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OPINION: Implications of GPPB Prescribed Form of Contract

The Government Procurement Policy Board (GPPB) prescribed a form of Contract Agreement which procuring entities shall follow. But what if the procuring entity drafts and executes a contract not following the prescribed form? What are the implications of such deviations?

  1. It is contrary to law[1]which requires procuring entities to follow a prescribed form;
  2. It is contrary to public policy,[2]as the contract agreement cannot be simplified without disparaging deviations from the strict requirement of applicable laws, rules and regulations;

Requirements of Government Procurement Reform Act

Standardization of procurement process and forms[3] are necessary to systematize, avoid confusion and ensure transparency of the public procurement. For this purpose:

“[T]he GPPB shall pursue the development of generic procurement manuals and standard bidding forms, the use of which once issued shall be mandatory upon all Procuring Entities.[4](emphasis supplied)

The standard bidding forms are more commonly known as “bidding documents”. Section 17 of the law enumerates the form and contents of Bidding Documents:[5]

The Bidding Documents shall be prepared by the Procuring Entity following the standard forms and manuals prescribed by the GPPB. The Bidding Documents shall include the following:

xxx

(j) Form of Contract, and General and Special Conditions of Contract.

xxx(emphasis supplied)

The GPPB already released the standard Philippine Bidding Documents[6] (PBDs) that shall serve as the template for procuring entities to prepare their own bidding documents, adopting the appropriate provisions pertinent to their agency and deleting those not applicable to them. The latest was the Fourth Edition, as harmonized with Development Partners,[7] approved on 17 December 2010.[8]

Included in the PBDs are prescribed forms among others Omnibus Sworn Statement,[9] Bid Form[10] and Contract Agreement.[11]

Authority of the GPPB to Prescribe Forms and Manuals

The cited authorities above[12] gave us the clear mandate of GPPB. The GPPB was created to establish, formulate, and amend when necessary, the Implementing Rules and Regulations.[13] The powers, duties and responsibilities under the former Procurement Policy Board were also absorbed by the GPPB.[14]

It is also by these statutory powers the GPPB issues resolutions and guidelines, including such forms and manuals. Once issued, they shall be mandatory upon all procuring entities.[15]

Ordinary Contract vs. Government Contract

A contract refers to the meeting of minds between two persons whereby one binds himself, with respect to the other, to give something or to render some service.[16] The general rule under the Civil Code is that contracts are obligatory regardless of the form, subject to certain exceptions.

Article 1356. Contracts shall be obligatory, in whatever form they may have been entered into, provided all the requisites for their validity are present. However, when the law requires that a contract be in some form in order to be valid or enforceable, or that a contract be proved in a certain way, that requirement is absolute and indispensable. In such cases, the right of the parties stated in the following article cannot be exercised.

Article 1357.If the law requires a document or other special form, as in the acts and contracts enumerated in the following article, the contracting parties may compel each other to observe that form, once the contract has been perfected. This right may be exercised simultaneously with the action upon the contract.

(emphases supplied)

Government contracts on the other hand, particularly those arising from or as a result of public procurement is a special contract which is primarily governed by special laws. The case of Capalla v. COMELEC[17] taught us that parties to a government contract are not at full liberty to amend or modify the provisions of the contract bidded upon.Award of public contracts through public bidding is a matter of public policy.[18] Provisions of applicable laws, especially provisions relating to matters affected with public policy, are deemed written into such government contract which is imbued with public interest.[19] Under procurement related contracts, the rights and obligations of the parties are governed not only by the Civil Code but also by R.A. No. 9184, among others.

Effects of Introducing a Different Form of Contract

There are at least two schools of thought:

The first would treat such government contracts as VOID for being executed against the mandatory law[20] particularly R.A. No. 9184.

The second would consider such contracts valid but irregular or illegal.

We fear the first.

As already discussed, the “Contract Agreement” form in the PBD is theGPPB PRESCRIBED format and not a mere sample form. The GPPB, being the policy making body of the government on procurement matters, cannot be disregarded. R.A. 9184 passes upon GPPB the authority to prescribe forms and guidelines necessary for effective implementation of the law.

In introducing another form, we might be omitting essential provisions in relation to existing laws, rules and regulations already consolidated by the GPPB. In Agan, Jr. v. Philippine International Air Terminals Co., Inc., (PIATCO):[21]

[T]his Court declared as null and void, for being contrary to public policy, the Concession Agreement entered into by the government with PIATCO, because it contained provisions that substantially departed from the Draft Concession Agreement included in the bid documents. The Court considered the subject contracts a mockery of the bidding process, because they were substantially amended after their award to the successful bidderon terms more beneficial to PIATCO and prejudicial to public interest.

 (emphases supplied)

In considering the second school of thought, we may disregard our fears and continue with a valid contract. The remedy provided by law is to compel each other to observe that form, considering the contract may already have been perfected.

However, we cannot prevent the Commission on Audit (COA) in issuing observations and findings particularly in not complying with the prevailing laws, rules and regulations related to disbursement of public funds following its constitutional mandate and in accordance with the Auditing Code of the Philippines (P.D. No. 1445). Depending upon the appreciation of the Resident COA Auditor, such violation of R.A. No. 9184 may result to an Audit Observation Memorandum (AOM), a Notice of Suspension (NS), or worst, Notice of Disallowance (ND). This is also without prejudice to any administrative liability for “conduct prejudicial to the best interest of service” under Civil Service laws and rules.

Recommendations

It is recommended that the use of any other form other than that  prescribed by the GPPB be abandoned, the former being: (a) contrary to law; and (b) contrary to public policy. 

