LATEST NON-POLICY MATTER OPINIONS

LATEST NON-POLICY MATTER OPINIONS
Government Procurement Policy Board – Technical Support Office

Outline Scope and Application Procurement Organizations PhilGEPS
Bidding Documents Pre-Bid Conference Submission and Receipt of Bids Detailed Evaluation of Bids Post-qualification Award of Contract Alternative Methods of Procurement Contract Implementation Protest Mechanism Blacklisting

Philippine Procurement Paradigm
HOPE Assess Review studies Consolidate into APP Decide procurement method Approve APP Determine readiness Post/Advertise opportunity Open and evaluate bids Post-qualify Award and enter into contract Selection HOPE BAC BAC BAC Sec TWG Budget BAC Sec End User End User Identify Cost-benefit analysis Feasibility study Market study PPMP Oversee implementation Inspect and accept deliveries Release payment Implement Needs Satisfaction

Standardized Bidding Procedures for Goods and Works
Pre-Procurement Conf. Advertisement Pre-Bid Conference Submission of Bids Opening of 1st Env. - Eligibility Docs & Technical Proposal Opening of 2nd Envelope – Financial Proposal Award of Contract Bid Evaluation & Ranking Post-qualification

Scope and Application

Scope and Application: Partly Funded by Private Funds
The mere fact that the procurement of the independent consultant is partly funded by private funds (i.e., 50% from the winning concessionaire) does not change the nature of the procurement nor take it outside the coverage of RA and its IRR, specifically so when the transaction involves the expenditure of public funds. As long as public fund is utilized or contemplated to be spent for any procurement activity, it shall by force, fall within the ambit of the present procurement law. Reference: NPM

Scope and Application: Partnership with Private Entities
Transactions involving the contribution of money/capital, services, or assets by the parties to the transaction is considered a Joint Venture (JV) agreement under Section 5.7 of the Guidelines and Procedures for Entering Into Joint Venture Agreements Between Government and Private Entities (JV Guidelines). Reference: NPM FACTS: DAR is exploring the possibility of entering into partnership with private entities in order to provide an integrated package of support services which will involve the procurement of farm equipment and machineries, etc., to enhance the productivity and income of agrarian reform beneficiaries (ARBs). DAR is looking at providing funds directly to ARBs in the form of subsidies equivalent to 30% to 50% of actual cost. The balance shall be shouldered by ARBO through loan from private entities. ISSUE: Whether a partnership with interested private entities is covered by RA 9184 and its IRR.

Scope and Application: Lease of Government-Owned Building
Transactions where a government agency leases out its real property for private use, such as in the case of a canteen or food concessionaire, are governed by Executive Order 301 (Series of 1987), particularly Section 7 thereof, and its associated guidelines. Implementing Guidelines for Lease of Privately-Owned Real Estate guidelines will only apply to lease of privately-owned real estate by government agencies for official use. Reference: NPM FACTS: BIR is in the process of selecting a concessionaire that will provide BIR employees with clean, nutritious, and reasonable/affordable food, and will be paying for the lease of its Executive Lounge. ISSUE: Whether such transaction is covered by RA 9184 and its IRR.

Scope and Application: Classification of ICT Services
PE is in the best position to determine the correct classification of its procurement based on its identified needs and the best way by which these needs may be addressed, managed, and satisfied. In case of mixed procurements, its nature can be best determined based on the primary purpose of the contract. [§5(aa), RA 9184 IRR] It is the motivation or intention of the PE in pursuing the project that will determine the primary purpose of a project. PE should be guided by the parameters and conditions in the relevant provisions of RA 9184 and its IRR on what should be considered as Goods, Infrastructure Projects or Consulting Services procurement. Reference: NPM Facts: BIR has been maintaining several ICT projects to sustain and support effective and efficient tax collection and enforcement for the past years, such as, lease/subscription of licenses/solutions, BIR-owned support and maintenance licenses, maintenance of BIR system/application, and data center hosting services. Issue: Whether it is proper for BIR to treat its ICT services contracts/projects as general support services.

Scope and Application: Multi-Year Contract for Engineering Services
General support services are understood to include those services that are essential, indispensable, or necessary to support the operations of the procuring entity or for the enhancement of the welfare of its personnel, including non-personal or contractual services. It can be deduced from the foregoing that engineering services for the maintenance of the CCP offices and facilities may be considered as within the contemplated coverage of general support services, in the same vein as are the services for janitorial and security. Reference: NPM Facts: CCP hires an engineering contractor for the maintenance of its buildings’ civil, electrical, and mechanical facilities, which are necessary for the continuous operation of the CCP. It is the observation of CCP that existing procurement rules and regulations do not specifically address the matter of contracting engineering services on a multi-year basis as it does with security and janitorial services.

Scope and Application: Extension of Contracts
RA 9814 and its IRR, including the various guidelines apply to all procurement activities of all government agencies. Until the actual turnover of AHEPP to the new private owner is made, the government agency having control over AHEPP may still consider the extension of contract for its general support services, subject to the conditions under §4 of the Guidelines. Reference: NPM FACTS: NPC-Angat Hydroelectric Power Plant (AHEPP) has an existing contract for janitorial services that is set to expire on 15 Jan AHEPP was sold by the PSALM, which was eventually contested in court. In Sept 2012, while AHEPP was preparing the PR for the new janitorial services, the SC ruled that the sale of AHEPP was valid and legal. Thus, instead of submitting the PR to the NPC, it requested for extension of contract since it could not determine the duration of the new PR because it does not know when it will be turned over to the buyer. NPC, merely an operator of AHEPP, and has no control over the sale. ISSUE: Whether the Guidelines on Extension of Contracts apply to the instant case.

Scope and Application: Demolition of Building
RA 9184 and its IRR do not cover disposal of government properties. Disposal of unserviceable equipment and property of all government agencies is covered by EO 888 (s. 1983). EO 285 (s. 1987) has identified DPWH as the agency-in-charge with the disposal of government-owned buildings. In line with this, DPWH, DBM, and DENR issued Joint Circular No. 1, which provides the procedures on demolition of buildings. Disposal and Procurement are two distinct government transactions covered by different rules and regulations. Reference: NPM FACTS: BIR Record Center has been assessed to be “structurally unstable and unsafe for continued occupancy and should be vacated immediately and/or subject to demolition”. Before the National Disposal Committee proceeds to cause the demolition of BIR-RC in accordance with its mandate, BIR seeks clarification on the application of RA 9184 and its IRR considering that the demolition project will entail no cost to the government, and that prospective demolition contractors have offered to pay for possible recovered scrap materials. ISSUE: Whether RA 9184 and its IRR finds application in the disposal of unserviceable properties.

Scope and Application: Trade-in Transaction
Proposal amounts to an acquisition of brand new equipment, rather than just mere repair services, which is different from the original procurement activity. Proposal is akin to a trade-in transaction. It involves two distinct, but relatively connected activities of government, namely, Disposal (EO 888) and Procurement (RA 9184). Although trade-in is not prohibited, the PE must have intended to resort to such scheme from the start, and not merely as an after-thought, considering that corresponding disposal and procurement processes and documentations must be complied with. Reference: NPM FACTS: BI procured the services for the repair of its 3M Passport Readers through Direct Contracting with Secur Links as the exclusive authorized service center of 3M Phil. In the course of the project, Secur Links informed BI that there are no more available parts for the 3M Passport Readers of BI since 3M has withdrawn it from the market. 34/46 units to be repaired entail replacement of spare parts, while 12/46 require replacement of power supply only. Secur Links proposed to replace BI’s existing 34 units with new models at the cost of the repair (PhP6,015,450), and repair the remaining 12 units (PhP127,680). ISSUE: Whether BI can accept the proposal of Secur Links.

Scope and Application: Joint Venture Agreements
The IAESP reveals that the Project pertains to a JV between a GOCC and a private entity in pursuit of development goals. The rules for such transaction are either covered by the Joint Venture Guidelines issued by NEDA pursuant to §8 of EO 423 (s. 2005); or by RA 6957 (BOT Law), as amended by RA 7718. Since the Project involves a JVA, RA 9184 and its IRR, including its associated guidelines, such as the Guidelines on the Sale of Bidding Documents, do not apply. Reference: NPM FACTS: Butuan City Water District received an Unsolicited Proposal for a JV from TwinPeak Hydro Resources Corp. BCWD caused the publication of an Invitation to Apply for Eligibility and Submit Proposal (IAESP) for a Competitive Challenge. The entity is questioning the propriety of setting the amount of Tender Documents at P1Million and the incompleteness of the published IAESP due to lack of information required in an Invitation to Bid under RA 9184 and its IRR. ISSUE: Whether the action of the PE is proper and in accordance with RA 9184, its IRR, and associated guidelines.

Scope and Application: Authority of GPPB
GPPB has no jurisdiction to rule over actual controversies with regard to the conduct of the bidding since it has no quasi-judicial functions under the law. It is the prerogative and discretion of the procuring entity through its BAC to come up with the declaration since they are in the best position to determine the details of their Project. Reference: NPM declaration that two (2) components of a Project may be made into two (2) separate contracts

Procurement Organizations

Procurement Organizations: Head of the Procuring Entity
Designation as OIC, although temporary in nature, entails the assignment of additional functions bestowed upon him – functions which otherwise would have been performed by a duly appointed regular Head of the Procuring Entity. Designation entails exercise and execution of actual, related, incidental power and authority inherent in the office, unless designation contains specific reservations, limitations, or qualifications on the functions to be performed. Purpose of designation is to prevent hiatus in the operations of the PE, such that during the interregnum that there is no regular head of office, the duties, responsibilities, and functions of the office are continuously performed and exercised so that the service to the public is not tolled or affected despite the vacancy in the office of the head of agency. Hence, the OIC is authorized to make decisions on procurement activities of the PE, subject to the limits stated in the Department Circular. Reference: NPM FACTS: BFP conducted public bidding for the procurement of fire trucks through its BAC, which was chaired by CSupt Bearis. The BAC recommended award of contract to the JV of Kolonwel and Hubei. CSupt Perez, the OIC-BFP Chief then, brought the BAC recommendation to the SILG, with a recommendation to disapprove the BAC’s decision because Kolonwel failed to comply with the EFPS filed Tax Return. Kolonwel instituted a case with the Ombudsman against the CSupt Perez, which led to the latter’s preventive suspension. CSupt Bearis was designated OIC-BFP Chief. As OIC-BFP Chief, he approved the BAC resolution recommending award to the JV, issued NOA, and recommended it for further approval by the SILG. ISSUE: Whether an official designated as OIC, and not as Chief or Acting Chief of BFP, can exercise the duties, power, and functions of the HOPE.

