EXECUTIVE ORDER NO. 109-A
EXECUTIVE ORDER NO. 109-A -
AMENDING EXECUTIVE ORDER NO. 109 DATED MAY 27, 2002 PRESCRIBING THE
RULES AND PROCEDURES ON THE REVIEW AND APPROVAL OF ALL GOVERNMENT
CONTRACTS TO CONFORM WITH REPUBLIC ACT NO. 9184, OTHERWISE KNOWN AS THE
GOVERNMENT PROCUREMENT REFORM ACT
WHEREAS,
in line with the government’s program of good governance, Executive
Order No. 109 dated May 27, 2002 entitled “Streamlining The Rules And
Procedures On The Review and Approval Of All Contracts Of Departments,
Bureaus, Offices, And Agencies Of The Government, Including
Government-Owned Or Controlled Corporations And Their Subsidiaries” was
issued for the expeditious implementation of development projects and
the speedy delivery of basic services while promoting transparency,
competitiveness, and accountability in government transactions;
WHEREAS, Republic Act No. 9184, otherwise known as the Government
Procurement Reform Act, which was enacted into law on January 10, 2003,
likewise declared it the policy of the State to promote the ideals of
good governance, with a view to transparency, competitiveness,
streamlining, accountability and public monitoring in the procurement
process of Government Contracts;
WHEREAS, Republic Act No. 9184 consolidated the procurement processes
of Government Contracts, including the procurement of infrastructure
projects, goods and consulting services, and lease of goods and real
estate, among others;
WHEREAS, it has become necessary to amend the provisions of Executive
Order No. 109 dated May 27, 2002 to make it conform with the provisions
of Republic Act No. 9184;
WHEREAS, the Government Procurement Policy Board (GPPB) and the
National Economic and Development Authority (NEDA) recommend the
issuance of this Executive Order;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the
Philippines, by virtue of the powers vested in me by law, do hereby
order:
Section 1. Policy Requiring Public Bidding. — It is
the policy of this Administration that all Government Contracts of
Government Agencies, including procurement contracts, shall be awarded
through open and competitive public bidding, save in exceptional cases
provided by law and applicable rules and regulations, as described in
Sec. 3 of this Executive Order.
For this purpose, a Government Agency shall refer to the various units
of the Government, including a department, bureau, office,
instrumentality, government-owned and/or -controlled corporation or its
subsidiary, or state college or university (Cf. Sec. 2(4) of
Executive Order No. 292 dated July 25, 1987, otherwise known as the
Administrative Code of 1987).
Sec. 2. Approval of Government Contracts Awarded
Through Public Bidding. — Except for Government Contracts required by
law to be acted upon and/or approved by the President, the Heads of the
procuring entities shall have full authority to give final approval
and/or enter into all Government Contracts of their respective
Government Agencies, awarded through public bidding, regardless of the
amount involved.
The Heads of the procuring entities may delegate in writing this full
authority to give final approval and/or enter into Government Contracts
awarded through public bidding as circumstances may warrant (i.e.,
decentralization of procurement in a Government Agency), subject to
such limitations imposed by the Head of the procuring entity concerned
(Cf. Sec. 5(j), Republic Act No. 9184).
As defined under Sec. 5(j) of Republic Act No. 9184, a Head of the
procuring entity refers (i) the head of the agency or his duly
authorized official, for national government agencies, or (ii) the
governing board or its duly authorized official, for government-owned
and/or -controlled corporations.
Sec. 3. Exceptions to Public Bidding. — Section s
48 to 53 of Republic Act No. 9184 and its Implementing Rules and
Regulations provide for exceptional cases where the procurement of
infrastructure projects, goods and consulting services may be
undertaken through alternative methods of procurement, other than
through public bidding.
Sec. 4. Approval of Government Contracts Entered
Into Through Alternative Methods of Procurement, Other Than Through
Public Bidding.
a.
For Government Contracts Involving An Amount Of At Least Three Hundred
Million Pesos (P300 Million). — Where the Head of the procuring entity
has made a determination that a Government Contract, including
Government Contracts required by law to be acted upon and/or approved
by the President, involving an amount of at least Three Hundred Million
Pesos (P300 Million) falls under any of the exceptions from public
bidding described in Sec. 3 hereof, the Head of the procuring entity
shall, before proceeding with the alternative methods of procurement
provided by law and applicable rules and regulations, obtain the
following requirements:
i.
