Reference: NPM 51-2013

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LATEST
NON-POLICY
MATTER OPINIONS
Government Procurement Policy Board –
Technical Support Office
Outline
I.
Scope and Application
II.
Procurement Organizations
III.
PhilGEPS
IV.
Bidding Documents
V.
Pre-Bid Conference
VI.
Submission and Receipt of Bids
VII.
Detailed Evaluation of Bids
VIII. Post-qualification
IX.
Award of Contract
X.
Alternative Methods of Procurement
XI.
Contract Implementation
XII.
Protest Mechanism
XIII. Blacklisting
Philippine Procurement Paradigm
HOPE
Assess
BAC
BAC Sec
• 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
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
Standardized Bidding Procedures for
Goods and Works
Pre-Procurement
Conf.
Submission of
Bids
Bid Evaluation
& Ranking
Advertisement
Pre-Bid
Conference
Opening of
1st Env. - Eligibility
Docs & Technical
Proposal
Opening of 2nd
Envelope – Financial
Proposal
Post-qualification
Award of
Contract
I
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
9184 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 44-2013
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 58-2013
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 50-2013
Scope and Application:
Classification of ICT Services
9




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 11-2013
Scope and Application:
Multi-Year Contract for Engineering Services
10


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 nonpersonal 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 82-2013
Scope and Application:
Extension of Contracts
11


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 30-2013
Scope and Application:
Demolition of Building
12




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 agencyin-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 165-2012
Scope and Application:
Trade-in Transaction
13



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 41-2013
Scope and Application:
Joint Venture Agreements
14



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 28-2013
Scope and Application:
Authority of GPPB
15


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 56-2013
II Procurement Organizations
Procurement Organizations:
Head of the Procuring Entity
17




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 14-2013
Procurement Organizations:
Authority of BAC Sec Head to Notarize
18



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 66-2013
Procurement Organizations:
Authority of BAC Sec Head to Sign Document
19

BAC Secretariat Head’s authority to sign procurementrelated 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 66-2013
Procurement Organizations:
Authority of BAC Sec to Open and Examine
Bids
20


Sections 12.1, 30.1, and 30.2 of the revised IRR of RA 9184
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 69-2013
Procurement Organization:
Conflict of Interest
21


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 14-2013
Procurement Organizations:
BAC Membership
22



§11.2.2 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 160-2012
Procurement Organizations:
Provisional Member
23




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 §11.2.5 of the IRR of RA 9184
from becoming a BAC member.
Reference: NPM 32-2013
Procurement Organizations:
Alternate BAC Members
24



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 160-2012
Procurement Organizations:
Separate BAC
25


The HOPE may create a separate BAC pursuant to
§11.1.2 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 §11.2.2 of
the IRR should be followed in the creation of separate BACs.
Reference: NPM 04-2013
Procurement Organizations:
Separate BAC
26



§11.1.2 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 26-2013
Procurement Organizations:
Sub-BAC
27


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 11.2.2 of the IRR of RA 9184.
Each BAC shall not be considered as decentralized
committees pursuant to Section 11.1.2 of the IRR since it
will be headed by a single HOPE
Reference: NPM 74-2013
Procurement Organizations:
Multi-Agency BAC
28


The creation of special BAC composed of officials from
various PEs will run counter to the provisions of RA 9184
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 74-2013
Procurement Organizations:
Declaration of Failure of Bidding by the BAC
29


The authority of the BAC to declare a failure of bidding is
limited to instances enumerated in Sec. 35.1 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 postqualification, 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
9184. It cannot exercise the reservation clause
provided in Sec. 41 of the same IRR since such
authority exclusively belongs to the HOPE.
Reference: NPM 122-2013
Procurement Organizations:
DBM Circular No. 2004-5A



Payment of honoraria is limited to procurement that
involves competitive bidding:
o Competitive Bidding (Section 10),
o Limited Source Bidding (Section 49),
o 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 59-2013
III PhilGEPS
PhilGEPS:
Registration
32



§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 34-2013
PhilGEPS:
Registration Certificate
33



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 postqualification
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 19-2013
IV Bidding Documents
Bidding Documents:
Charging of fees
35


Decision in charging fees for bidding documents,
whether for the first bidding or any subsequent rebidding, 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. 04-2012, which took effect on 4
September 2012.
Reference: NPM 68-2013
Bidding Documents:
Wage Adjustment in ABC
36


