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Can we consider the composition of the BAC as valid if one of the members refuses to perform function as BAC member?

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Can we consider the composition of the BAC as valid if one of the members refuses to perform function as BAC member?

Post by EsMie on Wed Jul 04, 2018 11:12 pm

A Bids and Awards Committee is composed of 5 members. However, one of the new members refused to participate in
any BAC related activity and sign BAC documents despite his designation (thru special order) as BAC member.

Can the BAC issue a valid resolution even without this one BAC member signing the BAC Resolution?
Can we consider the composition of the BAC valid even if one of the five members refuses to acknowledge his
BAC function?

I will really appreciate your insights on this. Thank you


Last edited by esmie_180 on Thu Jul 05, 2018 8:00 pm; edited 1 time in total

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Re: Can we consider the composition of the BAC as valid if one of the members refuses to perform function as BAC member?

Post by Mark Lopez on Thu Jul 05, 2018 9:57 am

esmie_180 wrote:A Bids and Awards Committee is composed of 5 members. However, one of the new members refused to participate in
any BAC related activity and sign BAC documents despite his designation (thru special order) as BAC member.

Can the BAC issue a valid resolution even without this one BAC member signing the BAC Resolution?
Can we consider the composition of the BAC valid even if one of the five members refuses to acknowledge his
BAC function?

I will really appreciate your insights on this. Thank you

You may refer to Section 12. Functions of the BAC paragraph 12.3 of the Revised IRR RA 9184 of 2017. If you have 5 members including the chairperson/vice chairperson the quorum will constitute a 2 members and a chairperson or a vice-chairperson.
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Re: Can we consider the composition of the BAC as valid if one of the members refuses to perform function as BAC member?

Post by EsMie on Thu Jul 05, 2018 10:17 am

Thank you Sir Mark for your comment.
I really appreciate your insight.

However, will this instance be violative of Section 11.2 which requires that there must be
at least five (5) members? If only four members are willing to participate in BAC meetings and one member
doesn't acknowledge his function as BAC, isn't their composition invalid?

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Re: Can we consider the composition of the BAC as valid if one of the members refuses to perform function as BAC member?

Post by Mark Lopez on Thu Jul 05, 2018 10:39 am

esmie_180 wrote:Thank you Sir Mark for your comment.
I really appreciate your insight.

However, will this instance be violative of Section 11.2 which requires that there must be
at least five (5) members? If only four members are willing to participate in BAC meetings and one member
doesn't acknowledge his function as BAC, isn't their composition invalid?

My understanding to your concern is that 1 member of the BAC did not performed her/his function despite of a special order, for me there is no problem since quorum will need only 2 members and a chairperson or a vice chairperson in absence of the chairperson. The other option will be the HoPE will removed her/him as a member of the BAC Section 11.2.6.
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Re: Can we consider the composition of the BAC as valid if one of the members refuses to perform function as BAC member?

Post by EsMie on Thu Jul 05, 2018 8:28 pm

Thank you for your response, Sir Mark.

Yes, your observation is correct, one of the BAC members refuses to perform his function and participate in any-procurement
related function. If this BAC member will continue to ignore the BAC and his BAC function,
technically, there will be only four members participating in BAC Meetings.

Can this BAC member refuse to perform his BAC function on the ground that he has no training on
procurement but he previously served as head of BAC TWG?

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Re: Can we consider the composition of the BAC as valid if one of the members refuses to perform function as BAC member?

Post by rubyrose on Thu Jul 05, 2018 9:26 pm

You may refer to GPPB RESOLUTION NO. 20-2014 which resolves to:

"REMIND the BAC and Ad Hoc Secretariat members that under the “Jury Duty” concept, they should give utmost priority to their functions as such BAC and Secretariat members."

Section 38. 1 of RA 9184 RIRR which states that:

"All members of the BAC shall be on a “jury duty” type of assignment until the Notice of Award is issued by the HoPE in order to complete the entire procurement process at the earliest possible time.
For purposes of this section, the term “jury duty” shall be understood to mean a state by which the members give utmost priority to BAC assignment over all the other duties and responsibilities until the requirements for the said assignments at hand are completed."


From the foregoing, it is clear that what the law requires is NOT JUST PAPER MEMBERSHIP where a member's name is stated in the special order or designation memo but does not perform his function. The law requires a FUNCTIONAL BAC where BAC members actively participate and give their function utmost priority.  The law is clear, the BAC members must act on JURY DUTY.

