Other Special Penal Laws (d) "Goods" shall include chattels and personal property other goods delivered
rty other goods delivered under trust receipt for the purpose of
PRESIDENTIAL DECREE No. 115 January 29, 1973
PROVIDING FOR THE REGULATION OF TRUST RECEIPTS
TRANSACTIONS
WHEREAS, the utilization of trust receipts, as a convenient
business device to assist importers and merchants solve their
financing problems, had gained popular acceptance in
international and domestic business practices, particularly in
commercial banking transactions;
WHEREAS, there is no specific law in the Philippines that governs
trust receipt transactions, especially the rights and obligations of
the parties involved therein and the enforcement of the said
rights in case of default or violation of the terms of the trust
receipt agreement;
WHEREAS, the recommendations contained in the report on the
financial system which have been accepted, with certain
modifications by the monetary authorities included, among
others, the enactment of a law regulating the trust receipt
transactions;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested in me by the
Constitution, as Commander-in-Chief of all the Armed Forces of
the Philippines, and pursuant to Proclamation No. 1081, dated
September 21, 1972, and General Order No. 1, dated September
22, 1972, as amended, and in order to effect the desired changes
and reforms in the social, economic, and political structure of our
society, do hereby order and decree and make as part of the law
of the land the following:
Section 1. Short Title. This Decree shall be known as the Trust
Receipts Law.
Section 2. Declaration of Policy. It is hereby declared to be the
policy of the state (a) to encourage and promote the use of trust
receipts as an additional and convenient aid to commerce and
trade; (b) to provide for the regulation of trust receipts
transactions in order to assure the protection of the rights and
enforcement of obligations of the parties involved therein; and (c)
to declare the misuse and/or misappropriation of goods or
proceeds realized from the sale of goods, documents or
instruments released under trust receipts as a criminal offense
punishable under Article Three hundred and fifteen of the Revised
Penal Code.
Section 3. Definition of terms. As used in this Decree, unless the
context otherwise requires, the term
(a) "Document" shall mean written or printed evidence of title to
goods.
(b) "Entrustee" shall refer to the person having or taking
possession of goods, documents or instruments under a trust
receipt transaction, and any successor in interest of such person
for the purpose or purposes specified in the trust receipt
agreement.
(c) "Entruster" shall refer to the person holding title over the
goods, documents, or instruments subject of a trust receipt
transaction, and any successor in interest of such person.
than: money, things in action, or things so affixed to land as to
become a part thereof.
(e) "Instrument" means any negotiable instrument as defined in
the Negotiable Instrument Law; any certificate of stock, or bond
or debenture for the payment of money issued by a public or
private corporation, or any certificate of deposit, participation
certificate or receipt, any credit or investment instrument of a sort
marketed in the ordinary course of business or finance, whereby
the entrustee, after the issuance of the trust receipt, appears by
virtue of possession and the face of the instrument to be the
owner. "Instrument" shall not include a document as defined in
this Decree.
(f) "Purchase" means taking by sale, conditional sale, lease,
mortgage, or pledge, legal or equitable.
(g) "Purchaser" means any person taking by purchase.
(h) "Security Interest" means a property interest in goods,
documents or instruments to secure performance of some
obligations of the entrustee or of some third persons to the
entruster and includes title, whether or not expressed to be
absolute, whenever such title is in substance taken or retained for
security only.
(i) "Person" means, as the case may be, an individual, trustee,
receiver, or other fiduciary, partnership, corporation, business
trust or other association, and two more persons having a joint or
common interest.
(j) "Trust Receipt" shall refer to the written or printed document
signed by the entrustee in favor of the entruster containing terms
and conditions substantially complying with the provisions of this
Decree. No further formality of execution or authentication shall
be necessary to the validity of a trust receipt.
(k) "Value" means any consideration sufficient to support a simple
contract.
Section 4. What constitutes a trust receipt transaction. A trust
receipt transaction, within the meaning of this Decree, is any
transaction by and between a person referred to in this Decree as
the entruster, and another person referred to in this Decree as
entrustee, whereby the entruster, who owns or holds absolute
title or security interests over certain specified goods, documents
or instruments, releases the same to the possession of the
entrustee upon the latter's execution and delivery to the
entruster of a signed document called a "trust receipt" wherein
the entrustee binds himself to hold the designated goods,
documents or instruments in trust for the entruster and to sell or
otherwise dispose of the goods, documents or instruments with
the obligation to turn over to the entruster the proceeds thereof
to the extent of the amount owing to the entruster or as appears
in the trust receipt or the goods, documents or instruments
themselves if they are unsold or not otherwise disposed of, in
accordance with the terms and conditions specified in the trust
receipt, or for other purposes substantially equivalent to any of
the following:
1. In the case of goods or documents, (a) to sell the goods or
procure their sale; or (b) to manufacture or process the goods
with the purpose of ultimate sale: Provided, That, in the case of
manufacturing or processing before its ultimate sale, the
entruster shall retain its title over the goods whether in its original
or processed form until the entrustee has complied fully with his
obligation under the trust receipt; or (c) to load, unload, ship or
tranship or otherwise deal with them in a manner preliminary or
necessary to their sale; or
2. In the case of instruments,
a) to sell or procure their sale or exchange; or
b) to deliver them to a principal; or
c) to effect the consummation of some transactions involving
delivery to a depository or register; or
d) to effect their presentation, collection or renewal
The sale of goods, documents or instruments by a person in the
business of selling goods, documents or instruments for profit
who, at the outset of the transaction, has, as against the buyer,
general property rights in such goods, documents or instruments,
or who sells the same to the buyer on credit, retaining title or
other interest as security for the payment of the purchase price,
does not constitute a trust receipt transaction and is outside the
purview and coverage of this Decree.
Section 5. Form of trust receipts; contents. A trust receipt need
not be in any particular form, but every such receipt must
substantially contain (a) a description of the goods, documents or
instruments subject of the trust receipt; (2) the total invoice value
of the goods and the amount of the draft to be paid by the
entrustee; (3) an undertaking or a commitment of the entrustee
(a) to hold in trust for the entruster the goods, documents or
instruments therein described; (b) to dispose of them in the
manner provided for in the trust receipt; and (c) to turn over the
proceeds of the sale of the goods, documents or instruments to
the entruster to the extent of the amount owing to the entruster
or as appears in the trust receipt or to return the goods,
documents or instruments in the event of their non-sale within
the period specified therein.
The trust receipt may contain other terms and conditions agreed
upon by the parties in addition to those hereinabove enumerated
provided that such terms and conditions shall not be contrary to
the provisions of this Decree, any existing laws, public policy or
morals, public order or good customs.
Section 6. Currency in which a trust receipt may be denominated.
A trust receipt may be denominated in the Philippine currency or
any foreign currency acceptable and eligible as part of
international reserves of the Philippines, the provisions of existing
law, executive orders, rules and regulations to the contrary
notwithstanding: Provided, however, That in the case of trust
receipts denominated in foreign currency, payment shall be made
in its equivalent in Philippine currency computed at the prevailing
exchange rate on the date the proceeds of sale of the goods,
documents or instruments held in trust by the entrustee are
turned over to the entruster or on such other date as may be
stipulated in the trust receipt or other agreements executed
between the entruster and the entrustee.
Section 7. Rights of the entruster. The entruster shall be entitled
to the proceeds from the sale of the goods, documents or
instruments released under a trust receipt to the entrustee to the
extent of the amount owing to the entruster or as appears in the
trust receipt, or to the return of the goods, documents or
instruments in case of non-sale, and to the enforcement of all
other rights conferred on him in the trust receipt provided such
are not contrary to the provisions of this Decree.
The entruster may cancel the trust and take possession of the
goods, documents or instruments subject of the trust or of the
proceeds realized therefrom at any time upon default or failure of
the entrustee to comply with any of the terms and conditions of
the trust receipt or any other agreement between the entruster
and the entrustee, and the entruster in possession of the goods,
documents or instruments may, on or after default, give notice to
the entrustee of the intention to sell, and may, not less than five
days after serving or sending of such notice, sell the goods,
documents or instruments at public or private sale, and the
entruster may, at a public sale, become a purchaser. The proceeds
of any such sale, whether public or private, shall be applied (a) to
the payment of the expenses thereof; (b) to the payment of the
expenses of re-taking, keeping and storing the goods, documents
or instruments; (c) to the satisfaction of the entrustee's
indebtedness to the entruster. The entrustee shall receive any
surplus but shall be liable to the entruster for any deficiency.
Notice of sale shall be deemed sufficiently given if in writing, and
either personally served on the entrustee or sent by post-paid
ordinary mail to the entrustee's last known business address.
Section 8. Entruster not responsible on sale by entrustee. The
entruster holding a security interest shall not, merely by virtue of
such interest or having given the entrustee liberty of sale or other
disposition of the goods, documents or instruments under the
terms of the trust receipt transaction be responsible as principal
or as vendor under any sale or contract to sell made by the
entrustee.
Section 9. Obligations of the entrustee. The entrustee shall (1)
hold the goods, documents or instruments in trust for the
entruster and shall dispose of them strictly in accordance with the
terms and conditions of the trust receipt; (2) receive the proceeds
in trust for the entruster and turn over the same to the entruster
to the extent of the amount owing to the entruster or as appears
on the trust receipt; (3) insure the goods for their total value
against loss from fire, theft, pilferage or other casualties; (4) keep
said goods or proceeds thereof whether in money or whatever
form, separate and capable of identification as property of the
entruster; (5) return the goods, documents or instruments in the
event of non-sale or upon demand of the entruster; and (6)
observe all other terms and conditions of the trust receipt not
contrary to the provisions of this Decree.
Section 10. Liability of entrustee for loss. The risk of loss shall be
borne by the entrustee. Loss of goods, documents or instruments
which are the subject of a trust receipt, pending their disposition,
irrespective of whether or not it was due to the fault or
negligence of the entrustee, shall not extinguish his obligation to
the entruster for the value thereof.
Section 11. Rights of purchaser for value and in good faith. Any
purchaser of goods from an entrustee with right to sell, or of
documents or instruments through their customary form of
transfer, who buys the goods, documents, or instruments for
value and in good faith from the entrustee, acquires said goods,
documents or instruments free from the entruster's security
interest.
Section 12. Validity of entruster's security interest as against
creditors. The entruster's security interest in goods, documents,
or instruments pursuant to the written terms of a trust receipt
shall be valid as against all creditors of the entrustee for the
duration of the trust receipt agreement.
Section 13. Penalty clause. The failure of an entrustee to turn over
the proceeds of the sale of the goods, documents or instruments
covered by a trust receipt to the extent of the amount owing to
the entruster or as appears in the trust receipt or to return said
goods, documents or instruments if they were not sold or
disposed of in accordance with the terms of the trust receipt shall
constitute the crime of estafa, punishable under the provisions of
Article Three hundred and fifteen, paragraph one (b) of Act
Numbered Three thousand eight hundred and fifteen, as
amended, otherwise known as the Revised Penal Code. If the
violation or offense is committed by a corporation, partnership,
association or other juridical entities, the penalty provided for in
this Decree shall be imposed upon the directors, officers,
employees or other officials or persons therein responsible for the
offense, without prejudice to the civil liabilities arising from the
criminal offense.
Section 14. Cases not covered by this Decree. Cases not provided
for in this Decree shall be governed by the applicable provisions of
existing laws.
Section 15. Separability clause. If any provision or section of this
Decree or the application thereof to any person or circumstance is
held invalid, the other provisions or sections hereof and the
application of such provisions or sections to other persons or
circumstances shall not be affected thereby.
Section 16. Repealing clause. All Acts inconsistent with this Decree
are hereby repealed.
Section 17. This Decree shall take effect immediately.
Done in the City of Manila, this 29th day of January, in the year of
Our Lord, nineteen hundred and seventy-three.
The Lawphil Project - Arellano Law Foundation
Today is Monday, April 24, 2017
Republic of the Philippines
CONGRESS OF THE PHILIPPINES
Metro Manila
Fifteenth Congress
Second Regular Session
Begun and held in Metro Manila, on Monday, the twenty-fifth day
of July, two thousand eleven.
REPUBLIC ACT NO. 10175
AN ACT DEFINING CYBERCRIME, PROVIDING FOR THE
PREVENTION, INVESTIGATION, SUPPRESSION AND THE
IMPOSITION OF PENALTIES THEREFOR AND FOR OTHER PURPOSES
Be it enacted by the Senate and House of Representatives of the
Philippines in Congress assembled:
CHAPTER I
PRELIMINARY PROVISIONS
Section 1. Title. This Act shall be known as the "Cybercrime
Prevention Act of 2012.
Section 2. Declaration of Policy. The State recognizes the vital
role of information and communications industries such as
content production, telecommunications, broadcasting electronic
commerce, and data processing, in the nations overall social and
economic development. The State also recognizes the importance
of providing an environment conducive to the development,
acceleration, and rational application and exploitation of
information and communications technology (ICT) to attain free,
easy, and intelligible access to exchange and/or delivery of
information; and the need to protect and safeguard the integrity
of computer, computer and communications systems, networks,
and databases, and the confidentiality, integrity, and availability
of information and data stored therein, from all forms of misuse,
abuse, and illegal access by making punishable under the law such
conduct or conducts. In this light, the State shall adopt sufficient
powers to effectively prevent and combat such offenses by
facilitating their detection, investigation, and prosecution at both
the domestic and international levels, and by providing
arrangements for fast and reliable international cooperation.
Section 3. Definition of Terms. For purposes of this Act, the
following terms are hereby defined as follows:
(a) Access refers to the instruction, communication with, storing
data in, retrieving data from, or otherwise making use of any
resources of a computer system or communication network.
(b) Alteration refers to the modification or change, in form or
substance, of an existing computer data or program.
(c) Communication refers to the transmission of information
through ICT media, including voice, video and other forms of data.
(d) Computer refers to an electronic, magnetic, optical,
electrochemical, or other data processing or communications
device, or grouping of such devices, capable of performing logical,
arithmetic, routing, or storage functions and which includes any
storage facility or equipment or communications facility or
equipment directly related to or operating in conjunction with
such device. It covers any type of computer device including
devices with data processing capabilities like mobile phones,
smart phones, computer networks and other devices connected
to the internet.
(e) Computer data refers to any representation of facts,
information, or concepts in a form suitable for processing in a
computer system including a program suitable to cause a
computer system to perform a function and includes electronic
documents and/or electronic data messages whether stored in
local computer systems or online.
(f) Computer program refers to a set of instructions executed by
the computer to achieve intended results.
(g) Computer system refers to any device or group of
interconnected or related devices, one or more of which,
pursuant to a program, performs automated processing of data. It
covers any type of device with data processing capabilities
including, but not limited to, computers and mobile phones. The
device consisting of hardware and software may include input,
output and storage components which may stand alone or be
connected in a network or other similar devices. It also includes
computer data storage devices or media.
(h) Without right refers to either: (i) conduct undertaken without
or in excess of authority; or (ii) conduct not covered by
established legal defenses, excuses, court orders, justifications, or
relevant principles under the law.
(i) Cyber refers to a computer or a computer network, the
electronic medium in which online communication takes place.
(j) Critical infrastructure refers to the computer systems, and/or
networks, whether physical or virtual, and/or the computer
programs, computer data and/or traffic data so vital to this
country that the incapacity or destruction of or interference with
such system and assets would have a debilitating impact on
security, national or economic security, national public health and
safety, or any combination of those matters.
