Presentation on theme: "Group III Members:. Bacus, Bon. Jamero, Jacinto. Lapiña, Joan"— Presentation transcript:
1Getting Contract Charges and Violations of Contracts Remedies and Settlement Group III Members: Bacus, Bon Jamero, Jacinto Lapiña, Joan Lao, Loveleanne Sauro, Jo
2IB 1 - Who may be allowed to Bid a. Filipino1. Citizens (single proprietorship)2. Partnership or corporation duly organized under the laws of the Philippines, and at least 75% of the capital stock of which belongs to Filipino citizens.b. Contractors forming themselves into a joint venture i.e., a group of more contractors that intend to be jointly and severally responsible for a particular contract, shall, for purpose of bidding/tendering comply with LOI 630, and, aside from being currently and properly licensed by PCAB, shall comply with provisions of RA 4566 and its implementing rules and regulations, provided that joint ventures in which Filipino ownership is less than 75% may be qualified where the structures to be built require the application of techniques and/or technologies which are not adequately possessed by a Filipino entity as defined above.c. Foreign contractors for internationally bid foreign-assisted projects as may be required by foreign financial institutions.
3IB 2 - Organization of the BAC 1.Each office/agency/corporation shall have in its head office or in its implementing offices a Bid and Award Committee (BAC) or designated procurement unit which shall be responsible for the conduct of pre-qualification or eligibility screening, bidding, evaluation of bids, post qualification, and recommending award of contracts. Each committee shall be composed of the ff:Chairman (regular)Executive Officer and Secretary (regular)Member (regular)Member (provisional)Members from the Private SectorObserverMembers/Observers of the BAC or designated procurement unit should receive the notice of meeting at least 2 calendar days before the date of meeting2. Government owned or controlled corporations shall organize their own BACS or designated procurement units, the members of which shall be appointed by their respective boards preferably along the same line as other government offices.
43. Non-infrastructure agencies – that is, agencies other than the DPWH, DTC, their attached agencies and other infrastructure Corporations – that do not possess an in-house technical capability to constitute their own BACS or Designated procurement units shall cause the designation of either of the 2 infrastructure departments mentioned whichever is concerned, to undertake the pre-qualification/Eligibility of Screening, bid and award services, as well as the preparation of project plans and designs and supervision of construction.
5IB 3 - Invitation to Pre qualify/Apply for Eligibility to Bid 1. For locally funded contracts, contractors shall be invited to applyfor eligibility to bid through:a. For contracts to be bid costing more than P5 Million the advertisement shall be made at least 3 times within a reasonable period depending upon the size and complexity of the contract to be bid but in no case less than 2 weeks in at least 2 newspapers of general nationwide circulation which have been regularly published for at least 2 years before the date of issue of the advertisement. During the same period that the advertisement is posted in the newspaper or for a longer period as determined by the head of the office/agency/corporation concerned, the same advertisement shall be posted in the website of the office/agency/corporation concerned and at the place reserved for this purpose in the premises of the office/agency/corporation concerned. For contracts to be bid costing P5 Million and below or for contracts authorized to be bid by the regional/district offices involving costs as may be delegated by the head of office/agency/corporation, the invitation to bid shall be advertised at least 2 times within 2 weeks in a newspaper of general local circulation in the region where the contract to be bid is located, which newspaper has been regularly published for at least 6 months before the date of issue of the advertisement. During the same period that the advertisement is posted in the newspaper or for a longer period as determined by the head of the office/agency/corporation concerned and at the place reserved for this purpose in the premises of the office/agency /corporation concerned. In addition to the forgoing, the invitation may
6also be advertised through other forms of media such as radio and television, provided that based on the agency’s short list of contractors or referral with the PCAB, there are at least for contractors indigenous to the region duly classified and registered to undertake such contracts. The advertisement may likewise be made in a newspaper of general nationwide circulation as defined in the foregoing when there is evident lack of interest to participate among the region-based contractors.b. Additionally, in the case of projects requiring special technology, direct invitation of contractors known for their capacity to undertake such type of projects.2. For foreign-financed/assisted projects, contractors are invited under the same procedures above and/or in accordance with procedure established by ,and agreed upon with, the lending/financing institution.
7Constructors not allowed to participate in the prequalification and bidding of government projects A constructor who was suspended or disqualified by a government tendering agency and/or included in the CIAP consolidated government-level blacklisted constructors shall not be allowed to participate in the prequalification and bidding of all government tendering agencies during the period of suspension/disqualification unless a certificate from CIAP confirming a delisting order from the blacklisting agency has been submitted to the tendering agency concerned.A joint venture or consortium with blacklisted member/s and/or an individual constructor who is a member of a blacklisted joint venture or consortium is likewise not allowed to participate in the prequalification and bidding of all government tendering agencies during the period or suspension.
