DOJ Opinion No. 037, s. 2004

DOJ OPINION NO. 037, s. 2004 April 1, 2004 Atty. Vicente S. Aquino Executive Director Anti-Money Laundering Council (AMLC) Secretariat Bangko Sentral ng Pilipinas Complex Manila Sir : This refers to your request for opinion on the qualifications of the members of the Bids and Awards Committee (BAC) as provided in R.A. No. 9184 1 and its Implementing Rules and Regulations (IRR). You state that the Anti-Money Laundering Council (AMLC) and its Secretariat are now in the process of procuring the equipment needed for its Information Technology (IT) System. In this regard, an issue was raised on the qualifications of the person who was appointed by the AMLC as Chairman of its BAC. Said individual is a permanent employee of the Bangko Sentral ng Pilipinas (BSP) detailed to the AMLC Secretariat as Deputy Director of the Legal Evaluation Staff. dojcd2004 You are in a quandary because Section 11.2.1.5 of IRR-A of R.A. No. 9184 states, among others, that "(T)he members of the BAC, including the Chairman and the Vice-Chairman, shall be designated by the head of the procuring entity. Moreover, the Vice-Chairman shall be a regular member of the BAC. For purposes of this IRR-A, the term "permanent" shall refer to a plantilla position within the procuring entity concerned ." However, the Chairman of the AMLC BAC does not hold a plantilla position with the AMLC Secretariat but with a plantilla position of Bank Officer VII in the Office of the BSP Governor. In connection with your subject query, you likewise state the following circumstances: 1. The AMLC is an entity separate and distinct from the BSP, despite the fact that the AMLC Secretariat staff and employees are considered regular employees of the BSP. 2. The AMLC has its own separate organizational structure and plantilla positions, which structure and positions are shown in the BSP organizational chart as being an adjunct of the Office of the Governor. 3. The Procurement Law and its IRR provide that the BAC members must hold plantilla positions in the procuring entity, which is AMLC, not BSP. 4. The Anti-Money Laundering Act of 2001 (AMLA) requires a 5-year residency for the members of the AMLC Secretariat, meaning, each Secretariat member, to hold a permanent position, must have at least five (5) years of work experience in BSP, Securities and Exchange Commission (SEC) or Insurance Commission (IC). 5. The IRR of the AMLA, as amended, allow the detail or secondment to the AMLC of BSP, SEC or IC employees who have less than five (5) years of residency, but such detail or secondment does not give them permanent tenure in the AMLC structure until they comply with the 5-year residency requirement. cTEICD Hence, this query. Section 75 of R.A. No. 9184 mandated the Government Procurement Policy Board (GPPB), jointly with the members of the Joint Congressional Oversight Committee created under the said R.A., to formulate and promulgate the necessary rules and regulations to implement the provisions of R.A. No. 9184. The IRR-A 2 of R.A. No. 9184 was approved by President Gloria Macapagal-Arroyo on September 18, 2003. Pursuant to settled policy and precedents, this Department refrains from expressing its opinion on matters involving the interpretation or application of the rules and regulations issued by a government agency charged with the implementation or enforcement of a particular law. 3 Such being the case, it is suggested that you address your query to the GPPB. Very truly yours, (SGD.) MA. MERCEDITAS N. GUTIERREZ Acting Secretary Footnotes 1. Government Procurement Reform Act. 2. Covers all fully domestically-funded procurement activities from procurement planning up to contract implementation and termination, except acquisition of real property which shall be governed by R.A. No. 8974 and private sector infrastructure or development projects and other procurement covered by R.A. No. 7718, except for the portions financed by the Government. 3. Secretary of Justice Opn. No. 87, s. 2002.