|
 |
MALACAÑANG
MANILA
BY THE PRESIDENT OF THE PHILIPPINES
EXECUTIVE ORDER NO. 40
CONSOLIDATING PROCUREMENT RULES AND PROCEDURES FOR ALL NATIONAL
GOVERNMENT AGENCIES, GOVERNMENT-OWNED OR -CONTROLLED CORPORATIONS AND
GOVERNMENT FINANCIAL INSTITUTIONS, AND REQUIRING THE USE OF THE GOVERNMENT
ELECTRONIC PROCUREMENT SYSTEM
WHEREAS, the government is committed to good governance;
WHEREAS, the principles of good governance call for transparency, accountability,
equity, efficiency and economy in the government procurement process,
and the eradication of malpractices, particularly graft and corruption;
WHEREAS, there is an urgent need to consolidate existing administrative
orders, issuances, rules and regulations on the procurement of goods,
civil works and consulting services and to develop a single set of rules
that embodies a streamlined procurement process uniformly applicable to
all government procurement;
WHEREAS, it is imperative that the procurement process be made adaptable
to, and utilize advances, in modern technology;
WHEREAS, in the pursuit of good governance, the government shall adopt
an electronic procurement process that will uniformly apply to all government
procurement; and
WHEREAS, to enhance transparency in government procurement, the government
shall encourage the public to monitor the procurement process and the
awarding of contracts with the end in view of guaranteeing that these
contracts are awarded pursuant to law.
NOW, THEREFORE, I, GLORIA MACAPAGAL ARROYO, President of the Republic
of the Philippines, by virtue of the powers vested in me by law, do hereby
order:
GENERAL PROVISIONS
Section 1. Scope and Application. This Executive Order
shall apply to the procurement of: (a) goods, supplies, materials and
related services; (b) civil works; and (c) consulting services, by all
National Government agencies, including State Universities and Colleges
(SUCs), Government-Owned or -Controlled Corporations (GOCCs) and Government
Financial Institutions (GFIs), hereby referred to as "Agencies." This
Executive Order shall cover the procurement process from the pre-procurement
conference up to award of contract.
Nothing in this Order shall negate any existing and future government
commitments with respect to the bidding and award of contracts financed
partly or wholly with funds from international financing institutions
as well as from bilateral and other similar foreign sources.
Section 2. Statement of Policy. It is the policy of
the government that procurement shall be competitive and transparent and
therefore shall be through public bidding, except as otherwise provided
in this Executive Order.
Section 3. General Guidelines. Government procurement
shall be guided by the following reform principles:
- Simplification of pre-qualification through the use of an eligibility
check, and strengthening of post-qualification;
- Use of the Lowest Calculated and Responsive Bid as the criterion
of award in the case of procurement of goods, supplies, materials and
related services; and civil works;
- Use of the approved budget for the contract as the ceiling for the
bid price and the award; and
- Use of transparent, objective and non-discretionary criteria which
are included in the bid documents, in undertaking the eligibility check,
evaluating bids and determining the winning bidder through post-qualification.
Section 4. Procurement Management Plan. Each agency
shall judiciously prepare, maintain and update its Agency Procurement
Management Plan (APMP) for all its procurement. The APMP shall include
a Project Procurement Management Plan (PPMP) for each project.
Section 5. Procurement of Common-use Supplies, Materials
and Equipment. Agencies shall procure common-use supplies, materials and
equipment from the Procurement Service (PS) attached to the Department
of Budget and Management (DBM), in accordance with Letter of Instructions
No. 755, Executive Order Nos. 289 series of 1987, 359 series of 1989,
and 322 series of 2000, using the Electronic Procurement System (EPS)
referred to in Section 37 of this Executive Order. Agencies without internet
access may avail of the EPS Public Access Terminals which shall be installed
at DBM designated locations in the provinces and in Metro Manila: Provided,
however, That agencies shall comply with Section 38 of this Executive
Order. Small volume purchases by agencies, as defined in the implementing
rules and regulations (IRR) of this Executive Order, through the electronic
catalogue of non common-use goods, supplies and materials are allowed
without need of public bidding.
