Module 4.pptx

as presented by MAJ RONALD ALLAN V OLE (CE) PA  IMPORTANCE OF ETHICS IN PUBLIC PROCUREMENT Procurement is susceptible to corruption Corruption/unethical behavior of undermine the procurement agents will achievement of agency goals...

as presented by MAJ RONALD ALLAN V OLE (CE) PA  IMPORTANCE OF ETHICS IN PUBLIC PROCUREMENT Procurement is susceptible to corruption Corruption/unethical behavior of undermine the procurement agents will achievement of agency goals 3  CONCEPT OF PUBLIC TRUST ❖Affirmative DUTY to pursue public interest ❖ OBLIGATION to refrain from conduct that uses public office for private benefit or partisan advantage 4  OBSERVING INTEGRITY IN PUBLIC PROCUREMENT ❖ Ethics refersto the norms or standards that translate characteristic ideals and values into everyday practice. ❖ Integrity is the adherence to prescribed values, principles and norms in the daily operations of public sector organizations. ❖ Integrity is basically putting ethics into practice. ❖ The HIGHEST STANDARDS OF ETHICS are required to be observed by procuring entities and bidders, manufacturers, suppliers, or distributors during the procurement and execution of contract. ❖ In public procurement, the principle of integrity is two-fold. There is the integrity of the procurement process and the integrity of public procurement practitioners. 5  CODE OF CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICERS Eight (8) Norms of Ethical Conduct under Risks in Public RA No. 6713 Procurement commitment to public conflict of interest interest fraud professionalism corruption justness and sincerity coercion political neutrality collusion responsiveness to the public nationalism and patriotism 6  CONFLICT OF INTEREST ❖ Refers to a conflict between the public duty and the private interest of a public official, in which the official’s private-capacity interest could improperly influence the performance of his/her official duties and responsibilities. Section 47 of RA No. 9184 and its 2016 IRR ❖ A bidder is absolutely prohibited under a relationship circumstance, which is sought to be disclosed under the provision, from participating in the procurement activities of a concerned PE. Section 65.5 of 2016 IRR of RA No. 9184 ❖ A prospective bidder firm or company shall be disqualified to participate in a procurement activity if a person/entity who is previously held liable or found guilty under RA No. 9184 has a controlling interest therein. Controlling Interest [Par. 2(e) GPPB Resolution No. 40-2017 re: Uniform Blacklisting Guidelines] ❖ Single stockholder with relatives up to 3rd degree ❖ Holding at least 20% of shares ❖ Blacklisted if they have the same controlling interest in a previously blacklisted corporation 7  CONSTITUTIONAL BASIS ❖ Art 11, Sec. 1. “Public office is a public trust. Public officers and employees must, at all times, be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency x x x.” ❖ Art 2, Sec 27. “The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.” ❖ Art 2, Sec. 28. “Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public 9 interest.” CONSTITUTIONAL AND LEGAL BASIS ❖ Art 3, Sec. 7. “The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions x x x shall be afforded the citizen, subject to such limitations as may be provided by law.” ❖ Sec 2 of RA 9184. “It is the declared policy of the State to promote ideals of good governance in all its branches, departments, agencies, subdivisions, and instrumentalities, including government-owned and/or controlled corporations, and local government units” 1  LEGAL BASIS ❖ Art 3 of the Civil Code- “Ignorance of the law excuses no one from compliance therewith.” ❖ US vs Sornito, 4 Phil 357- A person is criminally responsible or liable for the consequences of his/her wrongful act. 1  ALLIED LOCAL LAWS 1987 Constitutional Provisions on Filipino Preference ❖ Art 2, Section 11 (Declaration of Principles and State Policies) – The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos. ❖ Art 12, Section 12 (National Economy and Patrimony) – The State shall promote the preferential use of Filipino labor, domestic materials and locally produced goods, and adopt measures that help make them competitive. ❖ Art 12, Section 12 (National Economy and Patrimony) - The sustained development of a reservoir of national talents1 consisting of Filipino scientists, entrepreneurs, professionals, managers,  ALLIED LOCAL LAWS RA 7042 (Foreign Investment Act of 1991) An Act to Promote Foreign Investments, Prescribed the Procedures for Registering Enterprises Doing Business in the Philippines or For Other Purposes. Commonwealth Act No. 138 (Flag Law) Dated June 13, 1991 An Act to Give Native Products and Domestic Entities the Preference in the Purchase of Articles for the Government. Repealed by R.A. No. 10667, The Philippine Competition Act of 2015 RA 5181 Dated September 8, 1967 An Act Prescribing Permanent Residence and Reciprocity for any Examination or Registration for the Practice of Any Profession in the Philippines  ALLIED LOCAL LAWS RA 5183 Dated September 8, 1967 An Act Regulating the Award of Contracts for the Supply to, or Procurement by Any Government Owned and Controlled Corporation Company, Agency or Municipal Corporation of Materials, Equipment, Goods and Commodities and Providing for Penalty for the Violation Thereof, and For Other Purposes RA 912 Dated June 20, 1953 An Act to Require the Use Under Certain Conditions, of Philippine Made Materials or Products in Government Projects or Public Works Construction, Whether Done Directly by the Government RA 4860 (Foreign Borrowings Law) 1  ALLIED LOCAL LAWS RA 6957 “An Act Authorizing the Financing, Construction, Operation and Maintenance of Infrastructure Projects by the Private sector and for Other Purposes”, as amended by RA No. 7718 otherwise known as the “Philippine Amended BOT Law” RA 8974 Dated November 7, 2000 “An Act to Facilitate the Acquisition of Right-of-Way Site or Location forNational Government Infrastructure Projects and for Other Purposes” RA 8975 An Act to Ensure the Expeditious Implementation and