(k) Cybersecurity refers to the collection of tools, policies, risk
management approaches, actions, training, best practices,
assurance and technologies that can be used to protect the cyber
environment and organization and users assets.
(l) Database refers to a representation of information, knowledge,
facts, concepts, or instructions which are being prepared,
processed or stored or have been prepared, processed or stored
in a formalized manner and which are intended for use in a
computer system.
(m) Interception refers to listening to, recording, monitoring or
surveillance of the content of communications, including
procuring of the content of data, either directly, through access
and use of a computer system or indirectly, through the use of
electronic eavesdropping or tapping devices, at the same time
that the communication is occurring.
(n) Service provider refers to:
(1) Any public or private entity that provides to users of its service
the ability to communicate by means of a computer system; and
(2) Any other entity that processes or stores computer data on
behalf of such communication service or users of such service.
(o) Subscribers information refers to any information contained in
the form of computer data or any other form that is held by a
service provider, relating to subscribers of its services other than
traffic or content data and by which identity can be established:
(1) The type of communication service used, the technical
provisions taken thereto and the period of service;
(2) The subscribers identity, postal or geographic address,
telephone and other access numbers, any assigned network
address, billing and payment information, available on the basis of
the service agreement or arrangement; and
(3) Any other available information on the site of the installation
of communication equipment, available on the basis of the service
agreement or arrangement.
(p) Traffic data or non-content data refers to any computer data
other than the content of the communication including, but not
limited to, the communications origin, destination, route, time,
date, size, duration, or type of underlying service.
CHAPTER II
PUNISHABLE ACTS
Section 4. Cybercrime Offenses. The following acts constitute
the offense of cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of
computer data and systems:
(1) Illegal Access. The access to the whole or any part of a
computer system without right.
(2) Illegal Interception. The interception made by technical
means without right of any non-public transmission of computer
data to, from, or within a computer system including
electromagnetic emissions from a computer system carrying such
computer data.
(3) Data Interference. The intentional or reckless alteration,
damaging, deletion or deterioration of computer data, electronic
document, or electronic data message, without right, including
the introduction or transmission of viruses.
(4) System Interference. The intentional alteration or reckless
hindering or interference with the functioning of a computer or
computer network by inputting, transmitting, damaging, deleting,
deteriorating, altering or suppressing computer data or program,
electronic document, or electronic data message, without right or
authority, including the introduction or transmission of viruses.
(5) Misuse of Devices.
(i) The use, production, sale, procurement, importation,
distribution, or otherwise making available, without right, of:
(aa) A device, including a computer program, designed or adapted
primarily for the purpose of committing any of the offenses under
this Act; or
(bb) A computer password, access code, or similar data by which
the whole or any part of a computer system is capable of being
accessed with intent that it be used for the purpose of committing
any of the offenses under this Act.
(ii) The possession of an item referred to in paragraphs 5(i)(aa) or
(bb) above with intent to use said devices for the purpose of
committing any of the offenses under this section.
(6) Cyber-squatting. The acquisition of a domain name over the
internet in bad faith to profit, mislead, destroy reputation, and
deprive others from registering the same, if such a domain name
is:
(i) Similar, identical, or confusingly similar to an existing trademark
registered with the appropriate government agency at the time of
the domain name registration:
(ii) Identical or in any way similar with the name of a person other
than the registrant, in case of a personal name; and
(iii) Acquired without right or with intellectual property interests
in it.
(b) Computer-related Offenses:
(1) Computer-related Forgery.
(i) The input, alteration, or deletion of any computer data without
right resulting in inauthentic data with the intent that it be
considered or acted upon for legal purposes as if it were
authentic, regardless whether or not the data is directly readable
and intelligible; or
(ii) The act of knowingly using computer data which is the product
of computer-related forgery as defined herein, for the purpose of
perpetuating a fraudulent or dishonest design.
(2) Computer-related Fraud. The unauthorized input,
alteration, or deletion of computer data or program or
interference in the functioning of a computer system, causing
damage thereby with fraudulent intent: Provided, That if no
damage has yet been caused, the penalty imposable shall be one
(1) degree lower.
(3) Computer-related Identity Theft. The intentional acquisition,
use, misuse, transfer, possession, alteration or deletion of
identifying information belonging to another, whether natural or
juridical, without right: Provided, That if no damage has yet been
caused, the penalty imposable shall be one (1) degree lower.
(c) Content-related Offenses:
(1) Cybersex. The willful engagement, maintenance, control, or
operation, directly or indirectly, of any lascivious exhibition of
sexual organs or sexual activity, with the aid of a computer
system, for favor or consideration.
(2) Child Pornography. The unlawful or prohibited acts defined
and punishable by Republic Act No. 9775 or the Anti-Child
Pornography Act of 2009, committed through a computer system:
Provided, That the penalty to be imposed shall be (1) one degree
higher than that provided for in Republic Act No. 9775.1wphi1
(3) Unsolicited Commercial Communications. The transmission
of commercial electronic communication with the use of
computer system which seek to advertise, sell, or offer for sale
products and services are prohibited unless:
(i) There is prior affirmative consent from the recipient; or
(ii) The primary intent of the communication is for service and/or
administrative announcements from the sender to its existing
users, subscribers or customers; or
(iii) The following conditions are present:
(aa) The commercial electronic communication contains a simple,
valid, and reliable way for the recipient to reject. receipt of further
commercial electronic messages (opt-out) from the same source;
(bb) The commercial electronic communication does not
purposely disguise the source of the electronic message; and
(cc) The commercial electronic communication does not purposely
include misleading information in any part of the message in order
to induce the recipients to read the message.
(4) Libel. The unlawful or prohibited acts of libel as defined in
Article 355 of the Revised Penal Code, as amended, committed
through a computer system or any other similar means which may
be devised in the future.
Section 5. Other Offenses. The following acts shall also
constitute an offense:
(a) Aiding or Abetting in the Commission of Cybercrime. Any
person who willfully abets or aids in the commission of any of the
offenses enumerated in this Act shall be held liable.
(b) Attempt in the Commission of Cybercrime. Any person who
willfully attempts to commit any of the offenses enumerated in
this Act shall be held liable.
Section 6. All crimes defined and penalized by the Revised Penal
Code, as amended, and special laws, if committed by, through and
with the use of information and communications technologies
shall be covered by the relevant provisions of this Act: Provided,
That the penalty to be imposed shall be one (1) degree higher
than that provided for by the Revised Penal Code, as amended,
and special laws, as the case may be.
Section 7. Liability under Other Laws. A prosecution under this
Act shall be without prejudice to any liability for violation of any
provision of the Revised Penal Code, as amended, or special laws.
CHAPTER III
PENALTIES
Section 8. Penalties. Any person found guilty of any of the
punishable acts enumerated in Sections 4(a) and 4(b) of this Act
shall be punished with imprisonment of prision mayor or a fine of
at least Two hundred thousand pesos (PhP200,000.00) up to a
maximum amount commensurate to the damage incurred or
both.
Any person found guilty of the punishable act under Section
4(a)(5) shall be punished with imprisonment of prision mayor or a
fine of not more than Five hundred thousand pesos
(PhP500,000.00) or both.
If punishable acts in Section 4(a) are committed against critical
infrastructure, the penalty of reclusion temporal or a fine of at
least Five hundred thousand pesos (PhP500,000.00) up to
maximum amount commensurate to the damage incurred or
both, shall be imposed.
Any person found guilty of any of the punishable acts enumerated
in Section 4(c)(1) of this Act shall be punished with imprisonment
of prision mayor or a fine of at least Two hundred thousand pesos
(PhP200,000.00) but not exceeding One million pesos
(PhPl,000,000.00) or both.
Any person found guilty of any of the punishable acts enumerated
in Section 4(c)(2) of this Act shall be punished with the penalties
as enumerated in Republic Act No. 9775 or the "Anti-Child
Pornography Act of 2009: Provided, That the penalty to be
imposed shall be one (1) degree higher than that provided for in
Republic Act No. 9775, if committed through a computer system.
Any person found guilty of any of the punishable acts enumerated
in Section 4(c)(3) shall be punished with imprisonment of arresto
mayor or a fine of at least Fifty thousand pesos (PhP50,000.00)
but not exceeding Two hundred fifty thousand pesos
(PhP250,000.00) or both.
Any person found guilty of any of the punishable acts enumerated
in Section 5 shall be punished with imprisonment one (1) degree
lower than that of the prescribed penalty for the offense or a fine
of at least One hundred thousand pesos (PhPl00,000.00) but not
exceeding Five hundred thousand pesos (PhP500,000.00) or both.
Section 9. Corporate Liability. When any of the punishable acts
herein defined are knowingly committed on behalf of or for the
benefit of a juridical person, by a natural person acting either
individually or as part of an organ of the juridical person, who has
a leading position within, based on: (a) a power of representation
of the juridical person provided the act committed falls within the
scope of such authority; (b) an authority to take decisions on
behalf of the juridical person: Provided, That the act committed
falls within the scope of such authority; or (c) an authority to
exercise control within the juridical person, the juridical person
shall be held liable for a fine equivalent to at least double the fines
imposable in Section 7 up to a maximum of Ten million pesos
(PhP10,000,000.00).
If the commission of any of the punishable acts herein defined
was made possible due to the lack of supervision or control by a
natural person referred to and described in the preceding
paragraph, for the benefit of that juridical person by a natural
person acting under its authority, the juridical person shall be held
liable for a fine equivalent to at least double the fines imposable
in Section 7 up to a maximum of Five million pesos
(PhP5,000,000.00).
The liability imposed on the juridical person shall be without
prejudice to the criminal liability of the natural person who has
committed the offense.
CHAPTER IV
ENFORCEMENT AND IMPLEMENTATION
Section 10. Law Enforcement Authorities. The National Bureau
of Investigation (NBI) and the Philippine National Police (PNP)
shall be responsible for the efficient and effective law
enforcement of the provisions of this Act. The NBI and the PNP
shall organize a cybercrime unit or center manned by special
investigators to exclusively handle cases involving violations of
this Act.
Section 11. Duties of Law Enforcement Authorities. To ensure
that the technical nature of cybercrime and its prevention is given
focus and considering the procedures involved for international
cooperation, law enforcement authorities specifically the
computer or technology crime divisions or units responsible for
the investigation of cybercrimes are required to submit timely and
regular reports including pre-operation, post-operation and
investigation results and such other documents as may be
required to the Department of Justice (DOJ) for review and
monitoring.
Section 12. Real-Time Collection of Traffic Data. Law
enforcement authorities, with due cause, shall be authorized to
collect or record by technical or electronic means traffic data in
real-time associated with specified communications transmitted
by means of a computer system.
Traffic data refer only to the communications origin, destination,
route, time, date, size, duration, or type of underlying service, but
not content, nor identities.
All other data to be collected or seized or disclosed will require a
court warrant.
Service providers are required to cooperate and assist law
enforcement authorities in the collection or recording of the
above-stated information.
The court warrant required under this section shall only be issued
or granted upon written application and the examination under
oath or affirmation of the applicant and the witnesses he may
produce and the showing: (1) that there are reasonable grounds
to believe that any of the crimes enumerated hereinabove has
been committed, or is being committed, or is about to be
committed: (2) that there are reasonable grounds to believe that
evidence that will be obtained is essential to the conviction of any
person for, or to the solution of, or to the prevention of, any such
crimes; and (3) that there are no other means readily available for
obtaining such evidence.
Section 13. Preservation of Computer Data. The integrity of
traffic data and subscriber information relating to communication
services provided by a service provider shall be preserved for a
minimum period of six (6) months from the date of the
transaction. Content data shall be similarly preserved for six (6)
months from the date of receipt of the order from law
enforcement authorities requiring its preservation.
Law enforcement authorities may order a one-time extension for
another six (6) months: Provided, That once computer data
preserved, transmitted or stored by a service provider is used as
evidence in a case, the mere furnishing to such service provider of
the transmittal document to the Office of the Prosecutor shall be
deemed a notification to preserve the computer data until the
termination of the case.
The service provider ordered to preserve computer data shall
keep confidential the order and its compliance.
Section 14. Disclosure of Computer Data. Law enforcement
authorities, upon securing a court warrant, shall issue an order
requiring any person or service provider to disclose or submit
subscribers information, traffic data or relevant data in his/its
possession or control within seventy-two (72) hours from receipt
of the order in relation to a valid complaint officially docketed and
assigned for investigation and the disclosure is necessary and
relevant for the purpose of investigation.
Section 15. Search, Seizure and Examination of Computer Data.
Where a search and seizure warrant is properly issued, the law
enforcement authorities shall likewise have the following powers
and duties.
Within the time period specified in the warrant, to conduct
interception, as defined in this Act, and:
(a) To secure a computer system or a computer data storage
medium;
(b) To make and retain a copy of those computer data secured;
(c) To maintain the integrity of the relevant stored computer data;
(d) To conduct forensic analysis or examination of the computer
data storage medium; and
(e) To render inaccessible or remove those computer data in the
accessed computer or computer and communications network.
Pursuant thereof, the law enforcement authorities may order any
person who has knowledge about the functioning of the computer
system and the measures to protect and preserve the computer
data therein to provide, as is reasonable, the necessary
information, to enable the undertaking of the search, seizure and
examination.
Law enforcement authorities may request for an extension of time
to complete the examination of the computer data storage
medium and to make a return thereon but in no case for a period
longer than thirty (30) days from date of approval by the court.
Section 16. Custody of Computer Data. All computer data,
including content and traffic data, examined under a proper
warrant shall, within forty-eight (48) hours after the expiration of
the period fixed therein, be deposited with the court in a sealed
package, and shall be accompanied by an affidavit of the law
enforcement authority executing it stating the dates and times
covered by the examination, and the law enforcement authority
who may access the deposit, among other relevant data. The law
enforcement authority shall also certify that no duplicates or
copies of the whole or any part thereof have been made, or if
made, that all such duplicates or copies are included in the
package deposited with the court. The package so deposited shall
not be opened, or the recordings replayed, or used in evidence, or
then contents revealed, except upon order of the court, which
shall not be granted except upon motion, with due notice and
opportunity to be heard to the person or persons whose
conversation or communications have been recorded.
Section 17. Destruction of Computer Data. Upon expiration of
the periods as provided in Sections 13 and 15, service providers
and law enforcement authorities, as the case may be, shall
immediately and completely destroy the computer data subject of
a preservation and examination.
Section 18. Exclusionary Rule. Any evidence procured without a
valid warrant or beyond the authority of the same shall be
inadmissible for any proceeding before any court or tribunal.
Section 19. Restricting or Blocking Access to Computer Data.
When a computer data is prima facie found to be in violation of
the provisions of this Act, the DOJ shall issue an order to restrict
or block access to such computer data.
Section 20. Noncompliance. Failure to comply with the
provisions of Chapter IV hereof specifically the orders from law
enforcement authorities shall be punished as a violation of
Presidential Decree No. 1829 with imprisonment of prision
correctional in its maximum period or a fine of One hundred
thousand pesos (Php100,000.00) or both, for each and every
noncompliance with an order issued by law enforcement
authorities.
