September 2, 2013 Leave a comment
It was, in the language of a government official who is an expert in the law on government procurement, “a bullet train ride” for the P13.5 million pork barrel project with a“manual irrigation system” for the Iloilo Esplanade as its centerpiece.
“Right from step one to step 10, almost every rule in Republic Act No. 9184 and its revised implementing rules and regulations were violated,” the procurement law resource person, who spoke on condition of anonymity, said.
Whoever was behind it must have been in a hurry to award the contract to a favored contractor, he said. He added that the entire procurement process took 38 days, which he likened to “a bullet train ride” because of its swiftness.
The expert outlined the violations of RA 9184, which governs all procurement for supplies and services in the public sector, based on what he found out in an examination of the documents released by the Department of Public Works and Highways (DPWH) Regional Office No. 6:
- The contract was advertised through an invitation to bid on Sept. 21, 2012 even before the funds reached DPWH Region VI.
The documents show that the Department of Budget and Management (DBM) issued the Special Allotment Release Order (SARO) on Sept. 17, 2012. It was received by DPWH central office on Sept. 27, 2012, which endorsed it to DPWH Region VI on Sept. 28, 2012. Under the law, the funds must already be available when a project is advertised for public bidding, the expert said.
He said the prior issuance of the SARO is not required before the procurement can start when a project is listed in the agency’s annual procurement plan or APP. This project isn’t listed in the APP of DPWH, he said. When the invitation to bid was posted, the SARO was still in transit. Hence, no funds available yet at the time it was advertised, he said. “That’s putting the cart ahead of the horse,” he said.
While this is not a “fatal” flaw, he said “speaks loudly that somebody powerful is moving the project forward.”
- The invitation to bid was not published in a newspaper of national circulation at least once because it involved a contract exceeding P5 million.
RA 9184 and its revised implementing rules and regulations imposes a requirement for publication in a newspaper of national circulation for infrastructure contracts above P5 million. The DPWH Region VI did not present any proof this was complied with. TNT Libre also verified with the digital archive of The Manila Standard Today, which was designated as official newspaper for DPWH invitations to bid, for the dates Sept. 21 to 28, and this invitation to bid did not appear on any of these dates.
- The Bids and Awards Committee (BAC) illegally raised the approved budget for the contract (ABC) after the pre-bid conference was conducted.
The invitation to bid issued on Sept. 21, 2012 placed the ABC for the project at P10,110,640.14. But subsequently, the ABC was changed twice and raised to P13,092,238.67 through what is known as a “bid bulletin”. This is illegal, the expert said. The bid bulletin is only for purposes of clarifying the bid documents to help bidders submit a responsive offer for the contract. The ABC is determined by the agency before it is advertised for bidding. “The BAC has no power to increase or decrease the ABC,” he said.
To support his contention, he cited Resolution No. 07-2005 of the Government Procurement Policy Board (GPPB) which oversees all government procurement activities and manages the PhilGEPS website. The resolution authorizes an “upward” adjustment of the ABC only after two failed biddings in which all submitted bids exceeded the amount, or no bids were submitted, or that a negotiated procurement after two failed biddings also resulted in failure.
“This will put the entire BAC in serious trouble,” he said.
- The Notice of Award and Notice to Proceed to the winning contractor was not posted in the PhilGEPS website, which is again a violation of the revised implementing rules and regulations of RA 9184.
A key feature of the transparency mechanism for government procurement under RA 9184 is the posting of “milestone” events for a contract in the PhilGEPS website. The documents that must be posted on this website are the invitation to bid, bid bulletins, notice of award, contract agreement and notice to proceed. A “Certificate of Compliance” on these postings signed by Tayao and the new BAC chairman, Marilyn H. Celiz, dated June 7, 2013 show that these notices and contract agreement were not posted on the PhilGEPS website. On the remarks column, there appeared a note that these “Cannot be posted due to changes in ABC as posted in the bid bulletins”.
These violations are “tell-tale signs” of a rigged bidding, the expert said. “One can readily see that there was an effort to conceal the bidding,” he said.