Procurement Organizations: Authority of BAC Sec Head to Notarize
The BAC Sec provides a vital supporting role for the PE in the procurement process. If the BAC Sec Head is to notarize the resulting contract, she would then take on a more central role by bestowing upon the contract the imprimatur of a legal attestation by a third person. The sharp contrast in the roles of a BAC Sec Head and a Notary Public when exercised by the same person may invite suspicion of unfaithfulness, conflict of interest, which may cast doubt on the contract in particular, and the entire procurement activity as a whole. Reference: NPM ISSUE: Whether the BAC Sec Head may notarize contracts entered into by her agency

Procurement Organizations: Authority of BAC Sec Head to Sign Document
BAC Secretariat Head’s authority to sign procurement- related documents should be confined to those that are within the scope of her duties and responsibilities under RA 9184 and its IRR, and should exclude those that require the exercise of discretion, consent or approval on matters under the jurisdiction of a different authority. Reference: NPM

Procurement Organizations: Authority of BAC Sec to Open and Examine Bids
Sections 12.1, 30.1, and 30.2 of the revised IRR of RA categorically vests upon the BAC the authority to determine each bidder's compliance with the required documents for purposes of eligibility Section 14 limits the responsibilities of the BAC Secretariat to administrative support functions and primarily ministerial duties. Since the BAC Secretariat is limited to these functions, the conduct of opening and preliminary examination of bids, where discretion and sound judgment are required, cannot be considered as clerical or secretariat nature; therefore, outside the functions of the BAC Secretariat. Reference: NPM

Procurement Organization: Conflict of Interest
Conflict of interest arises when, in the case of the subject matter of the inquiry, the Chairman of the BAC that conducted the earlier procurement was eventually designated as OIC of the Procuring Entity. In this case, the subject procurement is deprived of checks and balances as one of the persons conducting the bid evaluation and post-qualification, who is no less than the BAC Chair, may have that degree of proclivity towards the recommended action of the BAC; thus, the subsequent award of contract may no longer enjoy the cold neutrality of an impartial HOPE. Reference: NPM FACTS: BFP conducted public bidding for the procurement of fire trucks through its BAC, which was chaired by CSupt Bearis. The BAC recommended award of contract to the JV of Kolonwel and Hubei. CSupt Perez, the OIC-BFP Chief then, brought the BAC recommendation to the SILG, with a recommendation to disapprove the BAC’s decision because Kolonwel failed to comply with the EFPS filed Tax Return. DILG Legal Service issued Memorandum opining that in case the BFP Chief disapproves the BAC Resolution, said decision need not be elevated to SILG since what is required to be elevated is a decision seeking “further approval”. ISSUE: Whether the HOPE is required to elevate the BAC Recommendations for “further approval” only when he/she favorably recommends the BAC Recommendation.

Procurement Organizations: BAC Membership
§ of RA 9184 IRR provides that BAC composition and membership is based on the term “permanent”, i.e., plantilla position within the PE. Hence, plantilla of the agency will define whether the position qualifies for regular BAC membership, and the determination of ranking should take into consideration the hierarchy of plantilla positions in the PE. The Division Chief is the sixth ranking personnel, and will remain as such even for offices or bureaus without ABDs so long as the entire organizational structure of the PE has an identified ABD position in the plantilla. Reference: NPM FACTS: DSWD Central Office’s Sec, Usec, Asec, and Dir. occupy 1st to 4th rank, respectively. The Assistant Bureau Directors (ABD) are fifth ranking personnel. However, there are some offices that do not have ABD positions in their plantilla, and the next lower rank to the Dir. is the Division Chief. ISSUE: Whether Division Chiefs in offices or bureaus without ABD in its plantilla are considered fifth ranking for purposes of BAC membership.

Procurement Organizations: Provisional Member
Alter Ego principle (also Doctrine of Qualified Political Agency) falls under the control power of the President, and dictates that department secretaries are considered alter egos of the President. Various jurisprudence limit application of Alter Ego principle to the President. Approving authority may be deemed the alter ego of the HOPE. Thus, for the Alter Ego principle to apply, the EA must be designated as the approving authority. It is only when the EA is an approving authority that it is disqualified under § of the IRR of RA 9184 from becoming a BAC member. Reference: NPM FACTS: A provisional member in the DOTC BAC resigned when he was designated to a different position. The BAC recommended the Chief of Planning Division as replacement. However, HOPE designated the EA for Budget and Finance Concerns as replacement. It is argued that the EA is considered the HOPE’s alter-ego, and should thus be prohibited from being a BAC member. ISSUE: Whether there was a circumvention of Section of the IRR of RA 9184 with the designation of the EA as provisional member.

Procurement Organizations: Alternate BAC Members
The phrase “shall have the same qualifications as their principals” should be understood together with the clause “as set in the Act and this IRR” The qualifications set in the IRR that were used in determining the principal will be the same qualifications under which the alternate will be chosen An alternate BAC Chairperson and its alternate BAC member should be at least a 3rd ranking and a 5th ranking permanent official of the PE, respectively Reference: NPM FACTS: DSWD Central Office’s Sec, Usec, Asec, and Dir. occupy 1st to 4th rank, respectively. The Assistant Bureau Directors (ABD) are fifth ranking personnel. However, there are some offices that do not have ABD positions in their plantilla, and the next lower rank to the Dir. is the Division Chief. § RA 9184 IRR provides that the alternate BAC members shall have the same qualifications as their principals. ISSUE: Whether a 5th ranking official may be designated as an alternate to a regular BAC member who is a 4th ranking official.

Procurement Organizations: Separate BAC
The HOPE may create a separate BAC pursuant to § of the IRR to expedite the bidding of its numerous projects without the need of securing any approval or ratification from GPPB. Rank requirement for BAC members provided in § of the IRR should be followed in the creation of separate BACs. Reference: NPM FACTS: MWSS seeks confirmation on the creation of separate BACs for ISSUE: Whether a 5th ranking official may be designated as an alternate to a regular BAC member who is a 4th ranking official.

Procurement Organizations: Separate BAC
§ RA 9184 IRR states that, in order to expedite the procurement process, the HOPE may create separate BACs, organized either according to geographical locations or nature of procurement, where the number and complexity of the items so warrant. CSU has authority to establish separate BACs upon its determination that the creation of separate BACs according to its geographical location is necessary to expedite the procurement process. CSU may create separate BACs for each of its campuses. Reference: NPM FACTS: CSU has 8 campuses throughout Cagayan. Campuses have been given administrative and fiscal autonomy due to its geographical locations. CSU has no existing Central BAC exercising university-wide jurisdiction. Each campus has its separate BACs, except for CSU Caritan and CSU Carig which shares a BAC. Designated BAC members are from the campus where the BAC is organized, and the chair is usually the 3rd ranking official. Hierachy is as follows: President, Campus Executive Officer, College Dean. ISSUE: Whether CSU’s separate BACs comply with RA 9184 and its IRR.

Procurement Organizations: Sub-BAC
PE’s creation of sub-BACs to be placed under a main BAC is not in compliance with the requirements under Sec 11 of the IRR of RA 9184. PE may, however, establish separate BACs with the composition of the BAC members subject to the qualifications under Section of the IRR of RA Each BAC shall not be considered as decentralized committees pursuant to Section of the IRR since it will be headed by a single HOPE Reference: NPM

Procurement Organizations: Multi-Agency BAC
The creation of special BAC composed of officials from various PEs will run counter to the provisions of RA and its IRR. The concept of multi-agency joint procurement that will be conducted using a special BAC composed of the agencies’ respective officials does not find support in RA 9184 and its IRR. Reference: NPM FACTS: The Constitutional Fiscal Autonomy Group composed of the SC, COMELEC, CSC, COA, Omb, and CHR intends to create a special BAC composed of its officials to procure bullet-resistant vehicles for key officials of the CFAG.

Procurement Organizations: Declaration of Failure of Bidding by the BAC
The authority of the BAC to declare a failure of bidding is limited to instances enumerated in Sec of the IRR of RA 9184, specifically, when (a) no bids are received, (b) all prospective bidders are declared ineligible, (c) all bids fail to comply with all the bid requirements or fail post- qualification, or, in the case of consulting services, there is no successful negotiations, or (d) the bidder with the LCB or HRB refuses to accept the award. The BAC cannot declare failure of bidding for reasons other than those provided in Sec. 35 of the IRR of RA It cannot exercise the reservation clause provided in Sec. 41 of the same IRR since such authority exclusively belongs to the HOPE. Reference: NPM FACTS: Deadline for submission and receipt of bids is scheduled at 1:30 pm, but the BAC informed the bidders present to wait for further potential bidders. At 2pm, the BAC finally declared the bid as closed with 2 bidders present, and only one proposal officially submitted. The other bidder questioned the late issuance of the Supplemental/Bid Bulletin responding to queries, and requested for postponement of the bidding. BAC announced a failure of bidding for their failure to post the Supplemental/Bid Bulletin timely. ISSUE: Whether the BAC may extend the bid closing time.

Procurement Organizations: DBM Circular No. 2004-5A
Payment of honoraria is limited to procurement that involves competitive bidding: Competitive Bidding (Section 10), Limited Source Bidding (Section 49), Negotiated Procurement under Two-Failed Biddings (Section 53.1) Honoraria will not be paid when procurement is through all the other alternative modes of procurement where competitive bidding or a semblance thereof is considered not present. Honoraria is given for “successfully completed procurement projects”, which not only includes Competitive Bidding, but also alternative methods of procurement where competition is present Reference: NPM

PhilGEPS

PhilGEPS: Registration
§8.5.1 RA 9184 IRR requires suppliers, contractors, consultants to register with PhilGEPS. It does not qualify based on threshold. Inapplicability of the posting requirement is not tantamount to a situation where PhilGEPS registration may also be dispensed with since the amount of the project is not a factor for the condition to apply. Registration with PhilGEPS is absolute, and must be complied with regardless of the cost of procurement. Reference: NPM FACTS: Philcoa intends to procure variety of seednuts from its only registered supplier who could not validly register with PhilGEPS due to absence of a valid business permit. ISSUE: Whether registration with PhilGEPS is required for procurement activities below 50K.