CHAPTER V
JURISDICTION
Section 21. Jurisdiction. The Regional Trial Court shall have
jurisdiction over any violation of the provisions of this Act.
including any violation committed by a Filipino national regardless
of the place of commission. Jurisdiction shall lie if any of the
elements was committed within the Philippines or committed
with the use of any computer system wholly or partly situated in
the country, or when by such commission any damage is caused
to a natural or juridical person who, at the time the offense was
committed, was in the Philippines.
There shall be designated special cybercrime courts manned by
specially trained judges to handle cybercrime cases.
CHAPTER VI
INTERNATIONAL COOPERATION
Section 22. General Principles Relating to International
Cooperation. All relevant international instruments on
international cooperation in criminal matters, arrangements
agreed on the basis of uniform or reciprocal legislation, and
domestic laws, to the widest extent possible for the purposes of
investigations or proceedings concerning criminal offenses related
to computer systems and data, or for the collection of evidence in
electronic form of a criminal, offense shall be given full force and
effect.
CHAPTER VII
COMPETENT AUTHORITIES
Section 23. Department of Justice (DOJ). There is hereby
created an Office of Cybercrime within the DOJ designated as the
central authority in all matters related to international mutual
assistance and extradition.
Section 24. Cybercrime Investigation and Coordinating Center.
There is hereby created, within thirty (30) days from the
effectivity of this Act, an inter-agency body to be known as the
Cybercrime Investigation and Coordinating Center (CICC), under
the administrative supervision of the Office of the President, for
policy coordination among concerned agencies and for the
formulation and enforcement of the national cybersecurity plan.
Section 25. Composition. The CICC shall be headed by the
Executive Director of the Information and Communications
Technology Office under the Department of Science and
Technology (ICTO-DOST) as Chairperson with the Director of the
NBI as Vice Chairperson; the Chief of the PNP; Head of the DOJ
Office of Cybercrime; and one (1) representative from the private
sector and academe, as members. The CICC shall be manned by a
secretariat of selected existing personnel and representatives
from the different participating agencies.1wphi1
Section 26. Powers and Functions. The CICC shall have the
following powers and functions:
(a) To formulate a national cybersecurity plan and extend
immediate assistance for the suppression of real-time commission
of cybercrime offenses through a computer emergency response
team (CERT);
(b) To coordinate the preparation of appropriate and effective
measures to prevent and suppress cybercrime activities as
provided for in this Act;
(c) To monitor cybercrime cases being bandied by participating
law enforcement and prosecution agencies;
(d) To facilitate international cooperation on intelligence,
investigations, training and capacity building related to cybercrime
prevention, suppression and prosecution;
(e) To coordinate the support and participation of the business
sector, local government units and nongovernment organizations
in cybercrime prevention programs and other related projects;
(f) To recommend the enactment of appropriate laws, issuances,
measures and policies;
(g) To call upon any government agency to render assistance in
the accomplishment of the CICCs mandated tasks and functions;
and
(h) To perform all other matters related to cybercrime prevention
and suppression, including capacity building and such other
functions and duties as may be necessary for the proper
implementation of this Act.
CHAPTER VIII
FINAL PROVISIONS
Section 27. Appropriations. The amount of Fifty million pesos
(PhP50,000,000_00) shall be appropriated annually for the
implementation of this Act.
Section 28. Implementing Rules and Regulations. The ICTO-
DOST, the DOJ and the Department of the Interior and Local
Government (DILG) shall jointly formulate the necessary rules and
regulations within ninety (90) days from approval of this Act, for
its effective implementation.
Section 29. Separability Clause If any provision of this Act is
held invalid, the other provisions not affected shall remain in full
force and effect.
Section 30. Repealing Clause. All laws, decrees or rules
inconsistent with this Act are hereby repealed or modified
accordingly. Section 33(a) of Republic Act No. 8792 or the
"Electronic Commerce Act" is hereby modified accordingly.
Section 31. Effectivity. This Act shall take effect fifteen (15)
days after the completion of its publication in the Official Gazette
or in at least two (2) newspapers of general circulation.
Approved,
(Sgd.) FELICIANO BELMONTE JR.
Speaker of the House of Representatives
(Sgd.) JUAN PONCE ENRILE
President of the Senate
This Act which is a consolidation of Senate Bill No. 2796 and
House Bill No. 5808 was finally passed by the Senate and the
House of Representatives on June 5, 2012 and June 4, 2012,
respectively.
(Sgd.) MARILYN B. BARUA-YAP
Secretary General
House of Representatives
(Sgd.) EMMA LIRIO-REYES
Secretary of Senate
Approved: SEP 12 2012
(Sgd.) BENIGNO S. AQUINO III
President of the Philippines
The Lawphil Project - Arellano Law Foundation
Today is Monday, April 24, 2017
Republic of the Philippines
Congress of the Philippines
Metro Manila
Eighth Congress
Republic Act No. 6713 February 20, 1989
AN ACT ESTABLISHING A CODE OF CONDUCT AND ETHICAL
STANDARDS FOR PUBLIC OFFICIALS AND EMPLOYEES, TO UPHOLD
THE TIME-HONORED PRINCIPLE OF PUBLIC OFFICE BEING A
PUBLIC TRUST, GRANTING INCENTIVES AND REWARDS FOR
EXEMPLARY SERVICE, ENUMERATING PROHIBITED ACTS AND
TRANSACTIONS AND PROVIDING PENALTIES FOR VIOLATIONS
THEREOF AND FOR OTHER PURPOSES
Be it enacted by the Senate and House of Representatives of the
Philippines in Congress assembled::
Section 1. Title. - This Act shall be known as the "Code of Conduct
and Ethical Standards for Public Officials and Employees."
Section 2. Declaration of Policies. - It is the policy of the State to
promote a high standard of ethics in public service. Public officials
and employees shall at all times be accountable to the people and
shall discharge their duties with utmost responsibility, integrity,
competence, and loyalty, act with patriotism and justice, lead
modest lives, and uphold public interest over personal interest.
Section 3. Definition of Terms. - As used in this Act, the term:
(a) "Government" includes the National Government, the local
governments, and all other instrumentalities, agencies or
branches of the Republic of the Philippines including government-
owned or controlled corporations, and their
subsidiaries.lawphi1.net
(b) "Public Officials" includes elective and appointive officials and
employees, permanent or temporary, whether in the career or
non-career service, including military and police personnel,
whether or not they receive compensation, regardless of amount.
(c) "Gift" refers to a thing or a right to dispose of gratuitously, or
any act or liberality, in favor of another who accepts it, and shall
include a simulated sale or an ostensibly onerous disposition
thereof. It shall not include an unsolicited gift of nominal or
insignificant value not given in anticipation of, or in exchange for,
a favor from a public official or employee.
(d) "Receiving any gift" includes the act of accepting directly or
indirectly, a gift from a person other than a member of his family
or relative as defined in this Act, even on the occasion of a family
celebration or national festivity like Christmas, if the value of the
gift is neither nominal nor insignificant, or the gift is given in
anticipation of, or in exchange for, a favor.
(e) "Loan" covers both simple loan and commodatum as well as
guarantees, financing arrangements or accommodations intended
to ensure its approval.
(f) "Substantial stockholder" means any person who owns, directly
or indirectly, shares of stock sufficient to elect a director of a
corporation. This term shall also apply to the parties to a voting
trust.
(g) "Family of public officials or employees" means their spouses
and unmarried children under eighteen (18) years of age.
(h) "Person" includes natural and juridical persons unless the
context indicates otherwise.
(i) "Conflict of interest" arises when a public official or employee is
a member of a board, an officer, or a substantial stockholder of a
private corporation or owner or has a substantial interest in a
business, and the interest of such corporation or business, or his
rights or duties therein, may be opposed to or affected by the
faithful performance of official duty.
(j) "Divestment" is the transfer of title or disposal of interest in
property by voluntarily, completely and actually depriving or
dispossessing oneself of his right or title to it in favor of a person
or persons other than his spouse and relatives as defined in this
Act.
(k) "Relatives" refers to any and all persons related to a public
official or employee within the fourth civil degree of consanguinity
or affinity, including bilas, inso and balae.
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.
(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.
(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.
(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.
(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.
(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.
(B) The Civil Service Commission shall adopt positive measures to
promote (1) observance of these standards including the
dissemination of information programs and workshops
authorizing merit increases beyond regular progression steps, to a
limited number of employees recognized by their office colleagues
to be outstanding in their observance of ethical standards; and (2)
continuing research and experimentation on measures which
provide positive motivation to public officials and employees in
raising the general level of observance of these standards.
Section 5. Duties of Public Officials and Employees. - In the
performance of their duties, all public officials and employees are
under obligation to:lawphi1.net
(a) Act promptly on letters and requests. - All public officials and
employees shall, within fifteen (15) working days from receipt
thereof, respond to letters, telegrams or other means of
communications sent by the public. The reply must contain the
action taken on the request.
(b) Submit annual performance reports. - All heads or other
responsible officers of offices and agencies of the government and
of government-owned or controlled corporations shall, within
forty-five (45) working days from the end of the year, render a
performance report of the agency or office or corporation
concerned. Such report shall be open and available to the public
within regular office hours.
(c) Process documents and papers expeditiously. - All official
papers and documents must be processed and completed within a
reasonable time from the preparation thereof and must contain,
as far as practicable, not more than three (3) signatories therein.
In the absence of duly authorized signatories, the official next-in-
rank or officer in charge shall sign for and in their behalf.
(d) Act immediately on the public's personal transactions. - All
public officials and employees must attend to anyone who wants
to avail himself of the services of their offices and must, at all
times, act promptly and expeditiously.
(e) Make documents accessible to the public. - All public
documents must be made accessible to, and readily available for
inspection by, the public within reasonable working hours.
Section 6. System of Incentives and Rewards. - A system of annual
incentives and rewards is hereby established in order to motivate
and inspire public servants to uphold the highest standards of
ethics. For this purpose, a Committee on Awards to Outstanding
Public Officials and Employees is hereby created composed of the
following: the Ombudsman and Chairman of the Civil Service
Commission as Co-Chairmen, and the Chairman of the
Commission on Audit, and two government employees to be
appointed by the President, as members.
It shall be the task of this Committee to conduct a periodic,
continuing review of the performance of public officials and
employees, in all the branches and agencies of Government and
establish a system of annual incentives and rewards to the end
that due recognition is given to public officials and employees of
outstanding merit on the basis of the standards set forth in this
Act.
The conferment of awards shall take into account, among other
things, the following: the years of service and the quality and
consistency of performance, the obscurity of the position, the
level of salary, the unique and exemplary quality of a certain
achievement, and the risks or temptations inherent in the work.
Incentives and rewards to government officials and employees of
the year to be announced in public ceremonies honoring them
may take the form of bonuses, citations, directorships in
government-owned or controlled corporations, local and foreign
scholarship grants, paid vacations and the like. They shall likewise
be automatically promoted to the next higher position with the
commensurate salary suitable to their qualifications. In case there
is no next higher position or it is not vacant, said position shall be
included in the budget of the office in the next General
Appropriations Act. The Committee on Awards shall adopt its own
rules to govern the conduct of its activities.
Section 7. Prohibited Acts and Transactions. - In addition to acts
and omissions of public officials and employees now prescribed in
the Constitution and existing laws, the following shall constitute
prohibited acts and transactions of any public official and
employee and are hereby declared to be unlawful:
(a) Financial and material interest. - Public officials and employees
shall not, directly or indirectly, have any financial or material
interest in any transaction requiring the approval of their office.
(b) Outside employment and other activities related thereto. -
Public officials and employees during their incumbency shall not:
(1) Own, control, manage or accept employment as officer,
employee, consultant, counsel, broker, agent, trustee or nominee
in any private enterprise regulated, supervised or licensed by their
office unless expressly allowed by law;
(2) Engage in the private practice of their profession unless
authorized by the Constitution or law, provided, that such practice
will not conflict or tend to conflict with their official functions; or
(3) Recommend any person to any position in a private enterprise
which has a regular or pending official transaction with their
office.
These prohibitions shall continue to apply for a period of one (1)
year after resignation, retirement, or separation from public
office, except in the case of subparagraph (b) (2) above, but the
professional concerned cannot practice his profession in
connection with any matter before the office he used to be with,
in which case the one-year prohibition shall likewise apply.
(c) Disclosure and/or misuse of confidential information. - Public
officials and employees shall not use or divulge, confidential or
classified information officially known to them by reason of their
office and not made available to the public, either:
(1) To further their private interests, or give undue advantage to
anyone; or
(2) To prejudice the public interest.
(d) Solicitation or acceptance of gifts. - Public officials and
employees shall not solicit or accept, directly or indirectly, any
gift, gratuity, favor, entertainment, loan or anything of monetary
value from any person in the course of their official duties or in
connection with any operation being regulated by, or any
transaction which may be affected by the functions of their office.
As to gifts or grants from foreign governments, the Congress
consents to:
(i) The acceptance and retention by a public official or employee
of a gift of nominal value tendered and received as a souvenir or
mark of courtesy;
(ii) The acceptance by a public official or employee of a gift in the
nature of a scholarship or fellowship grant or medical treatment;
or
(iii) The acceptance by a public official or employee of travel
grants or expenses for travel taking place entirely outside the
Philippine (such as allowances, transportation, food, and lodging)
of more than nominal value if such acceptance is appropriate or
consistent with the interests of the Philippines, and permitted by
the head of office, branch or agency to which he belongs.
The Ombudsman shall prescribe such regulations as may be
necessary to carry out the purpose of this subsection, including
pertinent reporting and disclosure requirements.
Nothing in this Act shall be construed to restrict or prohibit any
educational, scientific or cultural exchange programs subject to
national security requirements.
Section 8. Statements and Disclosure. - Public officials and
employees have an obligation to accomplish and submit
declarations under oath of, and the public has the right to know,
their assets, liabilities, net worth and financial and business
interests including those of their spouses and of unmarried
children under eighteen (18) years of age living in their
households.
(A) Statements of Assets and Liabilities and Financial Disclosure. -
All public officials and employees, except those who serve in an
honorary capacity, laborers and casual or temporary workers,
shall file under oath their Statement of Assets, Liabilities and Net
Worth and a Disclosure of Business Interests and Financial
Connections and those of their spouses and unmarried children
under eighteen (18) years of age living in their households.
The two documents shall contain information on the following:
(a) real property, its improvements, acquisition costs, assessed
value and current fair market value;
(b) personal property and acquisition cost;
(c) all other assets such as investments, cash on hand or in banks,
stocks, bonds, and the like;
(d) liabilities, and;
(e) all business interests and financial connections.
The documents must be filed:
(a) within thirty (30) days after assumption of office;
(b) on or before April 30, of every year thereafter; and
(c) within thirty (30) days after separation from the service.
All public officials and employees required under this section to
file the aforestated documents shall also execute, within thirty
(30) days from the date of their assumption of office, the
necessary authority in favor of the Ombudsman to obtain from all
appropriate government agencies, including the Bureau of
Internal Revenue, such documents as may show their assets,
liabilities, net worth, and also their business interests and financial
connections in previous years, including, if possible, the year
when they first assumed any office in the Government.
Husband and wife who are both public officials or employees may
file the required statements jointly or separately.
The Statements of Assets, Liabilities and Net Worth and the
Disclosure of Business Interests and Financial Connections shall be
filed by:
(1) Constitutional and national elective officials, with the national
office of the Ombudsman;
(2) Senators and Congressmen, with the Secretaries of the Senate
and the House of Representatives, respectively; Justices, with the
Clerk of Court of the Supreme Court; Judges, with the Court
Administrator; and all national executive officials with the Office
of the President.