Thus, a member who refuses to participate in the BAC and acknowledge his function as BAC member
violates this requirement of the law. This renders the composition of the BAC invalid because, although 5 were appointed, only 4 accepted their post and entered into the performance of their function. A BAC WHICH HAS INVALID COMPOSITION CAN NEVER HAVE A QUORUM. Thus, all actions of the BAC will be rendered void by the patent and deliberate refusal of one BAC member to become a member of the BAC which resulted in the incomplete composition of the BAC.

The HOPE must either remove him or appoint an alternate, subject of course to the imposition of the appropriate sanction to the erring staff.

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Re: Can we consider the composition of the BAC as valid if one of the members refuses to perform function as BAC member?

Post by engrjhez® on Mon Jul 09, 2018 7:51 pm

rubyrose wrote:xxx

From the foregoing, it is clear that what the law requires is NOT JUST PAPER MEMBERSHIP where a member's name is stated in the special order or designation memo but does not perform his function. The law requires a FUNCTIONAL BAC where BAC members actively participate and give their function utmost priority.  The law is clear, the BAC members must act on JURY DUTY.

Thus, a member who refuses to participate in the BAC and acknowledge his function as BAC member
violates this requirement of the law. This renders the composition of the BAC invalid because, although 5 were appointed, only 4 accepted their post and entered into the performance of their function. A BAC WHICH HAS INVALID COMPOSITION CAN NEVER HAVE A QUORUM. Thus, all actions of the BAC will be rendered void by the patent and deliberate refusal of one BAC member to become a member of the BAC which resulted in the incomplete composition of the BAC.

The HOPE must either remove him or appoint an alternate, subject of course to the imposition of the appropriate sanction to the erring staff.

May we know the basis for this statement?

The designation by the HoPE is valid and effective immediately, whether or not the designated member accepted such designation.

Unless sooner removed for a cause, the members of the BAC shall have a fixed term of one (1) year reckoned from the date of appointment, renewable at the discretion of the HoPE. (Sec.11.2.6, 2016 Revised IRR)

There is nothing in the rules that provides acceptance as a condition for effectivity of designation. The presumption in law is regularity, not irregularity. If the BAC member is uncooperative, the remedy is for the HoPE to remove the erring BAC member for such cause (without prejudice to disciplinary action), and replace with another. In any case, the quorum requirement is not affected by such non-cooperation. The decision of at least a majority of of BAC members present at which there is a quorum shall be valid and binding as an act of the BAC. (Sec.12.4, 2016 Revised IRR)
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Re: Can we consider the composition of the BAC as valid if one of the members refuses to perform function as BAC member?

Post by rubyrose on Wed Jul 11, 2018 10:57 am

Hi engrjhez

As explained, the basis is taken from the GPPB Resolution 20-2014 and the RIRR of RA 9184.
The rule should not be interpreted literally. We should also take into consideration the spirit of the law or the rationale
for requiring "jury duty" on the performance of BAC functions. The spirit of the law requires the "participation" of the
BAC member. Hence, a BAC member who never assumed his position and refuses to participate in BAC activities
can be deemed not a BAC member at all and must be replaced as soon as possible (subject to imposition of appropriate sanction). Otherwise, if we will still consider him as BAC member and just allow his refusal to participate, we will be putting "does not want to participate" above his name in all BAC resolutions. This will not speak well of the BAC and the organization and might even invite audit observations from the COA.

On the statement that there can never be a quorum in an incomplete BAC organization (invalid composition), please refer to GPPB NPM No. 053-2012 which states that:

"xxx Section 11.2.1 of Rule V of the IRR of RA 9184 expressly provides that the BAC should consist of at least five (5) but not more than seven (7) members. Without the necessary composition, the BAC cannot be considered to have the authority to exercise its duties and functions. As such, any action or decision of a BAC that does not have sufficient quorum or the necessary composition is deemed invalid.

Section 12.4 (Quorum) of the IRR x xx does not apply when the Chairman is permanently absent and the BAC composition is less than the required number in the IRR.

[T]he resignation of the Chairman, resulting in the reduction of the BAC-PHIC composition to less than five (5) members, renders the BAC composition non-compliant with Section 11.2.1 of the revised IRR. Consequently, the decisions and actions, such as those taken during a pre-procurement conference, shall be deemed invalid."


As such, even if the BAC has a quorum but the composition is invalid, all its decisions are also deemed invalid.
The validity of the composition of the BAC is a condition sine qua non for the BAC to have authority to exercise its function.


Last edited by rubyrose on Wed Jul 11, 2018 11:14 am; edited 2 times in total (Reason for editing : clarify)

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Re: Can we consider the composition of the BAC as valid if one of the members refuses to perform function as BAC member?

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