An opinion from the Secretary of Justice that said Government Contract
falls within the exceptions from public bidding; and
ii. Approval
from the Director-General of NEDA to proceed with a specific
alternative method of procurement under the exceptional cases provided
by law and applicable rules and regulations. This authority to approve
shall be lodged with the Director-General of NEDA until such time that
the GPPB created under Republic Act No. 9184 informs the NEDA in
writing of its decision to exercise such authority.
After obtaining the foregoing
requirements, except for Government Contracts required by law to be
acted upon and/or approved by the President, the Heads of the procuring
entities shall have full authority to give final approval and/or enter
into Government Contracts of their respective Government Agencies,
entered into through alternative methods of procurement allowed by law,
other than through public bidding, where the Government Contract
involves an amount of at least Three Hundred Million Pesos (P300
Million)
b.
For Government Contracts Involving An Amount Below Three Hundred
Million Pesos (P300 Million). — Except for Government Contracts
required by law to be acted upon and/or approved by the President, the
Heads of the procuring entities shall likewise have full authority to
give final approval and/or enter into Government Contracts of their
respective Government Agencies, entered into through alternative
methods of procurement allowed by law, other than through public
bidding, where the Government Contract involves an amount below Three
Hundred Million Pesos (P300 Million).
The Heads of the procuring entities may delegate in writing this full
authority to give final approval and/or enter into Government Contracts
involving an amount of below Three Hundred Million Pesos (P300 Million)
entered into through alternative methods of procurement allowed by law,
other than through public bidding, as circumstances may warrant (i.e.,
decentralization of procurement in a Government Agency), subject to
such limitations imposed by the Head of the procuring entity concerned
(Cf. Sec. 5(j), Republic Act No. 9184).
Sec. 5. Authority to Bind the Government. — All
Government Contracts shall require the approval and signature of the
respective Heads of the procuring entities or their respective duly
authorized officials, as the case may be, as required by law,
applicable rules and regulations, and by this Executive Order, before
said Government Contracts shall be considered approved in accordance
with law and binding on the government, except as may be otherwise
provided in Republic Act No. 9184. For Government Contracts required by
law to be acted upon and/or approved by the President, Sec. 6 of
this Executive Order governs the process by which such Government
Contracts shall be considered entered into with authority and binding
on the government.
The Heads of the procuring entities or their respective duly authorized
officials, as the case may be, shall be responsible and accountable for
ensuring that all Government Contracts they approve and/or enter into
are in accordance with existing laws, rules and regulations and are
consistent with the spending and development priorities of government.
All Government Contracts entered into in violation of the provisions of
law, rules and regulations, and this Executive Order shall be
considered contracts entered into without authority and are thus
invalid and not binding on the government.
Sec. 6. Government Contracts Requiring
Presidential Action and/or Approval. — a. All Government Contracts
required by law to be acted upon and/or approved by the President, and
any subsequent amendments or supplements thereto, shall not be signed
until after the NEDA Board, which is chaired by the President, has
favorably acted upon and/or approved the same.
b. All Government Contracts required by law to be
acted upon and/or approved by the President, and any subsequent
amendments or supplements thereto, shall be submitted with complete
documentation to NEDA, through its Director-General, within seven (7)
days from the approval by the Head of the procuring entity concerned or
his/its duly authorized official, as the case may be, for NEDA’s review
and evaluation.
Government Contracts submitted hereunder shall be accompanied by a
complete execution copy of the contract, related agreements, annexes,
other approvals and permits, including a detailed summary of the
pertinent laws, rules and regulations governing the processing and
award of the contract, and accompanied by the requirements of Sec. 4(a) hereof where alternative methods of procurement were resorted to.
c. Within thirty (30) days from its receipt of the
Government Contract with complete documentation, and any subsequent
amendments or supplements thereto, NEDA shall submit its recommendation
to the NEDA Board, which is chaired by the President, for appropriate
action. The NEDA Board, at a meeting chaired by the President, shall
then act and/or approve the Government Contract, as it deems
appropriate.
d. Within seven (7) days from the date of the NEDA
Board’s action, NEDA, through its Director-General, shall formally
notify the Head of the procuring entity concerned or his/its duly
authorized official, as the case may be, of the action of the NEDA
Board, including any comments thereon.
Sec. 7. Governing Law for Government Contracts. —
a.
