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No More Registry System for Procuring Entities under R.A. No. 9184

14 Sep

If you are a supplier, contractor or consultant bidding with the government through any of its branches, agencies or instrumentalities, have you come across a requirement of submitting your eligibility documents in advance, and then being issued a “Certificate of Registration” that you can use in lieu of those documents? If yes, then you need to read this article.

The practice of procuring entities, through their Bids and Awards Committee (BAC), in using the “Certificate of Registration” in lieu of the Class “A” eligibility documents has no more basis in law (since beginning of year 2013).

The Revised Implementing Rules and Regulations (IRR) of R.A. No. 9184 once provided for an option to the procuring entities to devise and adopt a registry, whether manual or electronic, to facilitate eligibility check during bid opening. However, such provision of the IRR no longer exists since its amendment in2012. Hence, such practice is in violation of prevailing procurement rules and regulations, and fees collected therein are considered unnecessary and illegal.

The IRR, before it was amended, contained the following provisions:

8.5.2. Eligibility requirements may be sent electronically to a procuring entity through the PhilGEPS: Provided, however, That the prospective bidder concerned shall submit a certification to the BAC at least seven (7) calendar days before the deadline for the submission and opening of the technical and financial envelopes that the documents submitted are authentic copies of the original, complete, and all statements and information provided therein are true and correct: Provided, further, That the PhilGEPS shall allow manual submission of eligibility requirements. The PhilGEPS shall generate and send an acknowledgement of any eligibility requirement received by it.

xxx

23.4. To facilitate determination of eligibility, the BAC of a procuring entity may maintain a registry system using the PhilGEPS or its own manual or electronic system that allows submission and/or recording/entry of eligibility requirements simultaneously with registration.

23.4.1. The registry system shall contain the foregoing Class “A” documents which should be maintained current and updated by the bidder concerned at least once a year or more frequently when needed.

23.4.2. A bidder who maintains a current and updated file of his Class “A” Documents shall be issued a certification by the BAC to that effect, which certification may be submitted to the procuring entity concerned in lieu of the foregoing Class “A” documents.

23.4.3. If the procuring entity maintains a registry system using the PhilGEPS or its own electronic system, a prospective bidder, whether or not duly registered in either system, shall submit a written letter of intent and/or its application for eligibility and latest Class “A” documents, to the BAC on or before the deadline specified in the Bidding Documents. Any application for eligibility or updates submitted after the deadline for the submission of the letter of intent shall not be considered for the bidding at hand.

xxx

24.4.3. To facilitate determination of eligibility, the BAC of a procuring entity may maintain a registry system using the PhilGEPS or its own manual or electronic system that allows submission and/or recording/entry of eligibility requirements simultaneously with registration.

24.4.3.1. The registry system shall contain the foregoing Class “A” documents which should be maintained current and updated by the bidder concerned at least once a year or more frequently when needed.

24.4.3.2. A bidder who maintains a current and updated file of his Class “A” Documents shall be issued a certification by the BAC to that effect, which certification may be submitted to the procuring entity concerned in lieu of the foregoing Class “A” documents.

24.4.3.3. If the procuring entity maintains a registry system using the PhilGEPS or its own electronic system, a prospective bidder, whether or not duly registered in either system, shall submit a written letter of intent and/or its application for eligibility and latest Class “A” documents, to the BAC on or before the deadline specified in the Bidding Documents which shall in no case be later than the date for the submission and receipt of bids. Any application for eligibility or updates submitted after the deadline for the submission of the letter of intent shall not be considered for the bidding at hand

(underscoring supplied)

However, since the issuance of GPPB Resolution No. 12-2012 dated 01 June 2012, “Approving the Guidelines for the Use of the Government of the Philippines-Official Merchants Registry (GOP-OMR) and the Proposed Amendments to the Implementing Rules and Regulations of Republic Act No. 9184”, such provisions were effectively amended to read as follows:

Section 8.5.2. Eligibility requirements may be sent electronically or manually to the PhilGEPS. When a manufacturer, supplier, distributor, contractor, or consultant registers with PhilGEPS, it shall submit along with the requirements a certification stating that the documents submitted are complete and authentic copies of the original, and all statements and information provided therein are true and correct. Upon confirmation, validation, and verification of the documents submitted, PhilGEPS may issue, in favor of the registered entity, a Certificate of Registration and Membership that contains the certification mentioned in the preceding sentence.

xxx

Section 23.4. To facilitate determination of eligibility, the BAC of a procuring entity may use the contents of the PhilGEPS electronic registry of manufacturers, suppliers, distributors, contractors, and/or consultants.

23.4.1. The PhilGEPS registry system shall contain the foregoing Class “A” documents, which should be maintained current and updated by the bidder concerned at least once a year or more frequently as may be necessary.

23.4.2. A bidder who maintains a current and updated file of his Class “A” Documents may submit to the procuring entity, in lieu of the said documents, the Certificate of Registration and Membership issued by PhilGEPS pursuant to Section 8.5.2.

xxx

Section 24.4.3. To facilitate determination of eligibility, the BAC of a procuring entity may use the contents of the PhilGEPS electronic registry of manufacturers, suppliers, distributors, contractors, and/or consultants.

24.4.3.1. The PhilGEPS registry system shall contain the foregoing Class “A” documents, which should be maintainedcurrent and updated by the bidder concerned at least once a year or more frequently as may be necessary.