8Sanctions and Background for Blacklisting Prequalification, Bidding and Award StageI. Suspension for 1 year for 1st offense, disqualification of 2 year for2nd offense and perpetual disqualification for succeeding offenseon any of the following:1. Misinterpretation of concealment of any material fact or information in the sworn prequalification statement and/or bids, including but not limited to:>falsification of public documents>submission of borrowed license (license lending)>Submission of bids and/or detailed estimates that are identical to each other or to the Approved Agency Estimate (AAE) which manifestlyindicate rigging or conclusion.2. Participating in PBAC activities as a constructors association representative where he/she has any pecuniary interest.3. Other acts of constructors which directly or indirectly tend to defeat the purpose of public bidding.
9for 2nd offense, disqualification for 2 year for 3rd offense, and II. Suspension for 6 months for 1st offense, disqualification for 1 yearfor 2nd offense, disqualification for 2 year for 3rd offense, andperpetual disqualification for succeeding offense.1. Non-submission or late submission of bids by pre qualified constructors with out justifiable reason and written notice of withdrawal of intent to participate in the bidding of 5 working days before the deadline of submission of bids.III. Forfeiture of bid security for 1st offense, forfeiture of bid security and suspension of 1 year for 2nd offense, and forfeiture of bid security and perpetual disqualification of succeeding offense on any of the following:1. Unjustified failure or unreasonable refusal of the winning bidder toaccept or signify conforme to the notice of award (NOA).2. Non-submission by the proposed awardee within the Agencyprescribed time of the performance security and other requirementsnecessary for contract preparation, i.e., Contractor’s All Risk (CAR)insurance, Affidavit of No pending Case for Non-Payment of Tax,construction Schedule, Cash Flow and other requirements necessary forthe formalization of the contract.3. Unjustified refusal or failure of the proposed awardee to enter or signthe prepared contract within the agency prescribed time.
10for succeeding offense: IV. Suspension for 5 years for 1st offense and perpetual disqualificationfor succeeding offense:1. Receiving a fee, gift, or other valuable thing in relation to, or inconnection with, PBAC activities from any person/entity in the hope orexpectation of receiving favor or other treatment than that accordedother persons;2. Committing Acts punishable under the anti-graft laws.
11IB 4 - Issuance of Qualification Statements/Forms 1. The BAC or Designated procurement Unit shall provide prospective bidders with the Notice for Prequalification/Eligibility Screening, to contain, among others, the following information to guide them in evaluating their capabilities and decide whether or not to participate in the bidding of a specific contract:a. Name and location of Projectb. Project background and other relevant information regarding the proposed work, including a brief technical description of the work as to size, type, major items, and other important features of the work.c. Approved budget for the project to be bid and source of funding.d. Criteria to be used by the office/agency/corporation in the prequalification or eligibility screening contractors, the evaluation of bids, and the post qualification of the lowest calculated bid.e. Cost and place of issuance of Eligibility Forms and Bid/Tender documentsf. Date, time and place of:Submission of Accomplished Eligibility formsPre-bid conferenceSubmission of BidsOpening of Bids
122. Prequalification or Eligibility Statements shall be required by the contracting government office/agency/corporation for every contract in which the contractor intends to bid. It shall be submitted not later than the deadline set in the published Invitation to Prequalify or Apply for Eligibility and to Bid, after which date no Application Prequalification or Eligibility shall be submitted and received.3. The following documents shall comprise the prequalification or eligibility statements, to be submitted by the contractor, which shall consist of the following documents which embody the non-discretionary “pass/fail” criteria for Prequalification or Eligibility for the contract to be bid, which shall be under oath and duly notarized:a. Legal Document1. Contractor’s Valid PCAB License for the type and cost of the contract to be bid2. Valid joint venture agreement in the case of a joint venture3. Letter authorizing the head of office/agency/corporation or his duly authorizedrepresentative to verify any or all of the documents submitted for eligibilityscreening.4. Statement that his firm is not included in the “blacklist” of Contractors issued bythe CIAP