(3) Regional and local officials and employees, with the Deputy
Ombudsman in their respective regions;
(4) Officers of the armed forces from the rank of colonel or naval
captain, with the Office of the President, and those below said
ranks, with the Deputy Ombudsman in their respective regions;
and
(5) All other public officials and employees, defined in Republic
Act No. 3019, as amended, with the Civil Service Commission.
(B) Identification and disclosure of relatives. - It shall be the duty
of every public official or employee to identify and disclose, to the
best of his knowledge and information, his relatives in the
Government in the form, manner and frequency prescribed by the
Civil Service Commission.
(C) Accessibility of documents. - (1) Any and all statements filed
under this Act, shall be made available for inspection at
reasonable hours.
(2) Such statements shall be made available for copying or
reproduction after ten (10) working days from the time they are
filed as required by law.
(3) Any person requesting a copy of a statement shall be required
to pay a reasonable fee to cover the cost of reproduction and
mailing of such statement, as well as the cost of certification.
(4) Any statement filed under this Act shall be available to the
public for a period of ten (10) years after receipt of the statement.
After such period, the statement may be destroyed unless needed
in an ongoing investigation.
(D) Prohibited acts. - It shall be unlawful for any person to obtain
or use any statement filed under this Act for:
(a) any purpose contrary to morals or public policy; or
(b) any commercial purpose other than by news and
communications media for dissemination to the general public.
Section 9. Divestment. - A public official or employee shall avoid
conflicts of interest at all times. When a conflict of interest arises,
he shall resign from his position in any private business enterprise
within thirty (30) days from his assumption of office and/or divest
himself of his shareholdings or interest within sixty (60) days from
such assumption.
The same rule shall apply where the public official or employee is
a partner in a partnership.
The requirement of divestment shall not apply to those who serve
the Government in an honorary capacity nor to laborers and
casual or temporary workers.
Section 10. Review and Compliance Procedure. - (a) The
designated Committees of both Houses of the Congress shall
establish procedures for the review of statements to determine
whether said statements which have been submitted on time, are
complete, and are in proper form. In the event a determination is
made that a statement is not so filed, the appropriate Committee
shall so inform the reporting individual and direct him to take the
necessary corrective action.
(b) In order to carry out their responsibilities under this Act, the
designated Committees of both Houses of Congress shall have the
power within their respective jurisdictions, to render any opinion
interpreting this Act, in writing, to persons covered by this Act,
subject in each instance to the approval by affirmative vote of the
majority of the particular House concerned.
The individual to whom an opinion is rendered, and any other
individual involved in a similar factual situation, and who, after
issuance of the opinion acts in good faith in accordance with it
shall not be subject to any sanction provided in this Act.
(c) The heads of other offices shall perform the duties stated in
subsections (a) and (b) hereof insofar as their respective offices
are concerned, subject to the approval of the Secretary of Justice,
in the case of the Executive Department and the Chief Justice of
the Supreme Court, in the case of the Judicial Department.
Section 11. Penalties. - (a) Any public official or employee,
regardless of whether or not he holds office or employment in a
casual, temporary, holdover, permanent or regular capacity,
committing any violation of this Act shall be punished with a fine
not exceeding the equivalent of six (6) months' salary or
suspension not exceeding one (1) year, or removal depending on
the gravity of the offense after due notice and hearing by the
appropriate body or agency. If the violation is punishable by a
heavier penalty under another law, he shall be prosecuted under
the latter statute. Violations of Sections 7, 8 or 9 of this Act shall
be punishable with imprisonment not exceeding five (5) years, or
a fine not exceeding five thousand pesos (P5,000), or both, and, in
the discretion of the court of competent jurisdiction,
disqualification to hold public office.
(b) Any violation hereof proven in a proper administrative
proceeding shall be sufficient cause for removal or dismissal of a
public official or employee, even if no criminal prosecution is
instituted against him.
(c) Private individuals who participate in conspiracy as co-
principals, accomplices or accessories, with public officials or
employees, in violation of this Act, shall be subject to the same
penal liabilities as the public officials or employees and shall be
tried jointly with them.
(d) The official or employee concerned may bring an action
against any person who obtains or uses a report for any purpose
prohibited by Section 8 (D) of this Act. The Court in which such
action is brought may assess against such person a penalty in any
amount not to exceed twenty-five thousand pesos (P25,000). If
another sanction hereunder or under any other law is heavier, the
latter shall apply.
Section 12. Promulgation of Rules and Regulations, Administration
and Enforcement of this Act. - The Civil Service Commission shall
have the primary responsibility for the administration and
enforcement of this Act. It shall transmit all cases for prosecution
arising from violations of this Act to the proper authorities for
appropriate action: Provided, however, That it may institute such
administrative actions and disciplinary measures as may be
warranted in accordance with law. Nothing in this provision shall
be construed as a deprivation of the right of each House of
Congress to discipline its Members for disorderly behavior.
The Civil Service Commission is hereby authorized to promulgate
rules and regulations necessary to carry out the provisions of this
Act, including guidelines for individuals who render free voluntary
service to the Government. The Ombudsman shall likewise take
steps to protect citizens who denounce acts or omissions of public
officials and employees which are in violation of this Act.
Section 13. Provisions for More Stringent Standards. - Nothing in
this Act shall be construed to derogate from any law, or any
regulation prescribed by any body or agency, which provides for
more stringent standards for its official and employees.
Section 14. Appropriations. - The sum necessary for the effective
implementation of this Act shall be taken from the appropriations
of the Civil Service Commission. Thereafter, such sum as may be
needed for its continued implementation shall be included in the
annual General Appropriations Act.
Section 15. Separability Clause. - If any provision of this Act or the
application of such provision to any person or circumstance is
declared invalid, the remainder of the Act or the application of
such provision to other persons or circumstances shall not be
affected by such declaration.
Section 16. Repealing Clause. - All laws, decrees and orders or
parts thereof inconsistent herewith, are deemed repealed or
modified accordingly, unless the same provide for a heavier
penalty.
Section 17. Effectivity. - This Act shall take effect after thirty (30)
days following the completion of its publication in the Official
Gazette or in two (2) national newspapers of general circulation.
Approved, February 20, 1989.
The Lawphil Project - Arellano Law Foundation
Today is Monday, April 24, 2017
Republic of the Philippines
Congress of the Philippines
Metro Manila
Twelfth Congress
Second Regular Session
Begun and held in Metro Manila, on Monday, the twenty-second
day of July, two thousand two.
Republic Act No. 9184 January 10, 2003
AN ACT PROVIDING FOR THE MODERNIZATION, STANDARIZATION
AND REGULATION OF THE PROCUREMENT ACTIVITIES OF THE
GOVERNMENT AND FOR OTHER PURPOSES
Be it enacted by the Senate and Hose of Representatives of the
Philippines in Congress assembled:
ARTICLE 1
GENERAL PROVISIONS
Section 1. Short Title.- This act shall be known as the "
Government Procurement reform Act."
Section 2. Declaration of Policy.- It is the declared policy of the
State to promote the ideals of good governance in all its branches,
departments, agencies, subdivisions, and instrumentalities,
including government-owned and/or -controlled corporations and
local government units.
Section 3. Governing Principles on Government Procurement.
All procurement of the national government, its departments,
bureaus, offices and agencies, including state universities and
colleges, government -owned and/or-controlled corporations,
government financial institutions and local government units,
shall, in all cases, be governed by these principles:
(a) Transparency in the procurement process and in the
implementation of procurement contracts.
(b) Competitiveness by extending equal opportunity to enable
private contracting parties who are eligible and qualified to
participate in public bidding.
(c) Streamlined procurement process that will uniformly apply to
all government procurement. The procurement process shall
simple and made adaptable to advances in modern technology in
order to ensure an effective and efficient method.
(d) System of accountability where both the public officials
directly or indirectly involved in the procurement process as well
as in the implementation of procurement contracts and the
private parties that deal with government are, when warranted by
circumstances, investigated and held liable for their actions
relative thereto.
(e) Public monitoring of the procurement process and the
implementation of awarded contracts with the end in view of
guaranteeing that these contracts are awarded pursuant to the
provisions of this Act and its implementing rules and regulations,
and that all these contracts are performed strictly according to
specifications.
Section 4. Scope and Application.- This act shall apply to the
Procurement of Infrastructure Projects, Goods and Consulting
Services, regardless of source of funds, whether local of foreign,
by all branches and instrumentalities of government, its
departments, offices and agencies, including government-owned
and/or-controlled corporations and local government units,
subject to the provisions of Commonwealth Act No. 138. Any
treaty or international or executive agreement affecting the
subject matter of this Act to which the Philippine government is
signatory shall be observed.
Section 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 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 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.
(b) BAC - refers to the Bids and Awards Committee established in
accordance with Article V of this Act.
(c) Bidding Documents - refer to documents issued by the
Procuring Entity as the basis for Bids, furnishing all information
necessary for a prospective bidder to prepare a bid for the Goods,
Infrastructure Projects, and Consulting Services to be provided.
(d) Bid - refers to signed offer or proposal submitted by a supplier,
manufacturer, distributor, contractor or consultant in response to
the Bidding Documents.
(e) Competitive Bidding - refers to a method of procurement
which is open to participation by any interested party and which
consist of the following processes: advertisement, pre-bid
conference, eligibility screening of bids, evaluations of bids, post -
qualification, and award of contract, the specific requirements
and mechanics of which shall be defined in the IRR to be
promulgated under this Act.
(f) Consulting Services - refer to services for Infrastructure Projects
and other types of projects or activities of the Government
requiring adequate external technical and professional experts
that are beyond the capability and/or capacity of the government
to undertake such as, but not limited to: (I) advisory and review
services; (ii) pre investment or feasibility studies; (iii) design; (iv)
construction supervision; (v) management and related services;
and (vi) other technical services or special studies.
(g) G - EPS - refers to the Government Electronic Procurement
System as provided in Section 8 of this Act.
(h) Goods - refer to all items, supplies, materials and general
support services, except consulting services and infrastructure
projects, which may be needed in the transaction of the public
businesses or in the pursuit of any government undertaking,
project or activity, whether in the nature of equipment, furniture,
stationery, materials for construction, or personal property of any
kind, including non - personal or contractual services such as the
repair and maintenance of equipment and furniture, as well as
trucking, hauling, janitorial, security, and related or analogous
services, as well as procurement of materials and supplies
provided by the procuring entity or such services.
(i) GPPB - refers to the Government Procurement Policy Board
established in accordance with Article X of this Act.
(j) Head of the Procuring Entity- refers to: (I) the head of the
agency or his duly authorized official, for national government
agencies; (ii) the governing board or its duly authorized official, for
government-owned and/or-controlled corporations; or (iii) the
local chief executive, for local government units. Provided, That in
a department, office or agency where the procurement is
decentralized, the Head of each decentralized unit shall be
considered as the Head of the Procuring Entity subject to the
limitations and authority delegated by the head of the
department, office or agency.
(k) Infrastructure Projects - include the construction,
improvement, rehabilitation, demolition, repair, restoration or
maintenance of roads and bridges, railways, airports, seaports,
communication faci9lities, civil works components of information
technology projects, irrigation, flood control and drainage, water
supply, sanitation, sewerage and solid waste management
systems, shore protection, energy/power and electrification
facilities, national buildings, school buildings and other related
construction projects of the government.
(l) IRR - refer to the implementing rules and regulations to be
promulgated in accordance with Section 75 of this Act.
(m) Portal - refers to a website that aggregates a wide variety of
content for the purpose of attracting a large number of users.
(n) Procurement - refers to the acquisition of Goods, Consulting
Services, and the contracting for Infrastructure Projects by the
Procuring Entity. Procurement shall also include the lease of
goods and real estate. With respect to real property, its
procurement shall be governed by the provisions of Republic Act
No.8974, entitled "An Act to Facilitate the Acquisition of Right-of -
Way Site or Location of National Government Infrastructure
Projects and for Other Purposes" and other applicable laws, rules
and regulations.
(o) Procuring Entity - refers to any branch, department, office,
agency, or instrumentality of the government, including state
universities and colleges, government-owned and/or - controlled
corporations, government financial institutions, and local
government units procuring Goods, Consulting Services and
Infrastructure Projects.
Section 6. Standardization of Procurement Process and Forms.- To
systematize the procurement process, avoid confusion and ensure
transparency, the procurement process, including the forms to be
used, shall be standardized insofar as practicable.
For this purpose, the GPPB shall pursue the development of
generic procurement manuals and standard bidding forms, the
use of which once issued shall be mandatory upon all Procuring
Entities.
ARTICLE II
PROCUREMENT PLANNING
Section 7. Procurement Planning and Budgeting Linkage- All
procurement should be within the approved budget of the
Procuring Entity and should be meticulously and judiciously
planned by the Procuring Entity concerned. Consistent with
government fiscal discipline measures, only those considered
crucial to the efficient discharge of governmental functions shall
be included in the Annual Procurement Plan t o be specified in the
IRR.
No government Procurement shall be undertaken unless it is in
accordance with the approved Annual Procurement Plan of the
Procuring Entity. The Annual Procurement Plan shall be approved
by the Head of the Procuring Entity and must be consistent with
its duly approved yearly budget. The Annual Procurement Plan
shall be formulated and revised only in accordance with the
guidelines set forth in the IRR. In the case of Infrastructure
Projects, the Plan shall include engineering design and acquisition
of right-of-way.
ARTICLE III
PROCUREMENT BY ELECTRONIC MEANS
Section 8. Procurement By Electronic Means.- To promote
transparency and efficiency, information and communications
technology shall be utilized in the conduct of procurement
procedures. Accordingly, there shall be single portal that shall
serve as the primary source of information on all government
procurement. The G-EPS shall serve as the primary and definitive
source of information on government procurement. Further, the
GPPB is authorized to approve changes in the procurement
process to adapt to improvements in modern technology,
provided that such modifications are consistent with provisions of
Section 3 of this Act.
To take advantage of the significant built-in-efficiencies of the G-
EPS and the volume discounts inherent in bulk purchasing, all
Procuring Entities shall utilize the G-EPS for the procurement of
common supplies in accordance with the rules and procedures to
be established by the GPPB. With regard to the procurement of
non-common use items, infrastructure projects and consulting
services, agencies may hire service providers to undertake their
electronic procurement provided these service providers meet the
minimum requirements set by the GPPB.
Section 9. Security, Integrity and Confidentiality.- The G-EPS shall
ensure the security, integrity and confidentiality of documents
submitted through the system. It shall include feature that
provides for an audit trail for on-line transactions and allow the
Commission on Audit to verify the security and integrity of the
systems at any time.
ARTICLE IV
COMPETITIVE BIDDING
Section 10. Competitive Bidding.- All Procurement shall be done
through Competitive Bidding, except as provided for in Article XVI
of this Act.
ARTICLE V
BIDS AND AWARDS COMMITTEE
Section 11. The BAC and its Composition.- Each procuring entity
shall establish a single BAC for its procurement. The BAC shall
have at least five (5) members, but not more than seven (7)
members. It shall be chaired by at least a third ranking permanent
official of the procuring entity other than its head, and its
composition shall be specified in the IRR. Alternatively, as may be
deemed fit by the head of the procuring entity, there may be
separate BACs where the number and complexity of the items to
be procured shall so warrant. Similar BACs for decentralized and
lower level offices may be formed when deemed necessary by the
head of the procuring entity. The numbers of the BAC shall be
designated by the Head of Procuring Entity. However, in no case
shall the approving authority be a member of the BAC.
