By Luisa Maria Jacinta C. Jocson, Reporter
A PROPOSAL to amend the procurement law to prevent courts, except for the Supreme Court, from issuing temporary restraining orders (TROs) against the government over procurement contracts should be reconsidered, according to analysts.
The Department of Budget and Management (DBM) is currently finalizing amendments to the Government Procurement Reform Act of 2007, which will then be submitted to Congress.
It suggested the inclusion of a provision prohibiting the issuance of a TRO or Preliminary Mandatory Injunction, except by the Supreme Court, against the government in procurement contracts for goods and services, “to tackle the possible delays in the procurement process because of suits filed by losing bidders.”
“The ‘no TRO’ policy must be studied and screened. This is like amending the rules of court which should be within the exclusive power of the Judiciary. Deviation from the tested procedure should not be sacrificed for expediency,” Antonio A. Ligon, a law and business professor at De La Salle University, said in a Viber message.
“As long as it will not support and/or encourage impropriety of tried and tested government procurement procedures, improvement on procedures can be considered,” he added.
Terry L. Ridon, a public investment analyst and convenor of think tank InfraWatch PH, said it may be better to amend the government procurement law to allow an “amount-based tiering” as to which court can issue TROs and injunction orders.
“This is critical because only the highest value contracts should be subjected to Supreme Court injunction orders, while at the same time affording interested parties some relief from the lower courts for lower value contracts,” Mr. Ridon said in an e-mail.
Mr. Ridon said the right of a bidder to file a TRO or seek an injunction from the courts should be respected.
“This right should remain available to all procurement contracts except for the least valuable contracts, as government or other parties should be able to step in to immediately stop anomalous transactions during the course of bidding processes,” he added.
Budget Secretary Amenah F. Pangandaman earlier said the department is targeting to come up with the specific amendments to the government procurement law in the next two weeks. These include innovative procurement methods, efficiency in the procurement process, procurement planning and budgeting, digitalization and innovation, as well as sustainable and green procurement.
The DBM also proposed the creation of an e-marketplace platform, where procuring entities can directly make purchases. The e-marketplace will initially focus on motor vehicle purchases.
“Digitalization, through an e-marketplace, is most certainly a step towards transparency and accountability, particularly if the entire procurement process will be conducted through an online portal in which there is minimal personal interaction with government bidding committees,” Mr. Ridon said.
However, he noted that the government should ensure that it creates a centralized online portal.
“Users and even government staff might get lost in the volume of available projects by various national agencies, regional offices and local government units,” he said.
Mr. Ridon, however, emphasized that digitalization is not a foolproof measure to end corruption and other illicit activities in the procurement of goods and services.
“Government and the public should remain vigilant in monitoring simulated bids and other illicit activities which can still take place through online and offline means,” he added.
The DBM also proposed to apply a no-bid acquisition process for goods and services worth around P250,000 or even lower.
Mr. Ligon said that the no-bid process may pose a “serious concern” and warned of possible cases of corruption.
“An original price of goods which require bidding might be presented to fit or (be) compliant with no bidding. Corruption can thrive even in small amounts and when multiplied it becomes unconscionable,” he added.
The DBM also presented other proposed amendments, including using the applicability of its Most Economically Advantageous Tender system as an alternative to the lowest calculated and responsive bid; simplifying eligibility documents; and adding a section on monitoring and surveying of prices of goods and services to avoid overpricing, among others.
Ms. Pangandaman earlier said reforms to the government procurement process would help government agencies utilize their budgets more efficiently.
“Procurement affects us every day, not just us in the government but the Filipino people. Procurement issues have an adverse impact on public service delivery. Of our total National Government budget, up to 25% is done through procurement. These are the reasons that this reform has become necessary albeit tedious,” she added.
In his second State of the Nation Address before Congress in July, President Ferdinand R. Marcos, Jr. pushed for reforming the government procurement law “to make government procurement more attuned to these changing times.”