Section 6. Manuals, Standard Bidding Documents and Training.
The Procurement Policy Board (PPB), created under Executive Order No.
359 series of 1989, and the Committee on Infrastructure (Infracom) of
the National Economic and Development Authority Board shall pursue the
development of a generic procurement manual and standard bidding documents,
and shall establish a sustainable training program for developing the
capacity of the BACs, Secretariats and Technical Working Groups of the
agencies.
BIDS AND AWARDS COMMITTEE
Section 7. The BAC and its Composition. Each agency
shall establish a single Bids and Awards Committee (BAC) for its procurement.
The BAC shall be chaired by at least a third ranking officer of the procuring
entity, and its composition shall be specified in the IRR. Alternatively,
as may be deemed fit by the agency head, there may be separate BACs where
the number and complexity of the items to be procured shall so warrant.
Similar BACs for decentralized and lower level offices may be formed when
deemed necessary by the head of the agency.
Section 8. Functions of the BAC. The BAC shall, among
others, determine the eligibility of prospective bidders, receive and
open bids, conduct the evaluation of bids, undertake postqualification
proceedings, and recommend the award of contract. The scope of the BAC
activities is from the pre-procurement conference up to the recommendation
of award. All members of the BAC shall be on "jury duty" type of assignment
until the notice of award is issued by the agency head.
Section 9. Observers. To enhance the transparency of
the procurement process, the BAC shall invite, in addition to the representative
of the Commission on Audit, at least two (2) observers from the relevant
sectors to sit in and monitor the proceedings.
Section 10. Checks and Balances. The BAC chairperson
and the official who shall approve the ensuing contract for the agency
shall not be the same person.
Section 11. BAC Secretariat. The agency shall have a
Secretariat or a designated organic office as the main support unit of
the BAC(s). It shall be separately designated by the head of agency or
the appropriate designating authority, and shall be under the supervision
of the BAC(s). Similarly, a Secretariat may also be formed in decentralized
and lower level offices to support the local BAC(s) that may be established.
Section 12. Technical Working Group. For each specific
procurement, the BAC may create a Technical Working Group from a pool
of technical financial and/or legal experts to assist in the evaluation
of bids.
STANDARDIZED PROCEDURES FOR PUBLIC BIDDING
Section 13. Pre-Procurement Conference. Prior to the
issuance of the invitation to bid, the BAC shall call a pre-procurement
conference for each procurement, except for small procurement. The pre-procurement
conference shall assess the readiness of the procurement in terms of confirming
the certification of availability of funds, as well as reviewing all relevant
documents in relation to their adherence to law. This shall be attended
by the BAC, the unit or officials who prepared the bidding documents and
the draft invitation to bid, including consultants hired by the agency
concerned, as well as representatives of the end-users.
Section 14. Invitation to Bid. The invitation to bid
shall contain, among others: a brief description of the items to be procured;
the eligibility requirements; the place, date and time of the deadlines
for receipt of eligibility requirements and bids; the approved budget
for the contract to be bid; the time and place of the opening of bids;
and the contract duration or delivery schedule.
The invitation to bid shall be advertised in such manner and for such
period of time as to ensure the widest possible dissemination, the details
of which shall be provided in the IRR.
Section 15. Pre-Bid Conference. The BAC shall convene
a pre-bid conference for contracts consisting P1,000,000 or more to explain
any of the requirements, terms and conditions, and specifications stipulated
in the bid documents. For contracts below P1,000,000, the pre-bid conference
is optional at the discretion of the BAC.
Section 16. Eligibility Check of Prospective Bidders
for the Procurement of (a) Goods, Supplies, Materials and Related Services;
and (b) Civil Works. The BAC or its duly designated organic office shall
determine the eligibility of prospective bidders for the procurement of:
(a) goods, supplies, materials and related services; and (b) civil works,
based on submission of the eligibility requirements provided in the bidding
documents. The documents submitted in satisfaction of the eligibility
requirements shall be made under oath by the prospective bidder or by
his duly authorized representative certifying to the correctness of the
statements and authenticity of the said documents.