Unless sooner removed for cause, the members of the BAC shall
have a fixed term of one (1) year reckoned from the date of
appointment, renewable at the discretion of the Head of the
Procuring Entity. In case of resignation, retirement, separation,
transfer, re-assignment, removal, the replacement shall serve only
for the unexpired term: Provided, That in case of leave or
suspension, the replacement shall serve only for the duration of
the leave or suspension. For justifiable causes, a member shall be
suspended or removed by the Head of the Procuring Entity.
Section 12. Functions of the BAC.- shall have the following
functions: advertise and/or post the invitation to bid, conduct pre-
procurement and pre-bid conferences, determine the eligibility of
prospective bidders, receive bids, conduct the evaluation of bids,
undertake post-qualification proceedings, recommend award of
contracts to the Head of the Procuring Entity of his duly
authorized representative: Provided, That in the event the Head
of the Procuring shall disapprove such recommendation, such
disapproval shall be based only on valid, reasonable and justifiable
grounds to be expressed in writing, copy furnished the BAC;
recommend the imposition of sanctions in accordance with Article
XXIII, and perform such other related functions as may necessary,
including the creation of a Technical Working Group from a pool
of technical, financial and/or legal experts to assist in the
procurement process.
In proper cases, the BAC shall also recommend to the Head of the
Procuring Entity the use of Alternative Methods of Procurement
as provided for in Article XVI hereof.
The BAC shall be responsible for ensuring that the Procuring Entity
abides by the standards set forth by this Act and the IRR, and it
shall prepare a procurement monitoring report that shall be
approved and submitted by the Head of the Procuring Entity to
the GPPB on a semestral basis. The contents and coverage of this
report shall be provided in the IRR.
Section 13. Observers.- To enhance the transparency of the
process, the BAC shall, in all stages of the procurement process,
invite, in addition to the representative of the Commission on
Audit, at least two(2) observers to sit in its proceedings, one(1)
from a duly recognized private group in a sector or discipline
relevant to the procurement at hand, and the other from a non-
government organization: Provided, however, That they do not
have any direct or indirect interest in the contract to be bid out.
The observers should be duly registered with the Securities and
Exchange Commission and should meet the criteria for observers
as set forth in the IRR.
Section 14. BAC Secretariat.- To assist the BAC in the conduct of
its functions, the Head of the Procuring Entity shall create a
Secretariat that will serve as the main support unit of the BAC.
The Head of the Procuring Entity may also designate an existing
organic office within the agency to serve as the Secretariat.
Section 15. Honoraria of BAC Members.- The Procuring Entity may
grant payment of honoraria to the BAC members in an amount
not to exceed twenty five percent (25%) of their respective basic
monthly salary subject to availability of funds. For this purpose,
the Department of Budget and Management (DBM) shall
promulgate the necessary guidelines.
Section 16. Professionalization of BAC, BAC Secretariat and
Technical Working Group Members.- The GPPB shall establish a
sustained training program for developing the capacity of the
BAC's, BAC Secretariats and technical Working Groups of
Procuring Entities, and proffessionalize the same.
ARTICLE VI
PREPARATION OF BIDDING DOCUMENTS
Section 17. Form and Contents of Bidding Documents.- The
Bidding Documents shall be prepared by the Procuring Entity
following the standard forms and manuals prescribed by the
GPPB. The Bidding Documents shall include the following:
(a) Approved Budget for the Contract;
(b) Instructions to Bidders, including criteria for eligibility, bid
evaluation and post-qualification, as well as the date, time and
place of the pre-bid Conference (where applicable), submission of
bids and opening of bids;
(c) Terms of Reference;
(d) Eligibility Requirements;
(e) Plans and Technical Specifications;
(f) Form of Bid, Price Form, and List of Goods or Bill of Quantities;
(g) Delivery Time or Completion Schedule;
(h) Form and Amount of Bid Security;
(i) Form and Amount of Performance Security and Warranty; and,
(j) Form of Contract, and General and special Conditions of
Contract.
The Procuring Entity may require additional document
requirements or specifications necessary to complete the
information required for the bidders to prepare and submit their
respective bids.
Section 18. Reference to Brand Names.- Specifications for the
Procurement of Goods shall be based on relevant characteristics
and/or performance requirements. Reference to brand names
shall not be allowed.
Section 19. Access to Information.- In all stages of the preparation
of the Bidding Documents, the Procuring entity shall ensure equal
access to information. Prior to their official release, no aspect of
the Bidding Documents shall be divulged or released on any
prospective bidder or having direct or indirect interest in the
project to be procured.
ARTICLE VII
INVITATION TO BID
Section 20. Pre-Procurement Conference. - Prior to the issuance of
the Invitation to Bid, the BAC is mandated to hold a pre-
procurement conference on each and every procurement, except
those contracts below a certain level or amount specified in the
IRR, in which case, the holding of the same is optional.
The pre- procurement conference shall assess the readiness of the
procurement in terms of confirming the certification of availability
of funds, as well as reviewing all relevant documents and the draft
Invitation to Bid, as well as consultants hired by the agency
concerned and the representative of the end -user.
Section 21. Advertising and Contents of the Invitation to Bid. - In
line with the principle of transparency and competitiveness, all
Invitations to Bid contracts under competitive bidding shall be
advertised by the Procuring Entity in such manner and for such
length of time as may be necessary under the circumstances, in
order to ensure the widest possible dissemination thereof, such
as, but not limited to, posting in the Procuring Entity's premises, in
newspapers of general circulation, the G-EPS and the website of
the Procuring Entity, if available. The details and mechanics of
implementation shall be provided in the IRR to be promulgated
under this Act.
The Invitation to Bid shall contain, among others:
(a) A brief description of the subject matter of the Procurement;
(b) A general statement on the criteria to be used by the Procuring
entity for the eligibility check, the short listing of prospective
bidders, in the case of the Procurement of Consulting Services the
examination and evaluation of Bids, and post-qualification;
(c) The date, time and place of the deadlines for the submission
and receipt of the eligibility requirements, the pre-bid conference
if any, the submission and receipt of bids, and the opening of bids;
(d) The Approved Budget for the Contract to be bid;
(e) The source of funds;
(f) The period of availability of the Bidding Documents, and the
place where these may be secured and;
(g) The contract duration; and
(h) Such other necessary information deemed relevant by the
Procuring Entity.
Section 22. Pre-bid Conference. - At least one pre-bid conference
shall be conducted for each procurement, unless otherwise
provided in the IRR. Subject to the approval of the BAC, a pre-bid
conference may also be conducted upon the written request of
any prospective bidder.
The Pre-bid conference(s) shall be held within a reasonable period
before the deadline for receipt of the bids to allow prospective
bidders to adequately prepare their bids, which shall be specified
in the IRR.
ARTICLE VIII
RECEIPT AND OPENING OF BIDS
Section 23. Eligibility Requirements for the Procurement of Goods
and Infrastructure Projects.- The BAC or, under special
circumstances specified in IRR, its duly designated organic office
shall determine the eligibility of prospective bidders for the
procurement of Goods and Infrastructure Projects, based on the
bidders' compliance with the eligibility requirements within the
period set forth in the Invitation to Bid. The eligibility
requirements shall provide for fair and equal access to all
prospective bidders. The documents submitted in satisfaction of
the eligibility requirements shall be made under oath by the
prospective bidder or by his duly authorized representative
certifying to the correctness of the statements made and the
completeness and authenticity of the documents submitted.
A prospective bidder may be allowed to summit his eligibility
requirement s electronically. However, said bidder shall later on
certify under oath as to correctness of the statements made and
the completeness and authenticity of the documents submitted.
Section 24. Eligibility requirements and Short Listing for Consulting
Services.- The Eligibility of prospective bidders for the
Procurement of Consulting Services shall be determine by their
compliance with the eligibility requirements prescribed for the
competitive Bidding concerned, within the period stated in the
Invitation to bid. The eligibility requirements shall provide for fair
and equal access to all prospective bidders. The prospective
bidder shall certify under oath as to the correctness of the
statements made, and the completeness and authenticity of the
documents submitted.
A prospective bidder may be allowed to submit his eligibility
requirements electronically. However, said bidder shall later on
certify under oath as to correctness of the statements made and
the completeness and authenticity of the documents submitted.
The eligible prospective bidders shall then be evaluated using
numerical ratings on the basis of the short listing requirements
prescribed for the Competitive Bidding concerned, within the
period stated in the Invitation to Bid to determine the short list of
bidders who shall be allowed to submit their respective bids.
Section 25. Submission and Receipt of Bids.- A bid shall have
two(2) components, namely the technical and financial
components which should be in separate sealed envelopes, and
which shall be submitted simultaneously. The bids shall be
received by the BAC on such date, time and place specified in the
invitation to bid. The deadline for the receipt of bids shall be fixed
by the BAC, giving the prospective bidders sufficient time to study
and prepare their bids. The deadline shall also consider the
urgency of the procurement involved.
Bids submitted after the deadline shall not be accepted.
Notwithstanding the provisions of this Section and Section 26 of
this Act, the GPPB may prescribe innovative procedure for the
submission, receipt and opening of bids through the G-EPS.
Section 26. Modification and Withdrawal of Bids. - A bidder may
modify his bid, provided that this is done before the deadline for
the receipt of bids. The modification shall be submitted in a sealed
envelope duly identified as a modification of the original bid and
stamped received by the BAC.
A bidder may, through a letter, withdraw his bid or express his
intention not to participate in the bidding before the deadline for
the receipt of bids. In such case, he shall no longer be allowed to
submit another Bid or the same contract either directly or
indirectly.
Section 27. Bid Security. - All Bids shall be accompanied by a Bid
security, which shall serve as guarantee that, after receipt of the
Notice of Award, the winning bidders shall enter into contract
with the Procuring Entity within the stipulated time and furnish
the required performance security. The specific amounts and
allowable forms of the Bid security shall be prescribed in the IRR.
Section 28. Bid Validity. - Bids and Bid securities shall be valid for
such reasonable period of time indicated in the Bidding
Documents. The duration for each undertaking shall take into
account the time involved in the process of Bid evaluation and
award of contract.
Section 29. Bid Opening. - the BAC shall publicly open all bids at
the time, date, and place specified in the bidding documents. The
minutes of the bid opening shall be made available to the public
upon written request and payment of a specified fee.
ARTICLE IX
BID EVALUATION
Section 30. Preliminary Examination of Bids. - Prior to Bid
evaluation, the BAC shall examine first the technical components
of the bids using "pass/fail" criteria to determine whether all
required documents are present. Only bids that are determined to
contain all the bid requirements of the technical component shall
be considered for opening and evaluation of their financial
component.
Section 31. Ceiling for Bid Prices. - The ABC shall be the upper limit
or ceiling for the Bid prices. Bid prices that exceed this ceiling shall
be disqualified outright from further participating in the bidding.
There shall be no lower limit to the amount of the award.
Section 32. Bid for the Procurement of Goods and Infrastructure
Projects. - For the procurement of Goods and Infrastructure
Projects, the BAC shall evaluate the financial component of the
bids. The bids that passed the preliminary examination shall be
ranked from lowest to highest in terms of their corresponding
calculated price shall be referred to as the "Lowest Calculated
Bid".
Section 33. Bid Evaluation of Short Listed Bidders for Consulting
Services. - For the Procurement of Consulting Services, the Bids of
the short listed bidders shall be evaluated and ranked using
numerical ratings in accordance with the evaluation criteria stated
in the Bidding Documents, which shall include factors such as, but
not limited to, experience, performance, quality or personnel,
price and methodology. The Bids shall be ranked from highest to
lowest in terms of their corresponding calculated ratings. The Bid
with the highest calculated rating shall be the "Highest Rated Bid."
After approved by the Head of the Procuring Entity of the Highest
Rated Bid, the BAC shall invite the bidder concerned for
negotiation and/or clarification on the following item: financial
proposal submitted by the bidder, terms of reference, scope of
services, methodology and work program, personnel to be
assigned to job, services/facilities/data to be provided by the
Procuring Entity concerned, and provisions of the contract. When
negotiations with first-in-rank bidder fails, the financial proposal
of the second rank bidder shall opened for negotiations: Provided,
that the amount indicated in the financial envelope shall be made
as the basis for negotiations and the total contract amount shall
not exceed the amount indicated in the envelope and the ABC.
Whenever necessary, the same process shall be repeated until the
bid awarded to the winning bidder.
ARTICLE X
POST-QUALIFICATION
Section 34. Objective and Process of Post-qualification. - Post-
qualification is the stage where the bidder with the Lowest
Calculated Bid, in the case of Goods and Infrastructure Projects, or
the Highest Rated Bid, in the case of Consulting Services,
undergoes verification and validation whether he has passed all
the requirements and conditions as specified in the Bidding
Documents.
If the bidder with the Lowest Calculated Bid or Highest Rated Bid
passes all the criteria for post-qualification, his Bid shall be
considered the "Lowest Calculated Responsive Bid," in the case of
Goods and Infrastructure or the "Highest Rated Responsive Bid,"
in the case of Consulting Services. However, if a bidder fails to
meet any of the requirements or conditions, he shall be "post-
disqualified" and the BAC shall conduct the post-qualification on
the bidder with the second Lowest Calculate Bid or Highest Rated
Bid. If the bidder with the second Lowest Calculated Bid or Highest
Rated Bid is post-disqualified, the same procedure shall be
repeated until the Lowest Calculated Responsive Bid or Highest
Rated Responsive Bid is finally determined.
In all cases, the contract shall be awarded only to the bidder with
the Lowest Calculated Responsive Bid or Highest Rated
Responsive Bid.
Section 35. Failure of Bidding. - there shall be a failure of bidding
if:
a. No bids are received;
b. No bid qualifies as the Lowest Calculated Responsive Bid; or,
c. Whenever the bidder with the highest rated/lowest calculated
responsive bid refuses, without justifiable cause to accept the
award of contract, as the case may be.
Under any of the above instances, the contract shall be re-
advertised and re-bid. The BAC shall observe the same process
and set the new periods according to the same rules followed
during the first bidding. After the second failed bidding, however,
the BAC may resort to negotiated procurement as provided for in
Section 53 of this Act.
Section 36. Single Calculate/Rated and Responsive Bid Submission.
- A single calculated/rated and responsive bid shall be considered
for award if it falls under of the following circumstances:
a. If after advertisement, only one prospective bidder submits a
Letter of Intent and/or applies for eligibility check, and meets the
eligibility requirements or criteria, after which it submits a bide,
which is found to be responsive to the bidding requirements;
b. If after the advertisement, more than one prospective bidder
applies for eligibility check, but only one bidder meets the
eligibility requirements or criteria, after which in submits a bid
which is found to be responsive to the bidding requirements; or
c. If after the eligibility check, more than one bidder meets the
eligibility requirements, but only one bidder submits a bid, and its
bid is found to be responsive to the bidding requirements.
In all instances, the Procuring Entity shall ensure that the ABC
reflects the most advantageous prevailing price for the
government.
