epasio ete Pippnet DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT aE Aron ou Cer, ESA car Quozon Aerie, Wes ange, GUBEDn Cly mp: gov 12 NOY 2018 MAYOR MARISA RED-MARTINEZ. Municipality of Santa Cruz DG OPINION NO. 1400s Province of Marinduque Dear Mayor Red-Martinez: ‘This has reference to your letter dated 06 September 2018 requesting for legal opinion on the legality of alternative mode of procurement for waterworks projects funded under FY 2017 Assistance to Disadvantaged Municipalities Icis stated in the aforementioned letter that the Sanggunian placed the Municipality under a state of calamity due to water crisis. We find the issue ig whether or not it is legal to resort to alternative mode of procurement of waterworks projects under FY 2017 Assistance to Disadvantaged Municipalities (ADM) considering the said water crisis. Our view is in the affirmative. Republic Act No. 9184 (RA 9184), otherwise known as the Government Procurement Reform Act, provides that as a general rule, all procurement shall be done through Competitive Bidding, except as provided for in Article XVI thereof. Sections 48 and 53, Article XVI thereof states: Section 48. Alternative Methods. - Subject to the prior approval of the Head of the Procuring Entity or his duly authorized representative, and whenever justified by the conditions provided in this Act, the Procuring Enticy may, in order to promote economy and efficiency, resort to any of the following alternative methods of Procurement: a0 D.x0cx 2a; d. xxx; ¢. Negotiated Procurement - a method of Procurement that may be resorted under the extraordinary circumstances provided for in Section 53 of this Actand other instances that shall be specified in the IRR, whereby the Procuring Entity directly negotiates a contract with a technically, legally and financially capable supplier, contractor or consultant. Ia all instances, the Procuring Entity shall ensure that the most advantageous price for the government is obtained. Section 53. Negotiated Procurement. - Negotiated Procurement shall be allowed only in the following instances: xxx b. Incase of imminent danger to life or property during a state of calamity, or when time is of the essence arising from natural or man-made calamities or ‘other causes where immediate action is necessary to prevent damage to or loss of life or property, or to restore vital public services, infrastructure facilities and other public utilities: Accordingly, we opine that during a state of calamity, a local government unit may resort to an alternative mode of procurement, particularly negotiated procurement to il public services, facilities, and other public utilities affected by the said calamity. Considering that in the case of Municipality of Santa Cruz, it is no less than the potable water that is affected, it is but prudent for said municipality to resort to negotiated procurement to address the urgent crisis. restore Notwithstanding, we submit thar the requirements of Local Government Units Procurement Manual pertinent to said negotiated procurement shall be complied with, It states: “E12, Emergency Cases (Sec. 53.2, IRR of RA 9184) In case of imminent danger to life or property during a state of calamity, or when time is of the essence arising from natural or man-made calamities or other causes where immediate action is necessary to prevent damage to or Joss of life or property, or to restore vital public services, infrastructure facilities and other public utilities. E121. Applicability: Goods, Infrastructure Projects, and Consulting Services E.1.2.2, Procedural Requirements:e. The BAC directly negotiates with any legally, technically, and financially capable supplier, contractor, or consultant, f£ The BAC submits its recommendation to the HOPE together with all the supporting documents for the transaction. . The HOPE evaluates the recommendation and approves or disapproves the same, bh, After the approval is issued by the HOPE and contractual procedures have been accomplished, the BAG, through the BAC Sceretariat, posts for information purposes the award at the following: iv, PhilGEPS; v. LGUs website, ifany; and vi, Any conspicuous place in the premises of the LGU.” Finally, this opinion is without prejudice to the position that will be taken by the Government Procurement Policy Board, the government agency mandated by law and has technical expertise to interpret procurement law. Very truly yours, By the authority of the Segretary MARIVEL C. SACENDONCILLO, CESO IIL Assistant =] Copy furnished: Government Procurement Policy Board Unit 2506, Raffles Corporate Center, F. Ortigas Je. Road, Ortigas Conter, Pasig City DILG-MIMAROPA £822 Quezon Ave, Diliman, Quezon City Legal/$2 p/ o