Having the last laugh

 By Rod Kapunan

Many believe Malacañang is laughing at the opposition after being exposed as allegedly involved in the now-heated issue of pork barrel.  But as the issue continues to fester, again igniting the hysteria of the yellow hypocrites, it may yet end up with the opposition having the last laugh.
 
Re-examining the provisions of Republic Act No. 9184, or the Procurement Activities of the Government, it is worthy to note that the law was approved on January 10, 2003 under the stewardship of Senate President Franklin Drilon, and the then Secretary of the Budget and Management of Mrs. Arroyo, Florencio “Butch” Abad, and now serving in that same capacity under PNoy.

Specifically, Section 7 of R.A. No. 9184 added that “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.”

Looking at the law, one could see that it was bound to be violated because of the incorporation of Section 53, or a provision for negotiated procurement.  Of course, there was wisdom in that method, but in this particular issue involving the misuse of pork barrel, it served as corridor to effectively divert government funds, with most NGOs now taking charge in that seemingly syndicated operations of milking dry the government.

Thus, on June 29, 2007 the Government Procurement and Policy Board (GPPB) issued Resolution No. 12-2007 adding subsection (j) to Section 53 to quote: “[j] …, the procuring entity (government agency) may enter into a memorandum of agreement (MOA) with an NGO, subject to the guidelines to be issued by the GPPB.”  Effectively, it was the procuring entity that now selects the NGO to carry out the project.   In effect, the PDAF were never really physically handed to the members of Congress.

Maybe the “recipients” could recommend the NGOs to carry out their earmarked projects.  But just the same, the duty to look into the status, qualifications, and accomplishments of those NGOs remain with the GPPB, an agency directly under the Office of the President.  To quote GPPB Resolution No. 12-2007 on negotiated procurement involving NGOs: “4. …, no profit shall be included in its bid.  Thus, the procuring entity shall ensure that the LCB (lowest calculated bid) does not include any profit margin or markup.  5. …, the procuring entity shall require submission of x x x to ensure that said NGO is … capable to undertake the proposed project. 7.  To guarantee faithful performance, the selected NGO shall post a Performance Security upon the signing of the MOA ….  8. …, the selected NGO shall likewise submit a warranty security in accordance with Section 62 of the IRR-A.”

As early as 1995, the Commission on Audit issued COA Circular No. 95-003 for accounting and auditing guidelines on the release of fund assistance to NGOs and People’s Organizations. Nonetheless, the institutionalization of the practice has now morphed into an intricate network of syndicates. The yellow government, aside from making sure members of Congress will remain beholden to Malacanang, has to maintain its pork barrel to make sure its officials too will have a share of the pie, meaning it is the government that should identify and approve those NGOs and POs to be accredited.

Circular No. 2007-001 provides the strict procedure for the availment, release and utilization of public funds: 1. The Government Organization (GO) shall identify the priority projects under its WFP (Welfare Fund Program) which may be implemented by the NGO, their purpose/s, specification and intended beneficiaries as well as the time frame of the project.  2.  …, the GO shall accredit the NGO project partners through the Bids and Awards Committee … . 3.  …, the GO, thru the Committee, shall award the project to the NGO which meets the minimum qualification requirements and specification of the project. 4.  The NGO shall have an equity equivalent to 20% of the total project cost, which may be in the form of labor, land, facilities, equipments, and the like.  5.  … no NGO shall receive additional releases unless an Interim Fund Utilization Report of the previous release is first complied with.  6.  No NGO shall be a recipient of funds where any of the provisions of the Circular and MOA has not been complied …. 7. For infrastructure projects, the NGO shall post a performance security bond upon the singing of the MOA.  8.  For income generating projects, the sharing of income and expenses by the NGO shall be stipulated in the MOA.

Note that General Appropriations Act (GAA) for 2009, 2010, 2011, 2012 and 2013, contained guidelines on the transfer of funds.  To quote in part the limitations found in Sections 75, 76 and Section 73 of the GAA: “The government agency and local government units shall ensure that NGOs and POs that they deal with are legitimate.  A report on the fund releases indicating the names of NGOs and POs shall be prepared by the agency and duly audited by the COA and shall be submitted to the Senate Committee on Finance and House Committee on Appropriations.”  The same provision is found in Section 72 of the 2012 GAA, and reiterated almost en toto in the 2013 requirements on fund transfer to civil society organization (CSOs).
Even if we take it that there were irregularities on the release of those funds, the mere fact that several guidelines were issued addressed to the GPPB, that now brings to light the exculpation of those besmirched politicians from any liability.  The liability is in those government personnel mostly nesting inside Malacanang because they simply closed their eyes in approving and releasing those funds in favor of bogus NGOs, POs and CSOs. It cannot be less than that!
Moreover, even if it was Janet Napoles who conceived the scheme, she could not have operationalized her modus operandi had those people in Malacanang been doing their job correctly. The liability is much greater for those who sit as Secretary of the concerned Department, and their omission boils down to the gross ineptitude of the President to monitor what is going on right inside his own backyard.  In fact, PNoy can never pin down those that have been depicted as greedy boars for even if they issued in writing an order to rechannel those funds to their choice NGOs, that authority remains in those people about whom PNoy appears uncannily silent.

rpkapunan@gmail.com

http://manilastandardtoday.com/2013/09/14/having-the-last-laugh/