ARTICLE XI
AWARD, IMPLEMENTATION AND TERMINATION OF THE
CONTRACT
Section 37. Notice and Executive of Award. - Within a period not
exceeding fifteen (15) calendar days from the determination and
declaration by the BAC of the Lowest Calculated Responsive Bid or
Highest Rated Responsive Bid, and the recommendation of the
award, the Head of the Procuring Entity or his duly authorized
representative shall approve or disapprove the said
recommendation. In case of approval, the Head of the Procuring
Entity or his duly authorized representative shall immediately
issue the Notice of Award to the bidder with the Lowest
Calculated Responsive Bid or Highest Rated Responsive Bid.
Within ten (10) calendar days from receipt of the Notice of Award,
the Winning bidder shall formally enter into contract with the
Procuring Entity. When further approval of higher authority is
required, the approving authority for the contracts shall be given
a maximum of twenty (20) calendar days to approve or
disapprove it.
In the case of government-owned and/or -controlled
corporations, the concerned board shall take action on the said
recommendation within thirty (30) calendar days from receipt
thereof.
The Procuring Entity shall issue the Notice to Proceed to the
winning bidder not later than seven (7) calendar days from the
date of approval of the contract by the appropriate authority. All
notices called for by the terms of the contract shall be effective
only at the time of receipt thereof by the contractor.
Section 38. Period of Action on Procurement Activities. - The
procurement process from the opening of bids up to the award of
contract shall not exceed three (3) months, or a sho0rter period to
be determined by the procuring entity concerned. Without
prejudice to the provisions of the preceding section, the different
procurement activities shall be completed within reasonable
periods to be specified in the IRR.
If no action on the contract is taken by the head of the procuring
entity or by his duly authorized representative, or by the
concerned board, in the case of government-owned and/or -
controlled corporations, within the periods specified in the
preceding paragraph, the contract concerned shall be deemed
approved.
Section 39. Performing Security. - Prior to the signing of the
contract, the winning bidder shall, as a measure of guarantee for
the faithful performance of an compliance with his obligations
under the contract prepared in accordance with the Bidding
Documents, be required to post a performance security in such
form and amount as specified in the Bidding Documents.
Section 40. Failure to Enter into Contract and Post Performance
Security. - If, for justifiable causes, the bidder with the Lowest
Calculated Responsive Bid or Highest Rated Responsive Bid fails,
refuses or is otherwise unable to enter into contract with the
Procuring Entity, or if the bidder fails to post the required
performance security within the period stipulated in the Bidding
Documents, the BAC shall disqualify the said bidder and shall
undertake post-qualification for the next-ranked Lowest
Calculated Bid or Highest Rated Bid. This procedure shall be
repeated until an award is made. However, if no award is possible,
the contract shall be subjected to a new bidding.
In the case of a failure to post the required performance security,
the bid security shall be forfeited without prejudice to the
imposition of sanctions prescribed under Article XXIII.
Section 41. Reservation Clause. - The Head of the Agency reserves
the right to reject any and all Bids, declare a failure of bidding, or
not award the contract in the following situations:
a. If there is prima facie evidence of collusion between
appropriate public officers or employees of the Procuring Entity,
or between the BAC and any of the bidders, or if the collusion is
between or among the bidders themselves, or between a bidder
and a third party, including any act which restricts, suppresses or
nullifies or tends to restrict, suppress or nullify competition;
b. If the BAC is found to have failed in following the prescribed
bidding procedures; or
c. For any justifiable and reasonable ground where the award of
the contract will not redound to the benefit of the government as
defined in the IRR.
Section 42. Contract Implementation and Termination. - The rules
and guidelines for the implementation and termination of
contracts awarded pursuant to the provisions of this Act shall be
prescribed in the IRR. The rules and guidelines shall include
standard general and special conditions for contracts.
ARTICLE XII
DOMESTIC AND FOREIGN PROCUREMENT
Section 43. Procurement of Domestic and Foreign Goods. -
Consistent with the country's obligations under international
treaties or agreements, Goods may be obtained for domestic or
foreign sources and the procurement thereof shall be open to all
eligible suppliers, manufacturers and distributors. However, in the
interest of availability, efficiency and timely delivery of Goods, the
Procuring Entity may give preference to the purchase of
domestically-produced and manufacturer goods, supplies and
materials that meet the specified or desired quality.
ARTICLE XIII
BIDDING OF PROVINCIAL PROJECTS
Section 44. Bidding of Provincial Projects. - Priority programs and
infrastructure projects funded out of the annual General
Appropriations Act which are intended for implementation within
the province shall be subject to the same public bidding and to the
procurement processes prescribed under this Act. For purposes of
this Article, Engineering District civil works projects, subject to
consultation with the concerned Members of Congress, are
included and subsumed in the term "provincial projects" and shall
be governed by this Section and Section 45 hereof.
Section 45. Provincial Bidders. - Within five (5) years from the
effectivity of this Act, contractor who participates in the bidding of
provincial priority programs and infrastructure projects, whose
principal office is within the same province, and who submits the
lowest bid among the provincial bidders which is higher than the
lowest bid made by a contractor with principal office outside the
said province shall be granted the privilege to match the bid made
by the latter: Provided, however, That the release of funds for said
projects shall be published in a local newspaper with the widest
circulation and the website of the DBM, the mechanisms of which
shall be spelled-out in the IRR.
ARTICLE XIV
LEASE OF COMPUTERS, COMMUNICATIONS, INFORMATION AND
OTHER EQUIPMENT
Section 46. Lease Contracts. - Lease of construction and office
equipment, including computers, communication and information
technology equipment are subject to the same public bidding and
to the processes prescribed under this Act.
ARTICLE XV
DISCLOSURE OF RELATIONS
Section 47. Disclosure of Relations. - In addition to the proposed
contents of the Invitation to Bid as mentioned under Section 21 of
this Act, all bidding documents shall be accompanied by a sworn
affidavit of the bidder that he or she or any officer of their
corporation in not related to the Head of the Procuring Entity by
consanguinity or affinity up to the third civil degree. Failure to
comply with the aforementioned provision shall be a ground for
the automatic disqualification of the bid in consonance with
Section30 of this Act.
ARTICLE XVI
ALTERNATIVE METHODS OF PROCUREMENT
Section 48. Alternative Methods. - Subject to the prior approval of
the Head of the Procuring Entity or his duly authorized
representative, and whenever justified by the conditions provided
in this Act, the Procuring Entity may, in order to promote
economy and efficiency, resort to any of the following alternative
methods of Procurement:
a. Limited Source Bidding, otherwise known as Selective Bidding -
a method of Procurement that involves direct invitation to bid by
the Procuring Entity from a set of pre-selected suppliers or
consultants with known experience and proven capability relative
to the requirements of a particular contract;
b. Direct Contracting, otherwise known as Single Source
Procurement - a method of Procurement that does not require
elaborate Bidding Documents because the supplier is simply asked
to submit a price quotation or a pro-forma voice together with the
conditions of sale, which offer may be accepted immediately or
after some negotiations;
c. Repeat Order. - a method of Procurement that involves a direct
Procurement of Goods from the previous winning bidder,
whenever there is a need to replenish Goods procured under a
contract previously awarded through Competitive Bidding;
d. Shopping - a method of Procurement whereby the Procuring
Entity simply requests for the submission of price quotations for
readily available off-the-shelf Goods or ordinary/regular
equipment to be procured directly from suppliers of known
qualification; or
e. Negotiated Procurement - a method of Procurement that may
be resorted under the extraordinary circumstances provided for in
Section 53 of this Act and other instances that shall be specified in
the IRR, whereby the Procuring Entity directly negotiates a
contract with a technically, legally and financially capable supplier,
contractor or consultant.
In all instances, the Procuring Entity shall ensure that the most
advantageous price for the government is obtained.
Section 49. Limited Source Bidding. - Limited Source Bidding may
be resorted to only in any of the following conditions:
a. Procurement of highly specialized types of Goods and
Consulting Services which are known to be obtainable only from a
limited number of sources; or
b. Procurement of major plant components where it is deemed
advantageous to limit the bidding to known eligible bidders in
order to maintain an optimum and uniform level of quality and
performance of the plant as a whole.
Section 50. Direct Contracting. - Direct Contracting may be
resorted to only in any of the following conditions:
a. Procurement of Goods of propriety nature, which can be
obtained only from the propriety source, i.e. when patents, trade
secrets and copyrights prohibit others from manufacturing the
same items;
b. When the Procurement of critical components from a specific
manufacturer, supplier, or distributor is a condition precedent to
hold a contractor to guarantee its project performance, in
accordance with the provisions his contract; or,
c. Those sold by an exclusive dealer or manufacturer, which does
not have sub-dealers selling at lower prices and for which no
suitable substitute can be obtained at more advantageous terms
to the government.
Section 51. Repeat Order. - When provided for in the Annual
Procurement Plan, Repeat Order may be allowed wherein the
Procuring Entity directly procures Goods from the previous
winning bidder whenever there arises a need to replenish goods
procured under a contract previously awarded through
Competitive Bidding, subject to post-qualification process
prescribed in the Bidding Documents and provided all the
following conditions are present:
a. The unit price must be equal to or lower than that provided in
the original contract;
b. The repeat order does not result in splitting of requisitions or
purchase orders;
c. Except in special circumstances defined in the IRR the repeat
order shall be availed of only within six (6) months from the date
of the Notice to Proceed arising from the original contract; and,
d. The repeat order shall not exceed twenty-five percent (25%) of
the quantity of each item of the original contract.
Section 52. Shopping. - shopping may be resorted to under any of
the following instances:
a. When there is an unforeseen contingency requiring immediate
purchase: Provided, however, That the amount shall not exceed
Fifty thousand pesos (P50,000); or
b. Procurement of ordinary or regular office supplies and
equipment not available in the Procurement Service involving an
amount not exceeding Two hundred fifty thousand pesos
(P250,000): Provided, however, That the Procurement does not
result in Splitting of Contracts: Provided, further, That at least
three (3) price quotations from bona fide suppliers shall be
obtained.
The above amounts shall be subject to a period review by the
GPPB. For this purpose, the GPPB shall be authorized to increase
or decrease the said amount in order to reflect changes in
economic conditions and for other justifiable reasons.
Section 53. Negotiated Procurement. - Negotiated Procurement
shall be allowed only in the following instances:
a. In case of two (2) failed bidding as provided in Section 35
hereof;
b. In case of imminent danger to life or property during a state of
calamity, or when time is of the essence arising from natural or
man-made calamities or other causes where immediate action is
necessary to prevent damage to or loss of life or property, or to
restore vital public services, infrastructure facilities and other
public utilities;
c. Take-over of contracts, which have been rescinded or
terminated for causes provided for in the contract and existing
laws, where immediate action is necessary to prevent damage to
or loss of life or property, or to restore vital public services,
infrastructure facilities and other public utilities;
d. Where the subject contract is adjacent or contiguous to an on-
going infrastructure project, as defined in the IRR: Provided,
however, That the original contract is the result of a Competitive
Bidding; the subject contract to be negotiated has similar or
related scopes of work; it is within the contracting capacity of the
contractor; the contractor uses the same prices or lower unit
prices as in the original contract less mobilization cost; the
amount involved does not exceed the amount of the ongoing
project; and, the contractor has no negative slippage: Provided,
further, That negotiations for the procurement are commenced
before the expiry of the original contract. Wherever applicable,
the principle shall also govern consultancy contract, where the
consultants have unique experience and expertise to deliver the
required service; or,
e. Subject to the guidelines specified in the IRR, purchases of
Goods from another agency of the government, such as the
Procurement Service of the DBM, which is tasked with a
centralized procurement of commonly used Goods for the
government in accordance with Letters of Instruction No. 755 and
Executive Order No. 359, series of 1989.
Section 54. Terms and Conditions for the use of Alternative
Methods. - The specific terms and conditions, including the
limitations and restrictions, for the application of each of the
alternative methods mentioned in this Article shall be specified in
the IRR.
ARTICLE XVII
PROTEST MECHANISM
Section 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
non-refundable 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.
Section 56. Resolution of Protests. - The protest 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.
Section 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.
Section 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 decision 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.
ARTICLE XVIII
SETTLEMENT OF DISPUTES
Section 59. Arbitration. - Any and all disputes arising from the
implementation of a contract covered by this Act shall be
submitted to arbitration in the Philippines according to the
provisions of Republic Act No. 876, otherwise known as the
"Arbitration Law": Provided, however, That, disputes that are
within the competence of the Construction Industry Arbitration
Commission to resolve shall be referred thereto. The process of
arbitration shall be incorporated as a provision in the contract
that will be executed pursuant to the provisions of this Act:
Provided, That by mutual agreement, the parties may agree in
writing to resort to alternative modes of dispute resolution.
Section 60. Appeals. - The arbitral award and any decision
rendered in accordance with the foregoing Section shall be
appealable by way of a petition for review to the Court of Appeals.
The petition shall raise pure questions of law and shall be
governed by the Rule of Court.
ARTICLE XIX
CONTRACT PRICES AND WARRANTIES
Section 61. Contract Prices. - For the given scope of work in the
contract as awarded, all bid prices shall be considered as fixed
prices, and therefore not subject to price escalation during
contract implementation, except under extraordinary
circumstances and upon prior approval of the GPPB.
For purposes of this Section, "extraordinary circumstances" shall
refer to events that may be determined by the National Economic
and Development Authority in accordance with the Civil Code of
the Philippines, and upon the recommendation of the procuring
entity concerned.
Section 62. Warranty. - (a) For the procurement of Goods, in order
to assure that manufacturing defects shall be corrected by the
supplier, manufacturer, or distributor, as the case maybe, for a
specific time after performance of the contract, a warranty shall
be required from the contract awardee for such period of time as
may be provided in the IRR, the obligation for which shall be
covered by either retention money in the amount equivalent to a
percentage of every progress payment, or a special bank
guarantee equivalent to a percentage of the total contract price,
to be provided in the IRR. The said amounts shall only be released
after the lapse of the warranty period, provided that the Goods
supplied are free from defects and all the conditions imposed
under the contract have been fully met.
b. For the procurement of infrastructure projects, the contractor
shall assume full responsibility for the contract work from the
time project construction commenced up to a reasonable period
as defined in the IRR taking into consideration the scale and
coverage of the project from its final acceptance by the
government and shall be held responsible for any damage or
construction or works except those occasioned by force majeure.
The contractor shall be fully responsible for the safety, protection,
security, and convenience of his personnel, third parties, and the
public large, as well as the works, equipment, installation and the
like to be affected by his construction work and shall be required
to put up a warranty security in the form of cash, bank guarantee,
letter of credit, Government Service Insurance System bond, or
callable surety bond.
The contractor shall undertake the repair works, at his own
expense, of any defect or damage to the infrastructure projects
on account of the use of materials of inferior quality within ninety
(90) days from the time the Head of the Procuring Entity has
issued an order to undertake repair. In case of failure or refusal to
comply with this mandate, the governments shall undertake such
repair works and shall be entitle to full reimbursement of
expenses incurred therein upon demand.
Any contractor who fails to comply with the preceding paragraphs
shall suffer perpetual disqualification from participating in any
public bidding and his property or properties shall be subject to
attachment or garnishment proceedings to recover the costs. All
payables of government in his favor shall be offset to recover the
costs.