Section 17. Eligibility Check and Short Listing of Prospective
Bidders for Consulting Services. The BAC or its duly designated organic
office shall determine the eligibility of prospective bidders for the
procurement of consulting services using numerical ratings on the basis
of the eligibility requirements provided in the bidding documents, to
determine the short list of bidders whose bids shall be considered for
evaluation. The short list shall consist of the highest ranked eligible
bidders from three (3) to seven (7) in number, as predetermined by the
BAC and as indicated in the invitation to bid. The documents submitted
in satisfaction of the eligibility requirements shall be made under oath
by the prospective bidder or by his duly authorized representative certifying
to the correctness of the statements and authenticity of the said documents.
Section 18. Submission and Receipt of Bids. A bid shall
have two components, namely the technical and financial components which
should be in separate sealed envelopes, which shall be submitted simultaneously.
The bids shall be received by the BAC on such date, time and place specified
in the invitation to bid. The deadline for the receipt of bids shall be
fixed by the BAC, giving it sufficient time to complete the bidding process
and giving the prospective bidders sufficient time to study and prepare
their bids. The deadline shall also consider the urgency of the procurement
involved.
Section 19. Bid Security. Except for the procurement
of consulting services, each bid shall be accompanied by a bid security
which shall serve as a guarantee that, after receipt of the notice of
award, the winning bidder shall enter into contract with the agency within
the stipulated time and shall furnish the required performance security.
The amount and allowable forms of the bid security, as well as the manner
by which it may be returned to the bidders, shall be provided for in the
IRR, notwithstanding Sections 32 and 44 herein.
Section 20. Modification and Withdrawals of Bids. A
bidder may modify his bid, provided that this is done at least five (5)
calendar days before the deadline for the receipt of bids. The modification
shall be submitted before the deadline for receipt of bids in a sealed
envelope duty identified as a modification of the original bid and stamped
received by the BAC. A bidder may also withdraw his bid or express his
intention not to participate in the bidding before the deadline for the
receipt of bids.
Section 21. Single Calculated/Rated and Responsive Bid
Submission. A single calculated/rated and responsive bid shall be considered
under any of the following exceptional circumstances, notwithstanding
the provisions of Section 17:
- If after advertisement, only one prospective bidder applies for eligibility
check and he meets the eligibility check requirements, after which his
bid is found to be responsive;
- If after advertisement, more than one prospective bidder applies
for eligibility check but only one meets the eligibility check requirements,
after which his bid is found to be responsive; or
- If after the eligibility check of more than one bidder, only one
bid is submitted and found to be responsive.
Section 22. Bid Opening and Examination. For the procurement
of: (a) goods, supplies, materials and relevant services; and (b) civil
works, the BAC shall examine first the technical components of the bids
using "pass/fail" criteria to determine whether all required documents
are present. Only bids that are determined to contain all the bid requirements
of the technical component shall be considered for opening and evaluation
of its financial component.
Section 23. Bid Evaluation. The BAC shall evaluate the
financial component of the bids and correct it for minor deviations, such
as computational errors, omissions and discounts, in accordance with the
bidding documents to enable proper comparison of all eligible bids. Any
adjustment to correct minor deviations shall be calculated in monetary
terms to determine the calculated prices. The bids shall be ranked from
lowest to highest in terms of their corresponding calculated prices. For
the procurement of: (a) goods, supplies, materials and related services;
and (b) civil works, the bid with the lowest calculated price shall be
referred to as the "LOWEST CALCULATED BID."
Section 24. Bid Evaluation of Short Listed Bidders for
Consulting Services. For the procurement of consulting services, the BAC
shall evaluate bids of the short listed bidders and rank them using numerical
ratings in accordance with the evaluation criteria stated in the bid documents.
The bids shall be ranked from highest to lowest in terms of their corresponding
calculated ratings. The bid with the highest calculated rating shall be
referred to as the "HIGHEST RATED BID."
Section 25. Ceiling for Bid Price. The approved budget
for the contract shall be the upper limit or ceiling for the bid price.
