4 Republic of the Philippines } DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT DILG-NAPOLCOM Building, EDSA comer Quezon Avenue, Quezon City t ‘wore dig. gov ph OFFICE OF THE UNDERSECRETARY FOR LOCAL GOVERNMENT i Rail ae wi DILG Legal Opinion No. 29, 5. 2014 HON. ARTHUR A. LEGASPI Vice May Municipal of Norzagaray Province alacan 30 JUL 2014 | Dear Vi “savor Legaspi: This refex:. to your 26 June 2014 letter requesting opinion relative to the “hiring” of consultant: through negotiated procurements under Republic Act No. 9184 (RA 9184), namely: "1. Should all consultants that were hired through Negotiated Procurement be subsequently and mandatorily covered by contracts of seroice with the municipal mayor? If so, does the latter need the Sanggunian Bayan ‘aut’. rization for him tq sign and execute the said contract? 2 Are there specific cases wherein the municipal mayor does not nt ulhorization from the Sanggunian Bayan in signing contracts? Are a emptions? 3. If the municipal mayor signs a contract with its consultant u authority from the Sanggunian Bayan, does the latter have the power tor oy or terminate the same contract? 4 Are there existing guidelines and policies in the determination of salries, compensations and limitations on the hiring of consultants? 5, Does the hiring agency, or in this case, the municipal mayor, ave thu; sole or excusive prerogative and discretion in determining the anicunt of salary or compensation of its consultants?” Before pr. ‘ding to answer the query, it should be emphasized that selection and engagem +.‘ £ services of individual personnel under Job Order or Contract of Service is distinct fi > the procurement of Consulting Services, The following are some of the noted di.“ ons:Job Order or Contract of Service are covered by COA Rules', while a Consulting Service is governed by RA 9184. The Government Procurement Policy Board (GPPB) in PMO2- 2012, dated 21 November 2012, opined that ‘I/F the desired service would require adequate external technical aid professional capability and expertise that are beyond the existing capacity of the procuring entity, then the rules and regulation on the procuremenc of consulting services under RA 9184 and its IRR shall be applicable. Conversely, 2A 9184 and its IRR will not apply in the hiring of individual personnel under Job Order or Contract of Service because the engagement does not require that level of expeitise as primary consideration for its selection, but merely pertains to the engageme .Sprdinary piece of work or intermittent job of short duration.” Secondly, + Order or Contract of Service, which does not cover special or technical skills or w..ore the functions to be performed are clerical or administrative in nature or where the work is also performed by the regular personnel of the agency, may be entered into only when done in the exigency of the service and it is not feasible for the agency to 's under a casual or contractual appointment? On the other hand, the services of consaltants may be engaged by any procuring entity for government projects or related activities of such magnitude and/or scope as would require a level of expertise or attention beyond the optimum in-house capability of the procuring entity concerned and consistent with the Government's policy not to compete with the private sector’, Necessity gunian Authorization before _ntscing Into Procurement Contracts ‘The GPPL i NM 017-2014, dated 05 May 2014, opined that “(7)here is a need for the Mayor to secure authorization from the Sanggunian to enter into contracts. The authorization Irom the Sangguniang Bayan is an indispensable requirement before the Municipal Mayor may enter into and sign all contracts and obligations in behalf of the Municipality, as explained in Non-Policy Matter No. 084-2004 (16 June 2004).” ‘Nonetheless, thz Supreme Court En Bane in Hon. Gabriel Luis Quisumbing, et al. vs. Hon. Gwendolyn F. Garcia, et al, (G.R. No. 175527, 28 December 2008) held that the sthorization may already be contained in the appropriations ordinance if there is a pzovision therein which specifically covers the expense to be incurred or the contract to 2 entered into. Hence, no further authorization is required as the same sufficient, complies with Section 22 (c) of the Code. However, if the project is described in generi~ i208 under the appropriations ordinance, there is an obvious need for a sanggunia * GPP® Resolution No. 09.2012 dated 27 Ape} 2012 2 CSC Memorandt:n Crtlar No, 245 2002 entitle Clarifications on Paley Gudeines or Contract of Sruces » Annex "B"-Genera Prcipes on Consulting Srvices~ an covering contract for.ery specific project that in turn requires the approval by the sanggunian, viz; ‘The question of whether a sunggunian authorization separate from the appropriation ordinance is required should be resolved depending on the particular circumstances of the case. Resort fo the appropriation ordinance is necessery in order to determine if there is a provision therein which specifiecily covers the expense to be incurred or the contract to be entered into, Should the appropriation ordinance, for instance, already contain in sufficicnt detail the project and cost of a capital outlay such that all that the loca’ cities executive needs to do after undergoing the requisite public bidding is vkecule the contract, no further authorization is required, the approprigtion ordinance alreudy being sufficient. On the other hand, should the appropriation ordinance describe the projects in generic terms such as “infrastructure projects,” “inter-municipal waterworks, drainage and sewerage, flood control, and irrigation systems projects,” “reclamation projects” or “roads and bridges,” there is an obvious need for a covering contract for every specific project that in turn requires appescal by the sanggunian, Specific sanggunian approval may also. be required for the purchase of goods and services which are neither specified in the copropriation ordinance nor encompassed within the regular personal ser sic sand maintenance operating expenses. Hence, assuming, that a local chief executive executed a contract without complying with Section 22 (c) gf the Code but said contract was specifically authorized/contained in the appropriations ordinance of the LGU, the subsequent ratification by the concerned sanggunian of the contract is a mere superfluity. Exception to Saaggunian Authorization Prior to LC!*s Entry into Contracts Under Section 22 (c) of Republic Act No. 7160 (hereinafter, the “Code”), no contract may be entered into by the local chief executive (LCE) in behalf of the local government unit without pric authorization by the sanggunian concerned, unless otherwise provided in the Code. Notably, the LGE’s authority to represent the local government unit (LGU) in all its business transac:ions and sign in its behalf all bonds, contracts, and obligations may be