ARTICLE XX
THE GOVERNMENT PROCUREMENT POLICY BOARD
Section 63. Organization and Functions. - A Government
Procurement Policy Board (GPPB) is hereby established to: (a.)
protect national interest in all matters affecting public
Procurement, having due regard to the country's regional and
international obligations; (b.) formulate and amend, whenever
necessary, the IRR and the corresponding standard forms for
Procurement; (c) ensure that Procuring Entities regularly conduct
Procurement training programs and prepare a Procurement
operations manual for all offices and agencies of government; and
(d) conduct an annual review of the effectiveness of this Act and
recommend any amendments thereto, as may be necessary.
The GPPB shall convene within fifteen (15) days from the
effectivity of this Act formulate the IRR and for other related
purposes. The GPPB shall be supported by a technical support
office.
In addition to the powers granted under this Act, the GPPB shall
absorb all the powers, function and responsibilities of the
Procurement Policy Board created under Executive Order No. 359,
series of 1989. All affected functions of the Infrastructure
Committee of the National Economic and Development Authority
Board are hereby transferred to the GPPB.
Section 64. Membership. - The GPPB shall be composed of the
Secretary of the Department of Budget and Management, as
Chairman, the Director-General of the National Economic and
Development Authority, as Alternate Chairman, with the following
as Members; the Secretaries of the Departments of Public Works
and Highways, Finance, Trade and Industry, Health, National
Defense, Education, Interior and Local Government, Science and
Technology, Transportation and Communications, and Energy, or
their duly authorized representatives and a representative from
the private sector to be appointed by the President upon the
recommendation of the GPPB. The GPPB may invite a
representative from the Commission on Audit to serve as a
resource person.
ARTICLE XXI
PENAL CLAUSE
Section 65. Offenses and Penalties. - (a) Without prejudice to the
provisions of Republic Act No. 3019, otherwise known as the
"Anti-Graft and Corrupt Practice Act" and other penal laws, public
officers who commit any of the following acts shall suffer the
penalty of imprisonment of not less than six (6) years and one (1)
day, but not more than fifteen (15) years:
1. Open any sealed Bid including but not limited to Bids that may
have been submitted through the electronic system and any and
all documents required to be sealed or divulging their contents,
prior to the appointed time for the public opening of Bids or other
documents.
2. Delaying, without justifiable cause, the screening for eligibility,
opening of bids, evaluation and post evaluation of bids, and
awarding of contracts beyond the prescribed periods of Bids or
other documents.
3. Unduly influencing or exerting undue pressure on any member
of the BAC or any officer or employee of the procuring entity to
take a particular bidder.
4. Splitting of contracts which exceed procedural purchase limits
and competitive bidding.
5. When the head of the agency abuses the exercise of his power
to reject any and all bids as mentioned under Section 41 of this
Act with manifest preference to any bidder who is closely related
to him in accordance with Section 47 of this Act.
When any of the foregoing acts is done in collusion with private
individuals, the private individuals shall likewise be liable for the
offense.
In addition, the public officer involved shall also suffer the penalty
of temporary disqualification from public office, while the private
individual shall be permanently disqualified from transacting
business with the government.
(b) Private individuals who commit any of the following acts,
including any public officer, who conspires with them, shall suffer
the penalty of imprisonment of not less than six (6) years and one
(1) day but not more than fifteen (15) years:
1. When two or more bidders agree and submit different Bids as if
they were bona fide, when they knew that one or more of them
was so much higher than the other that it could not be honestly
accepted and that the contract will surely be awarded to the pre-
arranged lowest Bid.
2. When a bidder maliciously submits different Bids through two
or more persons, corporations, partnerships or any other business
entity in which he has interest of create the appearance of
competition that does not in fact exist so as to be adjudged as the
winning bidder.
3. When two or more bidders enter into an agreement which call
upon one to refrain from bidding for Procurement contracts, or
which call for withdrawal of bids already submitted, or which are
otherwise intended to secure as undue advantage to any one of
them.
4. When a bidder, by himself or in connivance with others, employ
schemes which tend to restrain the natural rivalry of the parties or
operates to stifle or suppress competition and thus produce a
result disadvantageous to the public.
In addition, the persons involved shall also suffer the penalty of
temporary or perpetual disqualification from public office and be
permanently disqualified from transacting business with the
government.
(c) Private individuals who commit any of the following acts, and
any public officer conspiring with them, shall suffer the penalty of
imprisonment of not less than six (6) years and one (1) day but
more than fifteen (15) years:
1. Submit eligibility requirements of whatever kind and nature
that contain false information or falsified documents calculated to
influence the outcome of the eligibility screening process or
conceal such information in the eligibility requirements when the
information will lead to a declaration of ineligibility from
participating in public bidding.
2. Submit Bidding Documents of whatever kind and nature than
contain false information or falsified documents or conceal such
information in the Bidding Documents, in order to influence the
outcome of the public bidding.
3. Participate in a public bidding using the name of another or
allow another to use one's name for the purpose of participating
in a public bidding.
4. Withdraw a Bid, after it shall have qualified as the Lowest
Calculated Bid/Highest Rated Bid, or to accept and award, without
just cause or for the purpose of forcing the Procuring Entity to
award the contract to another bidder. This shall include the non-
submission of requirements such as, but not limited to,
performance security, preparatory to the final award of the
contract.
(d) When the bidder is a juridical entity, criminal liability and the
accessory penalties shall be imposed on its directors, officers or
employees who actually commit any of the foregoing acts.
Section 66. Jurisdiction. - Jurisdiction over the offenses defined
under this Article shall belong to the appropriate courts, according
to laws existing at the time of the commission of the offenses.
ARTICLE XXII
CIVIL LIABILITY
Section 67. Civil Liability in Case of Conviction. - Without prejudice
to administrative sanctions that may be imposed in proper cases,
a conviction under this Act or Republic Act No. 3019 shall carry
with it civil liability, which may either consist of restitution for the
damage done or the forfeiture in favor of the government of any
unwarranted benefit derived from the act or acts in question or
both, at the discretion of the courts.
Section 68. Liquidated Damages. - All contracts executed in
accordance with this Act shall contain a provision on liquidated
damages which shall be payable in case of breach thereof. The
amount thereof shall be specified in the IRR.
ARTICLE XXIII
ADMINISTRATIVE SANCTIONS
Section 69. Imposition of Administrative Penalties. - (a) In addition
to the provisions of Articles XXI and XXII of this Act, the Head of
the Procuring Entity, subject to the authority delegated to the
BAC, if any, shall impose on bidders or prospective bidders, the
administrative penalty of suspension for one (1) years for the first
offense, and suspensions of two (2) years for the second offense
from participating in the public bidding process, for the following
violations:
1. Submission of eligibility requirements containing false
information or falsified documents.
2. Submission of bids that contain false information or falsified
documents, or the concealment of such information in the Bids in
order to influence the outcome of eligibility screening or any
other stage of the public bidding.
3. Allowing the use of one's name, or using the name of another
for purposes of public bidding.
4. Withdrawal of a Bid, or refusal to accept an award, or enter into
contract with the government without justifiable cause, after he
had been adjudged as having submitted the Lowest Calculated
Responsive Bid or Highest Rated Responsive Bid.
5. Refusal or failure to post the require performance security
within the prescribed time.
6. Termination of the contract due to the default of the bidder.
Refusal to clarify or validate in writing its Bid during post-
qualification within a period of seven (7) calendar days from
receipt of the request for clarification.
Any documented unsolicited attempt by a bidder to unduly
influence the outcome of the bidding in his favor.
All other acts that tend to defeat the purpose of the Competitive
bidding.
(b) In addition to the penalty of suspension, the Bid security of the
performance security posted by the concerned bidder or
prospective bidder shall also be forfeited.
(c) the Head of the Procuring Entity may delegate to the BAC the
authority to impose the aforementioned administrative penalties.
Section 70. Preventive Suspension. - The head of the procuring
entity may preventively suspend any member of the Technical
Working Group of the Secretariat, or the BAC if there are strong
reasons or prima facie evidence showing that the officials or
employees concerned are guilty or the charges filed against them
under Articles XXI and XXII of this Act or for dishonesty as defined
by the Civil Service Laws. In all cases, procedural and substantive
due process as mandated by the Constitution and Civil Service
Laws, rules and regulations, shall be strictly observed.
Section 71. Lifting of Suspension and Removal of Administrative
Disabilities. - Lifting of preventive suspension pending
administrative investigation, as well as removal of administrative
investigation, as well as removal of administrative penalties and
disabilities shall be in accordance with the provisions of Sections
52 and 53, Chapter 6 (Civil Service Commission), Book V of
Executive Order No. 292, the Administrative Code of 1987.
ARTICLE XXIV
LEGAL ASSISTANCE AND INDEMNIFICATION OF BAC MEMBERS
Section 72. Private Legal Assistance. - All the members of the BAC
are hereby authorized to engage the service of private lawyers or
extend counsel immediately upon receipt of Court Notice that a
civil or criminal action, suit or proceeding is filed against them.
The lawyer's fee shall be part of the indemnification package for
the BAC members, subject to the provisions of Section 73 hereof.
Section 73. Indemnification of BAC Members. - The GPPB shall
establish an equitable indemnification package for public officials
providing services in the BAC, which may be in the form of free
legal assistance, liability insurance, and other forms of protection
and indemnification for all cost and expenses reasonably incurred
by such persons in connection with any civil or criminal actions,
suit or proceeding to which they may be, or have been made, a
party by reason of the performance of their functions or duties,
unless they are finally adjudged in such action or proceeding to be
liable for gross negligence or misconduct or grave abuse of
discretion.
In the event of settlement or compromise, indemnification shall
be confined only on matters covered by the settlement, as to
which the Procuring Entity had been advised by countset that the
public officials to be indemnified have not committed gross
negligence or misconduct in the performance of their functions
and duties.
The members of the BAC and the BAC Secretariat shall also be
entitled to medical assistance for injuries incurred in the
performance of their functions.
ARTICLE XXV
FINAL PROVISIONS
Section 74. Oversight Committee. - There is hereby created a Joint
Congressional Oversight Committee to oversee the
implementation of this Act for a period not exceeding five (5)
years from the effectivity of this Act. The Committee shall be
composed of the Chairman of the Senate Committee on
Constitutional Amendments and Revision of Laws and two (2)
members thereof appointed by the Senate President, and the
Chairman of the House Committee on Appropriations, and two(2)
thereof to be appointed by the Speaker of the House of
Representatives.
Section 75. Implementing Rules and Regulations and Standard
Forms. - Within sixty (60) days from the promulgation of this Act,
the necessary rules and regulations for the proper
implementation of its provisions shall be formulated by the GPPB,
jointly with the members of the Oversight Committee created
under Section 74 hereof. The said rules and regulations shall be
approved by the President of the Philippines. For a period not
later than thirty (30) days upon the approval of the implementing
rules and regulations the standard forms for Procurement shall be
formulated and approved.
Section 76. Repealing Clause. - This law repeals Executive Order
No. 40, series of 2001, entitled "Consolidating Procurement Rules
and Procedures for all National Government Agencies,
Government-Owned-or-Controlled Corporations and/or
Government Financial Institutions, and requiring the Use of the
Government Electronic Procurement System"; Executive Order
No.262, series of 2000, entitled "Amending Executive Order
No.302, series of 1996, entitled "Providing Policies, Guidelines,
Rules and Regulations for the Procurement of Goods/Supplies by
the National Government' and Section 3 of Executive Order
No.201, series of 2000, entitled "Providing Additional Policies and
Guidelines and the Procurement of Goods/Supplies by the
National Government"; Executive Order No. 302, series of 1996,
entitled "Providing Policies, Guidelines, Rules and Regulations for
the Procurement of Goods/Supplies by the National Government"
and Presidential Decree No. 1594 dated June 11,1978, entitled
"Prescribing Policies, Guidelines, Rule and regulations for
Government Infrastructure Contracts." This law amends Title Six,
Book Two of Republic Act No. 7160, otherwise known as the
"Local Government Code of 1991"; the relevant provisions of
Executive Order No.164, series of 1987, entitled " An Act Providing
Additional Guidelines in the processing and Approval of Contracts
of the Government"; and the relevant provisions of Republic Act
No. 7898 dated February 23, 1995, entitled "An Act Providing for
the Modernization of the Armed Forces of the Philippines and
other Purposes." Any other law, presidential decree or issuance,
executive order, letter of instruction, administrative order,
proclamation, charter, rule or regulation and/or parts thereof
contrary to or inconsistent with the provisions of this Act, hereby
repealed, modified or amended accordingly.
Section 77. Separability Clause. - If any provision of this Act is
declared invalid or unconstitutional, the other provisions not
affected thereby shall remain valid and subsisting.
Section 78. Effectivity Clause. - This Act shall take effect fifteen
(150) days following its publication in the Officials Gazette or in
two (2) newspapers of general circulation.
Approved,
FRANKLIN DRILON
President of the Senate
JOSE DE VENECIA JR.
Speaker of the House of Representatives
This Act, which is a consolidation of House Bill No.4809 and
Senate Bill No. 2248 was finally passed by the House of
Representatives and the Senate on December 18, 2002.
OSCAR G. YABES
Secretary of Senate
ROBERTO P. NAZARENO
Secretary General
House of Represenatives
Approved: January 10, 2003
GLORIA MACAPAGAL-ARROYO
President of the Philippines
IMPLEMENTING RULES AND REGULATION OF REPUBLIC ACT 9184
OTHERWISE KNOWN AS
THE GOVERNMENT PROCUREMENT REFORM ACT
The Lawphil Project - Arellano Law Foundation
Criminal Law
Bar Questions (1975-2015)
Special Penal Laws
A. Heinous Crimes Law (R.A. 7659)
2010 Bar, Q. IV: Because of the barbarity and hideousness of the
acts committed by the suspects/respondents in cutting off their
victims appendages, stuffing their torsos, legs, body parts into
oil drums and bullet-riddled vehicles and later on burying these
oil drums, vehicles with the use of backhoes and other earth-
moving machinery, the Commission on Human Rights (CHR)
investigating team recommended to the panel of public
prosecutors that all respondents be charged with violation of the
"Heinous Crimes Law." The prosecution panel agreed with the
CHR. As the Chief Prosecutor tasked with approving the filing of
the Information, how will you pass upon the recommendation?
Explain.
A: The CHR is correct in describing the crime committed as
heinous crimes, as defined in the preamble of the Heinous
Crimes Law (R.A. 7659), despite the passage of R.A. 9346
prohibiting the imposition of the death penalty.
However, the Heinous Crimes Law does not define crimes; it is
only an amendatory law increasing the penalty for the crime
specified therein as heinous, to a maximum of death. Thus, the
heinous crime committed shall be prosecuted under the penal law
they are respectively defined and penalized, such as the Revised
Penal Code as the case may be. The circumstances making the
crimes heinous may be alleged as qualifying or generic
aggravating, if proper. The crime shall be designated as defined
and punished under the penal law violated and the penalty shall
be reclusion perpetua without the benefit of parole, as the case
may be in lieu of the death penalty.
1996 Bar, Q. XII: The complainant, an eighteen-year old mental
retardate with an intellectual capacity between the ages of nine
and twelve years, when asked during the trial how she felt when
she was raped by the accused, replied Masarap, it gave me
much pleasure."
With the claim of the accused that the complainant consented
for a fee to the sexual intercourse, and with the foregoing
answer of the complainant, would you convict the accused of
rape if you were the Judge trying the case? Explain.
