OR TWG BUT AS A HUSBAND OF YOUNGER SISTER OF ONE OF THE BIDDER THAT PARTICIPATED ON THE BIDDING IN OUR MUNICIPALITY IS HE RELATED TO SECOND DEGREE OF AFFINITY TO THIS BIDDER?
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Re: Section 47 (Disclosure of Relations)

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