Bid prices which exceed this ceiling shall be disqualified outright from
further participating in the bidding. There shall be no lower limit to
the amount of the award. For this purpose, the approved budget for the
contract shall be that approved by the head of the agency.
Section 26. Major Deviation. The BAC shall automatically
disqualify a bid that contains a major deviation. A major deviation is
a deviation in a bid that if allowed would not fulfill the purpose for
which the bid was requested, or would prevent a fair comparison with bids
that comply with the bidding documents as defined in the IRR.
Section 27. Postqualification. The BAC shall undertake
postqualification which involves the verification and validation of all
documents submitted by the bidder with the Lowest Calculated Bid or the
Highest Rated Bid, as the case may be and all information or statements
contained therein to determine whether he satisfies all the requirements
and conditions as specified in the bidding documents, in which case his
bid shall be considered the "LOWEST CALCULATED AND RESPONSIVE BID" in
the case of goods, supplies, materials, related services and civil works
or the "HIGHEST RATED AND RESPONSIVE BID" in the case of consulting services.
Section 28. Procurement Outsourcing. In order to hasten
project implementation, agencies which may not have the proficiency or
capability to undertake a particular procurement, as determined by their
heads, may request other agencies to undertake such procurement for them,
or at their option, recruit and hire consultants or procurement agents
to assist them directly and/or train their staff in the management of
procurement function.
Section 29. Reservation Clause. The government reserves
the right to reject any and all bids, or declare a failure of bidding,
or not award the contract for any justifiable reason including among others,
if there is a evidence of collusion between relevant public officers or
employees of the agency or the BAC and any of the bidders or among the
bidders, or between the bidders and third parties, including any act which
restricts, suppresses or nullifies competition, of if the BAC is found
to have failed to follow the prescribed bidding procedures.
AWARD OF CONTRACT
Section 30. Award of Contract and Notice to Proceed.
The head of the agency or his duly authorized agency representative shall
award and issue the corresponding notice to proceed, when applicable,
to the bidder with the Lowest Calculated and Responsive Bid or the Highest
Rated and Responsive Bid, as the case may be, in accordance with deadlines
specified in the IRR.
Section 31. Performance Security. Except for the procurement
of consulting services, prior to contract signing, the winning bidder
shall post a performance security in the form and amount specified in
the bidding documents in accordance with the IRR, to guarantee the faithful
performance of and compliance with his obligations under the contract
in accordance with the bidding documents.
Section 32. Failure to Enter into Contract and Post
Performance Security. If the bidder with the Lowest Calculated and Responsive
Bid or the Highest Rated and Responsive Bid, as the case may be, fails,
refuses or is unable to make good his bid by entering into contract with
the agency or, in the case of goods, supplies, materials, related services
and civil works, post the required performance security within the period
stipulated in the bidding documents, the bid security shall be forfeited
where so applicable, and the appropriate administrative sanctions shall
be imposed except where such failure, refusal or inability is through
no fault of his. Thereupon, the BAC shall disqualify the said bidder and
shall postqualify the next ranked Lowest Calculated Bid or Highest Rated
Bid, as the case may be. This procedure shall be repeated until an award
is made. However, if no award is made, the contract shall be re-bid.
Section 33. Price Adjustment. Price adjustments may
be allowed under extraordinary circumstances, as defined in the IRR, and
upon prior approval of the PPB.
Section 34. Period for Action on Procurement Activities.
The procurement process from the opening of bids up to the award of contract
shall not exceed three (3) months, or a shorter period to be determined
by the agency concerned. The different procurement activities shall be
completed within reasonable periods to be specified in the IRR. In addition,
the agency head shall take action on the recommendation of award of the
BAC, and shall act on the notice of award, as well as the approval of
contract within fifteen (15) calendar days from receipt thereof. In the
case of GOCCs and GFIs, the concerned board shall take action on the said
recommendation within thirty (30) calendar days from receipt thereof.