Completion of Government Infrastructure Projects by 1 Prohibiting Lower Courts from Issuing Temporary Restraining  ALLIED LOCAL LAWS Letter of Instructions (LOI) No. 630, Series of 1977 Dated November 22, 1977 Nationality requirement for procurement of civil works LOI No. 755 Dated October 18, 1978 Relative to the Establishment of An Integrated Procurement System for the National Government and its Instrumentalities Executive Order (EO) No. 285 Dated July 25, 1987 1  ALLIED LOCAL LAWS EO No. 359 Dated June 2, 1989 Reiterating the Policy and Prescribing Guidelines and Procedures in the Implementation of the Provisions of EO No. 285, “Abolishing the General Services Administration and Transferring its Functions to Appropriate System for Government Agencies” on the Operation of a Procurement Common-Use Office Supplies, Materials and Equipment. EO No. 278 Dated February 2, 2004 Prescribing Guidelines for Project Loan and Packaging of Negotiations Government Foreign-Assisted Infrastructure  ALLIED LOCAL LAWS EO No. 98 Dated October 29, 2012 Promulgating the 9th Investment Foreign Negative List EO No. 359 Dated October 29, 2018 Promulgated the Eleventh (11th) Foreign Investment Negative List (FINL) which provides for limitation on investment by foreign entities in specific business and/or industry Intended to ease restrictions on foreign participation in certain investment areas or activities by increasing the threshold of how much foreign entities may own from twenty-five percent (25%) to forty percent1 (40%)  RELATED IMPORTANT LEGAL CONCEPTS Important Legal Concepts under the Civil Code of the Philippines Definition of Contract Article 1305, Civil Code of the Philippines – A contract is a meeting of minds between two persons whereby one binds himself, with respect to the other, to give something or to render some service. Essential Requisites of Contract Article 1318, Civil Code of the Philippines – 1 concur: There is no contract unless the following requisites  RELATED IMPORTANT LEGAL CONCEPTS Essential Requisites of Contract Consent - is the conformity or concurrence of wills (offer and acceptance) and with respect to contracts, it is the agreement of the will of one contracting party with that of another or others, upon the object and terms of the contract. (4 Sanchez Roman 191; 8 Manresa 648) Article 1319: – Consent is manifested by the meeting of the offer and the acceptance upon the thing and the cause which are to constitute the contract. The offer must be certain and the acceptance absolute. A qualified acceptance constitutes a counter-offer. – Acceptance made by letter or telegram does not bind the offerer except from the time it came to his 2knowledge. The  RELATED IMPORTANT LEGAL CONCEPTS Essential Requisites of Contract Object Certain Article 1347: – All things which are not outside the commerce of men, including future things, may be the object of a contract. – All rights which are not intransmissible may also be the object of contracts. Requisites of things as object of contract: 1.The thing must be within the commerce of men, that is it can legally be the subject of commercial transaction; 2.Not be impossible, legally or physically; 3.Must be in existence or capable of coming into existence , and 4.Must be determinate or determinable without the need 2 of a new  RELATED IMPORTANT LEGAL CONCEPTS Essential Requisites of Contract Object Certain Requisites of services as object of contract: 1.The service must be within the commerce of men; 2.It must not be impossible, physically or legally; and 3.It must be determinate or capable of being made determinate. Rights as object of contract ▪As a general rule, all rights may be the object of a contract. The exceptions are when they are intransmissible by their nature, or by stipulation, 2 or by  RELATED IMPORTANT LEGAL CONCEPTS Essential Requisites of Contract Cause - proximate purpose which the contracting parties have in view at the time of entering into the contract (8 Manresa 697; Republic vs. Cloribel, 36 SCRA 534) Requisites of a Cause – It must exist at the time the contract is entered into – It must be lawful – It must be true or real 2  RELATED IMPORTANT LEGAL CONCEPTS Important Legal Concepts under the Civil Code of the Philippines Void Contracts Article 1409, Civil Code of the Philippines – The following contracts are inexistent and void from the beginning: 1. Those whose cause, object or purpose is contrary to law, morals, good customs, public order or public policy; 2. Those which are absolutely simulated or fictitious; 3. Those whose cause or object did not exist at the time of the transaction; 4. Those whose object is outside the commerce of men; 5. Those which contemplate an impossible service; 6. Those where the intention of the parties relative to the principal object of the contract cannot be ascertained; 2 7. Those expressly prohibited or declared void by law.  RELATED IMPORTANT LEGAL CONCEPTS Void Contracts Article 1191, Civil Code of the Philippines – The power to rescind obligations is implied in reciprocal ones, in case one of the obligors should not comply with what is incumbent upon him. – The injured party may choose between the fulfillment and the rescission of the obligation, with the payment of damages in either case. He may also seek rescission, even after he has chosen fulfillment, if the latter should become 2 impossible.  