13b. Technical Documents1. A statement of all government and private construction contracts, completed in at least the last 3 years as specified in the notice for prequalification/eligibility screening, which are similar in nature and complexity to the contract to be bid. “Similar” contracts shall be defined by the concerned office/agency/corporation in the notice for prequalification/eligibility screening. The contractor’s statement shall include, for each contract, the name of the contract, owner’s name and address, nature of work, contractor’s role (sole contractor, sub-contractor, or partner in a joint venture), total contract value at completion, and contract duration. The statement shall be supported by the contractor’s performance evaluation system (CPES) rating sheets, an/or certificates of completion and owner’s acceptance.The value of the contractor’s larges single contract, escalated to present prices, completed within the period specified in the notice for prequalification/eligibility screening, and similar to the contract to be bid, must be at least 50% of the approved budget for the contract to be bid.2. A statement of all ongoing government and private construction contracts, including contracts awarded but not yet started. This shall include, for each contract, the name of the contract, owner’s name and address, nature of work, contractor’s role, total contract value at award, date of award, percentages of planned and actual accomplishments, value of outstanding works, and estimated completion time. The statement shall be supported by the notices of award and/or notices to proceed by the owner.s
143. A statement that the contractor has key personnel, such as project manager, project engineer, materials engineer, and foreman, that may be used for construction contracts.4. A statement that the contractor owns, and/or has under lease, and/or under purchase agreements, equipment that may be used for construction contracts.c. Financial DocumentsAudited financial statements, stamped “received” by the bureau of international revenue, for at least the past 3 calendar years, showing, among others, the contractor’s total and current assets and liabilities.The contractor’s net financial contracting capacity (NFCC), based on his net working capital (i.e. current assets less current liabilities) must be at least equal to the approved budget for the contract to be bid, calculated as follows:NFCC=K (current assets minus current liabilities) minus (Value of all outstanding works under ongoing contracts including awarded contracts yet to be started).K=10 for a contract duration of 1 year or less, 15 for a contract duration of more than 1 year up to 2 years, and 20 for a contract duration of more than 2 years.
15IB 6 - Prequalification or Eligibility Screening of contractors for specific contracts. 1. A bidder must be found to be qualified or eligible to submit a bid for the contract to be bid based on his prequalification or eligibility statements as evaluated by the BAC or designated procurement unit of the office/agency/corporation, based on the criteria stated in the notice for prequalification/eligibility screening.2. Notwithstanding the prequalification or eligibility of a contractor, the Government reserves the right to review his prequalification or eligibility statements and other relevant information before the approval of the contract. Should such review uncover any misinterpretation made in the prequalification or eligibility statements, or any change in the situation of the contractor to downgrade the substance of his prequalification or eligibility statements, the Government shall disqualify him from submitting a bid or from obtaining any award or contract.
16The BAC or Designated Procurement Unit shall determine if each contractor is prequalified or eligible to submit bids for the contract to be bid by evaluating his prequalification or eligibility statements, using the non-discretionary “Pass/Fail” criteria or requirements stated in IB4-3 and in the notice for prequalification/eligibility screening, based solely and exclusively on his prequalification or eligibility statements. If the contractor passes all of the said contract to be bid. If the contractor fails any of the said criteria, he shall be considered ineligible to submit a bid for the contract to be bid.After undertaking the above processes, the BAC or Designated Procurement Unit shall mark the set of prequalification or eligibility documents of each contractor “Eligible”, or “ineligible” as the case may be, and the same shall be countersigned by the Chairman or the duly designated authority. The documents shall then be submitted to the head of office/agency/corporation concerned or his duly authorized representative for review and approval. Accordingly, the BAC or Designated Procurement Unit shall inform in writing the eligible bidders within 7 calendar days after approval. Applicants found ineligible shall likewise be informed accordingly in writing within the same period by the BAC or Designated Procurement Unit, stating the grounds for their disqualification or ineligibility. Those found ineligible have 7 calendar days upon receipt of notice within which to appeal to the head of the office/agency/corporation for reconsideration.
17IB 7 – Issuance of Plans, Specifications, Proposal Book Form (s) and Draft Contract 1. The BAC or Designated Procurement Unit shall issue the plans, specification, proposal book(s) for the contract to be bid to the eligible bidders under the relevant classification, upon payment of the corresponding price thereof to the collecting/disbursing officer of the office/agency/corporation concerned in accordance with the following schedule:Estimated Project Cost (PhP) Issuance of Plans, Specifications,Proposal ____________________ Book Form(s) and Draft Contractsa. Up to 5 Million; Days before the date of biddingb. Above 5 Million up to Days before the date of bidding25 Millionc. Above 25 Million up to Days before the date of bidding50 Milliond. Above 50 Million up to Days before the date of bidding100 Millione. Above 100 Million Days before the date of bidding2. The aforementioned schedules shall be considered as prescribed minimum and may be extended depending on the complexity of the project to be bid subject to the approval of the office/agency/corporation head concerned.