ALTERNATIVE METHODS OF PROCUREMENT
Section 35. Alternative Methods. When justified by extraordinary
conditions as provided in this Executive Order and its IRR, and subject
to the prior approval of the head of the agency in the interest of economy
and efficiency, the agency head, upon the recommendation of the BAC, may
adopt alternative methods of procurement.
Such alternative methods of procurement can take the following forms:
- Limited Source Bidding, otherwise known as Selective Bidding;
- Direct Contracting, otherwise known as Single Source procurement;
- Repeat Order;
- Shopping; or
- Negotiated Procurement.
PROCUREMENT OF INFORMATION AND COMMUNICATIONS TECHNOLOGY PROJECTS
Section 36. Information and Communications Technology
Projects. The procurement of information and communications technology
(ICT) projects shall be governed by the following rules, subject to additional
guidelines that may be prescribed by the Information Technology and E-Commerce
Council (ITECC):
- The procurement of ICT equipment and/or software only shall be considered
as procurement of good, supplies, materials and related services.
- The procurement of ICT projects involving the establishment of physical
networks only shall be considered as procurement of civil works.
- The procurement of ICT projects involving development of software
or systems only shall be considered as procurement of consulting services.
- In the case of ICT projects involving at least two of the foregoing,
the procurement shall be considered as either one for: (a) goods, supplies,
materials and related services; (b) civil works; or (c) consulting services,
whichever component has the greater or greatest cost.
THE GOVERNMENT E-PROCUREMENT SYSTEM
Section 37. The Electronic Procurement System. Pursuant
to Republic Act (R.A.) No. 8792, the "Electronic Commerce Act," the government
shall establish a single and centralized electronic portal for the procurement
of: (a) goods, supplies, materials and related services; (b) civil works;
and (c) consulting services, to be used by agencies, herein referred to
as the EPS to enhance transparency, accountability, equity, efficiency
and economy in government procurement. The PS under the supervision of
PPB shall be responsible for the establishment, management, operation
and maintenance of the EPS.
Section 38. Use of the EPS. All agencies are hereby
mandated to fully use the EPS in accordance with the policies, rules,
regulations and procedures adopted by PPB. In connection thereto and in
accordance with R.A. No. 8792, the above- mentioned agencies shall undertake
measures to ensure that they shall have an access to an on-line network
to facilitate the open, speedy and efficient on-line transmission, conveyance
and use of electronic data messages or electronic documents, and recognize
the EPS as the primary source of information on government procurement
of: (a) goods, supplies, materials and related services; (b) civil works;
and (c) consulting services. All notices and certifications to be issued
by the BAC with respect to a procurement shall be done through the EPS.
Section 39. Features of the EPS. The EPS includes the
following features:
- Electronic Bulletin Board. A centralized electronic bulletin board
for advertising procurement opportunities, notices, awards and reasons
for awards.
- Suppliers' Contractors' and Consultants' Registry. A centralized
electronic registry of all authorized suppliers, consultants and contractors,
as defined in the IRR.
- Electronic Catalogue. A centralized electronic price list consisting
of two categories, in particular: (i) Common-use goods, supplies, materials
and related services in the stores of PS shall be carried in the PS
Electronic Catalogue; and (ii) for non common-use goods, supplies, materials
and related services, as well as for civil works and consulting services,
the EPS-registered and accredited suppliers, consultants and contractors
thereof shall have their respective electronic catalogues which shall
be hosted by, or linked to, the EPS website.
- Additional Features. The Virtual Store, electronic bid submission,
on-line payment, and such other features that may be developed in the
future.
Section 40. Security, Integrity and Confidentiality.
The EPS shall ensure the security, integrity and confidentiality of documents
submitted through the system. It shall include a feature that provides
for an audit trial for on-line transactions and allows the Commission
on Audit to verify the security and integrity of the system at any time.
Section 41. Observers. The EPS shall allow observers
authorized by the BAC to monitor the procurement proceedings on-line:
Provided, however, That such observers do have any direct or indirect
interest in the contract to be bid out.