RELATED IMPORTANT LEGAL CONCEPTS Important Legal Concepts under the Civil Code of the Philippines Recission as a Remedy Corollary, Section 68 of the Revised IRR of R.A. No. 9184 provides that once the cumulative amount of liquidated damages reaches ten percent (10%) of the amount of the contract, the procuring entity may rescind the contract, 2 without  RELATED IMPORTANT LEGAL CONCEPTS Important Legal Concepts under the Civil Code of the Philippines Liquidated Damages Article 2226 Liquidated damages are those agreed upon by the parties to a contract, to be paid in case of breach thereof. Article 2228 When the breach of the contract committed by the defendant is not the one contemplated by2 the parties  RELATED IMPORTANT LEGAL CONCEPTS Important Legal Concepts under the Civil Code of the Philippines Force Majeure Article 1174 Except in cases expressly specified by the law, or when it is otherwise declared by stipulation, or when the nature of the obligation requires the assumption of risk, no person shall be responsible for those events which could not be foreseen, or which, though foreseen, were inevitable. For the purpose of this Contract, the terms “force majeure” and “fortuitous event” may be used interchangeably. General Conditions of the Contract (GCC) Clause 22.2, Philippine Bidding Documents (PBDs) for Goods; GCC Clause 20.1 (PBDs for Infrastructure Projects) GCC Clause 25.1 (PBDs for Consulting Services) 2  RELATED IMPORTANT LEGAL CONCEPTS Important Legal Concepts under the Civil Code of the Philippines Force Majeure Elements To constitute a fortuitous event, the following elements must concur: a)The cause must be independent of human will b)It must be impossible to foresee the event c)The occurrence must be such as to render it impossible for the debtor to fulfill obligations in a normal manner 2  PROHIBITED PRACTICES COLLUSIVE PRACTICES ❖ Scheme or arrangement between two (2) or more bidders to establish bid prices at artificial levels CORRUPT PRACTICES ❖ Improper and unlawful enrichment of one’s self or others COERCIVE PRACTICES ❖ Harming or threatening to harm, directly or indirectly FRAUDULENT PRACTICES ❖ Misrepresentation of facts in order to influence a procurement process Bidders determined to have committed corrupt, fraudulent, collusive, and coercive practices by the government shall not be eligible to bid in its procurement projects.  COLLUSIVE PRACTICES Scheme or arrangement between two (2) or more bidders, with or without the knowledge of the Procuring Entity, designed to establish bid prices at artificial, non- competitive levels.  CORRUPT PRACTICES Behavior on the part of officials in the public or private sectors by which they improperly and unlawfully enrich themselves, others, or induce others to do so, by misusing the position in which they are placed, and it includes the offering, giving, receiving, or soliciting of anything of value to influence the action of any such official in the procurement process or in contracting execution; entering, on behalf of the government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby.  COERCIVE PRACTICES Harming or threatening to harm, directly or indirectly, persons, or their property to influence their participation in a procurement process, or affect the execution of a contract.  FRAUDULENT PRACTICES Misrepresentation of facts in order to influence a procurement process or the execution of a contract to the detriment of the Procuring Entity, and includes collusive practices among bidders (prior to or after bid submission) designed to establish bid prices at artificial, non- competitive levels and to deprive the Procuring Entity of the benefits of free and open competition.  CORRUPT OR FRAUDULENT PRACTICES The pertinent provisions of the Anti-Graft and Corrupt Practices Act, or R.A. 3019, shall also be applied determining the existence of “corrupt practice”.  DUE DILIGENCE IN GOVERNMENT UNDERTAKINGS Due diligence is: ✔ the process through which enterprises identify, prevent, and mitigate actual and potential adverse impacts and accounts for how these impacts are addressed. ✔ an integral part of decision-making and risk management systems and is an ongoing proactive and reactive process that is to be carried out throughout the lifecycle of a project. In Philippine law, due diligence is embedded in the New Civil Code (NCC): ✔ Ordinary diligence or diligence of a good father of the family (Art. 1163 NCC) ✔ Extraordinary diligence for common carriers (Art. 1733-1736 NCC)  DUE DILIGENCE IN PROCESS AND SUPPORTING MEASURES Due diligence is a flexible, risk-based process and not a specific formula for enterprises to follow. It requires them to know and describe the risk of adverse impacts as a result of their operations, and on that basis take steps to address the risk. In public procurement, risk assessment and management is a critical factor to be undertaken in developing the project requirements whereby the end-user or implementing unit must identify the risks and come up with its own risk management plan. (Generic Procurement Manual, Vol.1)  REASONABLE DILIGENCE IN PUBLIC PROCUREMENET Due diligence in the context of procurement refers to carrying out duties carefully and thoroughly and avoiding careless practices or techniques. A risk-based due diligence requires that all activities by procuring entities be pursued in a manner that goes beyond the minimum effort. System of accountability where both the public officials involved in the procurement process and contract implementation and the private parties that deal with government are, when warranted by circumstances, investigated and held liable for their related actions. (Sec. 3 of RA No. 9184) Importance of Reasonable Diligence in Public Procurement: a. Equips the PEs with the necessary tools to handle actual and potential adverse impacts during any procurement stage. b. Reduces the risk of PEs and its officers in becoming the subject of complaints.  PROCUREMENT PLANNING Planning ensures that the overall goal of the Procurement Project will be achieved effectively and efficiently. Through plans, a Procuring Entity is able to effectively manage and track procurement all the way to contract performance. Defining Procurement Requirements Annual Procurement Plan Project Procurement Management Plan Market Study/Scoping Cost-Benefit Analysis Feasibility Study Scope of Work or Technical Specifications Mode of Procurement Project Costing (ABC) Procurement Milestones (Schedule of Procurement Activities)  PROFESSIONALIZATION OF PROCUREMENT PRACTITIONERS To ensure effective implementation and enforcement of RA No. 9184, its 2016 revised IRR and other related issuances of the Procuring Entities, the GPPB, through and its TSO, conducts development activities to continuously capacitate the procurement practitioners and provides updated reference materials and public assistance as information resources. Forums & Trainings Annual Procurement Forum Public Procurement Specialist Certification Course Digital Learning Series GPPB Official Website (gppb.gov.ph) Handbook on Philippine Government Procurement Updated Implementing Rules and Regulations Government Procurement Manuals Resolutions Circulars Policy and Non – Policy Matter Opinions  TRANSPARENCY MEASURES IN PUBLIC PROCUREMENT ❖ The procurement process and the implementation of procurement contracts must be transparent. Each procurement transaction must be properly documented, and such records must be maintained and made available to proper parties.  