Approving the Amendments to Sections 23.2 and 24.2 of the Revised IRR of R.A. No. 9184

 

April 8, 2014

GPPB RESOLUTION NO. 04-14

APPROVING THE AMENDMENTS TO SECTIONS 23.2 AND 24.2 OF THE REVISED IMPLEMENTING RULES AND REGULATIONS OF REPUBLIC ACT NO. 9184 AND THE PHILIPPINE BIDDING DOCUMENTS FOR GOODS, INFRASTRUCTURE PROJECTS AND CONSULTING SERVICES

WHEREAS, Republic Act (RA) No. 9184 entitled "An Act Providing for the Modernization, Standardization and Regulation of the Procurement Activities of the Government and for Other Purposes," took effect on 26 January 2003, while its revised Implementing Rules and Regulations (IRR) took effect on 2 September 2009;

WHEREAS, Section 63.1 (b) of RA 9184 and its IRR authorize the Government Procurement Policy Board (GPPB) to formulate public procurement policies, rules and regulations, and amend, whenever necessary, the IRR;

WHEREAS, Sections 23.2 and 24.2 of the IRR of RA 9184; Clause 11 of the Instructions to Bidders (ITB) of the Philippine Bidding Documents (PBDs) for Goods and Infrastructure Projects; and Clause 2.3, Section II. Eligibility Documents, and Clause 9 of the ITB of the PBDs for Consulting Services require that the eligibility requirements or statements, the bids, and all other documents submitted to the Bids and Awards Committee (BAC) must be in English. A translation of the documents in English certified by the appropriate embassy or consulate in the Philippines must accompany the eligibility requirements under Class "A" and "B" documents if they are in other foreign language;

WHEREAS, on 2 December 2013, the GPPB-Technical Support Office (TSO) received a letter from the DND requesting for the following:

1. An opinion or clearance for the DND to relax the application of Sections 23.2 and 24.2 of the IRR of RA 9184 to allow the submission of the appropriate translation of the documents with certification of the appropriate office to include those coming from the country of origin or the nearest available embassy or consular office;

2. Appropriate amendments to Sections 23.2 and 24.2 of the IRR of RA 9184 to read: "A translation of the documents in English certified by the appropriate embassy, consulate or its equivalent, or any competent entity in the Philippines or the nearest available office must accompany the eligibility requirements under Class "A" and "B" Documents if they are in other foreign language."

WHEREAS, DND asserts that Sections 23.2 and 24.2 of the IRR of RA 9184 have affected the participation of foreign suppliers in the procurement of defense materiel for the Armed Forces of the Philippines (AFP) since there are some countries that do not have embassies or consular offices in the Philippines; or foreign embassies or consular offices in the Philippines do not issue certificates of translation such as the Republic of Serbia and Israel.

WHEREAS, during the 1st Joint Meeting of the Inter-Agency Technical Working Group (IATWG) and GPPB held on 4 February 2014, the GPPB-TSO presented the foregoing requests of the DND and made the following recommendations: TDCaSE

1. The GPPB cannot issue an opinion or clearance to relax the application of any provision in the IRR of RA 9184 for one particular Procuring Entity without amending the rules. Other Procuring Entities would be requesting similar clearance to relax the rules to suit their needs;

2. The GPPB to amend the last sentence of Sections 23.2 and 24.2 of the IRR of RA 9184, and other relevant provisions in the Philippine Bidding Documents as follows:

If the eligibility requirements or statements, the bids, and all other documents submitted to the BAC are in foreign language other than English, it must be accompanied by a translation of the documents in English. The documents shall be translated by the relevant foreign government agency, the foreign government agency authorized to translate documents, or a registered translator in the foreign bidder's country; and shall be authenticated by the appropriate Philippine foreign service establishment/post or the equivalent office having jurisdiction over the foreign bidder's affairs in the Philippines.