24.4.3.2. A bidder who maintains a current and updated file of his Class “A” Documents may submit to the procuring entity, in lieu of the said documents, the Certificate of Registration and Membership issued by PhilGEPS pursuant to Section 8.5.2.

(underscoring supplied)

It can be inferred from the above that procuring entities are no longer empowered to issue a “Certificate of Registration” in lieu of Class “A” documents.Also, the “Letter of Intent” or LOI was also deemed as unnecessary requirement and inconsistent with the operationalization of the PhilGEPS electronic registry. For this reason, the GPPB issued GPPB Resolution No. 27-2012 dated 23 November 2012, the fallo of which:

NOW, THEREFORE, for and in view of the foregoing, WE, the Members of the GOVERNMENT PROCUREMENT POLICY BOARD, by virtue of the powers vested on US by law and other executive issuances, hereby RESOLVE to confirm, adopt, and approve, as WE hereby confirm, adopt, and approve the following:

DELETE Section 23.4.3 of the revised IRR of RA 9184, and the similar provision under Section 24.4.3.3 of the same IRR, requiring the submission of a written LOI and/or application of eligibility together with the latest Class “A” Documents in case the procuring entity maintains a registry system using the PhilGEPS or its own electronic system.

(underscoring supplied)

The current practice of the BAC requiring or allowing the payment of “Registration Fee” specific to a particular procurement also appears to be excessive and unnecessary, but may also be also illegal.

The next logical question is: What is the effect of the current practice of the BAC to the procurement itself?

The prospective bidders should have been declared DISQUALIFIED if they submitted only the certification in lieu of class “A” documents. The IRR of R.A. No. 9184 is clear that bids shall contain the eligibility requirements as enumerated in Sec. 23.1 thereof:

25.2. The first envelope shall contain the following technical information/documents, at the least:

a) For the procurement of goods:

i) Eligibility requirements under Section 23.1 of this IRR;

xxx

b) For the procurement of infrastructure projects:

i) Eligibility requirements under Section 23.1 of this IRR

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If such eligibility documents are not present in the bid opening, the BAC shall rate the bids as “Failed”:

Section 30. Preliminary Examination of Bids

30.1. The BAC shall open the first bid envelopes of prospective bidders in public to determine each bidder’s compliance with the documents required to be submitted for eligibility and for the technical requirements, as prescribed in this IRR. For this purpose, the BAC shall check the submitted documents of each bidder against a checklist of required documents to ascertain if they are all present, using a non-discretionary “pass/fail” criterion, as stated in the Instructions to Bidders. If a bidder submits the required document, it shall be rated “passed” for that particular requirement. In this regard, bids that fail to include any requirement or are incomplete or patently insufficient shall be considered as “failed”. Otherwise, the BAC shall rate the said first bid envelope as “passed”.(emphasis supplied)

The COR issued by the BAC, having no more legal basis to stand on, cannot be a substitute to the exclusive and absolute enumeration of Sec. 23.1, to wit:

23.1. For purposes of determining the eligibility of bidders using the criteria stated in Section 23.5 of this IRR, only the following documents shall be required by the BAC, using the forms prescribed in the Bidding Documents:

a) Class “A” Documents

Legal Documents

i) Registration certificate from SEC, Department of Trade and Industry (DTI) for sole proprietorship, or CDA for cooperatives, or any proof of such registration as stated in the Bidding Documents.

ii) Mayor’s permit issued by the city or municipality where the principal place of business of the prospective bidder is located.

iii) Tax clearance per Executive Order 398, Series of 2005, as finally reviewed and approved by the BIR.

Technical Documents

iv) Statement of the prospective bidder of all its ongoing government and private contracts, including contracts awarded but not yet started, if any, whether similar or not similar in nature and complexity to the contract to be bid; and

Statement identifying the bidder’s single largest completed contract similar to the contract to be bid, except under conditions provided for in Section 23.5.1.3 of this IRR, within the relevant period as provided in the Bidding Documents in the case of goods.

All of the above statements shall include all information required in the PBDs prescribed by the GPPB.

v) In the case of procurement of infrastructure projects, a valid Philippine Contractors Accreditation Board (PCAB) license and registration for the type and cost of the contract to be bid.

Financial Documents

vi) The prospective bidder’s audited financial statements, showing, among others, the prospective bidder’s total and current assets and liabilities, stamped “received” by the BIR or its duly accredited and authorized institutions, for the preceding calendar year which should not be earlier than two (2) years from the date of bid submission.

vii) The prospective bidder’s computation for its Net Financial Contracting Capacity (NFCC).

b) Class “B” Document

Valid joint venture agreement (JVA), in case the joint venture is already in existence. In the absence of a JVA, duly notarized statements from all the potential joint venture partners stating that they will enter into and abide by the provisions of the JVA in the instance that the bid is successful shall be included in the bid. Failure to enter into a joint venture in the event of a contract award shall be ground for the forfeiture of the bid security. Each partner of the joint venture shall submit the legal eligibility documents. The submission of technical and financial eligibility documents by any of the joint venture partners constitutes compliance.

According to Article 5 of the Civil Code of the Philippines, an act executed against the provisions of mandatory or prohibitory laws is VOID. Failure to comply with the mandatory requirement of submitting the eligibility requirements may fall under this case. It may also be a proper subject of DISALLOWANCE by the Commission on Audit.

 
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Posted by on September 14, 2015 in BAC^k Issues, Government Procurement

 

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