18Jamero, Jacinto Jr. R. 2:30 Group 3 3. In case of a simple repetitive standardized jobs where time is of the essence, the head of the office/agency/corporation may reduce the above time of issuance to not less than 50 percent.4. A draft Contract shall be issued to the eligible bidders to form part of the bid documents.Jamero, Jacinto Jr. R. 2:30Group 3
20MINIMUM QUALIFICATION REQUIREMENTS REVISED CLASSIFICATION AND CATEGORIZATION TABLE FOR CFYCLASSIFICATIONCATEGORYMINIMUM QUALIFICATION REQUIREMENTS(1)FINANCIAL CAPACITY(2)STE MIN. CONST.EXP. REQUIREMENT(3)OVERALLCREDITPOINTSREQUIREDSTOCKHOLDER'SEQUITYCREDIT POINTS (C.P.)REQ'D.INDIVI-DUALAGGRE-GATEMIN.C.P.I. GENERAL ENGINEERINGAAAP60,000,000.00600.0010603001,650.00GE-1 Road, Highways, PavementRailways, Airport horizontalStructure, and BridgesGE-2 Irrigation or Flood ControlGE-3 Dam, Reservoir or TunnelingGE-4 Water SupplyGE-5 Port, Harbor or OffshoreEngineeringAABD30,000,000.006,000,000.003.000,000.001,500,000.00600,000.00300.0060.0030.0015.006.00753502125010515765.00235.00107.5051.5021.00II. GENERAL BUILDINGGB-1 Building or Industrial PlantGB-2 Sewerage or Sewage SystemGB-3 Water Treatment Plant & SystemGB-4 Park, Playground orRecreational Work3,000,000.001,610.00745.00231.00105.5060.50
21SPECIALTYSP-FP Foundation WorkFP1- Piling WorkFP2- Soil Stabilization/ Slope Protection/ Reinforce EarthSP-SS Structural Steel WorkSP-CC Concrete Pre-casting,Pre-Stress or Post-tensioningSP-PS Plumbing & Sanitary WorkSP-EE Electrical WorkSP-ME Mechanical WorkSP-AC Airconditioning or RefrigerationSP-ES Elevator or EscalatorSP-FP Fire Protection WorkSP-WP Waterproofing WorkSP-PN Painting WorkSP-WD Well-Drilling WorkSP-CF Communication FacilitiesSP-MS Metal Roofing & Siding InstallationSP-SD Structural DemolitionSP-LS LandscapingSP-EM Electro Mechanical WorkSp- NF Navigational FacilitiesAAAAAABCDP60,000,000.0030,000,000.006,000,000.003.000,000.001,500,000.00600,000.00600.00300.0060.0030.0015.006.0010753605021300250105151,210.00545.00181.0095.5045.5021.00IV. SP-TRADETRADE30,000.000.30none* Minimum Qualification Requirements for Principal Classification** For Other Classification/s, Minimum of 3 Years Actual Construction Experience*** Overall credit points inclusive of Equipment Capacity (1 point/P100Th); Experience of Firm (10 points/year of active existence; &1 point/P100Th of 3 year Average Annual Volume of Work Accomplished; and COMTCP points if STEs are COMTCP certified
22bidding proceduresbidding failureawarding of contractcontract documentsby: lapiña, joan marie e.
23BIDDING PROCEDURESPreparation of Bids and Bid Bonds, and Pre-qualification/Eligibility StatementBids shall be prepared on the proposal book form in accordance w/ the Instructions to Bidders.The original copy of the bid shall be accompanied by a bid security in an amount equivalent to a percentage of the APPROVED BUDGET FOR THE CONTRACT to be bid.No bid securities submitted by any eligible bidder shall be returned after the opening of the bids. Except by those that failed to comply w/ any of the requirements to be submitted in the 1st envelope of the bid.
24Submission, Opening and Abstracting of Bids Bids in the prescribed bid form including its annexes shall be submitted in two (2) sealed envelopes w/ the name of the Contract to be bid and the name of the bidder in capital letters addressed to the designated procurement unit of the office concerned.The 1st envelope shall contain the following:Authority of the Signing OfficialConstruction Schedule and S-CurveConstruction MethodsOrganizational Chart for the contract to be bidList of Contractor’s Personnel to be assigned to the contract to be bid, w/ their complete qualification and experience data
25Personpower scheduleList of Contractor’s Equipment Units, owned and/or under lease and/or under purchase agreements, supported by duly executed contracts, intended for use exclusively in the contract to bidEquipment Utilization ScheduleCertificate of Site InspectionBid SecurityCertification that the detailed estimate, cash flow by quarter and payments schedule are in the second envelopeCommitment from the Contractor’s Bank to extend to him a credit line if awarded the contract to be bid, or a cash deposit certificate.Construction safety and health program required by the DOLEOther non-discretionary criteriaThe 1st envelope shall be opened in public to determine the contractor’s compliance w/ the above documents required.