PhilGEPS: Registration Certificate
Although bidders are not precluded from submitting the post-qualification documents required in §34.2 RA 9184 IRR during submission of bids, it is prudent for the PE to request the latest and current documents during post-qualification PE cannot recommend the award of contract if the bidder failed to submit a current and updated PhilGEPS Registration Certificate within 3 calendar days from its receipt of the BAC’s notice. Its belated submission of a renewed PhilGEPS Registration Certificate does not cure the defect, and should result in the disqualification of the bidder and forfeiture of its bid security. Reference: NPM FACTS: A bidder submitted a copy of its PhilGEPS registration certificate as part of its eligibility and shortlisting documents. It was valid at that time. It was eventually declared the HRRB and issued a NOA. However, before the signing of the contract, it was discovered that the PhilGEPS registration certificate has expired. Thus, the HOPE refused to sign the contract. The HRRB subsequently submitted its renewed PhilGEPS reg cert. ISSUE: Whether an award of contract can be recommended again after the bidder has submitted a renewed PhilGEPS Reg Cert.

Bidding Documents

Bidding Documents: Charging of fees
Decision in charging fees for bidding documents, whether for the first bidding or any subsequent re- bidding, depends upon the procuring entity, taking into account the need to recover the cost of its preparation and development vis-a-vis the effects on competition and participation of bidders. However, fees must conform with the standard rates for the sale of bidding documents under GPPB Resolution No , which took effect on 4 September 2012. Reference: NPM FACTS: A bidder participated in a procurement as the lone bidder, but was eventually declared ineligible, resulting in failure of bidding. The PE conducted a second bidding, and the bidder participated again. Said bidder sought to be exempted from payment of bidding documents because aside from material dates, there is no substantial difference. Cost of the bidding documents is 1M.

Bidding Documents: Wage Adjustment in ABC
§35.2 of RA 9184 IRR provides that when there is failure of bidding, the BAC shall conduct mandatory review and evaluation of the terms, conditions, and specifications in the bidding documents. Prior to the 2nd bidding, PE may modify the ABC for its procurement of security services to incorporate the new minimum wage rate/adjustment, subject to the necessary approval processes in changing the APP to reflect the revised ABC for the project. Reference: NPM FACTS: PE conducted public bidding for the procurement of security services based on the approved 2012 APP, but failed. During preparations for the 2nd bidding, DOLE and PADPAO issued the new minimum wage rates/adjustments. ISSUE: Whether PE can reflect the new minimum wage rate/adjustment in the original ABC prior to the conduct of the second bidding.

Bidding Documents: Authorized Representative
§25.2 RA 9184 IRR requires the bidder or its duly authorized representative to issue a sworn statement that the signatory is the duly authorized representative, and granted full power and authority to represent the bidder. §29 RA 9184 IRR provides that bidders or their duly authorized representative may attend opening of bids. PE cannot restrict participation only to the principal/bidder, but shall likewise extend the representation to the duly authorized representative of the sole proprietorship. Reference: NPM FACTS: NFA required in its IB that sole proprietorship can only be represented by its owner/proprietor in all bidding activities. ISSUE: Whether sole proprietorships cannot authorize a representative to represent the company in bidding activities.

Bidding Documents: Eligibility Criteria on SLCC
Since Section of the IRR of RA 9184 does not give the procuring entity the option to adopt a different criterion for eligibility, we are of the considered view that the PE cannot aggregate the amount of two contracts as compliance with the eligibility criterion on SLCC. Reference: NPM ISSUE: Whether UP Manila may allow a bidder to submit a combination of two similar projects for purposes of complying with the requirement for the submission of at least one SLCC in order to increase participation from prospective bidders.

Bidding Documents: Reference to Brand Names
§18 RA 9184 and IRR prohibits reference to brand names. The PE cannot refuse to accept the delivery of an item that is compliant with the technical specifications provided in the bidding documents. If bidding documents identified a specific brand, PE may consider declaring failure of bidding as the BAC failed to conform with the prescribed bidding procedures. Reference: NPM FACTS: Bidder won the bidding for several medical articles conducted by the PE. Bidder was able to acquire majority of the items except one item which is being exclusively distributed by another company. Bidder suggested another brand, allegedly better and more expensive, as a substitute. PE refused, and informed bidder that it will be blacklisted if it fails to deliver the brand it wants. ISSUE: Whether PE can refuse to accept delivery of an item which is compliant with the technical specifications provided in the Bidding Documents.

Bidding Documents: Additional Eligibility Requirements
Procuring entities are proscribed from requiring additional eligibility requirements because the list of minimum eligibility requirements has been streamlined/simplified such that only those requirements enumerated in Sections 23.1, 24.1, and 25.1 of the IRR of RA 9184 are necessary for purposes of determining a bidder’s eligibility. Reference: NPM IB issued by the National Food Authority-Regional Office in Isabela (NFA) for its public bidding for the Supply and Delivery of 50-kg Capacity, Brand New, Food Grade, Tubular Type, Woven, Polypropylene Empty Sacks for Palay (Project) contains a provision that the bidder should not have been penalized by the NFA for more than four (4) times within the last five (5) years in relation to its bids or contracts with NFA, with the intention to impose additional regulation in determining a bidder’s eligibility to participate in the Project

Bidding Documents: Technical Specifications
PEs are precluded from requiring specific country of origin as part of the technical specifications for the project. Specifications shall be based on the performance requirements and recognized industry standards and not on the basis of country of origin. Reference: NPM FACTS: Bidder submitted a letter to PE requesting clarification on the tech specs as regards the indicated Japan make and model, and suggesting the consideration of vehicle make from other countries. ISSUE: Whether the PE can specify a specific country of origin as part of the tech specs.

Bidding Documents: Nature of Similar Contracts
PEs have the responsibility to clarify in the Bidding Documents what projects can be considered similar to the contract being bid out, for purposes of determining compliance with the SLCC requirement. As guidance, a contract shall be considered "similar" to the contract to be bid if it involves goods or services of the same nature and complexity as the subject matter of the project being procured. Similarity of contract should be interpreted liberally in the sense that it should not refer to an exact parallel, but only to an analogous one of similar category. Reference: NPM FACTS: PE conducted procurement of Aids to Navigation (ATON) Equipment. JV bidder is inquiring if air navigation equipment may be considered similar contracts. JV bidder was disqualified for its failure to include the foreign partner’s Mayor’s Permit and failure to satisfy the SLCC requirement. JV argues that the foreign partner’s country of origin, Singapore, does not issue Mayor’s Permit, but the equivalent document, which it included in its bid, is a Certificate of Incorporation of a Private Company. JV also inquires on the types of similar contracts to the project. ISSUE: Whether the PE can specify a specific country of origin as part of the tech specs.

Bidding Documents: Design and Build Projects
Non-compliance with the requirements in the Guidelines amounts to the failure of the BAC to comply with the requirements of the law and its associated rules and guidelines, which may result in the disallowance by COA and imposition of administrative sanctions. HOPE may declare failure of bidding pursuant to §41 RA IRR in light of the BAC’s failure to follow the prescribed procurement process, and impose administrative sanctions against the erring officials. Reference: NPM FACTS: PE adopted Design and Build Scheme for its procurement. However, its bidding documents required the submission of the Value Engineering Analysis of Design and Construction Method as part of the 2nd envelope instead of the 1st envelope. A bidder complied with the instruction. However, a disqualified bidder questioned the requirement as contrary to the Guidelines for D&B. ISSUE: What proper course of action may the PE adopt.

Bidding Documents: Payment for the 2nd Bidding
Where there was a failure of bidding for the first time, the decision of charging fees for the Bidding Documents for the subsequent re-bidding depends upon the discretion of the procuring entity, taking into account the need to recover the cost of its preparation and development vis-à-vis the effects on competition and participation of bidders. The preparation and development of the revised Bidding Documents may entail upon the procuring entity another set of costs and expenses. Based on these costs and expenses, procuring entities may deem it necessary to charge bidders anew for the purpose of recovering the costs for its development and preparation. Reference: NPM FACTS: Bidder bought bidding documents and participated in a bidding for an infra project. Failure of bidding was declared, and was eventually re-advertised. PE is requiring bidders to pay for the bidding documents again. ISSUE: Whether PE may require bidders to pay anew for the Bidding Documents for a re-bidding.

Bidding Documents: Discounts
Although discounts are not entirely prohibited, it should be made an integral part of the original bid such that the discount and the bid price have the same validity period in order for it to be considered for purposes of bid evaluation; otherwise, the bid shall be evaluated sans the discount. The discount proposed by the bidder after the submission, receipt and opening of bids should not be considered by the BAC as part of the bidder’s bid price. Acceptance of the discount offered and made manifest only after the deadline for submission of bids, and after the bids were opened would constitute improvement or modification of bids, which is prohibited under §26.1 of the IRR. Reference: NPM FACTS: After the submission of bids, JV bidder manifested that it will provide a discount of 28% on all items of its bid. SBAC accepted the offer. ISSUE: Whether PE erred in accepting the offered discount.

Bidding Documents: Discounts
Discounts stated in the Bid Form allow bidders to itemize the application of discounts that are not yet reflected in the amounts specified in its BOQ and detailed estimates vis-à-vis the program of works, as there could be a situation that the decision to offer a discount came long after these amounts have been prepared, finalized, and reflected in the bid documents, and changing the entries may be too cumbersome and time consuming for the bidder. Discount offered in the Bid Form may be accepted even though the financial documents do not contain or indicate any reference to such discount. Reference: NPM FACTS: BAC found out that a bidder offered a discount using the Bid Form prescribed in the PBDs. However, while the bid price, as read during the bid opening, matched the bidder’s declaration of costs for the project stated in the program of works and detailed estimates, the same documents did not indicate the discount offered. ISSUE: Whether the discount offered may be considered valid.

Bidding Documents: Review of IB
PEs need not submit to GPPB or its Technical Support Office their IB for review as PEs may refer to the appropriate standardized Philippine Bidding Documents for guidance. Reference: NPM FACTS: MWSS is requesting the GPPB to review its IB for a dam project.

Bidding Documents: Re-advertisement of IB
Advertisement or posting requirement under §21 RA 9184 IRR serves as a notice to bidders informing them, directly or by reference, of the matters to be bid upon and of the time and place of receiving bids. Re-advertisement is not necessary since the original IB that was advertised already provided the necessary and relevant information that would sufficiently notify the public of the procurement opportunity, including relevant components and the corresponding ABC for each component. Reference: NPM FACTS: PE advertised the IB indicating the ABC for the project, as well as its 2 components, along with their respective number of units and ABC/unit. Eventually, PE issued Supplemental/Bid Bulletin inviting bids for the 2 separate components. Prospective bidder now questions the separation of the components without re-advertising the IB. ISSUE: Whether the PE may validly divide a single procurement project into 2 lots with 2 separate ABCs without re-advertising the amended/revised IB.