POSTING REQUIREMENTS PEs must ensure the widest dissemination opportunities and post all of bid results of bidding and related documents and information in PhilGEPS, PEs official website, and at any conspicuous place in the premise of the PE, when applicable. Under AO No. 34, all PEs under the Executive Department shall post all the advertising and post-award information related to its procurement projects on their official website and social media platforms. For projects with an ABC of 50M and above, post-award information shall also be published in a newspaper of general circulation. (GPPB Circular 01-2021)  OBSERVERS ❖ Commission on Audit ❖ Non-Government Organization ❖ Recognized Private Group ❖ Attend and Observe Procurement Stages ❖ Access to Documents ❖ Online Access for Monitoring All Stages of Procurement using mPhilGEPS ❖ Preparation of Report ❖ Submission of Report to the PE, cc GPPB and OMB  COVERAGE ❖ Public Officers who commit any of the acts enumerated under Section 65.1 of the IRR ❖ Private individuals who commit any of the following acts enumerated under Sections 65.2 and 65.3  COVERAGE OF PENAL CLAUSE The penalties and offenses under RA 9184 and its Revised IRR shall cover all types of procurement whether done manually or electronically (Sec 65.4)  SANCTIONS AND PENALTIES Art. XXI of RA No. 9184 & Rule XXI of the 2016 IRR (PENAL CLAUSE) THREE LIABILITIES FOR WRONGFUL ACT OR OMISSION UNDER RA NO. 9184: Criminal Liability – Sec. 65 of the 2016 IRR Civil Liability – Sec. 67 of the 2016 IRR Administrative Liability – Sec. 69. 1 (a) to (i) of the 2016 IRR  CRIMINAL PENALTIES UNDER RA NO. 9184 VS. RA NO. 3019 Sec. 65 of RA No. 9184 Sec. 3 of RA No. 3019 ✔ Principal Penalty: ✔ Imprisonment of not less Imprisonment of not less 6 years and 1 month, but than 6 years & 1 day, but not more than 15 years. not more than 15 years. ✔ One may be charged with ✔ Accessory Penalty: violating RA No. 3019 in Public Officer: Temporary addition to a felony under disqualification from public the RPC for the same act. office (No double jeopardy) Private Individual: Permanent disqualification from transacting business with government  OFFENSES COMMITTED BY PUBLIC OFFICERS Section 65(1) of RA 9184 a) Opening of sealed bid/document or divulging their contents Sec. 3(k) of RA No. 3019 Divulging valuable information of a confidential character b) Delaying without justifiable cause the procurement process Sec. 3(f) of RA No. 3019 Neglecting or refusing to act within a reasonable time on any matter pending before him for the purpose of obtaining benefit or advantage 5  OFFENSES COMMITTED BY PUBLIC OFFICERS Sec. 3(c) of RA No. 3019 Directly or indirectly requesting or receiving any gift or any pecuniary or material benefit for any government license or permit. Exception: Unsolicited gifts of small or insignificant value offered/given as a mere token of gratitude or friendship according to local customs or usage. (Sec. 14 of RA No. 3019) Sec. 3(d) of RA No. 3019 Accepting or having any member of his family accept employment in a private enterprise which has pending official business during the pendency or within one year after termination. Family relation shall include the spouse or relatives by consanguinity or affinity in the 3rd civil degree. 5  OFFENSES COMMITTED BY PUBLIC OFFICERS Section 65(1) of RA 9184 c) Unduly influencing or exerting undue pressure on any member of the BAC or any officer or employee of the procuring entity Sec. 3(a) of RA No. 3019 Persuading, inducing, influencing another public officer to: d) perform an act constituting a violation of rules and regulations e) allowing himself to be so persuaded, induced, or influenced to commit such violation or offense Article 1337 New Civil Code of the Philippines “There is undue influence when a person takes improper advantage of his power over the will of another, depriving the latter of a reasonable freedom of choice.” A public officer can still be liable sans proof that he received any material remuneration from the transaction. 5  OFFENSES COMMITTED BY PUBLIC OFFICERS Section 65(1) of RA 9184 d) Splitting of contracts which exceed procedural purchase limits and competitive bidding. Two instances: e) Breaking up of contract into smaller quantities and amounts f) Dividing contract implementation into artificial phases or sub-contracts Purpose: To evade or circumvent the requirements of RA No. 9184 and its IRR, particularly the necessity of competitive bidding and the requirements for the alternative methods of procurement. Procurement by Lot PEs are allowed to conduct procurement by lots/items of a project, which may be awarded as a single or separate contracts. (Section 21.1(b) of the 2016 revised IRR of RA No. 9184) Procurement by lots attracts maximum competitionand facilitates the efficient and economical procurement since only one bidding is conducted for the lots/items 5  OFFENSES COMMITTED BY PUBLIC OFFICERS Section 65(1) of RA 9184 e) Head of Agency abusing the exercise of his/her power under Sec. 41 of RA No. 9184 (Reservation Clause), with manifest preference to any bidder who is closely related to him. Sec. 3(e) of RA No. 3019 Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions. Sec. 3(g) of RA No. 3019 Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby. Sec. 3(j) of RA No. 3019 Knowingly approving any license, permit, privilege or benefit in favor of any person not qualified for or not legally entitled to such license. 