PROCUREMENT MONITORING
Section 42. Procurement Monitoring. The head of the
BAC Secretariat shall have the responsibility for monitoring the performance
against standards set forth by this Executive Order, its IRR, and existing
rules and regulations. The head of the Secretariat shall prepare a procurement
monitoring report that shall be approved and submitted by the head of
the procuring agency on a quarterly basis. The contents and coverage of
this report shall be provided for in the IRR.
INCENTIVES AND SANCTIONS
Section 43. Incentives and Sanctions. In consultation
with agencies and the Civil Service Commission, the PPB and Infracom shall
establish:
- an equitable indemnification package for officials/staff providing
services in the BAC, Secretariat and the Technical Working Group, which
may be in the form of free legal assistance, liability insurance, and
other forms of indemnification and protection; and
- a set of sanctions for violations of this Executive Order and its
IRR committed by officials/staff providing services in the BAC, Secretariat,
and the Technical Working Group.
Section 44. Administrative Penalties for Bidders and
Prospective Bidders. The head of the agency shall impose on bidders or
prospective bidders, the administrative penalties of suspension from participating
in any public bidding of the agency for one (1) year for the first offense
and two (2) years for the second offense, as well as disqualification
from further participating in the public bidding currently being under
taken by the agency concerned where applicable, for the following violations,
without prejudice to the imposition of criminal and civil sanctions as
provided by laws, rules and regulations:
- Submission of eligibility requirements containing false information
or falsified documents.
- Submission of bids that contain false information or falsified documents
of the concealment of such information in the bids.
- Allowing the use of one's name, or using the name of another, for
purposes of public bidding.
- Withdrawal of a bid or refusal to accept an award or enter into contract
with the government without just cause, after it shall have been determined
to have submitted the Lowest Calculated and Responsive Bid or the Highest
Rated and Responsive Bid, as the case may be.
- Refusal or failure to post the required performance security within
the prescribed time.
- Termination of the contract due to the default of the bidder.
- Any documented unsolicited attempt by a bidder to unduly influence
the outcome of the bidding in his favor.
- All other acts that tend to defeat the purpose of the public bidding.
AWARD OF CONTRACT
Section 30. Award of Contract and Notice to Proceed.
The head of the agency or his duly authorized agency representative shall
award and issue the corresponding notice to proceed, when applicable,
to the bidder with the Lowest Calculated and Responsive Bid or the Highest
Rated and Responsive Bid, as the case may be, in accordance with deadlines
specified in the IRR.
Section 31. Performance Security. Except for the procurement
of consulting services, prior to contract signing, the winning bidder
shall post a performance security in the form and amount specified in
the bidding documents in accordance with the IRR, to guarantee the faithful
performance of and compliance with his obligations under the contract
in accordance with the bidding documents.
Section 32. Failure to Enter into Contract and Post
Performance Security. If the bidder with the Lowest Calculated and Responsive
Bid or the Highest Rated and Responsive Bid, as the case may be, fails,
refuses or is unable to make good his bid by entering into contract with
the agency or, in the case of goods, supplies, materials, related services
and civil works, post the required performance security within the period
stipulated in the bidding documents, the bid security shall be forfeited
where so applicable, and the appropriate administrative sanctions shall
be imposed except where such failure, refusal or inability is through
no fault of his. Thereupon, the BAC shall disqualify the said bidder and
shall postqualify the next ranked Lowest Calculated Bid or Highest Rated
Bid, as the case may be. This procedure shall be repeated until an award
is made. However, if no award is made, the contract shall be re-bid.
Section 33. Price Adjustment. Price adjustments may
be allowed under extraordinary circumstances, as defined in the IRR, and
upon prior approval of the PPB.
Section 34. Period for Action on Procurement Activities.
The procurement process from the opening of bids up to the award of contract
shall not exceed three (3) months, or a shorter period to be determined
by the agency concerned. The different procurement activities shall be
completed within reasonable periods to be specified in the IRR. In addition,
the agency head shall take action on the recommendation of award of the
BAC, and shall act on the notice of award, as well as the approval of
contract within fifteen (15) calendar days from receipt thereof. In the
case of GOCCs and GFIs, the concerned board shall take action on the said
recommendation within thirty (30) calendar days from receipt thereof.