Bidding Documents: Supplemental/Bid Bulletin
§ RA 9184 IRR allows PEs to issue Supplemental/Bid Bulletins upon their initiative for the purpose of clarifying or modifying any provision in the Bidding Documents, including the IB. Accordingly, PE has the authority to revise or amend any statement in the Bidding Documents, including the IB, specifically when such revision or amendment is made for the purpose of clarifying or modifying its provisions. Supplemental/Bid Bulletins must be posted in the PhilGEPS and at the PE’s website, in order to address aspects of competition and transparency. Reference: NPM FACTS: PE advertised the IB indicating the ABC for the project, as well as its 2 components, along with their respective number of units and ABC/unit. Eventually, PE issued Supplemental/Bid Bulletin inviting bids for the 2 separate components. Prospective bidder now questions the separation of the components without re-advertising the IB. ISSUE: Whether the PE may validly divide a single procurement project into 2 lots with 2 separate ABCs without re-advertising the amended/revised IB.

Pre-Bid Conference

Pre-Bid Conference: Requirement
Section 22.1 of the IRR of RA 9184 provides that at least one (1) pre-bid conference should be conducted by the procuring entity for projects costing at least PhP1 Million, in order to afford prospective bidders the opportunity to inquire on or clarify any of the requirements, terms, conditions, and specifications stipulated in the Bidding Documents. Failure to conduct a pre-bid conference for the Project amounts to a violation of a mandatory provision of law, which will render the procurement activity void under Article 5 of the Civil Code of the Philippines. Reference: NPM FACTS: Procurement involves farm-to-market road funded by ADB. Referred by COA based on allegations/findings that no pre-bid conference was conducted. Procurement is covered by ADB Guidelines per Section 4 of RA 9184 and its IRR. For purposes of clarifying the rule when RA 9184 applies.

Pre-Bid Conference: Posting of Schedule in PhilGEPS
Notice for the date, time, and place of the pre-bid conference is generally given through the Invitation to Bid as specified in Sec (c) of the IRR of RA 9184. Any additional pre-bid conferences not identified in the IB are considered modification of the Bidding Documents, which shall be communicated to prospective bidders through the issuance of a Supplemental/Bid Bulletin in accordance with Sec of the IRR. Reference: NPM FACTS: Bidder came upon the information that a new pre-bid conference was held for the procurement of a project that was previously declared failed. There was no prior posting of the schedule of the pre-bid conference in the websites of the PhilGEPS, DND

Pre-Bid Conference: Bidder’s Right to Ask Questions
Section 22 affords bidders the opportunity to raise concerns or clarifications on the requirements, terms, conditions, and specifications stipulated in the bidding documents for the contract to be bid. Questions or clarifications pertaining to the matters that may be discussed during the pre-bid conference must be raised at least ten (10) calendar days before the deadline set for the submission and receipt of bids. Section 55 of the IRR states that prospective bidders are allowed to question decisions of the BAC at any stage of the procurement process by filing a request for reconsideration within three (3) calendar days from receipt of written notice or upon verbal notification of such decision. Reference: NPM

Pre-Bid Conference: Non-posting of Supplemental/Bid Bulletin
The PE is mandated to post the Supplemental/Bid Bulletin in the PhilGEPS website. As a mandatory requirement, the same may not be set aside. Thus, the failure of the BAC to comply with this procedural requirement amounts to a failure to follow the prescribed bidding procedures that may warrant declaration of failure of bidding by the HOPE. Reference: NPM FACTS: MIAA issued Bid Bulletin No. 3 and transmitted the same to the prospective bidders. Only 2 submitted bids. Both were declared eligible. The 2nd lowest questioned the non-publication of the Bid Bulletin. HOPE declared failure of bidding based on Sec. 41(b), upon recommendation of the BAC. The lowest bidder filed request for reconsideration arguing that the 2nd bidder’s request for reconsideration should not have been considered as it was sent during the “no contact” period. ISSUE: What is the effect of non-posting of Supplemental/Bid Bulletin

Submission and Receipt of Bids

Submission and Receipt of Bids: Extension of Bid Closing Time
In order to properly inform prospective bidders of the schedule of the stages of the procurement activity, PEs are required to specify, among others, the date, time, and place of the deadline for the submission and receipt of bids in the Invitation to Bid. The BAC shall receive bids on the specified deadline, and reject all bids submitted after such deadline. PEs cannot extend the “tender closing time” or the deadline for the submission and receipt of bids specified in the Bidding Documents without issuing a Supplemental/Bid Bulletin. Reference: NPM FACTS: Deadline for submission and receipt of bids is scheduled at 1:30 pm, but the BAC informed the bidders present to wait for further potential bidders. At 2pm, the BAC finally declared the bid as closed with 2 bidders present, and only one proposal officially submitted. The other bidder questioned the late issuance of the Supplemental/Bid Bulletin responding to queries, and requested for postponement of the bidding. BAC announced a failure of bidding for their failure to post the Supplemental/Bid Bulletin timely. ISSUE: Whether the BAC may extend the bid closing time.

Submission and Receipt of Bids: Accreditation of Bidders
Municipal Order requiring an accreditation process for Bidders as a condition precedent for their participation in procurement activities of the local government unit runs counter RA 9184 and its IRR as this would limit the participation of bidders only to those accredited suppliers, to the exclusion and prejudice of other bidders in the market, it in fact contravenes the very basic principle of competitive bidding. Reference: NPM

Submission and Receipt of Bids: Submission of LOI
Bidders are no longer required to submit a written LOI together with their application for eligibility. Instead, bidders only have to submit their bids not later than the deadline for the submission and receipt of bids, which can be extended or rescheduled together with the opening of bids as provided in Section 29 of the IRR of RA Reference: NPM

Submission and Receipt of Bids: Pre-Qualification
The practice of pre-qualification has been abandoned in RA and its IRR. the results of a pre-qualification have no legal force and effect, bearing or weight, and cannot preempt the findings of the BAC during the preliminary examination of bids conducted during the opening of bids. Hence, a bidder may still be declared ineligible during the opening of bids despite a finding of qualification during the purported pre-qualification exercise. Reference: NPM Berlyn Enterprises (Berlyn), participated in the public bidding conducted by the Philippine Coast Guard (PCG) for the procurement of forty (40) rubber boats with an Approved Budget for the Contract of PhP 32 Million. The BAC required interested bidders to undergo pre-qualification. Berlyn participated in the pre-qualification and eventually issued a Pre-Qualification Certificate. . However, on the day of the bidding, the PCG BAC declared Berlyn ineligible to join on the ground that the statement of all ongoing and completed contracts does not contain a single largest completed similar contract amounting to at least fifty percent (50%) of the contract to be bid.

Submission and Receipt of Bids: Refusal to Accept a Bid
Procuring entity cannot validly and legally refuse to accept a bid submitted before the deadline for the submission indicated in the RFQ. This shall open a ground for the aggrieved bidder to file a request for reconsideration and, subsequently, protest as provided in Section 55 of RA 9184 and its IRR, without prejudice to the institution of civil, administrative and/or criminal actions against the erring officials under applicable laws and rules. Reference: NPM

Submission and Receipt of Bids: Opening of a Reconsidered Bid
BAC should open a reconsidered bid under the same circumstances as it opened the bids that were not disqualified, i.e., upon a duly scheduled opening of bid with proper notices to the concerned entities. Reference: NPM

Detailed Evaluation of Bids

Detailed Evaluation of Bids: Sealing and Marking of Bids
Since the rule and the ITB Clauses 20.1 and 20.2 use the word “shall, connoting command and compulsion, the requirements on sealing and marking of bids are regarded as mandatory. Improper sealing and marking of bids is a ground to disqualify a bidder. Reference: NPM ISSUE: Whether improper marking may be a ground to disqualify bids

Detailed Evaluation of Bids: Registry System
Sections 23.4 and allows the BAC of a procuring entity to “maintain a registry system using the PhilGEPS or its own manual or electronic system that allows submission and/or recording of eligibility requirements simultaneously with registration.” However, Prospective bidders not included in the registry system should not be precluded from participating in any procurement opportunity. PE’s Registry System should not be considered an accreditation system, and is not tantamount to a finding of eligibility, nor a guarantee that the registered supplier, contractor, or consultant will be eligible for any particular procurement activity or contract award. Reference: NPM FACTS: PE is asking whether it can create a registry of suppliers, contractors, consultants in order for the BAC to examine the bidder’s documents and verify its completeness. ISSUE: Whether the PE may validly divide a single procurement project into 2 lots with 2 separate ABCs without re-advertising the amended/revised IB.

Detailed Evaluation of Bids: PCAB License and Registration
Although PE may require the submission of the Certificate Registration and License for Shipyard and Ship Repair Yards from Maritime Industry Authority (MARINA) as an additional requirement pursuant to Section 34.2 of the IRR, it cannot waive or dispense with the eligibility requirement for PCAB License and Registration. Reference: NPM FACTS: Bidder bought bidding documents and participated in a bidding for an infra project. Failure of bidding was declared, and was eventually re-advertised. Revised bidding documents substituted the requirement for PCAB license and registration with MARINA Certificate ISSUE: Whether PCAB license and registration may be substituted with MARINA Certificate.

Detailed Evaluation of Bids: Business Registration Permit
The eligibility requirements specified in Sec of the IRR of RA are absolute and exclusive. This means that PEs cannot delete, replace, or add to the requirements that are applicable to the category of their procurement activity. Both Secs and 24.1 of the IRR of RA 9184 do not require prospective bidders to apply for business registration permit nor require bidders to establish an office/satellite office in the LGU-procuring entity for purposes of eligibility. Reference: NPM FACTS: Bidder was denied of its request to join public bidding with the Quezon City Government on the basis that its company is not listed in the registered bidders. It is also being required to establish an office/satellite office in Quezon City for the approval of its registration and eligibility to bid. ISSUE: Whether the PE may require bidders to apply for business permit registration in their locality as part of the qualification process.

Detailed Evaluation of Bids: Valid PCAB License
A valid PCAB license required as an eligibility requirement for the procurement of infrastructure projects under Section (a) (iv) of the revised IRR of RA 9184 should be valid at the time of the deadline for the submission and opening of bids. The submission of a PCAB license with validity period after the date of the opening of the bids is a ground for the prospective bidder’s disqualification Reference: NPM FACTS: Bidder submitted PCAB license with validity starting 1 July 2013 for a bidding conducted on 24 June 2013.