26c. The 2nd envelope shall contain the following: Bid Prices in the BILL OF QUANTITIESDetailed Estimated including summary sheet indicating the unit prices of construction materials, labor rates, and equipment rentals used in coming up with the bidCash Flow by quarter and Payments ScheduleThe 2nd envelope shall be opened in public immediately after the opening of the 1st envelope. BUT only for the contractors that complied with the requirements in the 1st envelope.d. Bids shall be received on or before the designated time and date to be eligible for consideration. Bids may be withdrawn only in writing 5 working days before the deadline of submission of bids.
27Bids shall be opened at the place, date and time specified in the advertisement by the BAC. The bidder or their duly authorized representative may attend the opening of the bids.Bids w/ submitted bid prices that are higher than the approved budget for the contract under bidding shall be rejected outright.After all the bids have been received and opened, the corresponding Abstract of Bids shall be prepared. It shall contain the ff:(a) Name of the Project and its location,(b) Time, date, and place of bidding, and(c) Names of the bidders and their bids arrangedfrom the lowest to the highest.
28Determination of the Lowest Calculated Responsive Bid The BAC or Procurement Unit shall determine the “Lowest Calculated Responsive Bid”, which is the bid (a) with the lowest price as calculated based on the provisions in the Evaluation of Bids, and (2) which complies w/ all the requirements in the “Post-qualification of Contractor w/ the lowest calculated bid”.b. The lowest calculated responsive bid shall therefore be determined in two steps:- the detailed evaluation of all the bids- the post-qualification of the bidder w/ the lowest calculated bid
29Detailed Evaluation of Bids - to establish the correct calculated prices of the bids accdg. to the requirements, and to det. the order or ranking of the total bid prices as so calculated from the lowest to the highest.a. Shall be conducted w/in 7 days from the date of opening of the bids.b. At the time of the opening of the bids, there shall be at least 2 competing bidders.c. The respective designated procurement units should normally complete the evaluation of bids not later than 30 calendar days from the date of the opening of bids.
30Post-qualification of Contractor w/ the lowest calculated bid - based on the results of the evaluation. This shall verify and ascertain whether the bidder w/ the lowest calculated bid complies w/ or is responsive to all the requirements (legal, technical, and financial) of the contract under bidding.a. Shall be conducted, on the bidder w/ the lowest calculated bid, w/in 30 days from the completion of the first step (Evaluation of Bidders)
31BIDDING FAILUREMay be due to dishonesty in the competition or bidding processExample: Submitting more than 1 bid apparently different but actually comes from the same party.Bidding failure may be declared if there is evidence of conspiracy or agreement among contractors.
32AWARDING OF CONTRACT By Bid Contract 1. If the BAC or designated Procurement Unit finds that the contractor w/ the lowest calculated total bid price passes the post-qualification criteria, his bid shall be considered the “Lowest calculated responsive bid”, and the office shall award the contract to him.2. If, however, the BAC or the designated Procurement Unit finds that the contractor w/ the lowest calculated total bid fails the post-qualification criteria, the office shall immediately notify him in writing that he is post-disqualified and in the same notice be informed of the grounds for his post-disqualification. The bidder shall have 7 days from receipt of the notification to request from the BAC, if he so wishes, a reconsideration of this decision.
333. After the office has notified the 1st contractor of his post-disqualification, the BAC or the designated procurement unit shall initiate and, w/in 7 days, complete the same post-qualification process on the contractor w/ the second lowest calculated bid. If the 2nd contractor passes the post-qualification criteria, and provided that the request for reconsideration of the bidder with the lowest calculated bid is denied, the bid of the 2nd lowest contractor shall be considered as the lowest calculated responsive bid.4. If the 2nd contractor, however, fails the post-qualification criteria, the previous process is repeated for the bidder w/ the next lowest calculated bid(s), until the lowest calculated responsive bid is obtained for award.5. In the event of refusal or failure of the lowest Calculated Responsive Bidder for award to enter into contract w/in the stipulated time, the Government shall impose the appropriate sanctions.