ALTERNATIVE METHODS OF PROCUREMENT
Section 35. Alternative Methods. When justified by extraordinary
conditions as provided in this Executive Order and its IRR, and subject
to the prior approval of the head of the agency in the interest of economy
and efficiency, the agency head, upon the recommendation of the BAC, may
adopt alternative methods of procurement.
Such alternative methods of procurement can take the following forms:
- Limited Source Bidding, otherwise known as Selective Bidding;
- Direct Contracting, otherwise known as Single Source procurement;
- Repeat Order;
- Shopping; or
- Negotiated Procurement.
PROCUREMENT OF INFORMATION AND COMMUNICATIONS TECHNOLOGY PROJECTS
Section 36. Information and Communications Technology
Projects. The procurement of information and communications technology
(ICT) projects shall be governed by the following rules, subject to additional
guidelines that may be prescribed by the Information Technology and E-Commerce
Council (ITECC):
- The procurement of ICT equipment and/or software only shall be considered
as procurement of good, supplies, materials and related services.
- The procurement of ICT projects involving the establishment of physical
networks only shall be considered as procurement of civil works.
- The procurement of ICT projects involving development of software
or systems only shall be considered as procurement of consulting services.
- In the case of ICT projects involving at least two of the foregoing,
the procurement shall be considered as either one for: (a) goods, supplies,
materials and related services; (b) civil works; or (c) consulting services,
whichever component has the greater or greatest cost.
THE GOVERNMENT E-PROCUREMENT SYSTEM
Section 37. The Electronic Procurement System. Pursuant
to Republic Act (R.A.) No. 8792, the "Electronic Commerce Act," the government
shall establish a single and centralized electronic portal for the procurement
of: (a) goods, supplies, materials and related services; (b) civil works;
and (c) consulting services, to be used by agencies, herein referred to
as the EPS to enhance transparency, accountability, equity, efficiency
and economy in government procurement. The PS under the supervision of
PPB shall be responsible for the establishment, management, operation
and maintenance of the EPS.
Section 38. Use of the EPS. All agencies are hereby
mandated to fully use the EPS in accordance with the policies, rules,
regulations and procedures adopted by PPB. In connection thereto and in
accordance with R.A. No. 8792, the above- mentioned agencies shall undertake
measures to ensure that they shall have an access to an on-line network
to facilitate the open, speedy and efficient on-line transmission, conveyance
and use of electronic data messages or electronic documents, and recognize
the EPS as the primary source of information on government procurement
of: (a) goods, supplies, materials and related services; (b) civil works;
and (c) consulting services. All notices and certifications to be issued
by the BAC with respect to a procurement shall be done through the EPS.
Section 39. Features of the EPS. The EPS includes the
following features:
- Electronic Bulletin Board. A centralized electronic bulletin board
for advertising procurement opportunities, notices, awards and reasons
for awards.
- Suppliers' Contractors' and Consultants' Registry. A centralized
electronic registry of all authorized suppliers, consultants and contractors,
as defined in the IRR.
- Electronic Catalogue. A centralized electronic price list consisting
of two categories, in particular: (i) Common-use goods, supplies, materials
and related services in the stores of PS shall be carried in the PS
Electronic Catalogue; and (ii) for non common-use goods, supplies, materials
and related services, as well as for civil works and consulting services,
the EPS-registered and accredited suppliers, consultants and contractors
thereof shall have their respective electronic catalogues which shall
be hosted by, or linked to, the EPS website.
- Additional Features. The Virtual Store, electronic bid submission,
on-line payment, and such other features that may be developed in the
future.
Section 40. Security, Integrity and Confidentiality.
The EPS shall ensure the security, integrity and confidentiality of documents
submitted through the system. It shall include a feature that provides
for an audit trial for on-line transactions and allows the Commission
on Audit to verify the security and integrity of the system at any time.
Section 41. Observers. The EPS shall allow observers
authorized by the BAC to monitor the procurement proceedings on-line:
Provided, however, That such observers do have any direct or indirect
interest in the contract to be bid out.