Contracts for the Procurement of Infrastructure Projects, Goods, and
Consulting Services. Contracts for the procurement of infrastructure
projects, goods, and consulting services shall be governed by Republic
Act No. 9184 and its Implementing Rules and Regulations (Cf. Sec. 4,
Republic Act No. 9184).
Contracts for the lease of goods
and real estate shall be governed by Republic Act No. 9184 and its
Implementing Rules and Regulations (Cf. Sec. 5(n), Republic Act No.
9184).
b. Contracts
for Acquisition of Right-of-Way, Site or Location for National
Government Infrastructure Projects. Contracts for the acquisition of
real property needed as right-of-way, site or location for national
government infrastructure projects shall be governed by Republic Act
No. 8974 (Cf. Sec. 5(n), Republic Act No. 9184).
c. BOT
Contracts. Contracts undertaken through Build Operate and Transfer
(BOT) schemes and other variations shall be governed by Republic Act
No. 6957, as amended by Republic Act No. 7718, and its Implementing
Rules and Regulations.
d. ODA-funded
Contracts. Government Contracts financed wholly or partly with Official
Development Assistance (ODA) funds shall be governed by Republic Act
No. 4860, as amended, Republic Act No. 8182, as amended by Republic Act
No. 8555, and Republic Act No. 9184 and its Implementing Rules and
Regulations (Cf. Sec. 4, Republic Act No. 9184)
The GPPB may issue guidelines for Government Contracts finance with ODA
funds with the objective of promoting transparency, competitiveness,
and accountability in government transactions, and, where applicable,
complying with the requirements of an open and competitive public
bidding, consistent with Republic Act No. 9184 and its Implementing
Rules and Regulations (Cf. Sec. 4, Republic Act No. 9184).
Sec. 8. Joint Venture Agreements. — The NEDA, in
consultation with the GPPB, shall issue guidelines regarding joint
venture agreements with private entities with the objective of
promoting transparency, competitiveness, and accountability in
government transactions and, where applicable, complying with the
requirements of an open and competitive public bidding.
Sec. 9. Transactions of Government Financial
Institutions. — Transactions of government financial institutions in
the ordinary course of business shall not be covered by the provisions
of this Executive Order. Such transactions shall instead be subject to
applicable provisions of law and to guidelines, rules and regulations
issued by the Department of Finance.
Sec. 10. Submission of Government Contracts. —
With a view to creating a repository of all important Government
Contracts, a complete copy of all Government Contracts involving an
amount of at least Three Hundred Million Pesos (P300 Million) shall be
submitted to NEDA, through its Director-General, within seven (7) days
from the date of signing and/or approval thereof, accompanied with a
complete copy of its related agreements, annexes, other approvals and
permits, and a detailed summary of the pertinent laws, rules and
regulations governing the processing and award of the contract.
Sec. 11. Splitting of Government Contract. —
Splitting of Government Contracts is not allowed. Splitting of
Government Contracts means the division or breaking up of Government
Contracts into smaller quantities and amounts, or dividing contract
implementation into artificial phases or sub-contracts for the purpose
of evading or circumventing the requirements of law and this Executive
Order, especially the necessity of public bidding and the requirements
for exceptions therefrom in accordance with Sec. 4(a) hereof.
Sec. 12. Local Government Units. — Procurement
contracts of local government units, regardless of the source of funds,
shall be subject to the provisions of Republic Act No. 9184, and its
Implementing Rules and Regulations.
Sec. 13. Prospective Application. — All Government
Contracts, including those presently being processed and/or reviewed in
accordance with Executive Order No. 109 dated May 27, 2002, shall
hereafter be processed and/or reviewed in accordance with this
Executive Order.
Sec. 14. Repeal and Amendment. — Executive Order
No. 109 dated May 27, 2002 is hereby repealed. All orders, issuances,
memoranda and other Presidential issuances expressly repealed by
Executive Order No. 109 dated May 27, 2002 shall remain repealed.
Memorandum Order No. 266 dated November 28, 1989 insofar as it relates
to joint venture agreements with private entities, and Department of
Public Works and Highways Circular No. 125, series of 1993 insofar as
it relates to the lease of real estate, are hereby amended accordingly.
All other Presidential directives, issuances, orders, rules and
regulations or parts thereof inconsistent with this Executive Order are
likewise hereby repealed or modified accordingly.
Sec. 15. This Executive Order shall take effect
immediately upon publication in two (2) newspapers of general
circulation.
DONE in the City of Manila,
this 18th day of September, in the year of our Lord Two Thousand and
Three.
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