Senators tell Lao: Bayanihan 1 not yet in effect when you bought masks from Pharmally
MANILA, Philippines — The Bayanihan to Heal as One Act or Bayanihan 1 was not yet in effect when the Procurement Service-Department of Budget and Management (PS-DBM) bought face masks from Pharmally Pharmaceutical Corporation, senators clarified on Tuesday.
Senator Richard Gordon, chair of the Senate blue ribbon committee investigating the alleged overpriced pandemic supplies, asked former PS-DBM head Christopher Lloyd Lao whether the requirement to identify a firm’s Net Financing Contracting Capacity was suspended when Pharmally was tapped last March 25, 2020.
In response, Lao said that this requirement, which is mandated by the implementing rules and regulation of the Republic Act No. 9184 or the Government Procurement Reform Act, was suspended by the Bayanihan 1.
“No Mr. Chairman, Bayanihan 1 expressly states that procurement should be made judiciously, economically, and expeditiously in the exemptions from the provisions of 9184 and other relevant laws. The IRR which you are showing is an IRR implementing 9184 which Bayanihan 1 clearly exempts the procuring entity,” Lao told Gordon.
“So it’s like telling me you should not comply to a law which Bayanihan 1 tells us that we are exempt,” he added.
But Senator Francis Pangilinan quickly asked Lao why he thought that way when the Bayanihan 1 — which Lao and other PS officials used to justify their procurement of the face masks from Pharmally — was not yet enforced as a law.
“Mr. Chair, just very quickly, on the effectiveness of Bayanihan 1, when did Bayanihan 1 take effect? When was it published, was it upon publication?” Pangilinan queried Lao.
“Yes, on March 25 Mr. Chairman,” Lao answered.
Pangilinan belied Lao, saying that it was enforced on April 6, not March 25.
“No. March 25? Therefore it was already compliant and the transaction falls under Bayanihan 1? Mr. President, we have to look into this because the effectivity of Bayanihan 1 was after posting, and it was [on] April 6,” Pangilinan explained.
“I think it was published in the Official Gazette [on] March 25, Mr. Chairman. It was signed by the President on March 24; it was passed by Congress I think March 23,” Lao said.
“The Bayanihan 1 and the rules, Mr. President, took effect April 6. The (supplies) that [were] delivered [on] March 25 was not yet covered by Bayanihan 1,” Pangilinan replied.
Gordon said that Lao is remiss in his duty before Senate President Vicente Sotto III chimed in to attest that there was no Bayanihan 1 on March 25.
“The chair rules that you are remiss, you did not apply the law properly, besides even if you apply the law — assuming you’re correct — ‘di ba nakalagay dyan na hindi na kailangang examinin siya dahil siya ay may binayaran na platinum membership?” Gordon asked.
“For the record, there was no law [on] March 25,” Sotto noted.
The Bayanihan 1 which was passed to allow the government to reprogram and reallocate funds to the COVID-19 response also provided that certain procurement laws were suspended to expedite the purchase of medical equipment.
It has been used repeatedly by Lao and other government officials, along with other lawmakers who have defended the government’s move to buy face masks with Pharmally, to justify the procurement.
During last Monday’s hearing at the House of Representatives, Lao said there is a legal basis for PS-DBM to procure the face masks from Pharmally because of the Bayanihan 1 provisions.
PS-DBM and Pharmally are in the spotlight after both chambers of Congress sought separate probes on the Commission on Audit (COA) report that showed deficiencies in the Department of Health (DOH) COVID-19 funds amounting to P67.32 billion.
Part of that is the P42 billion funds transferred by DOH to PS-DBM, which in turn gave contracts worth P8.7 billion to Pharmally.
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