§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 18-2013
Bidding Documents:
Authorized Representative
37



§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 43-2013
Bidding Documents:
Eligibility Criteria on SLCC
38

Since Section 23.5.2.5 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 85-2013
Bidding Documents:
Reference to Brand Names
39



§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 156-2012
Bidding Documents:
Additional Eligibility Requirements
40

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 53-2013
Bidding Documents:
Technical Specifications
41


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 22-2013
Bidding Documents:
Nature of Similar Contracts
42


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 42-2013
Bidding Documents:
Design and Build Projects
43


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
9184 IRR in light of the BAC ’ s failure to follow the
prescribed procurement process, and impose administrative
sanctions against the erring officials.
Reference: NPM 162-2012
Bidding Documents:
Payment for the 2nd Bidding
44


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.
Bidding Documents:
Discounts
45

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 154-2012
Bidding Documents:
Discounts
46


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 17-2013
Bidding Documents:
Review of IB
47

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 150-2012
Bidding Documents:
Re-advertisement of IB
48


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 46-2013
Bidding Documents:
Supplemental/Bid Bulletin
49



§22.5.2 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 46-2013
V
Pre-Bid Conference
Pre-Bid Conference:
Requirement
51


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 47-2013
Pre-Bid Conference:
Posting of Schedule in PhilGEPS
52


Notice for the date, time, and place of the pre-bid conference is
generally given through the Invitation to Bid as specified in Sec.
21.1(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. 22.5 of the IRR.
Reference: NPM 124-2013
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 49-2013
Pre-Bid Conference:
Non-posting of Supplemental/Bid Bulletin
54


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 121-2013
VI Submission and Receipt of Bids
Submission and Receipt of Bids:
Extension of Bid Closing Time
56


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 122-2013
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 47-2013
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
9184.
Reference: NPM 55-2013
Submission and Receipt of Bids:
Pre-Qualification
59

The practice of pre-qualification has been abandoned in RA
9184 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 54-2013
Submission and Receipt of Bids:
Refusal to Accept a Bid
60


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 67-2013
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 69-2013
VII Detailed Evaluation of Bids
Detailed Evaluation of Bids:
Sealing and Marking of Bids
63


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 36-2013
Detailed Evaluation of Bids:
Registry System
64


Sections 23.4 and 24.4.3 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 16-2013
Detailed Evaluation of Bids:
PCAB License and Registration
65

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 163-2012
Detailed Evaluation of Bids:
Business Registration Permit
66


The eligibility requirements specified in Sec. 23.1 of the IRR of RA
9184 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. 23.1 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 97-2013
Detailed Evaluation of Bids:
Valid PCAB License
67


A valid PCAB license required as an eligibility requirement
for the procurement of infrastructure projects under Section
23.1 (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 71-2013
Detailed Evaluation of Bids:
Nature of Bidder’s Business
68



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 36-2013
Detailed Evaluation of Bids:
PCAB License for JV
69



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 17-2013
Detailed Evaluation of Bids:
Equivalent Document
70



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 42-2013
Detailed Evaluation of Bids:
Additional Requirements
71


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 24-2013
Detailed Evaluation of Bids:
Failure to Include Government Contracts
72

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 94-2013
Detailed Evaluation of Bids:
Track Record
73

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 31-2013
Detailed Evaluation of Bids:
SLCC for JV
74

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 §23.5.1.3 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 164-2012
Detailed Evaluation of Bids:
Experience as Sub-Contractor
75


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 subcontractor.
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 77-2013
Detailed Evaluation of Bids:
Experience for D&B Projects
76

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 81-2013
Detailed Evaluation of Bids:
Required Amount of NFCC
77


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 23.5.1.4 and 23.5.2.6, 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 76-2013
Detailed Evaluation of Bids:
Option for Bid Security
78


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 85-2013
Detailed Evaluation of Bids:
Compliance with DOLE DO 18-A
79

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 29-2013
Detailed Evaluation of Bids:
Authority to Verify Documents
80

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 15-2013
Detailed Evaluation of Bids:
Rounding Off
81


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 125-2013
Detailed Evaluation of Bids:
Rounding Off
82


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 129-2013
Detailed Evaluation of Bids:
Discrepancies in Bid Price
83

Section 32.2.3(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 51-2013
Detailed Evaluation of Bids:
Bill of Quantities
84

