Operational Guidelines on Handling Feedback and Complaints Submitted by Bids and Awards Committee Observers

July 7, 2006

OMBUDSMAN OFFICE ORDER NO. 66-06

OPERATIONAL GUIDELINES ON HANDLING FEEDBACK AND COMPLAINTS SUBMITTED BY BIDS AND AWARDS COMMITTEE (BAC) OBSERVERS

I. PURPOSE

Procurement processes in the public service provide one of the major avenues for corruption. Irregularities in public procurement affect all Filipinos and are serious threats to national economic recovery and effective governance. Therefore, a procurement-focused strategy for combating graft and corruption can achieve a substantial impact on the economy.

Thus, R.A. No. 9184, also known as the Government Procurement Reform Act, which lays the legal groundwork for overhauling the whole public procurement process, was enacted into law and approved on 10 January 2003. Its Implementing Rules and Regulations (IRR) took effect on 08 October 2003.

Under Section 13.4(1) of the IRR of R.A. No. 9184, the Bids and Awards Committee (BAC) observers "may also give a copy of their report to the Office of the Ombudsman/Resident Ombudsman if the BAC is found to have failed in following the prescribed bidding procedures or for any justifiable and reasonable ground where the award of the contract will not redound to the benefit of the Government as defined in this IRRA."

Since the enactment of R.A. No. 9184 and the effectivity of the IRR, there has been no clear mechanism for handling BAC observer's feedback and procurement-related complaints. Hence, to address this concern, there is an imperative need to issue this Office Order to provide the operational guidelines on handling BAC observer feedback and complaints.

II. SCOPE

These guidelines shall apply to all officials/employees of the Office of the Ombudsman, all Resident Ombudsmen, both organic and non-organic to the Office of the Ombudsman, as well as BAC observers from various civil society organizations (CSOs) and professional associations.

III. DUTIES AND RESPONSIBILITIES OF BIDS AND AWARDS COMMITTEE (BAC) OBSERVERS

In addition to the responsibilities of the BAC observers enumerated in Section 13.4 of the IRR, they shall also perform the following duties:

SECTION 1. The BAC observer shall submit to the Office of the Ombudsman/Resident Ombudsman a copy of his/her Diagnostic Report together with its attachments. cHATSI

SECTION 2. As far as practicable, the BAC observer shall ensure that the Diagnostic Report is accompanied by the following documents:

a. Copy of the Attendance Sheet (for the bidding activity)

b. Copy of the Advertisement (Certificate of Advertisement)

c. Copy of the G-EPS transmittal report (including the G-EPS reference number)

d. Copy of the Instruction to Bidders

e. Copy of the List of Bidders who secured bidding documents

f. Copy of the List of Bidders who submitted bids

g. Copy of the Checklist used (for: Eligibility, Technical and Financial)

In the event that the BAC observer fails to secure any of the foregoing documents, he/she shall indicate the same in the Diagnostic Report.

SECTION 3. The BAC observer shall indicate in his/her Diagnostic Report (DR) the exact address of the Procuring Entity and the names of its Head and BAC Chairman.

SECTION 4. In the event that deviations in the procurement process has been observed, the BAC observer may file a sworn criminal and/or administrative complaint against the head of the procuring entity, BAC chairman and/or any member thereof, subject to the following:

(a) If the procuring entity is within the National Capital Region (NCR), the BAC observer has the option of filing a sworn criminal and/or administrative complaint with supporting documents either with the Resident Ombudsman of the procuring entity or with the Resident Ombudsman of the procuring entity or with the Assistant Ombudsman (AO) for Public Assistance and Corruption Prevention Office (PACPO) thru the Director of Bureau of Resident Ombudsman at the Central Office of the Office of the Ombudsman. The BAC observer also has the option of filing the sworn criminal and/or administrative complaint with the proper Prosecution (Fiscal's) Office and/or administrative tribunal. Complaints filed with the Resident Ombudsmen shall be indorsed within three (3) working days from receipt to the Assistant Ombudsman for PACPO.

(b) If the procuring entity is outside the NCR, the BAC observer may file his/her sworn complaint subject to the following:

(b.1) As to criminal complaints — the BAC observer has the option of filing a sworn criminal complaint with any of the following offices:

(b.1.1) The appropriate sectoral/area/regional office of the Office of the Ombudsman (e.g. OMB-Luzon; OMB-Visayas; OMB-Mindanao);

(b.1.2) The appropriate Provincial/City Prosecution (Fiscal's) Office; or

(b.1.3) The Resident Ombudsman Office of the procuring entity

In cases where the criminal complaint is filed with the Resident Ombudsman, he/she shall transmit the same within three (3) working days to the appropriate area office of the Office of the Ombudsman. The resident ombudsman shall likewise inform the BAC observer, in writing, of the action taken within three (3) working days from date of transmittal.