PROCUREMENT MONITORING
Section 42. Procurement Monitoring. The head of the
BAC Secretariat shall have the responsibility for monitoring the performance
against standards set forth by this Executive Order, its IRR, and existing
rules and regulations. The head of the Secretariat shall prepare a procurement
monitoring report that shall be approved and submitted by the head of
the procuring agency on a quarterly basis. The contents and coverage of
this report shall be provided for in the IRR.
INCENTIVES AND SANCTIONS
Section 43. Incentives and Sanctions. In consultation
with agencies and the Civil Service Commission, the PPB and Infracom shall
establish:
- an equitable indemnification package for officials/staff providing
services in the BAC, Secretariat and the Technical Working Group, which
may be in the form of free legal assistance, liability insurance, and
other forms of indemnification and protection; and
- a set of sanctions for violations of this Executive Order and its
IRR committed by officials/staff providing services in the BAC, Secretariat,
and the Technical Working Group.
Section 44. Administrative Penalties for Bidders and
Prospective Bidders. The head of the agency shall impose on bidders or
prospective bidders, the administrative penalties of suspension from participating
in any public bidding of the agency for one (1) year for the first offense
and two (2) years for the second offense, as well as disqualification
from further participating in the public bidding currently being under
taken by the agency concerned where applicable, for the following violations,
without prejudice to the imposition of criminal and civil sanctions as
provided by laws, rules and regulations:
- Submission of eligibility requirements containing false information
or falsified documents.
- Submission of bids that contain false information or falsified documents
of the concealment of such information in the bids.
- Allowing the use of one's name, or using the name of another, for
purposes of public bidding.
- Withdrawal of a bid or refusal to accept an award or enter into contract
with the government without just cause, after it shall have been determined
to have submitted the Lowest Calculated and Responsive Bid or the Highest
Rated and Responsive Bid, as the case may be.
- Refusal or failure to post the required performance security within
the prescribed time.
- Termination of the contract due to the default of the bidder.
- Any documented unsolicited attempt by a bidder to unduly influence
the outcome of the bidding in his favor.
- All other acts that tend to defeat the purpose of the public bidding.
In addition to the above administrative penalties, the bid security or
the performance security of the bidder concerned, where so applicable,
shall also be forfeited.
The authority to impose the above-mentioned administrative penalties
may be delegated by the head of the agency to the BAC.
FINAL PROVISIONS
Section 45. Local Government Units. All procurement
of local government units funded by the national government shall be governed
by the provisions of this Executive Order and its IRR. Furthermore, local
government units are encouraged to apply the rules and procedures provided
in this Executive Order for procurement funded from the local government
funds.
Section 46. Appeals. Decision of the BAC in al stages
of procurement may be appealed to the head of the agency in writing. Appeals
shall be made by filing a verified position paper and paying a non-refundable
protest fee. The amount of the protest fee and the periods during which
the appeals may be filed and resolved shall be specified in the IRRs.
Section 47. Implementing Rules and Regulations (IRR).
Within sixty (60) calendar days from the issuance of this Executive Order,
the PPB and the Infracom shall jointly issue the policies, rules, regulations
and procedures to implement this Executive Order, leading to a more transparent
and efficient procurement system for the government. These IRR may be
amended jointly by the PPB and the Infracom as the need arises.
Section 48. Repealing Clause. All executive issuances,
orders, rules and regulations or parts thereof inconsistent with this
Executive Order are hereby repealed, amended and/or modified accordingly.
Section 49. Separability Clause. If any provision of
this Executive Order is declared invalid or unconstitutional, the other
provisions not affected hereby shall remain valid and subsisting.
Section 50. Effectivity Clause. This Executive Order
shall take effect fifteen (15) day after its publication in the Official
Gazette or in a newspaper of general circulation.
DONE in the City of Manila, this 8th day of October in the year of Our
Lord, Two Thousand and One.
(Original Signed)
GLORIA MACAPAGAL ARROYO
President
Republic of the Philippines
By the President:
(Original Signed)
ALBERTO G. ROMULO
Executive Secretary
|