Detailed Evaluation of Bids: Nature of Bidder’s Business
Mayor’s Permit allows an entity to legally perform the requirements and obligations of the project and the resultant contract. It is therefore necessary for the BAC to determine whether the Mayor’s Permit issued to the construction company authorizes it to engage in the business of supplying dump trucks. A finding to the contrary would amount to non-compliance by the bidder and will result in its disqualification. Reference: NPM ISSUE: Whether the bidder, whose Mayor’s Permit is for construction business, may submit bids for procurement of dump truck.

Detailed Evaluation of Bids: PCAB License for JV
JV Bidders are required to submit a Joint License issued by the PCAB in compliance with the eligibility requirement for a “valid PCAB license and registration. §38 RA 4566 prohibits 2 or more contractors from jointly submitting a bid without first securing a Joint License to engage or act in the capacity of such a joint venture. Failure of the JV Bidder to submit a Joint License may be a ground for its disqualification despite the submission of the individual licenses of each joint venture partner. Reference: NPM FACTS: PE seeks clarification on the propriety of declaring a JV Bidder ineligible for non-submission of Joint PCAB License.

Detailed Evaluation of Bids: Equivalent Document
Foreign bidders may substitute eligibility documentary requirements with the appropriate equivalent documents in their country. BAC’s function to undertake post-qualification proceedings to look into the legal validity of each documents by conducting proper verification and validation. Only upon actual determination and confirmation of this equivalence may it be categorically resolved that the foreign documents submitted are acceptable substitutes of the required eligibility documents pursuant to §23.2 of the IRR. Reference: NPM FACTS: PE conducted procurement of Aids to Navigation (ATON) Equipment. JV bidder was disqualified for its failure to include the foreign partner’s Mayor’s Permit and failure to satisfy the SLCC requirement. JV argues that the foreign partner’s country of origin, Singapore, does not issue Mayor’s Permit, but the equivalent document, which it included in its bid, is a Certificate of Incorporation of a Private Company. ISSUE: Whether the certificate submitted can be considered an equivalent document

Detailed Evaluation of Bids: Additional Requirements
PE cannot compel prospective bidders or the winning bidder to submit or comply with requirements not initially provided in the Bidding Documents or through any Supplemental/Bid Bulletin issued by the PE for the project that must be posted at the PhilGEPS’ and the PE’s website. If no Supplemental/Bid Bulletin is issued to reflect changes in the Bidding Documents, or even if the same was issued but not posted at the PhilGEPS’ and PE’s websites, the original provisions contained in the Bidding Documents remain and the prospective bidder, including the winning bidder cannot be compelled to abide or comply with the changes made by the PE. Reference: NPM FACTS: PE disqualified bidder for providing incomplete specifications. Bidder claims that bidding documents did not require the specifications relied upon by the BAC in disqualifying them. ISSUE: Whether the BAC may require other specifications in addition to what was indicated in the bidding documents.

Detailed Evaluation of Bids: Failure to Include Government Contracts
When the Bidding Documents directs bidders to submit a “statement of all its ongoing and completed government and private contracts”, the submitted document must contain a complete list of all the bidder’s ongoing and completed contracts both with government and private entities, together with all other information required in the Bidding Documents. Reference: NPM FACTS: PE conducted procurement of Aids to Navigation (ATON) Equipment. JV bidder was disqualified for its failure to include the foreign partner’s Mayor’s Permit and failure to satisfy the SLCC requirement. JV argues that the foreign partner’s country of origin, Singapore, does not issue Mayor’s Permit, but the equivalent document, which it included in its bid, is a Certificate of Incorporation of a Private Company. ISSUE: Whether the certificate submitted can be considered an equivalent document

Detailed Evaluation of Bids: Track Record
Construction experience/track record of a sole proprietor, cannot be carried over to a corporation despite the fact that the sole proprietor’s assets, personnel and other resources have been infused into the corporation inasmuch as the latter has a separate and distinct juridical personality from the former. Reference: NPM FACTS: Bidder has been operating as a contractor since 1985 as a sole proprietorship. In 2003, it put all its assets, personnel, and resources to a newly formed corporation, and was issued PCAB license. It participated in a bidding and submitted the contracts of the sole proprietorship as its experience. ISSUE: Whether the experience of the sole proprietorship may be considered as experience of the corporation.

Detailed Evaluation of Bids: SLCC for JV
The submission by a JV partner of an SLCC belonging and particular only to its distributor and sister or subsidiary company that is not a partner to the JV does not constitute compliance with § of RA 9184 IRR, because the SLCC of the sister company cannot be credited to the JV partner or the JV itself, since the former is an entity that is separate and distinct from the latter entities. Reference: NPM ISSUE: Bidder is seeking clarification on whether a JV between a local company and a company organized under laws of Hong Kong may be allowed to submit the SLCC of an Austrian distributor, a sister company of the latter, for purposes of compliance with the SLCC requirement.

Detailed Evaluation of Bids: Experience as Sub-Contractor
The IRR of RA 9184 does not limit the contracts that should be included in the statement of all ongoing and completed contracts to those where the bidder is the principal or main contractor. In fact, it can be inferred from the PBDs that sub-contracts should be included in the statement together with the percentage of the bidder’s participation as a sub-contractor. A sub-contract undertaken by a bidder within ten years from the submission of the bid may be credited as its work experience. Reference: NPM FACTS: RR Gadingan Construction was disqualified on the ground that one of the work experiences it stated in its bid is a sub-contract. ISSUE: Whether a sub-contract undertaken by a bidder within ten years from the submission of the bid may be credited as bidder’s work experience.

Detailed Evaluation of Bids: Experience for D&B Projects
The phrase “both in design and construction” should be interpreted to mean that the bidder participating in a bidding for an infrastructure project that will be implemented through a design and build scheme is required to submit, as technical requirement, either at least one similar contract for design and build that is at least 50% of the cost of the ABC for the project; or at least one contract for design and at least one contract for construction, each of which should be at least 50% of the ABC. Reference: NPM ISSUE: Whether the experience requirement of a bidder for a design and build project to be awarded consist of a single contract or separate contracts, i.e., one for design and one for construction.

Detailed Evaluation of Bids: Required Amount of NFCC
Participating bidder should be required to submit an NFCC that is at least equal to all the lots to which it participated in, in order to establish the bidder’s financial liquidity and absorptive capacity in carrying out the contractual obligations required by the lots to which it participated in. If the bidder opts to submit a Credit Line Commitment (CLC), under Section and , it would have been required to submit one (1) CLC per lot equivalent to ten percent (10%) of the ABC for the specific lot, the aggregate of which amounts to at least ten percent (10%) of the total ABCs for each lot or project participated in. Reference: NPM FACTS: Bidder participated in a per lot bidding, and submitted offers in three lots. Bidder was disqualified for failing to provide an NFCC that is less than the total ABC of the lots it participated in.

Detailed Evaluation of Bids: Option for Bid Security
PE may not limit the acceptable forms of bid security to only cash or cashier’s/manager’s check and bank draft/guarantee or irrevocable LC, since to do so will be in direct conflict with the IRR of RA 9184, particularly, Section 27.2 thereof. As much as the bidder opts to submit a BSD in lieu of the forms of bid security enumerated under Section 27.2 of the IRR of RA 9184, the procuring entity must accept the same, as a BSD is one of the acceptable forms of security under the rules, provided that the BSD submitted complies with the required form. Reference: NPM ISSUE: Whether UP Manila may limit the acceptable forms of bid security

Detailed Evaluation of Bids: Compliance with DOLE DO 18-A
Except those that are in direct contravention to RA 9184 and its IRR, bidders are expected to comply with existing labor laws and standards as these laws are deemed incorporated in the offer, promise and responsibilities of the bidder. Reference: NPM FACTS: DOLE DO 18-A requires the registration of entities with DOLE. ISSUE: Whether bidder may be disqualified for failing to comply with the registration requirement provided in DOLE DO 18-A.

Detailed Evaluation of Bids: Authority to Verify Documents
It is imperative that the statement of authority be directed to the HOPE, such that failure to include statement to this effect or identification of an entity other than the HOPE or its duly authorized official in the statement warrants the disqualification of the bidder. Reference: NPM FACTS: DOLE DO 18-A requires the registration of entities with DOLE. ISSUE: Whether bidder may be disqualified for failing to comply with the registration requirement provided in DOLE DO 18-A.

Detailed Evaluation of Bids: Rounding Off
The process of rounding off numbers may be construed as an arithmetical correction for the determination of the LCB. The details on how the prices should be rounded off should be clearly stated by the PE in its Invitation to Bid, and applied similarly to all bids so as to ensure that bids are evaluated on equal footing. Reference: NPM ISSUE: Whether the process of rounding off is considered arithmetical correction.

Detailed Evaluation of Bids: Rounding Off
If the Bidding Documents do not specify the number of decimal places at which numbers will be rounded off, the BAC may apply the generally accepted rules and methods for rounding off financial values. Considering that bid prices represent monetary value, it is logical to adopt two decimal places as the default rule in rounding off. Reference: NPM FACTS: During bid evaluation for procurement of security services, it was found that bidders used different decimal places in computing the Daily Rate per Guard. ISSUE: Whether there are restrictions or limitations in the exercise of bid evaluation pertaining to rounding off.

Detailed Evaluation of Bids: Discrepancies in Bid Price
Section (c) of the IRR states that where there is a discrepancy between the stated total price and the actual sum of prices of component items, the latter shall prevail. Reference: NPM FACTS: Bidders A and B submitted equal bids. Bidder C’s bid was found to be higher by than those of Bidders A and B. Examination revealed that Bidder C’s bid was higher because it used a spreadsheet application that automatically rounded off its entries. Computation would reveal, however, that without automatic rounding off, its bid will also be equal to that of Bidders A and B. ISSUE: Whether the BAC should grant the bidder’s request for reconsideration.

Detailed Evaluation of Bids: Bill of Quantities
A bid that does not provide all the required items or where no price was indicated in the “Material” and “Labor” columns in the Bill of Quantities shall be considered non-responsive, and the bidder is automatically disqualified. Reference: NPM ISSUE: Whether the bid would be considered responsive if there are no prices indicated in the columns for “Material” and “Labor” although Zero is indicated in the Total column in the BOQ.

Detailed Evaluation of Bids: Defect in Notarization of JVA
A defectively notarized JVA is still a valid JV provided that the requisites of a valid contract exist. Albeit this, it is important to note that JVAs need to be notarized to be binding against 3rd persons. Thus, for purposes of complying with RA 9184 and its IRR, the valid JVA should be notarized. JVA can be validly notarized even in the absence of the foreign JV partner, provided that the representative with authority signs the JVA personally before the notary public. Reference: NPM FACTS: Bidder questions the validity of the JVA submitted by another bidder in that it was defectively notarized, particularly, that the JVA was notarized before the arrival of the foreign JV partner. ISSUE: Whether the defect in notarization of JVA and SPA affects the submission.