A: Yes, I would convict the accused of rape. Since the victim is a
mental retardate with an intellectual capacity of a child less than
12 years old, she is legally incapable of giving a valid consent to
the sexual intercourse. The sexual intercourse is tantamount to a
statutory rape because the level of intelligence is that of a child
less than twelve years of age. Where the victim of rape is a mental
retardate, violence or intimidation is not essential to constitute
rape. (People vs. Trimor, G.R. No. 106541-42, March 31, 1995) As
a matter of fact, R.A. No. 7659, the Heinous Crimes Law, amended
Art. 335, RPC, by adding the phrase "or is demented.
B. P.D. 1689: Increasing the Penalty for Certain Forms of
Swindling or Estafa
2010 Bar, Q. XVI: The president, treasurer, and secretary of ABC
Corporation were charged with syndicated estafa under the
following Information:
That on or about the 1st week of January 2010 or subsequent
thereto in Cebu City and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring and confederating
together and all of them mutually helping and aiding one
another in a syndicated manner, through a corporation
registered with the Securities and Exchange Commission (SEC),
with intention of carrying out the unlawful or illegal act,
transaction, enterprise or scheme, with intent to gain and by
means of fraud and deceit, did then and there willfully, another in carrying out the illegal transaction, scheme or activity.
unlawfully, and feloniously defraud Virna, Lana, Deborah and
several other persons by falsely or fraudulently pretending or
representing in a transaction or series of transactions, which
they made with complainants and the public in general, to the
effect that they were in a legitimate business of foreign
exchange trading successively or simultaneously operating under
the name and style of ABC Corporation and DEF Management
Philippines, Incorporated, induced and succeeded in inducing
complainants and several other persons to give and deliver to
said accused the amount of at least P20,000,000.00 on the
strength of said manifestations and representations, the accused
knowing fully well that the above-named corporations
registered with the SEC are not licensed nor authorized to
engage in foreign exchange trading and that such manifestations
and representations to transact in foreign exchange were false
and fraudulent, that these resulted to the damage and prejudice
of the complainants and other persons, and that the
defraudation pertains to funds solicited from the public in
general by such corporations/associations.
Will the case for syndicated estafa prosper? Explain.
A: No, a case for syndicated estafa will not prosper because a
syndicate for such crime under P.D. 1689 must be comprised of
five (5) or more persons committing the estafa or other forms of
swindling defined in Arts. 315 and, RPC; whereas the case given
involved only three (3) accused who are alleged to have conspired
in the commission of the swindling. But because the amount
defrauded exceeds P100,000.00, the case is still under the same
P.D. 1689 with a lower penalty than syndicated estafa.
2004 Bar, Q. I(A): RR represented to AA, BB, CC and DD that she
could send them to London to work there as sales ladies and
waitresses. She collected and received from them various
amounts of money for recruitment and placement fees totalling
P400.000. After their dates of departure were postponed several
times, the four prospects got suspicious and went to POEA (Phil.
Overseas Employment Authority). There they found out that RR
was not authorized nor licensed to recruit workers for
employment abroad. They sought refund to no avail.
Is RR guilty of any grave offense? Explain briefly.
A: Yes. RR is guilty of a grave offense, having engaged in illegal
recruitment constituting the offense of economic sabotage which
is punishable with life imprisonment and a fine of P100,000.00.
Economic sabotage is an offense defined in 38(b) of the Labor
Code, as amended by P.D. 2018, which is incurred when the illegal
recruitment is carried out in large scale or by a syndicate. It is in a
large scale when there are three or more aggrieved parties,
individually or as a group. And it is committed by a syndicate
when three or more persons conspire or cooperate with one
C. Rule on Writ of Amparo
2008 Bar, Q. I(a): After due hearing on a petition for a writ of
amparo founded on the acts of enforced disappearance and
extralegal killing of the son of the complainant allegedly done by
the respondent military officers, the court granted the petition.
May the military officers be criminally charged in court with
enforced disappearance and extralegal killing? Explain fully.
A: No. Enforced disappearance and extralegal killing is not per
se a criminal offense although it is wrongful. The grant of a writ of
amparo only provides a relief; it does not establish a basis for a
crime. Unless the writ was issued bcause of specific overt acts
shown to have been committed by the respondent military
officers and such acts are crimes under penal laws, no criminal
charge may be routinely filed just because the petition for the writ
was granted.
D. Code of Conduct and Ethical Standards for Public Officials
and Employees (R.A. 6713)
2006 Bar, Q. VIII: Commissioner Marian Torres of the Bureau of
Internal Revenue (BIR) wrote solicitation letters addressed to the
Filipino-Chinese Chamber of Commerce and Industry and to
certain CEOs of various multinational corporations requesting
donations of gifts for her office Christmas party. She used the
Bureau's official stationery. The response was prompt and
overwhelming so much so that Commissioner Torres' office was
overcrowded with rice cookers, radio sets, freezers, electric
stoves and toasters. Her staff also received several envelopes
containing cash money for the employees' Christmas luncheon.
Has Commissioner Torres committed any impropriety or
irregularity? What laws or decrees did she violate?
A: Yes, Commissioner Torres committed an impropriety. She
violated Sec. 7(d) of R.A. 6713. Sec. 7(d) mandates that public
officials and employees shall not solicit or accept directly or
indirectly any gift, favor, entertainment, loan or anything of
monetary value from any person in the course of their official
duties or any transaction which may be affected by the functions
of their office.
Alternative: The solicitation for her office Christmas Party violates
P.D. 46 which makes is punishable for any public official or
employee to receive, directly or indirectly, any gift, present or
other valuable thig on any occasion, including Christmas when
such gift or present is given by reason of her official position.
Alternative: Yes, Commissioner Torres committed an impropriety
and violated Art. 211, RPC on indirect bribery. She accepted gifts
by reason of her office.
2001 Bar, Q. XII: Robert Sy, a well-known businessman and a
founding member of the Makati Business Club, aside from being
a classmate of the newly-elected President of the Philippines,
had investments consisting of shares of stocks in the Urban
Bank, the PNB, the Rural Bank of Caloocan City and his privately-
owned corporation, the RS Builders Corporation and Trans-
Paciflc Air. After the President had taken his oath and assumed
his office, he appointed Robert as Honorary Consul to the
Republic of Vietnam. Robert took his oath before the President
and after furnishing the Department of Foreign Affairs with his
appointment papers, flew to Saigon, now Ho Chi Min City, where
he organized his staff, put up an office and stayed there for three
months attending to trade opportunities and relations with local
businessman. On the fourth month, he returned to the
Philippines to make his report to the President. However, the
Anti-Graft League of the Philippines filed a complaint against
Robert for (1) failing to file his Statement of Assets and Liabilities
within thirty (30) days from assumption of office; (2) failing to
resign from his businesses, and (3) failing to divest his shares and
investments in the banks and corporations owned by him, as
required by the Code of Conduct and Ethical Standards for Public
Officials and Employees.
Will the complaint prosper? Explain.
A: The complaint will not prosper because the Code of Conduct
and Ethical Standards for Public Officials and Employees (R.A.
6713), expressly exempts those who serve the Government in an
honorary capacity from filing Statements of Assets and Liabilities,
and from resigning and divesting themselves of interest from any
private enterprise (Secs. 8A and 9).
Alternative: Yes, the complaint will prosper under Sec. 7 of the
Anti-Graft and Corrupt Practices Act (R.A. 3019, as amended),
which requires all public officers within 30 days from assuming
public office to file a true, detailed sworn statement of assets and
liabilities. Violations of this law are mala prohibita which admits of
no excuses.
E. Trust Receipts
1995 Bar, Q. VIII: Julio obtained a letter of credit from a local
bank in order to import auto tires from Japan. To secure
payment of his letter of credit, Julio executed a trust receipt in
favor of the bank. Upon arrival of the tires, Julio sold them but
did not deliver the proceeds to the bank.
Julio was charged with estafa under P.D. No. 115 which makes
the violation of a trust receipt agreement punishable as estafa
under Art. 315, par. (1), subpar. (b). of the Revised Penal Code.
Julio contended that P.D. No. 115 was unconstitutional because
it violated the Bill of Rights provision against imprisonment for
non-payment of debt.
Rule on the contention of Julio. Discuss fully.
A: Such contention is invalid. A trust receipt arrangement doesn't
involve merely a simple loan transaction but includes likewise a
security feature where the creditor bank extends financial
assistance to the debtor-importer in return for the collateral or
security title as to the goods or merchandise being purchased or
imported. The title of the bank to the security is the one sought to
be protected and not the loan which is a separate and distinct
agreement. What is being penalized under P.D. No. 115 is the
misuse or misappropriation of the goods or proceeds realized
from the sale of the goods, documents or instruments which are
being held in trust for the entrustee-banks. In other words, the
law punishes the dishonesty and abuse of confidence in the
handling of money or goods to the prejudice of the other, and
hence there is no violation of the right against imprisonment for
non-payment of debt. (People vs. Nitafan)
1985 Bar, Q. XV: Garcia, an importer, succeeded in convincing his
bank to release his importation under a trust receipt agreement
he signed last January 15, 1985. Upon maturity of the trust
receipts on February 5, 1985, Garcia paid the bank in check
which was however dishonored. Informed of the said dishonor,
Garcia paid only 60% of the amount of his check and refused to
pay the balance despite demands.
(a) On the basis of the foregoing facts, what may Garcia be
prosecuted for? Reasons.
(b) What is the effect of the 50% payment made by Garcia on
his criminal liability? Discuss.
A:
(a) Garcia should be prosecuted for the violation of the terms of
a trust receipt which is punished in P.D. No. 115 as estafa
through misappropriation or conversion. Under the trust
receipt agreement, Garcia was under obligation upon,
maturity thereof to turn over to the bank the proceeds of
the sale of the imported goods, document or instrument or
to return the said goods, documents or instrument if not
sold. Failure to comply with this obligation shall constitute
estafa under Art. 315, Par. 1 (b), RPC. Since Garcia paid only
50% of the amount, he will be liable for estafa regarding the
balance of 50%.
(b) Partial payment does not extinguish criminal liability
because of a criminal offense is committed (Javier v. People)
1983 Bar, Q. I: A, imported lychees, covering its payment with a
letter of credit he obtained from a bank under a trust receipt
arrangement. Upon arrival of the goods, he sold all of them but
did not turn over the proceeds to the bank, despite demands for
him to do so. What crime, if any, did A commits? Why?
A: Estafa thru misappropriation. P.D. 115 provides that the
misappropriation of the proceeds realized from the sale of goods
released under a trust receipt is estafa under par. 1(b) of Art. 315,
RPC. The reason is that the bank who has advanced the payment
of the imported lychees under a letter of credit obtained by the
importer continues to be vested with the ownership of the goods
until the proceeds of the sale have been turned over to the bank.
(Samo vs. People L-17603-04, May 31, 1962). P.D. 115 provides
further that the failure of the importer to turn over the proceeds
of the sale of the goods under a trust receipt arrangement to the
extent of the amount owning to the bank is estafa.
F. R.A. 7438
1993 Bar, Q. XX: Upon complaint of Baby. NBI agent Cesar
invited Esta- fador to the NBI headquarters where Cesar showed
to Esta- fador the sworn complaint of Baby for estafa. He
thereafter began questioning Estafador who told him that he
(Esta- fador) is willing to submit to an Investigation since he has
nothing to hide. Thereupon, Cesar got a typewriter and took
down the statement of Estafador without informing the latter
that he has a right to remain silent and to secure the services of
a lawyer. After the statement was signed by Estafador, his
fiancee, Fadora, came and asked Cesar to allow her to confer
with Estafador but Cesar refused saying that after all. Fadora is
not a lawyer, and that Estafador voluntarily gave his statement.
If you were the lawyer of Estafador, with what crime would you
charge the NBI agent? Explain.
A: Violation of R.A. 7438, defining rights of persons arrested.
(1) Failure to inform him of his right to counsel and to remain
silent (Sec. 4, par. 1); and
(2) Prevent an immediate member of his family which includes
fiancee, to confer with Estafador (Sec. 4(b).
G. R.A. 1379
1990 Bar, Q. XIII: Maloling is a public official who resigned from
the service on February 1, 1984. On February 15, 1990, the
Solicitor General filed a petition in court for the forfeiture of the
property of Maloling which was allegedly unlawfully acquired.
(a) If you were the counsel of Maloling, what defense or
defenses would you interpose? Explain your answer.
(b) Besides property unlawfully acquired found to be in the
name of Maloling, what are the other properties not in his
name which may nevertheless be considered unlawfully
acquired? Explain your answer.
A:
(a) I would interpose the defense of prescription as the right to
file a petition for forfeiture under Republic Act No. 1379
Section 2 prescribes in four (4) years from the date of
resignation.
(b) Property which may still be considered as unlawfully
acquired, though not in the name of Maloling at the time of
filing of the petition for forfeiture, shall include:
(1) Property unlawfully acquired by the respondent but its
ownership concealed by being recorded in the name of, or
held by, the respondents spouse, ascendants,
descendants, relatives or any other person; and
(2) Property unlawfully acquired by the respondent, but
transferred by him to another person/s. (R-A. 1379 Section
1(b)).
II. P.D. 9
1980 Bar, Q. XIII: While "U", a 60-year-old barber, was sweeping
the yard of his shop in a barrio, his cousin dropped by and left
his bolo (cousin's) for safekeeping. "U" put the same behind a
mirror in his barber shop. Later, "V" came around and
threatened him by saying "come out old man and I'll kill you." It
appears that they had a prior altercation relative to a grandson
of "U".
Incensed, "U" got the bolo from behind the mirror and chased
"V" for about 20 meters. At this point, a policeman intercepted
"U", told the latter to put down his bolo and arrested him.
"U" was subsequently charged with Illegal Possession of Deadly
Weapon under Presidential Decree No. 9 which makes it
unlawful to carry outside of one's residence any bladed weapon
except where such article is being used as a necessary
implement to earn a livelihood.
If you were the trial Judge, would you find "U" guilty of said
crime?
A: If I were the judge, I would not find U guilty of illegal possession
of deadly weapon under P.D. 9. U got the bolo from behind the
mirror in his barber shop to chase V who threatened him that he
will kill" him. P.D. 9, punishes the offense of carrying a bladed
weapon outside of one's residence if not being used as a
necessary implement to earn a livelihood either in furtherance of,
or to abet, or in connection with subversion, rebellion,
insurrection, lawless violence, criminality, chaos or public
disorder. (People v. Purisima). The offense punished in P.D. 9 is
primarily linked with the political purposes with which martial law
was declared. (Bermudez vs. CA, L-417121, July 30, 1979)
Corpus Delicti
2000 Bar, Q. XVIII(a): Define corpus delicti
A: Corpus Delicti literally means the body or substance of the
crime" or the fact that a crime has been committed, but does not
include the identity of the person who committed it. (People v.
Pascual).
2000 Bar, Q. XVIII(b): What are the elements of corpus delicti?
A: Elements of corpus delicti:
The actual commission by someone of the particular crime
charged. It is a compound fact made up of two things:
(1) the existence of a certain act or result forming the basis of
the criminal charge; and
(2) the existence of a criminal agency as the cause of the act or
result
The identity of the ofifender is not a necessary element of corpus
delicti