5  OFFENSES COMMITTED BY PRIVATE INDIVIDUALS Section 65(b) of RA 9184 1. Agreement and submission to submit bids with pre- arranged lowest bid 2. Malicious submission of different bids through two or more persons 3. Agreement to secure undue advantage 4. Employment of scheme disadvantageous to the public *Public officers conspiring with the private individuals are also liable under the provision. 5  OFFENSES COMMITTED BY PRIVATE INDIVIDUALS Section 65(c) of RA 9184 1. Submission of eligibility requirements containing false information of falsified documents or concealment of such information 2. Submission of bidding documents containing false information of falsified documents or concealment of such information 3. Using name of another or allowing another to use one’s name 4. Withdrawal of bid * Public officers conspiring with the private individuals are also liable under the provision. 5  OFFENSES COMMITTED BY PRIVATE INDIVIDUALS Two Ways of Committing Sec 65.3 (c) PARTICIPATING IN COMPETITIVE BIDDING THRU ANOTHER PERSON Bidder submits a bid using Bidder submits a bid another’s name using another’s name with his consent The 3rd party does not know The 3rd party has knowledge that his name was used in that his name was used to the bidding join the bidding Purpose is to make it Purpose is to make it appear that there is appear that there is competition competition Only the bidder is liable The bidder and the name- lender are both liable 5  ADMINISTRATIVE OFFENSES COMMITTED BY BIDDERS ❖ Sec. 69.1 of RA No. 9184 ❖ Criminal Acts Warranting a Separate Administrative Investigation a) Submission of falsified eligibility documents b) Submission of bids with false information or fake documents c) Allowing the use of one’s name or using the name of another d) Withdrawal of Bid, refusal to accept award or enter into contract without valid cause e) Refusal or failure to post the performance security ❖ Purely Administrative in Nature f) Contract termination due to the fault of the bidder g) Refusal to clarify or validate in Bid during writing its post- qualification within 7CD from PE's request for clarification. h) Any documented unsolicited attempt to unduly influence the outcome of bidding in his/her favor. i) All other acts that tend to defeat the purpose of competitive bidding. 6  JURISDICTION Jurisdiction over the offenses defined under this Rule shall belong to the appropriate courts, according to laws existing at the time of the commission of the offenses. 6  1987 CONSTITUTION OF THE PHILIPPINES ARTICLE XI - ACCOUNTABILITY OF PUBLIC OFFICERS Section 1. Public Office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives. 6  REPUBLIC ACT NO. 6770 OMBUDSMAN ACT OF 1989 Section 13. Mandate. — The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against officers or employees of the Government, or of any subdivision, agency or instrumentality thereof, including government- owned or controlled corporations, and enforce their administrative, civil and criminal liability in every case where the evidence warrants in order to promote efficient service by the Government to the people. 6  REPUBLIC ACT NO. 6770 OMBUDSMAN ACT OF 1989 Section 15. Powers, Functions and Duties. — The Office of the Ombudsman shall have the following powers, functions and duties: (1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of his primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases; 6 REPUBLIC ACT NO. 3019 - ANTI-GRAFT AND CORRUPT PRACTICES ACT Section 3. Corrupt practices of public officers. — In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: (a) Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or offense. 6 REPUBLIC ACT NO. 3019 - ANTI-GRAFT AND CORRUPT PRACTICES ACT (b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person, in connection with any contract or transaction between the Government and any other party, wherein the public officer in his official capacity has to intervene under the law. (d) Accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after its termination. 6 REPUBLIC ACT NO. 3019 - ANTI-GRAFT AND CORRUPT PRACTICES ACT (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. 6 REPUBLIC ACT NO. 3019 - ANTI-GRAFT AND CORRUPT PRACTICES ACT (g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby. 6  REPUBLIC ACT NO. 1379 - AN ACT DECLARING FORFEITURE IN FAVOR OF THE STATE ANY PROPERTY FOUND TO HAVE BEEN UNLAWFULLY ACQUIRED BY ANY PUBLIC OFFICER OR EMPLOYEE AND PROVIDING FOR THE PROCEEDINGS THEREFOR. Section 2. Filing of petition. — Whenever any public officer or employee has acquired during his incumbency an amount of property which is manifestly out of proportion to his salary as such public officer or employee and to his other lawful income and the income from legitimately acquired property, said property shall be presumed prima facie to have been unlawfully acquired. X X X. The resignation, dismissal or separation of the officer or employee from his office or employment in the Government or in the Government-owned or controlled corporation shall not be a bar to the filing of the petition: X X X. 7  REPUBLIC ACT NO. 6713 CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICIALS AND EMPLOYEES Section 4. Norms of Conduct of Public Officials and Employees. — (A) Every public official and employee shall observe the following as standards of personal conduct in the discharge and execution of official duties: (a) Commitment to public interest. — Public officials and employees shall always uphold the public interest over and above personal interest. All government resources and powers of their respective offices must be employed and used efficiently, effectively, honestly and economically, particularly to avoid wastage in public funds and revenues. 7  REPUBLIC ACT NO. 6713 CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICIALS AND EMPLOYEES (b) Professionalism. - Public officials and employees shall perform and discharge their duties with the highest degree of excellence, professionalism, intelligence and skill. They shall enter public service with utmost devotion and dedication to duty. They shall endeavor to discourage wrong perceptions of their roles as dispensers or peddlers of undue patronage. 