Detailed Evaluation of Bids: Surety Bonds
Although the phrase “Callable Upon Demand” appearing on the face of the Surety Bond is preferred, there is no requirement that the exact/same phrase should appear on the face of the Surety Bond, as this phrase simply provides the caveat to the obligee, obligor and the surety that the surety contract facility may be called only upon a proper demand – “callable upon demand” – to establish default, and to trigger the liability under the surety contract. The phrase “Callable Upon Demand” need not be specifically written, or emphasized in bold letters across, or diagonally on the face of the Surety Bond. It is sufficient that the import or totality of the stipulations, covenants, provisions, and agreements written on the instrument makes the Surety Bond callable upon demand. Reference: NPM ISSUE: Whether surety bonds should contain the phrase “callable upon demand” on its face.

Detailed Evaluation of Bids: No Contact Rule
The “no contact” rule applies only to those whose bids are being evaluated by the BAC after passing the preliminary examination. No communication should be made by bidders until a decision to award a contract is made by the BAC. Bidders who waived their right to utilize the protest mechanism or those whose request for reconsideration and/or protest were subsequently denied are not covered by the prohibition under §32.1 of RA 9184 IRR. Reference: NPM FACTS: Bidder who was disqualified and have waived its right to request for reconsideration sent the PE information affecting the technical capability of the bidder with the LCB. ISSUE: Whether by virtue of the “no contact” rule, a bidder may not submit such information.

Detailed Evaluation of Bids: Signature/Initial in Bids
Clause 19.4 of the PBDs for the Procurement of Infrastructure Projects pursuant to §17.1 of RA 9184 IRR requires bidders to affix a signature and/or an initial on the Bidding Documents, which necessarily includes the Bid, Technical Data Sheet, and Technical Specifications, non-compliance with which shall be ground for disqualification. Reference: NPM ISSUE: Whether the bidder may be disqualified if it fails to submit a signed Technical Data Sheet.

Detailed Evaluation of Bids: Conflict of Interest
GPM provides that the firm that has been engaged to provide consulting services for the preparation or implementation of a project, and each of its affiliates, will be disqualified from subsequently providing goods, works, or services resulting from or directly related to the firm’s consulting services for such preparation or implementation. There is conflict of interest when the entity that prepared the plans/drawings likewise participates in the ensuing procurement activities for the Project. Reference: NPM FACTS: PE is currently conducting the bidding process for an infrastructure project, the plans/drawings for which was prepared and made by an entity that is now participating as a bidder for the Project. ISSUE: Whether there is conflict of interest.

Post-Qualification

Post-Qualification: Submission of Additional Requirements
The three (3) calendar day period under §34.2 of the IRR is mandatory and should not be extended. In case PE accepts the post-qualification documentary requirements beyond the reglementary period, it must show that there is a compelling, sufficient, valid, reasonable, and justifiable cause for such extension, so that penal sanction or liability will not set in. Applicable administrative and civil sanctions or liabilities may also be imposed against the concerned officials. Reference: NPM ISSUE: Whether the 3 calendar day period within which the LCB may submit the additional requirement under Sec may be extended.

Post-Qualification: Submission of Tax Returns
Only EFPS-filed tax returns are allowed. However, BDS Clause 29.2(b), provides that the option of allowing submission of manually filed tax returns should be exercised by the PE by specifying so in the Bidding Documents. If the PE does not elect such option and maintains the provision of the BDS unchanged, the general rule should apply. Reference: NPM Update: BIR has issued RR , dated 23 January 2013, mandating use of EFPS. ISSUE: Whether submission of manually filed tax returns may be allowed.

Post-Qualification: Submission of Tax Clearance
EO 398 specifically requires the submission of Tax Clearance issued by the BIR. It refers to the clearance issued by the Collection Enforcement Division of BIR attesting that the bidder has no outstanding Final Assessment Notice and/or delinquent account. Reference: NPM FACTS: Instead of the latest Tax Clearance, the bidder submitted, among others, the following docs: Tax clearance certificate valid until 31 Dec 2009 and Application for tax clearance. ISSUE: Whether the submitted documents may be considered for purposes of compliance.

Post-Qualification: Extension of Mandatory Periods
Should PE decide to extend the period, it must show and provide compelling, sufficient, valid, reasonable, and justifiable cause. Such valid justification, however, will only free officials from penal sanction or liability, but not from applicable administrative and civil sanctions or liabilities under existing laws, rules and regulations Reference: NPM FACTS: DepEd-BAC has extended the post-qualification process thrice, for ninety (90) calendar days, due to the complexity and peculiarity of the project, consisting of 11 lots and 310 items Mass Production and Supply and Delivery of Science and Mathematics Equipment to 544 Public Secondary Schools, RSHSs and ESEP Schools, with an ABC of PhP 642,876,

Post-Qualification: Observers’ Participation
§13 of RA 9184 expressly states that the BAC shall, in "all stages of the procurement process", invite Observers to sit in the proceedings. BAC is mandated to invite Observers in all stages of the procurement process, including post-qualification stage. GPM enumerates the parties who are to conduct post-qualification. Although Observers do not conduct post-qualification of the bidder, they are not precluded from being invited and be present in the meeting. Reference: NPM FACTS: PE informed an organization that the BAC is not required to invite observers during post-qualification because the GPM specifies the participants to the post-qualification and does not include observers.

Post-Qualification: Requiring Additional Documents
PE may request for the submission of additional documents from the bidder in support of the information it has provided in the bidding documents. However, non-submission of the additional supporting documents requested cannot be a ground for the bidder’s post-disqualification, as a bidder may be post-disqualified only upon ascertainment, validation, and verification of its non-compliance with the legal, technical, and financial requirements of the project as provided in the bidding documents. Reference: NPM FACTS: During post-qualification, PE learned that the LCB is offering PASCO products. PE requested LCB to submit an affidavit declaring the fact that the PASCO products are genuine and authentic, including the disclosure of their source. ISSUE: Whether PE can disqualify LCB for refusing to submit the required affidavit.

Post-Qualification: End User Complaint
End-user complaint is not in itself ground for post- disqualification, unless the PE determines that the bidder is not legally, technically and financially capable to complete the project based on such complaints.

Post-Qualification: Selective Post-qualification
RA 9184 and its IRR do not qualify or distinguish when or on whom the process of post-qualification shall be applied. Both law and rules are clear that the bidder with the LCB should undergo post-qualification in order to determine whether it complies with and is responsive to all the requirements and conditions specified in the Bidding Documents. Thus, post-qualification should be conducted regardless of the extent of the PE’s experience in contracting with any supplier Reference: NPM FACTS: GA has already established a database of credible suppliers after engaging them in numerous transactions for supply and delivery of various goods and services. It has adopted the policy of conducting pre-delivery inspection for all procured items in order to ensure compliance with specifications. ISSUE: Whether it may conduct post-qualification mandatorily for new suppliers, but online post-qualification sans plant visit for old suppliers with good standing.

Post-Qualification: Clearance on Process of Post-qualification
The PE may adopt internal procedures on how it will conduct the post-qualification in a manner that it deems effective in establishing the responsiveness of the bidder with the requirements, and at the same time, reliable in impressing upon the PE the confidence of and certainty in declaring the bidder as having submitted the LCRB. Reference: NPM

Post-Qualification: Tie-Breaking Method
Drawing of lots for purposes of breaking a tie should be conducted only after all the bidders that submitted the lowest calculated bids are declared post-qualified. Reference: NPM FACTS: Bidders A and B submitted equal bids. Bidder C’s bid was found to be higher by than those of Bidders A and B. BAC allowed only Bidders A and B to participate in the drawing of lots. Examination revealed that Bidder C’s bid was higher because it used a spreadsheet application that automatically rounded off its entries. Computation would reveal, however, that without automatic rounding off, its bid will also be equal to that of Bidders A and B. ISSUE: Whether the PE should declare re-drawing of lots.

Post-Qualification: Authority of Bidder’s Representative
During post-qualification stage, the PNRI should verify, validate, and ascertain with WILPER, as the corporate principal, whether Ms. Castor is duly authorized to act as its agent and represent it in the procurement activity of PNRI. Should it be established that Ms. Castor has no authority to represent WILPER, PNRI may disqualify WILPER and revoke the NOA. On the other hand, if it has been determined that Ms. Castor has no authority to represent, but the conditions for award have already been fulfilled, PNRI should terminate the contract for unlawful act following the procedures under the Guidelines on Termination of Contracts. Conversely, if Ms. Castor has the authority from the Board, the contract award and execution can proceed. Reference: NPM FACTS: WILPER was awarded 2 contracts. The 1st is 90% complete. The 2nd has been issued a NOA, but work has not yet commenced since the authority of Ms. Castor who represented WILPER is being questioned by one of WILPER’s Board Members. ISSUE: Whether PNRI should proceed with the implementation or revoke the contract.

Post-Qualification: Post-qualification Team
Neither RA 9184 nor its IRR provide for the establishment of a post-qualification team that is separate and distinct from the BAC, since the responsibility and authority of conducting the post-qualification is categorically delegated to the BAC under Sec of the IRR of RA 9184. The post-qualification team shall be the BAC, which can be assisted by the TWG, and shall be responsible in determining the compliance of the bidder with the LCB with all the requirements and conditions specified in the Bidding Documents. Reference: NPM FACTS: GA has been observing delay in its conduct of post-qualification for its procurement activities brought about by seemingly contrasting views on the composition of the post-qualification team. ISSUE: Seeking clarification on the composition of a post-qualification team, and whether the same should be headed by a BAC member.

Award of Contract

Award of Contract: Reservation Clause
RA 9184 and its IRR do not qualify at what stage of the procurement process the Reservation Clause may be exercised by the HOPE, nor do they limit its exercise only upon recommendation of the BAC. However, it can be inferred from the rights enumerated, that the Reservation Clause can no longer be exercised after an award of contract has been made in accordance with Section 37 of RA 9184 and its IRR, and the conditions provided in Section of the IRR have been met. Reference: NPM ISSUE: Whether the Reservation Clause is exercised exclusively by the HOPE. At what stage in the procurement process can it be exercised? Is it invoked upon the recommendation of the BAC?