346. In the event of refusal, inability or failure of the lowest Calculated Responsive Bidder to make good his bid by entering into contract and to post his performance security w/in the time provided therefore, the 2nd lowest calculated responsive bidder shall be considered for award at his calculated bid price provided that his calculated bid shall not exceed the APPROVED BUDGET FOR THE CONTRACT hereof. This rule shall likewise apply to the 3rd lowest calculated responsive bidder in case the 2nd lowest calculated responsive bidder shall likewise refuse to enter into contract with the government. Otherwise, the Contract shall be advertised anew for bidding.7. If after re-bidding, no bid still comes w/in the limits of award of the contracts, the contract may be recommended to the head of office concerned for prosecution by administration or by negotiated contract in accordance w/ existing laws, rules and regulations.
358. Normally w/in 30 calendar days from the date the evaluation of bids shall have been completed. Post-qualification of the lowest calculated bidder to determine its responsiveness shall have been done and a decision on the results of the post-qualification shall be made.If the decision is to award the contract, the NOTICE OF AWARD shall be issued normally w/in 7 calendar days from the date the decision to award is made.- for foreign-assisted projects the decision to award the contract shall be transmitted to the concerned foreign financial institution for concurrence as may be required normally w/in 7 calendar days from the date decision to award is made. Likewise, the Notice of Award shall be issued w/in 7 calendar days.The successful bidder or his duly authorized representative shall execute the contract w/ the office concerned normally w/in 15 calendar days from receipt of the Notice of Award.
36By Negotiated Contract 9. The Government, however, reserves the right to reject any or all bids and to declare a failure of bidding, or not to award the contract if there is, among others evidence of collusion among contractors and other parties resulting in no competition.By Negotiated Contract- Negotiated contract may be entered into only where any of the ff. conditions exists and the implementing office is not capable of undertaking the project by administration:a. In times of emergencies arising from natural calamities where immediate action is necessary to prevent imminent loss of life and/or property or to restore vital public services, infrastructure an utilities such as collapsed bridges, etc.b. Failure to award the contract after 2 public biddings for valid cause or causes.
37c. Where the subject project is adjacent or contiguous to an ongoing project and it could be economically prosecuted by the same contractor provided that subject project has similar or related scope of works and is w/in the contracting capacity of the contractor, in which case, direct negotiation may be undertaken w/ the said contractor.d. For contracts terminated in accordance w/ the provisions of Presidential Decree No (Authorizing the government’s take over by administration of delayed infrastructure projects or awarding of the contract to the other qualified contractors) or other similar laws.The Government assumes no obligation whatsoever to compensate or indemnify (reimburse) the bidders for any expenses or loss that may incur in the preparation of their bid nor does the Government guaranteed than an award will be made.
38DOCUMENTS COMPRISING THE CONTRACT The ff. documents shall form part of the contract:a. Contract Agreementb. Conditions of Contractc. Drawing/Plansd. Specificationse. Invitation to bidf. Instructions to Biddersg. Addendaf. Bid Form including thetwo sealed envelopesi. Performance Securityj. Pre-qualification Statementsk. Credit Line issued by an authorized bank in an amount equal to the ave. operating expenses of the project for 2 months or 10% of the total project cost, whichever is less.l. Notice of Award of Contract and Contractor’s “Conforme“ theretom. Other Contract documents that may be required by the office/agency/corporation concerned.
39Supporting Documents: -to facilitate the approval of the contract, the ff. documents shall be submitted:a. Duly Approved Program of Work and Cost Estimatesb. Certificate of Availability of Fundsc. Approved BUDGET FOR THE CONTRACTd. Abstract of Bidse. Resolution of the BAC or the BAC recommending Awardf. Approval of Award by Approving Authorityg. Concurrence of Lending institution in case of Foreign- assisted Projectsh. Other pertinent documents as may be reasonably required by existing laws.
41Disputes concerning any question arising under Agreement which is not disposed of by agreement between the parties, shall be decided by the Head of the agency concerned who shall furnish Consultant a written copy of his decision.Decisions reached by arbitration may be enforced by either of the parties in any court of competent jurisdiction in the Philippines. In case of suit arising in connection with the terms of this Agreement, the parties hereto expressly submit to the jurisdiction of the said court.Litigation ProcessPlaintiff files a written document(complaint) in court-In the complaint, the plaintiff alleges or claims that the party who is being sued, the defendant, has done something, or has failed to do something, which entitles the plaintiff to some sort of relief.
