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 184.108.40.206 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 §220.127.116.11 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 18.104.22.168 and 22.214.171.124, 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 Comments? Questions?