Award of Contract: Higher Approving Authority
§37.3 of RA 9184 IRR recognizes that there are decisions on procurement activities that may require further approval by higher authority. In exercising the power to approve, the approving authority is likewise deemed to have the mandate to disapprove any recommendation on the matter. To interpret that the recommending official is only required to elevate those matters it favorably recommends weakens the mandate of the higher approving authority to take full jurisdiction and cognizance of the matter. Reference: NPM FACTS: BFP conducted public bidding for the procurement of fire trucks through its BAC, which was chaired by CSupt Bearis. The BAC recommended award of contract to the JV of Kolonwel and Hubei. CSupt Perez, the OIC-BFP Chief then, brought the BAC recommendation to the SILG, with a recommendation to disapprove the BAC’s decision because Kolonwel failed to comply with the EFPS filed Tax Return. DILG Legal Service issued Memorandum opining that in case the BFP Chief disapproves the BAC Resolution, said decision need not be elevated to SILG since what is required to be elevated is a decision seeking “further approval”. ISSUE: Whether the HOPE is required to elevate the BAC Recommendations for “further approval” only when he/she favorably recommends the BAC Recommendation.

Award of Contract: Performance Security
Submission by the winning bidder of a Performance Security in the form of a personal check after the signing of the contract could be considered as a failure to post the Performance Security in the required form under §39.2 of the IRR and in the required period for posting under § (b) of the IRR. §4.1.5 of the Guidelines provides that the refusal or failure of a contractor to post the required Performance Security within the prescribed period is one of the grounds for blacklisting. Reference: NPM FACTS: Bidder participated and won in public bidding. Bidder posted its performance security in the form of a personal check of its authorized representative. Bidder eventually delivered the items, and was issued certificate of acceptance. Blacklisting complaint was filed against the bidder for using personal check. ISSUE: Whether there is valid ground for blacklisting.

Award of Contract: Forfeiture of Performance Security
Blacklisting Order issued prior to the date of NOA disqualifies the bidder for award, and renders the NOA issued without force and effect. Posting of performance security and its forfeiture depend on a validly awarded contract. Thus, the blacklisted entity has no obligation to post a performance security because there is no contract performance to guarantee in the first place. Instead of forfeiture, it should be returned in accordance with the principle of solutio indebiti under Article 2154 of the Civil Code of the Philippines. Reference: NPM FACTS: Philhealth 7 issued a NOA to HLYC, which thereafter posted a performance security. Philhealth 7 is unaware that the Ombudsman has issued a Blacklisting Order against HLYC a month before the award ISSUE: Whether the PE should forfeit the performance security.

Award of Contract: Need for NTP
Even if the NOA was duly issued, communicated to and received by the winning bidder, the bidder must still comply with all the requirements provided for under the law and the rules for it to be legally enforceable. It is important for the procuring entity to issue the NTP together with the approved contract to the successful bidder within three (3) calendar days from the date of the approval of the contract by the appropriate government authority. Reference: NPM ISSUE: Whether BCDA can forego the issuance of the NTP for procurement of goods and services since the PO or Job Order already contains the conforme of the winning supplier and indicates the delivery date.

Award of Contract: Change of Project Site
Change in the project site after the issuance of the Notice of Award amounts to modification of bidding documents that is not sanctioned under RA 9184 and its IRR. The ITB provides the name and location of the contract to be bid, the project background and other relevant information regarding the proposed contract works, including a brief description of the type, size, major items, and other important or relevant features of the works, as well as actual drawings and site plans. Mata v. San Diego (G.R. No. L-30447, 21 March 1975) states that “modification of government contracts, after the same had been awarded after a public bidding, is not allowed because such modification serves to nullify the effect of public bidding and whatever advantages the Government had secured thereby and may also result in manifest injustice to other bidders. Reference: NPM FACTS: Contract was awarded for the development of PSHS-CLC’s campus at Sacobia Area, Clark Special Economic Zone. But due to protests from Aetas, the project site was transferred to the Air Force City, Clark Freeport Zone. ISSUE: Whether the change of project site after the issuance of NOA is allowed.

Award of Contract: Disapproval of BAC Recommendation
The notice from the HOPE disapproving the recommendation of the BAC should be based on valid, reasonable, and justifiable grounds, and should be indicated in such notice to the bidder. The decision of the BAC and the HOPE may be questioned following the Protest Mechanism provided in RA 9184 and its IRR, which must be complied with by the aggrieved bidder prior to resorting to regular courts. Reference: NPM FACTS: Himex was informed by the BAC of West Visayas State U Medical Center that its Board of Regents disapproved their recommendation to award, without providing the reasons for such disapproval. Although Himex has already filed a request for reconsideration, the HOPE has not resolved the same even after the lapse of 2 weeks. ISSUE: What remedies are available.

Alternative Methods of Procurement

Alternative Methods of Procurement: Resolution Recommending AMP
§12.1 RA 9184 IRR provides that one of the functions of the BAC is to recommend to the HOPE the use of AMP, exercised through the issuance of a resolution to that effect. The BAC is required to issue resolution recommending to the HOPE resort to AMPs; and these should be reflected in the APP vis-à-vis particular PPMP. Reference: NPM ISSUE: Whether the BAC is required to issue a resolution recommending to the HOPE resort to AMP, such as Shopping and SVP.

Alternative Methods of Procurement: Eligibility Requirements in AMP
RA 9184 IRR is silent whether eligibility documents under §23.1 must be submitted when resorting to any AMP, except those where competitive bidding or semblance thereof is present. PE has discretion to require the submission of legal, technical, and financial eligibility documents or not. If eligibility documents were required to be submitted at the outset, suppliers must provide these documents upon submission of their proposals or quotations; otherwise, disqualification is in order. Reference: NPM ISSUE: Whether it is necessary to require losing bidders in any AMP to submit eligibility documents.

Alternative Methods of Procurement: Direct Contracting
Since there are other Passport Readers available in the market apart from that manufactured by 3M Corporation, Direct Contracting cannot be utilized for the acquisition of brand new passport readers. Even though 3M Passport Reader is proprietary in nature and can be obtained from the proprietary source, there may be other Passport Readers in the market, which are likewise proprietary in nature that can be obtained. Reference: NPM FACTS: BI procured the services for the repair of its 3M Passport Readers through Direct Contracting with Secur Links as the exclusive authorized service center of 3M Phil. In the course of the project, Secur Links informed BI that there are no more available parts for the 3M Passport Readers of BI since 3M has withdrawn it from the market. 34/46 units to be repaired entail replacement of spare parts, while 12/46 require replacement of power supply only. Secur Links proposed to replace BI’s existing 34 units with new models at the cost of the repair (PhP6,015,450), and repair the remaining 12 units (PhP127,680). ISSUE: Whether BI’s resort to Direct Contracting is valid.

Alternative Methods of Procurement: Repeat Order
Repeat Order under Section 51 of RA 9184 does not require post-qualification. The phrase “subject to post-qualification process described in the Bidding Documents”, as stated in the provision refers to Competitive Bidding and not to Repeat Order. Reference: NPM ISSUE: Whether post-qualification is required in Repeat Order.

Alternative Methods of Procurement: Shopping; Quotations
Only when the procurement method is Shopping [§52.1(b)] that the PE is required to obtain at least 3 quotations. Thus, when the number of quotations is less than 3, PE may extend the deadline for submission. In procurement through Shopping [§52.1(a)] or SVP [§53.9], it is not necessary to obtain at least 3 quotations. Reference: NPM ISSUE: Whether Shopping may be resorted to in the procurement of pump and motor.

Alternative Methods of Procurement: Two Failed Bidding
Where the PE failed to receive any quotations for the procurement of the services of a private counsel despite posting twice in the PhilGEPS website, the procuring entity has the discretion to resort to alternative methods of procurement, subject to compliance with the parameters and factors laid out in RA 9184 and its associated IRR. Reference: NPM FACTS: PE subjected procurement of services of lawyer to public bidding, but failed twice. ISSUE: Whether the PE may resort to Nego (2 Failed).

PE can only resort to Negotiated Procurement under Section (Two-Failed Biddings) of the IRR of RA 9184 for the procurement of the Project if the two-failed biddings were due to circumstances enumerated under Section 35 of the same IRR. If the failure of bidding is due to the declaration by the HOPE pursuant to Section 41 of the IRR , Negotiated Procurement (Two Failed Biddings) cannot be resorted to. Reference: NPM

PE may adjust the ABC for its procurement, provided it is not more than 20% of the ABC for the last failed bidding, and the required approval for the issuance have been obtained. Reference: NPM

The phrase “sufficient number of suppliers, contractors, or consultant” refers to the minimum number of contractors that the PE must invite for the purpose of engaging in negotiation. If only one bidder responded to such invitation, the PE may proceed with the Negotiated Procurement as long as it has invited contractors of a number that it deems sufficient to ensure competition. Reference: NPM

The acceptability of a proposal submitted in response to a request for quotation under Negotiated Procurement (Two Failed Biddings) depends on its compliance with the minimum technical requirements and the ABC, such that failure to satisfy either one will result in its disqualification. Reference: NPM FACTS: The proposals received by SBMA in its negotiated procurement activity were within the ABC, but do not conform with its requirements for standard payment and posting of performance security. ISSUE: Whether SBMA may consider the proposals.

Alternative Methods of Procurement: LSB for the Procurement of Catering Services
Catering Services does not involve highly specialized requirements, and is undoubtedly not a major plant component. Limited Source Bidding cannot be resorted to in the procurement of Catering Services. Competitive Bidding should be resorted to in the acquisition of the contemplated service. Reference: NPM The National Industry Cluster Capacity Enhancement Project (NICCEP) Investment Conference is to be held at the SMX Convention Center, SM Lanang Premiere, Davao City. The management of the SMX Convention Center only allows particular service providers included in its list of accredited caterers to provide Catering Services for the events held in their venue. Considering this limitation, the DTI-RO XI seeks opinion on the applicability of Limited Source Bidding as the mode of procurement for the engagement of catering services.

PE can only resort to Negotiated Procurement under Section (Two-Failed Biddings) of the IRR of RA 9184 for the procurement of the Project if the two-failed biddings were due to circumstances enumerated under Section 35 of the same IRR. If the failure of bidding is due to the declaration by the HOPE pursuant to Section 41 of the IRR , Negotiated Procurement (Two Failed Biddings) cannot be resorted to. Reference: NPM

Alternative Methods of Procurement: Agency-to-Agency Agreements
PITC Pharma, Inc. (PPI) has been given express mandate to be the central/lead agency for procurement of all government agencies’ requirements for drugs and medicines pursuant to RA 9501. However, RA 9501 does not exempt it from the procurement policies, rules and regulations established under RA 9184 and its IRR. PPI is not exempt from posting a Performance Security under §39 of RA 9184 and its IRR when entering into a contract with other government agencies and the PE requires such security. Reference: NPM FACTS: PITC Pharma has been given the mandate to be the central agency for procurement of all agencies’ requirements for drugs and medicines. It claims that it should be exempt from Performance Security ISSUE: Whether PITC Pharma is exempt from posting Performance Security.