7  REPUBLIC ACT NO. 6713 CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICIALS AND EMPLOYEES (c) Justness and sincerity. - Public officials and employees shall remain true to the people at all times. They must act with justness and sincerity and shall not discriminate against anyone, especially the poor and the underprivileged. They shall at all times respect the rights of others, and shall refrain from doing acts contrary to law, good morals, good customs, public policy, public order, public safety and public interest. They shall not dispense or extend undue favors on account of their office to their relatives whether by consanguinity or affinity except with respect to appointments of such relatives to positions considered strictly confidential or as members of their personal staff whose terms are coterminous with theirs. 7  REPUBLIC ACT NO. 6713 CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICIALS AND EMPLOYEES (d) Political neutrality. — Public officials and employees shall provide service to everyone without unfair discrimination and regardless of party affiliation or preference. (e) Responsiveness to the public. — Public officials and employees shall extend prompt, courteous, and adequate service to the public. Unless otherwise provided by law or when required by the public interest, public officials and employees shall provide information of their policies and procedures in clear and understandable language, ensure openness of information, public consultations and hearings whenever appropriate, encourage suggestions, simplify and systematize policy, rules and procedures, avoid red tape and develop an understanding and appreciation of the socio-economic conditions prevailing in the country, especially in the depressed rural and urban areas. 7  REPUBLIC ACT NO. 6713 CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICIALS AND EMPLOYEES (f) Nationalism and patriotism. — Public officials and employees shall at all times be loyal to the Republic and to the Filipino people, promote the use of locally produced goods, resources and technology and encourage appreciation and pride of country and people. They shall endeavor to maintain and defend Philippine sovereignty against foreign intrusion. (g) Commitment to democracy. — Public officials and employees shall commit themselves to the democratic way of life and values, maintain the principle of public accountability, and manifest by deeds the supremacy of civilian authority over the military. They shall at all times uphold the Constitution and put loyalty to country above loyalty to persons or party. 7  REPUBLIC ACT NO. 6713 CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICIALS AND EMPLOYEES (h) Simple living. — Public officials and employees and their families shall lead modest lives appropriate to their positions and income. They shall not indulge in extravagant or ostentatious display of wealth in any form. 7  IMPLEMENTING RULES OF REPUBLIC ACT NO. 6713 Rule IV Transparency of Transaction and Access to Information Section 1. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. Section 2. It is the responsibility of heads of departments, offices and agencies to establish measures and standards that will ensure transparency of and openness in public transactions in their respective offices, such as in biddings, purchases, other financial transactions including contracts, status of projects, and all other matters involving public interest. 7  IMPLEMENTING RULES OF REPUBLIC ACT NO. 6713 They shall establish information system that will inform the public of the following: (a) policies, rules, and procedures; (b) work programs, projects, and performance targets; (c) performance reports; and (d) all other documents as may hereafter be classified as public information. Such public information shall be utilized solely for the purpose of informing the public of such policies, programs and accomplishments, and not to build the public image of any official or employee or to advance his own personal interest. Section 3. Every department, office or agency shall provide official information, records or documents to any requesting public, except if: X X X. 7  REVISED PENAL CODE (TITLE II) CRIMES AGAINST THE FUNDAMENTAL LAWS OF THE STATE Section Two – Bribery Art. 210. Direct bribery. – Any public officer who shall agree to perform an act constituting a crime, in connection with the performance of his official duties, in consideration of any offer, promise, gift or present received by such officer, personally or through the mediation of another, shall suffer the penalty of prision mayor in its medium and minimum periods and a fine of not less than three times the value of the gift in addition to the penalty corresponding to the crime agreed upon, if the same shall have been committed. 79  REVISED PENAL CODE (TITLE II) CRIMES AGAINST THE FUNDAMENTAL LAWS OF THE STATE If the gift was accepted by the officer in consideration of the execution of an act which does not constitute a crime, and the officer executed said act, he shall suffer the same penalty provided in the preceding paragraph; and if said act shall not have been accomplished, the officer shall suffer the penalties of prision correccional, in its medium period and a fine of not less than twice the value of such gift. If the object for which the gift was received or promised was to make the public officer refrain from doing something which it was his official duty to do, he shall suffer the penalties of prision correccional in its maximum period to prision mayor in its minimum period and a fine of not less than three times the value0of such gift.  