Re: Exhaustion of Administrative Remedies for a Decision of the Bids and Awards Committee Qualifying a Bidder I.

Doctrine of Exhaustion of Administrative Remedies a. General Rule If a remedy within the administrative machinery can still be resorted to by giving the administrative officer concerned every opportunity to decide on a matter that comes within his jurisdiction then such remedy should be exhausted first before courts judicial power can be sought. The premature invocation of courts intervention is fatal to ones cause of action.1 The rule is that where a law has delineated the procedure by which administrative appeal or remedy could be effected, the same should be followed before recourse to judicial action can be initiated.2 b. Exceptions The Court listed down several exceptions to this doctrine in Paat vs. Court of Appeals (1997)3, namely: (1) when there is a violation of due process; (2) when the issue involved is purely a legal question; (3) when the administrative action is patently illegal amounting to lack or excess of jurisdiction; (4) when there is estoppel on the part of the administrative agency concerned; (5) when there is irreparable injury; (6) when the respondent is a department secretary whose acts as an alter ego of the President bears the implied and assumed approval of the latter; (7) when to require exhaustion of administrative remedies would be unreasonable; (8) when it would amount to a nullification of a claim; (9) when the subject matter is a private land in land case proceedings; (10) when the rule does not provide a plain, speedy and adequate remedy; and (11) when there are circumstances indicating the urgency of judicial intervention. c. Agency action It was held in the case of Smart Communications, Inc. vs. National Telecommunications Commission (2003)4, that [i]n questioning the validity or constitutionality of a rule or regulation issued by an administrative agency, a party need not exhaust administrative remedies before going to court. This principle applies only where the act of the administrative agency concerned was performed pursuant to its quasi-judicial function, and not when the assailed act pertained to its rule-making or quasi-legislative power. Quasi-legislative or rule-making power is the power to make rules and regulations which results in delegated legislation that is within the confines of the granting statute and the doctrine of non-delegability and separability of powers.5

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Paat vs. Court of Appeals (1997), G.R. No. 111107. Garcia vs. CA (2001), G.R. No. 100579 citing Pascual vs. Hon. Provincial Board (1959). 3 G.R. No. 111107. 4 G.R. Nos. 151908, 152603. 5 Id.

Quasi-judicial power refers to the power to hear and determine questions of fact to which the legislative policy is to apply and to decide in accordance with the standards laid down by the law itself in enforcing and administering the same law. The administrative body exercises its quasi-judicial power when it performs in a judicial manner an act which is essentially of an executive or administrative nature, where the power to act in such manner is incidental to or reasonably necessary for the performance of the executive or administrative duty entrusted to it. In carrying out their quasi-judicial functions, the administrative officers or bodies are required to investigate facts or ascertain the existence of facts, hold hearings, weigh evidence, and draw conclusions from them as basis for their official action and exercise of discretion in a judicial nature.6 II. Administrative Remedy for a Decision Qualifying a Bidder

Republic Act No. 9184 (2002) or the Act Providing for the Modernization, Standardization and Regulation of the Procurement Activities of the Government and For Other Purposes (Government Procurement Reform Act) lays down the mechanism for challenging decisions of the Bids and Awards Committee (BAC) of the DOTC, detailed as follows: ARTICLE XVII PROTEST MECHANISM SEC. 55. Protests on Decisions of the BAC. Decisions of the BAC in all stages of procurement may be protested to the head of the procuring entity and shall be in writing. Decisions of the BAC may be protested by filing a verified position paper and paying a nonrefundable protest fee. The amount of the protest fee and the periods during which the protests may be filed and resolved shall be specified in the IRR. SEC. 56. Resolution of Protests. The protests shall be resolved strictly on the basis of records of the BAC. Up to a certain amount to be specified in the IRR, the decisions of the Head of the Procuring Entity shall be final. SEC. 57. Non-interruption of the Bidding Process. In no case shall any protest taken from any decision treated in this Article stay or delay the bidding process. Protests must first be resolved before any award is made. The Revised Implementing Rules and Regulations (IRR) of R.A. No. 9184 further provides that: RULE XVII PROTEST MECHANISM 55. Section 55. Protests on Decisions of the BAC 55.1. Decisions of the BAC at any stage of the procurement process may be questioned by filing a request for reconsideration within the three (3) calendar days upon receipt of written notice or upon verbal notification. The BAC shall decide on the request for reconsideration within seven (7) calendar days from receipt thereof. If a failed bidder signifies his intent to file a request for reconsideration, the BAC shall keep the bid envelopes of the said failed bidder unopened and/or duly sealed until such time that the request for reconsideration has been resolved.

