THE repair of around 17 schools damaged during the onslaught of Typhoon Odette (Rai) in Mandaue City was done under negotiated procurement (emergency repairs) and no law has been violated, the Mandaue City Legal Office (MCLO) said.
Mandaue has a total of 89 schools both in elementary and high school.
In a legal opinion letter released by the body to the City Council on March 6, 2023, the MCLO said the repairs fall under emergency cases and were deemed necessary to restore a vital public service education.
To recall, Mandaue City Councilor Joel Seno questioned the legal process for the school repairs, stressing that some were already more or less 90 percent completed without the contractor possessing a signed contract or notice of award (NOA) from the City Government.
Seno cited Republic Act (RA) 9184, or the Government Procurement Act, stressing that even during negotiated procurement or during emergency cases, contractors are still required to submit their offers to the local government unit, have the offers evaluated, and should be given a notice of award at any time before the award of the contract.
But the MCLO said the projects were issued an NOA by the Mandaue City Bids and Awards Committee (BAC). He said that even with the NOA signed, communicated to, and received by the contractor, they should provide all the documents needed under the law to get paid.
It added that no laws or regulations prohibit the contractor from implementing the projects after receiving the NOA. They, however, must assume the burden or risk of not being released an actual contract under valid circumstances.
The letter also stated that the action poses no risk against the local government unit (LGU), although it needs to pay the contractor an appropriate amount (quantum meruit) for the service rendered for justice and equity.
"This office is of the view, however, that the supplier/contractor should be made to issue an undertaking that the said supplier/contractor be made to assume the burden and risk in the event that for any valid reason, the contract/NTP (notice to proceed) cannot be executed," the letter stated.
"Considering that the supplier/contractor assumes the risk of not being paid for the implementation of the contract, no harm or prejudice ensues against the local government. Nevertheless, justice and equity demand that a person who has rendered a service to someone must be paid the amount he/she deserves (quantum meruit)," it added.
Subangdaku Barangay Captain and Association of the Barangay Councils president Ernie Manatad, chairman of the Committee on Laws and Ordinances, reiterated that a contractor's initiative to take the risk even without a contract signed is an advantage to the government, though he said not all contractors executed the action.
He cited the tedious process, including securing an opinion from the MCLO, as one of the reasons for the delay in the issuance of contract.
SunStar has tried to contact Seno for comment, but he has not responded as of March 23, 2023. (HIC)