42Relief: frequently money, but may involve nonmonetary matters, such as issuing an injunction(an order requiring the defendant to do something or to stop doing something).Example:Suppose that two individuals, A and B, enter into contract in which B agrees to sell A her house. Before the transfer is completed, B changes her mind about selling and refuses to comply with the terms of the contract. On the other hand,she could sue for specific performance of the contract. This means she is asking the court to force B to fulfill the terms of their agreement.2) Defendant is given the opportunity to contest the lawsuitA document called an Answer is filed in the court.In an answer the defendant:states why the plaintiff is not entitled to any reliefcan challenge a lawsuit by raising certain legal issuesignore the complaint and do nothing(default)
43OBJECTIONS TO THE COURT'S JURISDICTION OR THE NAMED DEFENDANT If the defendant intends to take any objection to all or any part of the claimant's claim on the grounds thatthe court lacks jurisdiction,the matter should be referred to arbitration, orthe defendant named in the letter of claim is the wrong defendant, that objection should be raised by the defendant within 28 days after receipt of the letter of claim. The letter of objection shall specify the parts of the claim to which the objection relates, setting out the grounds relied on, and, where appropriate, shall identify the correct defendant. Any failure to take such objection shall not prejudice the defendant's rights to do so in any subsequent proceedings, but the court may take such failure into account when considering the question of costs.
44THE DEFENDANT'S RESPONSE Within 28 days from the date of receipt of the letter of claim, or such other period as the parties may reasonably agree (up to a maximum of 4 months), the defendant shall send a letter of response to the claimant which shall contain the following information:the facts set out in the letter of claim which areagreed or not agreed, and if not agreed, the basis of thedisagreement;which claims are accepted and which are rejected, and ifrejected, the basis of the rejection;if a claim is accepted in whole or in part, whether thedamages, sums or extensions of time claimed are accepted orrejected, and if rejected, the basis of the rejection;
45if contributory negligence is alleged against the claimant, a summary of the facts relied on;whether the defendant intends to make counterclaim,and if so, giving the information which is required tobe given in a letter of claim;the names of any experts already instructed on whoseevidence it is intended to rely, identifying the issues towhich that evidence will be directed;If no response is received by the claimant within the period of 28 days (or such other period as has been agreed between the parties), the claimant shall be entitled to commence proceedings without further compliance.
46CLAIMANT'S RESPONSE TO COUNTERCLAIM The claimant shall provide a response to any counterclaim within the equivalent period allowed to the defendant to respond to the letter of claim.
473) DiscoveryLitigation proceeds if both the plaintiff and defendant filed appropriate documents with the court with the parties trying to find out as much as they can about the other side’s case.Parties may request various orders from the court dealing with the case prior to the trial. These request may range from very simple procedural issues to more complicated legal issues. These requests are known as motions.If the parties are unable to settle their dispute, and the case is not disposed of by a motion, then normally the parties will eventually go to court and present evidence to support their claims.The litigation process does not necessarily end at trial because both sides have the right to appeal the decision to a higher court.
48Prior to commencing proceedings, the claimant or his solicitor shall send to each proposed defendant a copy of a letter of claim which shall contain the following information:the claimant's full name and address;the full name and address of each proposed defendant;a clear summary of the facts on which each claim is based;the basis on which each claim is made, identifying the principal contractual terms and statutory provisions relied on;
49the nature of the relief claimed: if damages are claimed, a breakdown showing how the damages have been quantified; if a sum is claimed pursuant to a contract, how it has been calculated; if an extension of time is claimed, the period claimed;where a claim has been made previously and rejected by a defendant, and the claimant is able to identify the reason(s) for such rejection, the claimant's grounds of belief as to why the claim was wrongly rejected;the names of any experts already instructed by the claimant on whose evidence he intends to rely, identifying the issues to which that evidence will be directed.
50RIGHT OF WAY CONSIDERATION By: LOVELEANE MARIE LAO
51EASEMENT OF RIGHT OF WAY ART The owner, or any person who by virtue of a real right may cultivate or use any immovable, which is surrounded by other immovables pertaining to other persons without adequate outlet to a public highway, is entitled to demand right of way through the neighboring estates, after payment of the proper indemnity.
52Should this easement be established in such a manner that its use may be continuous for all the needs of the dominant estate, establishing a permanent passage, the indemnity shall consist of the value of the land occupied and the amount of the damage caused to the servient estate.
53In the case the right of way is limited to the necessary passage for the cultivation of the estate surrounded by others and for the gathering of its crops through the servient estate without a permanent way, the indemnity shall consist in the payment of the damage caused by such encumbrance.This easement is not compulsory if the isolation of the immovable is due to the proprietor’s own acts.