(b.2) As to administrative complaints — the BAC observer has the option of filing a sworn administrative complaint, with any of the following offices:

(b.2.1) The appropriate sectoral/area/regional office of the Office of the Ombudsman;

(b.2.2) The appropriate Field Office of the Civil Service Commission or any other appropriate administrative body or tribunal; or

(b.2.3) The Resident Ombudsman Office of the procuring entity

In cases where the administrative complaint is filed with the Resident Ombudsman, the same rule on transmittal of criminal complaints as provided in (b.1.3) shall likewise be observed.

SECTION 5. The BAC observer shall clearly and specifically narrate in the Diagnostic Report the details on how the procurement-related offense/s was/were committed. To substantiate said complaint, the BAC observer shall attach all supporting documentary evidence and/or sworn statements of witnesses, if any.

SECTION 6. In the event that the complaint is not sufficient in substance, the BAC observer may seek the assistance of the Resident Ombudsman/Bureau of Resident Ombudsman (BRO)-OMB Central Office for proper advice and direction needed.

SECTION 7. In case the BAC observer is not willing to act as complainant, he/she shall expressly manifest such option to the Resident Ombudsman/BRO-OMB action officer. However, the BAC observer shall make himself/herself available if summoned to appear before any investigative body for verification/confirmation of his/her Diagnostic Report (DR).

IV. RULES OF PROCEDURE ON HANDLING OF BAC OBSERVER'S FEEDBACK

SECTION 1. In case the BAC observer's Diagnostic Report (DR) is forwarded to the BRO-Ombudsman Central Office or to the appropriate sectoral/area office of the Office of the Ombudsman (OMB) or the Resident Ombudsman of the procuring entity, the proper action officer concerned shall cause it to be assigned a reference number, indicating therein the abbreviated name of the procuring entity, the Resident Ombudsman (RO) Office/OMB Office where the DR was filed, the year the DR was filed, the DR number, the month number when the DR was filed, and the initials PW (procurement watch) in parenthesis to indicate that the same involves a procurement report and to distinguish it from the general mill of investigation reports filed with the Office of the Ombudsman (e.g. DepED-CO-05-001-01 [PW]).

SECTION 2. Within two (2) working days from receipt of the BAC observer's DR, the RO/appropriate action officer concerned shall prepare a letter-notice addressed to the head of the procuring entity and BAC chairman, and transmit the same by personal service, together with the duplicate and triplicate copies of the BAC observer's DR to said two officials and cause the original copy of the DR together with the attachments submitted by the BAC observer, to be stamped received both by the head of the procuring entity and BAC chairman concerned, which copy shall be kept as the RO/OMB action officer file.

SECTION 3. To save the non-organic ROs from undue burden of travel/mailing expenses, the Sectoral/Area Offices shall provide to the non-organic ROs OMB official envelopes with corresponding control numbers to facilitate the transmittal of the letters-notices with DRs to the head of the procuring entity and BAC chairman concerned, as well as to the OMB area/sectoral office concerned in case of the transmittals of stamped received DRs/registry return receipts and Evaluation Reports.

SECTION 4. Simultaneously, within five (5) working days from receipt of the DR, the RO/BRO-OMB action officer shall prepare and transmit an Evaluation Report (ER), with appropriate recommendations, to the Assistant Ombudsman of the Public Assistance and Corruption Prevention Office (PACPO) thru the BRO Director (in the NCR), or to the Director of the Public Assistance and Corruption Prevention Office (PACPO) in the Area/Sectoral Office having jurisdiction over the procuring entity. The Evaluation Report (ER) shall state the action taken and/or recommendation made thereon.

SECTION 5. The RO/OMB action officer shall also prepare and execute an Affidavit of Service attesting to the fact that he/she has personally served copies of the BAC observer's DR to the head of the procuring entity and the BAC chairman. The RO/BRO-OMB action officer shall transmit the Affidavit of Service together with the original copy of the stamped received DR and its attachments to the Assistant Ombudsman of PACPO thru the BRO Director (in the NCR) or to the Director of PACPO in the Area/Sectoral Office having jurisdiction over the procuring entity.

SECTION 6. Within three calendar days from receipt of feedback evaluation reports and BAC observer DR (Diagnostic Report) from Resident Ombudsmen, the Assistant Ombudsman for PACPO or the PACPO Director of the Area/Sectoral Office concerned, shall formally inform the Head of the Procuring Entity as well as the BAC Chair of the DR submitted by the BAC Observer to prevent the raising of the defense of good faith and obviate the refuge provided by the "Arias Doctrine."