Id.
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55.2. In the event that the request for reconsideration is denied, decisions of the BAC may be protested in writing to the Head of the Procuring Entity: Provided, however, That a prior request for reconsideration should have been filed by the party concerned in accordance with the preceding Section, and the same has been resolved. 55.3. The protest must be filed within seven (7) calendar days from receipt by the party concerned of the resolution of the BAC denying its request for reconsideration. A protest may be made by filing a verified position paper with the Head of the Procuring Entity concerned, accompanied by the payment of a non-refundable protest fee. The nonrefundable protest fee shall be in an amount equivalent to no less than one percent (1%) of the ABC [Approved Budget for the Contract7]. 55.4. The verified position paper shall contain the following information: a) The name of bidder; b) The office address of the bidder; c) The name of project/contract; d) The implementing office/agency or procuring entity; e) A brief statement of facts; f) The issue to be resolved; and g) Such other matters and information pertinent and relevant to the proper resolution of the protest. The position paper is verified by an affidavit that the affiant has read and understood the contents thereof and that the allegations therein are true and correct of his personal knowledge or based on authentic records. An unverified position paper shall be considered unsigned, produces no legal effect, and results to the outright dismissal of the protest. 56. Section 56. Resolution of Protests The protests shall be resolved strictly on the basis of records of the BAC. The Head of the Procuring Entity shall resolve the protest within seven (7) calendar days from receipt thereof. Subject to the provisions of existing laws on the authority of Department Secretaries and the heads of agencies, branches, constitutional commissions, or instrumentalities of the GOP [Government of the Philippines] to approve contracts, the decisions of the Head of the Procuring Entity concerned shall be final up to the limit of his contract approving authority. With respect to LGUs, the decision of the local chief executive shall be final. The head of the BAC Secretariat shall furnish the GPPB [Government Procurement Policy Board] a copy of the decision resolving the protest within seven (7) calendar days from receipt thereof. 57. Section 57. Non-interruption of the Bidding Process
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R.A. No. 9184 (2002), SEC. 5. Definition of Terms. For purposes of this Act, the following terms or words and phrases shall mean or be understood as follows: (a) Approved Budget for the Contract (ABC) refers to the budget for the contract duly approved by the Head of the Procuring Entity, as provided for in the General Appropriations Act and/or continuing appropriations, in the case of National Government Agencies; the Corporate Budget for the contract approved by the governing Boards, pursuant to E.O. No. 518, series of 1979, in the case of Government-Owned and/or -Controlled Corporations, Government Financial Institutions and State Universities and Colleges; and the Budget for the contract approved by the respective Sanggunian, in the case of Local Government Units.
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In no case shall any protest taken from any decision treated in this Rule stay or delay the bidding process: Provided, however, That protests must first be resolved before any award is made. III. Resort to Judicial Action

R.A. No. 9184 (Government Procurement Reform Act) provides that: ARTICLE XVII PROTEST MECHANISM xxx SEC. 58. Report to Regular Courts; Certiorari. Court action may be resorted to only after the protests contemplated in this Article shall have been completed. Cases that are filed in violation of the process specified in this Article shall be dismissed for lack of jurisdiction. The regional trial court shall have jurisdiction over final decisions of the head of the procuring entity. Court actions shall be governed by Rule 65 of the 1997 Rules of Civil Procedure. This provision is without prejudice to any law conferring on the Supreme Court the sole jurisdiction to issue temporary restraining orders and injunctions relating to Infrastructure Projects of Government. The Revised IRR of R.A. No. 9184 provides that: RULE XVII PROTEST MECHANISM xxx 58. Section 58. Resort to Regular Courts; Certiorari 58.1. Court action may be resorted to only after the protests contemplated in this Rule shall have been completed, i.e., resolved by the Head of the Procuring Entity with finality. The regional trial court shall have jurisdiction over final decisions of the Head of the Procuring Entity. Court actions shall be governed by Rule 65 of the 1997 Rules of Civil Procedure. 58.2. This provision is without prejudice to any law conferring on the Supreme Court the sole jurisdiction to issue temporary restraining orders and injunctions relating to infrastructure projects of the GOP. 58.3. The head of the BAC Secretariat of the procuring entity concerned shall ensure that the GPPB shall be furnished a copy of the cases filed in accordance with this Section.