TOLENTINO LAUDS MALACAÑANG DECISION TO ALLOW LGUS TO PROCURE COVID-19 VACCINES

Senator Francis "Tol" N. Tolentino, chairperson of the Senate Committee on Local Government, today said that President Rodrigo Roa Duterte's decision to allow local government units (LGUs) to procure COVID-19 vaccines under a tripartite agreement among the LGUs, the national government, and pharmaceutical firms will ensure that all Filipinos, even those who are not among the priority list of the national government, are inoculated.

According to Tolentino, vaccinating the most number of Filipinos possible will be an important step to achieving herd immunity against COVID-19.

Early this week, Metro Manila mayors bared their plans and budgets for the procurement of COVID-19 vaccines for their constituents.

"The proactive approach by LGUs should not only be lauded but actively encouraged. There is more than sufficient legal basis for LGUs to procure COVID-19 vaccines for their own constituents," Tolentino said.

According to the senator, under the Local Government Code (LGC), LGUs have devolved powers which include the provision of basic health services compliant with standards and criteria set by the DOH. This devolution of power is consistent with the principle of decentralization and local autonomy enshrined in our Constitution, laws, and jurisprudence.

In Pimentel Jr. v. Aguirre (G.R. No. 132988, 19 July 2000), the Supreme Court held that the rationale behind the decentralization of administrative powers from the national government to LGUs is "to broaden the base of government power and in the process to make local governments 'more responsive and accountable,' and 'ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress.'"

Hence, under the LGC, municipalities and cities are mandated and empowered to deliver basic health services and facilities, such as implementation of programs and projects on communicable and non-communicable disease control services; access to secondary and tertiary health services; and purchase of necessary medicines, medical supplies, and equipment, including vaccines. The DOH itself, in a policy paper, said that health devolution is justified given the urgency of local action in providing health services without the need for higher-level government intervention.

Emergency Use Authorization

Earlier, DOH Undersecretary Maria Rosario Vergeire said during a virtual briefing that any vaccine given Emergency Use Authorization (EUA) by the Food and Drug Administration (FDA) may only be procured by the national government. She also said that a vaccine will only be available in the market if it receives a certificate of product registration under the regular process.

Last December 2020, President Rodrigo Roa Duterte issued Executive Order No. 121, granting authority to the Director General of the FDA to issue EUA for COVID-19 drugs and vaccines. The FDA has since issued Circular No. 2020-036 prescribing the guidelines in the implementation of EO 121.

According to Tolentino, there is nothing in current laws nor in EO 121 or FDA Circular No. 2020-036 prohibiting LGUs from procuring vaccines or limiting the procurement of vaccines to the national government only. Moreover, last 27 December 2020, Undersecretary Jonathan Malaya of the Department of the Interior and Local Government (DILG) said that if LGUs want to include their constituents who are not considered priority recipients of the COVID-19 vaccination program of the national government, they could procure vaccines approved by the FDA to vaccinate their constituents.

Vaccines as Emergency Purchases

Tolentino said government procurement laws give LGUs authority to purchase their much-needed supplies during the pandemic, including vaccines, without having to go through the long process of a public bidding. Under R.A. No. 9184, or the Government Procurement Reform Act, procuring entities such as LGUs are allowed to engage in negotiated procurement in emergency cases, which cover "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." The implementing rules of R.A. No. 9184 define negotiated procurement as "a method of procurement of goods, infrastructure projects and consulting services, whereby the procuring entity directly negotiates a contract with a technically, legally and financially capable supplier, contractor or consultant."

Tolentino said that with the powers endowed upon them by the 1987 Constitution, the LGC, and other laws, LGUs should take on an even greater role during the pandemic. According to him, a mass vaccination program of the government against COVID-19 will only be successful with the cooperation and active participation of LGUs.