SECTION 7. If on the basis of the documents submitted by the BAC observer the RO/OMB action officer deems it proper to cause further fact finding or to commence a criminal and/or administrative proceedings, he/she shall so indicate it in the ER recommendation. IAETSC

SECTION 8. If the ER recommends further fact finding or criminal and/or administrative docketing, the stamped received DR shall form part of the record of the procurement watch case. The Public Assistance and Corruption Prevention Office of the Area/Sectoral Office having jurisdiction over the procuring entity shall maintain a copy of the stamped received DR for its files; otherwise, if the ER recommends closure and termination, the original stamped received DR shall be kept in the official files of the Office/Bureau concerned for future reference.

If the ER recommends further fact finding, the OMB Field Investigation Office (in the NCR) or the Fact Finding Bureau/PACPO of OMB Area/Sectoral Office shall conduct fact finding investigation within thirty (30) calendar days from receipt of the indorsement/letter and shall submit an Investigation Report within five (5) calendar days from the termination of the investigation, copy furnished the Director of the Bureau of Resident Ombudsman (in cases within NCR) and the BAC observer concerned. If after fact-finding, a case had been built up, then the rules of procedure for preliminary investigation and/or administrative adjudication shall be observed. If the case had not been built up after fact-finding investigation, then the same shall be closed and terminated.

SECTION 9. The RO/OMB action officer shall inform in writing the BAC observer concerned of the action taken on the DR within three (3) days after its transmittal.

V. RULES OF PROCEDURE ON HANDLING BAC OBSERVER'S COMPLAINT

SECTION 1. If the BAC observer wishes to initiate a criminal and/or administrative complaint against the head of the procuring entity, the chairman and/or any BAC member of the procuring entity concerned for procurement-related offense, the provisions of Section 4, Part III of this Office Order shall be followed.

SECTION 2. As to complaints filed with the BRO-OMB Central Office, Resident Ombudsmen organic to OMB and with the OMB sectoral/area offices — If the complaint is sufficient in form and substance, the RO/OMB action officer in the NCR or sectoral/area office shall, within two (2) working days from receipt thereof, prepare an Evaluation Report recommending the criminal and/or administrative docketing of the complaint.

The RO/OMB action officer shall, within the same period, also cause the preparation of an Order, to be signed by the Bureau Director concerned, directing the person/s complained of to file counter affidavit within ten (10) calendar days from receipt of the Order.

SECTION 3. The BRO/PACPO Director of the OMB area/sectoral office shall, within two (2) working days indorse to the Records Division/Section for docketing of the criminal/administrative complaint and thereafter cause the issuance of an order to submit counter affidavit addressed to the person/s complained of. The Records Division/Section shall then assign a docket number to the case before releasing the order to submit counter-affidavit.

SECTION 4. In the event that the complaint is insufficient in substance, the RO/BRO-OMB action officer shall assist the complainant -BAC observer in the case build-up by giving the proper advice and direction needed.

However, in the event that the complaint is still insufficient in substance despite the earnest efforts exerted or if the evidence gathered does not warrant the taking of further action, the RO/BRO-OMB action officer may recommend the closure and termination of the procurement watch complaint.

SECTION 5. In case the BAC observer is not willing to execute an affidavit-complaint, then the RO/BRO-OMB action officer shall prepare an ER indicating the recommendation that the case be indorsed, instead, to the Field Investigation Office/Fact Finding Bureau of the OMB area-sectoral office either for further case build-up where there is no sufficient evidence to support a case, or for purposes of having a nominal complainant to commence the criminal and/or administrative proceedings, where there is sufficient evidence to support a case. The same procedure observed in treating ERs shall be followed.

SECTION 6. The Office of the Ombudsman shall conduct the preliminary investigation/administrative adjudication of procurement-related complaints in accordance with its Amended Rules of Procedure, and shall give preference to the speedy disposition thereof.

SECTION 7. As to complaints filed with the Resident Ombudsman non-organic to the Office of the Ombudsman — The same rules as that of handling complaints particularly Section 4 (b.1.3) and (b.2.3), Part III shall be observed.

SECTION 8. To avoid conflict of interest situations, the Resident Ombudsman shall not be allowed to simultaneously discharge his/her functions as Resident Ombudsman and as member of the Bids and Awards Committee and/or the Technical Working Group. DaESIC

VI. EFFECTIVITY

This Office Order shall take effect after fifteen days following the completion of its publication in the Official Gazette and upon the filing with the University of the Philippines Law Center of three (3) certified copies thereof.

For strict compliance.

Adopted: 07 July 2006

 

(SGD.) MA. MERCEDITAS N. GUTIERREZTanodbayan (Ombudsman)