REVISED PENAL CODE (TITLE II) CRIMES AGAINST THE FUNDAMENTAL LAWS OF THE STATE Art. 211. Indirect bribery. – The penalties of prision correctional in its medium and maximum periods, suspension and public censure shall be imposed upon any public officer who shall accept gifts offered to him by reason of his office. Art. 212. Corruption of Public officials. – The same penalties imposed upon the officer corrupted, except those of disqualification and suspension, shall be imposed upon any person, who shall have made the offers or promises or given the gifts or presents as described in the preceding articles. 81  REVISED PENAL CODES (TITLE VII) CRIMES COMMITTED BY PUBLIC OFFICERS Section Two – Infidelity in the custody of documents Art. 228. Opening of closed documents. – Any public officer not included in the provisions of the next preceding article who, without proper authority, shall open or shall permit to be opened any closed papers, documents or objects entrusted to his custody, shall suffer the penalties of arresto mayor, temporary special disqualification and a fine not exceeding 2,000 pesos.  PRESIDENTAL DECREE 46 MAKING IT PUNISHABLE FOR PUBLIC OFFICIALS AND EMPLOYEES TO RECEIVE, AND FOR PRIVATE PERSONS TO GIVE GIFTS ON ANY OCCASION, INCLUDING CHRISTMAS Pursuant to Proclamation No. 1081 dated September 21, 1972, and General Order No. 1 dated September 22, 1972, do hereby make it punishable for any public official or employee, whether of the national or local governments, to receive, directly or indirectly, and for private persons to give, or offer to give, any gift, present or other valuable thing on any occasion, including Christmas, when such gift, present or other valuable thing is given by reason of his official position, regardless of whether or not the same is for past favor or favors or the giver hopes or expects to receive a favor or better treatment in the future from the public official or employee concerned in the discharge of his official functions. Included within the prohibition is the throwing of parties or entertainments in honor of the official or employee or his immediate relatives. For violation of this Decree, the penalty of imprisonment for not less than one (1 year nor more than five (5) years and perpetual disqualification from public office shall be imposed. The official or employee concerned shall likewise be subject to administrative disciplinary action and, if found guilty, shall be meted out the penalty of suspension or removal, depending on the seriousness of the offense.  REPUBLIC ACT 7080 AN ACT DEFINING AND PENALIZING THE CRIME OF PLUNDER d) “Ill-gotten wealth” means any asset, property, business enterprise or material possession of any person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes: XXX XXX XXX XXX 2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned;  REPUBLIC ACT 7080 AN ACT DEFINING AND PENALIZING THE CRIME OF PLUNDER Section 2. Definition of the Crime of Plunder; Penalties. — Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described in Section 1(d) hereof in the aggregate amount or total value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death. Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stocks derived from the deposit or investment thereof forfeited in favor of the State.  REPUBLIC ACT 7080 AN ACT DEFINING AND PENALIZING THE CRIME OF PLUNDER Section 4. Rule of Evidence. — For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy. Section 5. Suspension and Loss of Benefits. — Any public officer against whom any criminal prosecution under a valid information under this Act whatever stage of execution and mode of participation, is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and other benefits which he failed to receive during suspension, unless in the meantime, administrative proceedings have been filed against him.  BASIC REQUIREMENTS FOR ALL TYPES OF PROCUREMENT THROUGH PUBLIC BIDDING ∙ Authenticated photocopy of the approved APP and any amendment thereto ∙ Approved contract supported by the following documents which are required under COA Cir No 2009-001 dated 12 February 2009 and COA Memorandum No 2005-027 dated 28 February 2005 to be submitted to the Auditor’s Office within five days from the execution of the contract: o Invitation to Apply for Eligibility to Bid o Letter of Intent o Bidding Documents enumerated under Sec 17.1 of the Revised IRR of RA 9184 which includes a complete set of approved plans/drawings and technical specifications for infrastructure projects complete technical description of equipment, aircraft and accessories, scope of works, if applicable, for goods, and rental and repair contracts, and Terms of Reference (TOR) for consultancy services o Minutes of Pre-Bid Conference, [Approved Budget for the Contract (ABC) 1M and above]  BASIC REQUIREMENTS FOR ALL TYPES OF PROCUREMENT THROUGH PUBLIC BIDDING o Agenda and / or Supplemental Bulletins, if any o Bidders Technical and Financial Proposals o Minutes of Bid Opening o Abstract of Bids o Post-Qualification Report of Technical Working Group o BAC Resolution declaring winning bidder o Notice of Post Qualification o BAC Resolution recommending approval and approval by the Head of Procuring Entity of the Resolution of the BAC recommending the award of contract o Notice of Award o Performance Security o Program of Work and Detailed Estimates o Notice to Proceed, indicating the date of receipt by the contractor o Detailed Breakdown of the ABC o Copy of the Approved PERT/CPM Network Diagram and detailed computations of contract time  BASIC REQUIREMENTS FOR ALL TYPES OF PROCUREMENT THROUGH PUBLIC BIDDING o Detailed Breakdown of the Contract Cost: ▪ Including the detailed breakdown of estimates and / or unit cost analysis / derivation for each work item expressed in volume / area / lump sum / lot for infrastructure projects ▪ Indicating the following, among others, for consultancy services: ∙ Schedule of basic rates certified by the consultant with a sworn statement ∙ Derivation of the billing factor / multiplier certified by the consultant with a sworn statement ∙ Detailed breakdown of reimbursable costs based on agreed fixed rates and actual costs ▪ Indicating costs and dates of acquisition of the equipment, quantities and cost of materials, spare parts, and supplies furnished by the