WHEREAS, after due deliberation, the IATWG and GPPB adopted the foregoing recommendation of the GPPB-TSO subject to clarification from the Department of Foreign Affairs (DFA) regarding the authentication/certification for English-translated foreign documents;

WHEREAS, representatives from the GPPB-TSO and the DFA-Authentication Division (AD) met on 31 March 2014 to discuss the issue on the authentication/certification of English-translated foreign documents;

WHEREAS, the DFA-AD confirmed that under the Vienna Convention on Consular Relations, Philippine embassies and consular offices do not certify the correctness of English-translated foreign documents, but merely authenticate the signature of the notary public or officiating officer appearing on the document;

WHEREAS, on the basis of the foregoing confirmation by the DFA-AD, the GPPB upheld the approval of the amendment of Sections 23.2 and 24.2 of the IRR of RA 9184 and the relevant provisions of the PBDs for Goods, Infrastructure Projects and Consulting Services during its 2nd Regular Meeting held on 8 April 2014;

NOW, THEREFORE, for and in consideration of the foregoing, WE, the Members of the GOVERNMENT PROCUREMENT POLICY BOARD, by virtue of the powers vested on US by law, hereby RESOLVE to approve and adopt, as WE hereby confirm, adopt and approve the following:

1. AMEND Sections 23.2 and 24.2 of the revised IRR of RA 9184, as shown in Annex "A" hereof; and,

2. AMEND Clause 11 of the ITB of the PBDs for Goods and Infrastructure Projects, and Clause 2.3, Section II. Eligibility Documents and Clause 9 of the ITB of the PBDs for Consulting Services, as shown in Annex "B" hereof.

This Resolution shall take effect after fifteen (15) days following the publication in the Official Gazette or a newspaper of general nationwide circulation and upon filing with the University of the Philippines Law Center of three (3) certified true copies of this Resolution.

APPROVED this 8th day of April 2014 at Pasig City, Philippines.

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Attested by:

(SGD.) DENNIS S. SANTIAGOBoard Secretary, Government Procurement Policy Board

ANNEX A

Revised Implementing Rules and Regulations (IRR) of Republic Act (RA) No. 9184

 

Original	Amended
Section 23.2	Section 23.2
Subject to Section 37.1 of this IRR, in the	Subject to Section 37.1 of this IRR, in the
case of foreign bidders, the foregoing	case of foreign bidders, the foregoing
eligibility requirements under Class "A"	eligibility requirements under Class "A"
Documents may be substituted by the	Documents may be substituted by the
appropriate equivalent documents, if any,	appropriate equivalent documents, if any,
issued by the country of the foreign bidder	issued by the country of the foreign bidder
concerned. The eligibility requirements or	concerned. The eligibility requirements or
statements, the bids, and all other documents	statements, the bids, and all other documents
to be submitted to the BAC must be in	to be submitted to the BAC must be in
English. A translation of the documents in	English. If the eligibility requirements or
English certified by the appropriate embassy	statements, the bids, and all other
or consulate in the Philippines must	documents submitted to the BAC are in
accompany the eligibility requirements under	foreign language other than English, it
Class "A" and "B" Documents if they are in	must be accompanied by a translation of the
other foreign language.	documents in English. The documents shall
	be translated by the relevant foreign
	government agency, the foreign government
	agency authorized to translate documents,
	or a registered translator in the foreign
	bidder's country; and shall be authenticated
	by the appropriate Philippine foreign
	service establishment/post or the equivalent
	office having jurisdiction over the foreign
	bidder's affairs in the Philippines.
Section 24.2	Section 24.2
In the case of foreign consultants, the	In the case of foreign consultants, the
foregoing eligibility requirements under	foregoing eligibility requirements under
Class "A" Documents may be substituted by	Class "A" Documents may be substituted by
the appropriate equivalent documents, if any,	the appropriate equivalent documents, if
issued by the foreign consultant's country.	any, issued by the foreign consultant's
The eligibility requirements or statements,	country. The eligibility requirements or
the bids, and all other documents to be	statements, the bids, and all other documents
submitted to the BAC must be in English. A	to be submitted to the BAC must be in
translation of the documents in English	English. If the eligibility requirements or
certified by the appropriate embassy or	statements, the bids, and all other
consulate in the Philippines must accompany	documents submitted to the BAC are in
the eligibility requirements under Class "A"	foreign language other than English, it must
and "B" Documents if they are in other	be accompanied by a translation of the
foreign language.	documents in English. The documents shall
	be translated by the relevant foreign
	government agency, the foreign government
	agency authorized to translate documents,
	or a registered translator in the foreign
	bidder's country; and shall be authenticated
	by the appropriate Philippine foreign
	service establishment/post or the equivalent
	office having jurisdiction over the foreign
	bidder's affairs in the Philippines.