54“EASEMENT OF RIGHT OF WAY” DEFINED This is the easement or privilege by which one person or a particular is allowed to pass over another’s land, usually thru one particular path or line.The term “right of way”, upon the other hand, may refer either to the easement itself, or simply, to the strip of land over which passage can be done.
55REQUISITES FOR THE EASEMENT The property is surrounded by estates of others.There is no adequate outlet to the public highway. If outlet is thru the water, like a river or sea, under Spanish Law, the easement cannot be demanded for there exists an adequate outlet; it is believed that in the Philippines, a distinction must be made, dependent on danger, convenience and cost.
56c) There must be payment of the proper indemnity (but later on, the amount may be refunded when the easement ends).d) It must be established at the point least prejudicial to the servient estate. (This is generally but not necessarily, the shortest distance).e) The isolation must not be due to the proprietor’s own acts.f) Demandable only by the owner or one with a real right like a usufructuary. (The lessee should ask the lessor to demand the easement from the adjoining estates).
57PROPER INDEMNITYIf the passage is permanent, pay the value of land occupied by the path plus damages. (Upon extinction of the easement, the indemnity is returned without interest, for the interest is considered rent).If temporary, pay for the damages caused. (it is temporary when, for example, the estate is not being cultivated the whole year round, and when harvesting is only once in a while or when the carrying of materials is needed to improve a building).
58CLASSIFICATION OF RIGHT OF WAY The right of way may be:PRIVATE (such as the right given in Art.649)PUBLIC ( one available to the general public – but then in such a case, the land involved would no longer be private land but a “highway” or a “public road”).
59EASEMENT IN FAVOR OF THE GOVERNMENT The servitude which a private property owner is ordered to recognize in favor of the Government is the easement of a “public highway, way, private way established by law, or any government canal or lateral thereof” (Sec. 39, Land Registration Act), where the certificate of title does not state that the boundaries thereof have been determined. But even in this case, it is necessary that the easement should have been pre-existing at the time of registration of the land in order that the registered owner may be compelled to respect it.
60Where the easement is not pre-existing and is sought to be imposed only after the land has been registered under the Land Registration Act, proper expropriation proceedings, should be had, and just compensation paid to the registered owner thereof. For, it is elementary that public use may not be imposed on private property without expropriation proceedings and payment of just compensation made to the owner.
61Art 651. The width of the easement of right of way shall be that which is sufficient for the needs of the dominant estate, and may accordingly be changed from time to time.
62CAUSES OF EXTINGUISHMENT OF THE EASEMENT OF RIGHT OF WAY WIDTH OF PATH:The width may be modified from time to time depending upon the reasonable needs of the dominant estate.Nowadays, the use of automobiles is vital necessity, hence the pathway should be sufficient for this.CAUSES OF EXTINGUISHMENT OF THE EASEMENT OF RIGHT OF WAYOpening of a new road.Joining the dominant estate to another (that is the latter becomes also the property of the dominant owner) which abuts, and therefore has access to the public highway. But the new access must be adequate and convenient.
63EXTINGUISHMENT NOT AUTOMATIC The extinguishment is not automatic, because the law says that the servient owner “may demand”. It follows that if he chooses not to demand, the easement remains and he has no duty to refund the indemnity.
64Art.7. PERMITS, TAXES AND SURVEYS 7.01. PERMITS AND LICENCES: The Owner, with the Contractor’s assistance, shall secure and pay all construction permits and licenses necessary for the execution of the Work or of any temporary work and easements in relation thereof.The Contractor shall secure the final occupancy permit but he shall not be responsible to the owner if, without his fault, the license is not issued or there was delay in its issuance.
657.02. TAXES. Wherever the law of the place where the project is located requires a sales, consumer, use, or other similar tax related or pertinent only to the constructions of the project, the Contractor shall pay such tax.7.03. CONSTRUCTION STAKES AND REFERENCE MARK. The owner shall furnish all surveys describing the physical characteristics, legal limitations, and utility locations of the site. He shall also furnish right-of-way for access to the site. The owner shall be responsible for the establishment of lot lines, boundary lines, easements and benchmarks which shall be made by a certified surveyor.
667. 04. SERVICES OF GEODETIC ENGINEER 7.04. SERVICES OF GEODETIC ENGINEER. The contractor shall, at his option or when so required under the contract, engage the services of a licensed Geodetic Engineer to confirm and certify the location of column centers, piers, walls, pits, trenches, pipe work, utility lines and work of a similar nature. If the Geodetic Engineer finds any deviation from the drawings in the work of the contractor, he shall report his findings to the owner within 24 hours from discovery. The contractor shall be responsible for loss or damage caused by the act or omission of the Geodetic Engineer.