contractor for janitorial / security / maintenance services ▪ Indicating the monthly lease payment and period of lease for lease contracts  BASIC REQUIREMENTS FOR ALL TYPES OF PROCUREMENT THROUGH PUBLIC BIDDING ∙ Copy of Advertisement of Invitation to Bid / Request for expression of interest o Newspaper clippings of advertisement (as applicable) o Printout copy of advertisement posted in PhilGEPS o Certificate from the Head of the BAC Secretariat on he posting of advertisement at conspicuous places o Printout copies of advertisement posted in agency website, if any ∙ Documentary requirements under Sec 23.1 and 25.2b for infrastructure projects, 23.1 and 25.2a for goods and 24.1 and 25.2c for consulting services of the Revised IRR of RA 9184 ∙ Minutes of Pre-Procurement Conference ∙ Bid Evaluation Report ∙ Ranking of short listed bidders for consulting services ∙ Post Qualification Evaluation Report ∙ Printout copy of posting of Notice of Award, Notice to Proceed, and Contract of award in the PhilGEPS ∙ Evidence of Invitation of three observers in all stages of the procurement process pursuant to Section 13.1 of the Revised IRR of RA 9184 ∙ Request for purchase or requisition of supplies, materials and equipment duly  BASIC REQUIREMENTS FOR ALL TYPES OF PROCUREMENT UNDER ALTERNATIVE MODE ∙ Documents to be submitted within five working days from the execution of the contract as required under COA Cir No 2009-001 dated 12 February 2009: o Purchase Order / Letter Order / Contract, duly approved by the official concerned and accepted by the supplier (date of acceptance must be clearly indicated, especially when the time or date of delivery is dependent on or will be counted from the date of acceptance of the purchase order / letter order / contract) o Proof of posting of invitation of request for submission of price quotation in the PhilGEPS website, website of the procuring entity, if available, and at any conspicuous place reserved for this purpose in the premises of the procuring agency for a period of three (3) calendar days in the case of Shopping under Sec 52.1(b) and Negotiated Procurement under Sections 53.1 (two failed bidding) and 53.9 (small value procurement) of the Revised IRR of RA 9184 o Performance and warranty securities, as applicable o BAC Resolution recommending and justifying to the Head of Procuring Entity (HoPE) the use of alternative mode of procurement and approval by the HoPE of the BAC Resolution recommending the award of the contract  BASIC REQUIREMENTS FOR ALL TYPES OF PROCUREMENT UNDER ALTERNATIVE MODE ∙ Approved Procurement Plan ∙ Request for purchase or requisition of supplies, materials and equipment, duly approved by proper authorities ∙ Original copy of the delivery invoice showing the quantity, description of the articles, unit and total value, duly signed by the dealer or his representative and indicating receipt by the proper agency official of items delivered ∙ Inspection and acceptance report signed “Inspected by” by the authorized agency inspector and signed “Accepted by” by the authorized end-user to whom the item was delivered or the property officer if item is for stock ∙ Approval by the HoPE or his duly authorized representative on the use of the alternative methods of procurement, as recommended by the BAC ∙ Statement of the prospective bidder that it is not blacklisted or barred from bidding by the government or any of its agencies, offices, corporations or LGUs ∙ Sworn affidavit by the bidder that it is not related to the HoPE by consanguinity or SAMPLE CHECKLIST FOR SHOPPING/SMALL VALUE PROCUREMENT ∙ Approved Annual Procurement Plan (APP) (Sec 7.2, RIRR of RA 9184; 9.2 COA Cir 2012-001). The method of procurement to be used shall be as indicated in the approved APP. If the original mode of procurement recommended in the APP was public bidding but cannot be ultimately pursued, the BAC, through a resolution, shall justify ad recommend the change in the mode of procurement to be approved by the HoPE. (Sec 48.3, RIRR of RA 9184) ∙ Duly Approved Purchase Request (9.2, COA Cir 2012-001) ∙ Technical Specifications / Terms of Reference (Sec 17.2, RIRR of RA 9184) ∙ For Small Value Procurement - Letter / Invitation to submit price proposals; The Requests for Quotation (RFQ) should indicate the specification, quantity, Approved Budget for the Contract (ABC), and other terms and conditions of the item to be procured. The RFQ shall be sent to at least three (3) suppliers, contractors, or consultants of known qualifications. However, during unforeseen contingencies requiring immediate purchase under Sec 52.1 (a) of the IRR, the RFQ may be sent to only one (1) supplier. For Shopping under Sec 52.1(b), at least three (3) price quotations must be obtained. (GPPB Reso No 09-2009, dated 23 November 2009; Sec 52.1 and 53.9, RIRR of RA 9184; 9.2.5, COA Cir 2012-001) SAMPLE CHECKLIST FOR SHOPPING/SMALL VALUE PROCUREMENT ∙ The procuring entity must validate whether it is entering into a contract with a technically, legally and financially capable supplier, contractor, or consultant by requiring the submission of relevant documents or through other means. (Sec 53, RIRR of RA 9184, GPPB Reso No 09-2009, dated 23 November 2009) ∙ Approval of the HoPE or his duly authorized representative on the use of the alternative methods of procurement, as recommended by the BAC (9.2, COA Cir 2012-001) ∙ Sworn statement of the prospective bidder that it is not blacklisted or barred from bidding by the Government or any of its agencies, offices, corporations or LGU (Sec 25.2.iv.1, RIRR of RA 9184; 9.2 COA Cir 2012-001) ∙ Sworn affidavit of the bidder that it is not related to the HoPE by consanguinity or affinity up to the third civil degree (Sec 47, RIRR of RA 9184; COA Cir 2012-001) ∙ Certificate of PhilGEPS Registration of manufacturer/ supplier / distributor (Sec 8.2 a and b; 8.2.2 f; 54.3, RIRR of RA 9184) ∙ Other documents peculiar to the contract and / or the mode of procurement and considered necessary in the auditorial review and in the technical evaluation (9.2.2, COA Cir 2012-001) THANK YOU!!