 

 

ANNEX B

Philippine Bidding Documents

Goods and Infrastructure Projects

Instructions to Bidders

 

Original	Amended
Clause 11. Language of Bid	Clause 11. Language of Bid
The bid, as well as all correspondence and	The bid, as well as all correspondence and
documents relating to the bid exchanged by	documents relating to the bid exchanged by
the Bidder and the Procuring Entity, shall be	the Bidder and the Procuring Entity, shall be
written in English. Supporting documents	written in English. If the eligibility
and printed literature furnished by the Bidder	requirements or statements, the bids, and all
may be in another language provided they are	other documents submitted to the BAC are
accompanied by an accurate translation in	in foreign language other than English, it
English certified by the appropriate embassy	must be accompanied by a translation of the
or consulate in the Philippines, in which case	documents in English. The documents shall
the English translation shall govern for	be translated by the relevant foreign
purposes of interpretation of the bid.	government agency, the foreign government
	agency authorized to translate documents,
	or a registered translator in the foreign
	bidder's country; and shall be authenticated
	by the appropriate Philippine foreign
	service establishment/post or the equivalent
	office having jurisdiction over the foreign
	bidder's affairs in the Philippines. The
	English translation shall govern, for
	purposes of interpretation of the bid.
	Consulting Services
	Part I
	Section II. Eligibility Documents
Original	Amended
Clause 2.3. The eligibility requirements or	Clause 2.3. The eligibility requirements or
statements and all other documents to be	statements and all other documents to be
submitted to the BAC must be in English. A	submitted to the BAC must be in English. If
translation of the documents in English	the eligibility requirements or statements,
certified by the appropriate embassy or	the bids, and all other documents submitted
consulate in the Philippines must accompany	to the BAC are in foreign language other
the eligibility requirements under Classes	than English, it must be accompanied by a
A and "B" Documents if they are in other	translation of the documents in English.
foreign language.	The documents shall be translated by the
	relevant foreign government agency, the
	foreign government agency authorized to
	translate documents, or a registered
	translator in the foreign bidder's country;
	and shall be authenticated by the
	appropriate Philippine foreign service
	establishment/post or the equivalent office
	having jurisdiction over the foreign bidder's
	affairs in the Philippines.
	Part II
	Section II. Instructions to Bidders
	C. Preparation of Bids
Clause 9. Language of Bids	Clause 9. Language of Bids
The Bid, as well as all correspondence and	The Bid, as well as all correspondence and
documents relating to the bid exchanged by	documents relating to the bid exchanged by
the Consultant and the Procuring Entity, shall	the Consultant and the Procuring Entity,
be written in English. Supporting documents	shall be written in English. If the eligibility
and printed literature furnished by the	requirements or statements, the bids, and all
Consultant may be in another language	other documents submitted to the BAC are
provided they are accompanied by an	in foreign language other than English, it
accurate translation in English certified by	must be accompanied by a translation of the
the appropriate embassy or consulate in the	documents in English. The documents shall
Philippines, in which case the English	be translated by the relevant foreign
translation shall govern, for purposes of	government agency, the foreign government
interpretation of the bid.	agency authorized to translate documents,
	or a registered translator in the foreign
	bidder's country; and shall be authenticated
	by the appropriate Philippine foreign
	service establishment/post or the equivalent
	office having jurisdiction over the foreign
	bidder's affairs in the Philippines. The
	English translation shall govern, for
	purposes of interpretation of the bid.