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NPM No. 026-2016

Requesting Entity: Municipality of Mulanay
Issues Concern: Bidder presented BIR Receipt instead of Tax Clearance

Whether it is valid to issue a Notice of Award considering that the bidder
only presented BIR Receipt instead of Tax Clearance during the eligibility

EO 398 specifically requires the submission of Tax Clearance issued by the BIR
which should be in the form defined in RR 3-2005 . Hence, the submission of other
documents, in your case the submission of the BIR Official Receipt in lieu of the Tax
Clearance requirement, cannot be considered in compliance with Sections 23.1(a)
(iii) and 24.1(a)(iii) of the IRR of RA 9184. As we have previously opined, since the
Tax Clearance is now included as part of the Class "A" legal eligibility documents, its
non-submission is a ground for ineligibility, and the eventual disqualification of the
bidder. Thus, the winning bidder who presented the photocopy of the Official
Receipt from the BIR during the submission of bids, as well as the original Official
Receipt during the Post-Qualification may be disqualified for failure to submit the
original Tax Clearance as defined under EO 398.
NPM No. 024-2016
Requesting Entity: City Government of Antipolo (CGA)
Issues Concern: Posting in the Philippine Government Electronic System (PhilGEPS)

Whether or not the CGA should authorize payment of the claims
notwithstanding the lack of posting in the PhilGEPS website?
The determination of the legality or validity of the actions and decisions of the BAC,
including contracts emanating therefrom, is not within the express mandate of the
GPPB. However, we find it important to discuss the relevant provisions of the
procurement law, rules and regulations pertinent to a valid procurement activity.
It bears stressing that all procuring entities are mandated to fully use the PhilGEPS
in the conduct of procurement procedures.

Thus, if the posting in the PhilGEPS website is not observed, it renders the
proceeding to which it relates illegal and void, or the violation of which makes the
decision therein rendered invalid because Article 5 of the Civil Code of the
Philippines provides that acts executed against the provisions of mandatory or
prohibitory laws shall be void, except when the law itself authorizes their validity. RA
9184, having been enacted for the advancement of public welfare and to enhance
transparency, undoubtedly contains mandatory provisions, such as the
aforementioned provision.
Notwithstanding violations of the procurement laws and its IRR, we wish to reiterate
that the GPPB or its TSO is not in the position to give opinion on whether CGA
should authorize payment of the claims before it, or whether its officials and
employees will incur personal liability in case of payments of such claims, since
these concerns would involve issues not within our jurisdiction.