Alternative Methods of Procurement: Agency-to-Agency Agreements
GPPB Resolution No did not delete the policy declaration under Section 1.2 of the Guidelines that printing of Accountable Forms and Sensitive High Quality/Volume Requirements shall only be undertaken by the recognized government printers. It merely amended Section 1.1 of the Guidelines to clarify that it shall be applicable to succeeding General Appropriations Act (GAA), unless a contrary or inconsistent policy is adopted in a later GAA. Reference: NPM FACTS: GPPB issued a Resolution amending Section 1 of the Guidelines on Printing to reflect that as long as the GAA has the same provision requiring engagement of RGP, the Guidelines will apply. A bidder has been writing agencies, particularly LGUs, informing them that printing services for Accountable Forms is no longer limited to RGPs ISSUE: Whether A to A

Alternative Methods of Procurement: Procurement Agent
Where a PE has determined that it lacks the proficiency or capability to undertake its rehabilitation project, which need not be based solely on the PE’s failure to constitute its BAC, the PE may request another government agency to be its Procurement Agent as Section 53.6 of the IRR may also apply in cases where a BAC is validly constituted, but due to the number of bidding activities to be undertaken by the procuring entity; magnitude and complexity of the project; experience of the members of the BAC; location and situs of both the principal and the agent; and, other valid and reasonable circumstances, the procuring entity may not have the proficiency or capability to undertake the particular procurement activity. Reference: NPM FACTS: DOTC and LRTA entered into MOA for the former to undertake procurement for the LRTA Rehabilitation Projects. COA raised concern on the authority of DOTC-BAC to conduct procurement for LRTA. DOTC requested DOJ for opinion, but DOJ referred DOTC to GPPB. ISSUE: Whether LRTA may request DOTC to be its Procurement Agent.

Contract Implementation

Contract Implementation: Advance Payment
Section 4 of the Contract Implementation Guidelines for the Procurement of Infrastructure Projects (Guidelines) under Annex “E” of the revised Implementing Rules and Regulations (IRR) of Republic Act (RA) No. 9184 The President approved an advance payment not exceeding fifteen percent (15%) of the total contract price, provided that requirements under Section 4 of the Guidelines are complied with. Reference: NPM FACTS: DOTC and LRTA entered into MOA for the former to undertake procurement for the LRTA Rehabilitation Projects. COA raised concern on the authority of DOTC-BAC to conduct procurement for LRTA. DOTC requested DOJ for opinion, but DOJ referred DOTC to GPPB. ISSUE: Whether LRTA may request DOTC to be its Procurement Agent.

Contract Implementation: Advance Payment
Advance payment in case of infrastructure projects may be granted by the procuring entity upon compliance with the conditions provided in Section 4 of the Guidelines and only for the purpose of mobilization. Thus, if the contractor has already mobilized its equipment and has commenced with the required works under the contract, advance payment can no longer be provided as doing so already negates the very purpose of granting such privilege to the contractor. Reference: NPM Design and Construction/Improvement of Misamis Occidental Provincial Capitol Building (Project). As represented, as early as 14 April 2011, the Honorable Governor inquired with the National Historical Institute (NHI) whether the Provincial Capitol Building is included in the list of national historic sites and structures, and requested for the approval of plans to improve and develop the same. However, it was only on 11 November 2011 that the Provincial Government received a reply, urging the Provincial Government to preserve the building and integrate it into the new development of the government center without denying its historic features. An award of contract was nonetheless made on 28 December 2011. On 17 February 2012, acting upon the Honorable Governor’s request for the ratification of the contract for the Project, the Sangguniang Panlalawigan issued Resolution No ratifying said contract. The Notice to Proceed was thereafter issued on 22 February 2012. The NHCP, in a letter dated 20 February 2012, asked the Provincial Government to stop the demolition of the side wings of the Provincial Capitol Building and preserve the neo-classic edifice. On 29 March 2012, the National Commission for Culture and Arts (NCCA) suggested the restoration of the entire Provincial Capitol Building, including its two wings, and recommended the integration of the old and new structure as one scientific and acceptable approach to help save the building. The same letter of the NCCA stated that since Republic Act No was not considered in the approved contract and its terms of reference (TOR) in the renovation of the Provincial Capitol Building, a variation order and a reworked TOR were deemed necessary for pushing through with the Project.

Contract Implementation: Variation Order
For an increase/decrease in quantities of work to be covered by Variation Order, it should be: within the general scope of the Project as bid and awarded, due to the change of plans, design, or alignment to suit actual field conditions resulting in disparity between the preconstruction plans used for purposes of bidding and the “as staked plans” or the construction drawings prepared after the joint survey by the contractor and the government after award of contract. Reference: NPM Design and Construction/Improvement of Misamis Occidental Provincial Capitol Building (Project). As represented, as early as 14 April 2011, the Honorable Governor inquired with the National Historical Institute (NHI) whether the Provincial Capitol Building is included in the list of national historic sites and structures, and requested for the approval of plans to improve and develop the same. However, it was only on 11 November 2011 that the Provincial Government received a reply, urging the Provincial Government to preserve the building and integrate it into the new development of the government center without denying its historic features. An award of contract was nonetheless made on 28 December 2011. On 17 February 2012, acting upon the Honorable Governor’s request for the ratification of the contract for the Project, the Sangguniang Panlalawigan issued Resolution No ratifying said contract. The Notice to Proceed was thereafter issued on 22 February 2012. The NHCP, in a letter dated 20 February 2012, asked the Provincial Government to stop the demolition of the side wings of the Provincial Capitol Building and preserve the neo-classic edifice. On 29 March 2012, the National Commission for Culture and Arts (NCCA) suggested the restoration of the entire Provincial Capitol Building, including its two wings, and recommended the integration of the old and new structure as one scientific and acceptable approach to help save the building. The same letter of the NCCA stated that since Republic Act No was not considered in the approved contract and its terms of reference (TOR) in the renovation of the Provincial Capitol Building, a variation order and a reworked TOR were deemed necessary for pushing through with the Project.

Contract Implementation: Warranty Security for Janitorial Services
Interpretation and application of the clauses of the PBDs are to be read together and in accordance with RA and its IRR. GCC Clauses 17.1 to 17.5, should be read in consonance with Section 62.1 of the IRR of RA 9184 The requirement for the posting of warranty security under Section 62.1 of the IRR of RA 9184 applies only in the case of contracts involving expendable and non-expendable supplies. It excludes services from its application. Reference: NPM May warranty security requirement under Clause 17.3 of the General Conditions of Contract in the Philippine Bidding Documents (PBDs) for the Procurement of Goods be dispensed with in the procurement of security and janitorial services.

Protest Mechanism

Protest Mechanism: Rationalized Protest Fee
The rules on Protest, particularly §55.3 of the IRR, which requires that the verified position paper should be accompanied by a non-refundable protest fee, has been recently amended by the Government Procurement Policy Board (GPPB) through GPPB Resolution No to rationalize the amount of such fee. The rationalization of the protest fee amount is perceived to strike a balance between the institution and filing of valid protests, and the deterrence of filing vexatious and frivolous ones. Reference: NPM FACTS: PE has an ongoing contract for consulting services. Consultant is requesting time extension with corresponding additional remuneration. ISSUE: Whether contract extension with remuneration may be approved.

Protest Mechanism: Protest Fee
The Protest Mechanism in §55 of RA 9184 and its IRR is established for the purpose of effecting opportunity for bidders to seek redress of their grievance brought about by the failure of procuring entities to comply with RA 9184 and its IRR. On the other hand, §17.4 of the IRR of RA 9184 provides that the purpose of requiring bidders to purchase the bidding documents is to recover the cost of its preparation and development. Evidently, the cost of the bidding documents neither contemplate nor include the costs that an adjudication of protest entails. Reference: NPM FACTS: PE has an ongoing contract for consulting services. Consultant is requesting time extension with corresponding additional remuneration. ISSUE: Whether contract extension with remuneration may be approved.

Protest Mechanism: Protest Fee
The posting of a surety bond as a form of non-refundable protest fee should not be countenanced. A surety bond is a contractual arrangement between the surety, the principal and the obligee whereby the surety agrees to protect the obligee if the principal defaults in performing the principal’s contractual obligations. This is not the rationale and purpose for which the protest mechanism and fee are required under the Law and rules; the purposes being to deter filing of frivolous complaints and answer for the costs of the action. Reference: NPM FACTS: PE has an ongoing contract for consulting services. Consultant is requesting time extension with corresponding additional remuneration. ISSUE: Whether contract extension with remuneration may be approved.

Protest Mechanism: Exception from No Contact Rule
Requests for reconsideration filed in accordance with Sec. 55 of the IRR of RA 9184 may be considered excluded from the coverage of the prohibition under Sec of the IRR in order to give effect to the administrative recourse available to a bidder who feels aggrieved by a decision. Reference: NPM FACTS: MIAA issued Bid Bulletin No. 3 and transmitted the same to the prospective bidders. Only 2 submitted bids. Both were declared eligible. The 2nd lowest questioned the non-publication of the Bid Bulletin. HOPE declared failure of bidding based on Sec. 41(b), upon recommendation of the BAC. The lowest bidder filed request for reconsideration arguing that the 2nd bidder’s request for reconsideration should not have been considered as it was sent during the “no contact” period. ISSUE: Whether the no contact rule prevents bidders from filing requests for reconsideration.

Blacklisting

Blacklisting: Applicability
Section 2 of the Guidelines expressly provides that the Blacklisting Order shall apply to all the JV partners as they are treated collectively as one bidder. The members of the JV expectedly intend themselves to be jointly and severally responsible or liable for the obligations and civil liabilities actually incurred by the particular joint venture. Reference: NPM FACTS: JV of Company U and Company P was declared LCB. During Post-qualification, PE discovered that one of the forms submitted was falsified. PE conducted blacklisting process. ISSUE: To what extent will the blacklisting be imposed.

THANK YOU Comments? Questions?

LATEST NON-POLICY MATTER OPINIONS

Similar presentations

Presentation on theme: "LATEST NON-POLICY MATTER OPINIONS"— Presentation transcript:

Similar presentations

About project

Feedback

Log in

Auth with social network:

LATEST NON-POLICY MATTER OPINIONS

Similar presentations

Presentation on theme: "LATEST NON-POLICY MATTER OPINIONS"— Presentation transcript:

Similar presentations

About project

Feedback