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 80-2013
Detailed Evaluation of Bids:
Defect in Notarization of JVA
85



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 166-2012
Detailed Evaluation of Bids:
Surety Bonds
86


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.
Detailed Evaluation of Bids:
No Contact Rule
87
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 07-2013
Detailed Evaluation of Bids:
Signature/Initial in Bids
88

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 154-2012
Detailed Evaluation of Bids:
Conflict of Interest
89


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 10-2013
VIII
Post-Qualification
Post-Qualification:
Submission of Additional Requirements
91


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 27-2013
Post-Qualification:
Submission of Tax Returns
92


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 01-2013

Update: BIR has issued RR 1-2013, dated 23 January 2013,
mandating use of EFPS.
Post-Qualification:
Submission of Tax Clearance
93

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 02-2013
Post-Qualification:
Extension of Mandatory Periods
94

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 57-2013
Post-Qualification:
Observers’ Participation
95



§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 postqualification. Although Observers do not conduct postqualification of the bidder, they are not precluded from
being invited and be present in the meeting.
Reference: NPM 05-2013
Post-Qualification:
Requiring Additional Documents
96


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 25-2013
Post-Qualification:
End User Complaint
97

End-user complaint is not in itself ground for postdisqualification, 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
98

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 114-2013
Post-Qualification:
Clearance on Process of Post-qualification
99

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 114-2013
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 51-2013
Post-Qualification:
Authority of Bidder’s Representative
101

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 75-2013
Post-Qualification:
Post-qualification Team
102


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. 12.1 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 117-2013
IX Award of Contract
Award of Contract:
Reservation Clause
104


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 37.1.4 of the IRR have been met.
Reference: NPM 102-2013
Award of Contract:
Higher Approving Authority
105



§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 14-2013
Award of Contract:
Performance Security
106


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 § 37.1.4(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 35-2013
Award of Contract:
Forfeiture of Performance Security
107




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 98-2013
Award of Contract:
Need for NTP
108


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 87-2013
Award of Contract:
Change of Project Site
109



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 90-2013
Award of Contract:
Disapproval of BAC Recommendation
110


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 116-2013
X
Alternative Methods of Procurement
Alternative Methods of Procurement:
Resolution Recommending AMP
112


§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 169-2012
Alternative Methods of Procurement:
Eligibility Requirements in AMP
113



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 142-2012
Alternative Methods of Procurement:
Direct Contracting
114


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 41-2013
Alternative Methods of Procurement:
Repeat Order
115


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 13-2013
Alternative Methods of Procurement:
Shopping; Quotations
116



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 08-2013
Alternative Methods of Procurement:
Two Failed Bidding
117

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 09-2013
Alternative Methods of Procurement:
Two Failed Bidding
118


PE can only resort to Negotiated Procurement under Section
53.1 (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 72-2013
Alternative Methods of Procurement:
Two Failed Bidding
119

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 93-2013
Alternative Methods of Procurement:
Two Failed Bidding
120


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 136-2013
Alternative Methods of Procurement:
Two Failed Bidding
121

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 109-2013
Alternative Methods of Procurement:
LSB for the Procurement of Catering
Services
122

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 61-2013
Alternative Methods of Procurement:
Two Failed Bidding
123


PE can only resort to Negotiated Procurement under Section
53.1 (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 72-2013
Alternative Methods of Procurement:
Agency-to-Agency Agreements
124



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 37-2013
Alternative Methods of Procurement:
Agency-to-Agency Agreements
125


GPPB Resolution No. 04-2011 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 20-2013
Alternative Methods of Procurement:
Procurement Agent
126

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 38-2013
XI Contract Implementation
Contract Implementation:
Advance Payment
128


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 12-2013
Contract Implementation:
Advance Payment
129


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 56-2013
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 56-2013
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 9184
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 64-2013
XII Protest Mechanism
Protest Mechanism:
Rationalized Protest Fee
133


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. 05-2012 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 39-2013
Protest Mechanism:
Protest Fee
134



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 39-2013
Protest Mechanism:
Protest Fee
135


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 39-2013
Protest Mechanism:
Exception from No Contact Rule
136

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. 32.1 of the IRR
in order to give effect to the administrative recourse
available to a bidder who feels aggrieved by a decision.
Reference: NPM 121-2013
XIII
Blacklisting
Blacklisting:
Applicability
138


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 23-2013
THANK YOU
139
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