It is also recommended that the contracts already perfected and reduced to the form other than that prescribed by R.A. No. 9184 through the GPPB be executed in the prescribed form as discussed in this advisory.

#

[1] Republic Act No. 9184, An Act Providing for the Modernization, Standardization, and Regulation of the Procurement Activities of the Government and for Other Purposes”
[2]Archbishop Capalla, et. al v. Commission on Elections, G.R. No. 201112, 13 June 2012
[3]Id at 1., Article I, Section 6
[4]Id., ¶ 2
[5]Id., Article VI, Section 17
[6] First Edition thru GPPB Resolution No. 10-2004; Second Edition thru GPPB Resolution No. 10-2005; Third Edition thru GPPB Resolution No. 05-2009
[7]particularly Asian Development Bank, Japan International Cooperation Agency and World Bank except for Consulting Services
[8] GPPB Resolution No. 06-2010, “Approving and Adopting the Fourth Edition of the Philippine Bidding Documents for Goods and Infrastructure Projects (As Harmonized with Development Partners) and Consulting Services
[9]Id. at 1, Implementing Rules and Regulations, Sections 25.2(a)(iv), 25.2(b)(iv), 25.2(c)(vi)
[10]Id., Section 32.2.2; also see Annex “G” clause 10.2(i)
[11]Id., Section 37.2.3(a); also see Annex “G” clause 10.2(i)
[12]supra
[13]Id. at 1, Article XX
[14] Executive Order No. 359 Series of 1989
[15]supra n.3
[16] Civil Code of the Philippines, Article 1305
[17]supra n.2
[18] Black’s Law Dictionary, Fifth Ed., p.1087
[19]Power Sector Assets and Liabilities Management Corporation v. Pozzolanic Philippines Incorporated, G.R. No. 183789, August 24, 2011, 656 SCRA 214, 240, 243, citing Halagueña v. Philippine Airlines, Inc., G.R. No. 172013, October 2, 2009, 602 SCRA 297, 313 and Sargasso Construction & Development Corporation/Pick & Shovel, Inc/Atlantic Erectors, Inc. (Joint Venture) v. Philippine Ports Authority, G.R. No. 170530, July 5, 2010, 623 SCRA 260, 279-280.
[20] Civil Code of the Philippines, Article 5
[21] G.R. Nos.155001, 155547, 155661, 05 May 2003
 
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Posted by on October 7, 2015 in BAC^k Issues, Government Procurement

 

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

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

xxx

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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Submission and Receipt of Bids

Simula ng maaprubahan ang Revised IRR ng RA.9184, dalawang envelope na lamang ang kailangang i-submit. Ayon sa Sec.25.1:

Bidders shall submit their bids through their duly authorized representative using the forms specified in the Bidding Documents in two (2) separate sealed bid envelopes, and which shall be submitted simultaneously. The first shall contain the technical component of the bid, including the eligibility requirements under Section 23.1 of this IRR, and the second shall contain the financial component of the bid.”

Para sa procurement of goods, ito ang dapat nilalaman ng unang envelope:

  1. Eligibility requirements (under Section 23.1 of the IRR);
  2. The bid security in the prescribed form, amount and validity period;
  3. Technical specifications, which may include production/delivery schedule, manpower requirements, and/or after-sales service/parts, if applicable; and,
  4. Sworn statement by the prospective bidder or its duly authorized representative in the form prescribed by the GPPB (Omnibus Sworn Statement):

Para naman sa infrastructure projects, ito ang dapat na nilalaman ng unang envelope:

  1. Eligibility requirements (under Section 23.3 of the IRR);
  2. The bid security in the prescribed form, amount and validity period;
  3. Project Requirements, which shall include the following: (a) Organizational chart for the contract to be bid; (b) List of contractor’s personnel (viz, Project Manager, Project Engineers, Materials Engineers, and Foremen), to be assigned to the contract to be bid, with their complete qualification and experience data; and (c) List of contractor’s equipment units, which are owned, leased, and/or under purchase agreements, supported by certification of availability of equipment from the equipment lessor/vendor for the duration of the project;
  4. Sworn statement by the prospective bidder or its duly authorized representative in the form prescribed by the GPPB (Omnibus Sworn Statement):

Malinaw na magkasama na ang eligibility requirements at ang technical component ng bid sa first envelope. Sa pangalawang envelope naman nakalagay ang lahat ng impormasyon sa halaga ng bid at ang kabuuan ng financial component.

***

Q: Is there a maximum allowable time to complete a procurement process? In submitting a bid, can some of the eligibility requirements be submitted later? 

A: Yes, the allowable time and bid submission restrictions are clear in Sections 25.4 and 25.5 accordingly.

25.4. Bids shall be received by the BAC on the date, time, and place specified in the Invitation to Bid/Request for Expression of Interest. The following periods from the last day of posting of the Invitation to Bid/Request for Expression of Interest up to the submission and receipt of bids shall be observed:

a)      For Goods, a maximum period of forty-five (45) calendar days.

b)      For infrastructure projects, the following maximum periods:

Approved Budget for the Contract (in Philippine currency) Period
Fifty (50) million and below 50 calendar days
Above fifty (50) million 65 calendar days

 c) For consulting services, a maximum period of seventy five (75) calendar days.

25.5. Bids, including the eligibility requirements under Section 23.1 of this IRR, submitted after the deadline shall not be accepted by the BAC.

 
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Posted by on December 10, 2012 in BAC^k Issues

 

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Eligibility Check para sa Infra at Goods

Isa sa malalaking pagbabago sa Revised IRR ng RA.9184 ay ang pagbabawas ng mga dokumentong kailangan isumite sa pagsali ng Public Bidding. Kung dati ay mahigit sampu, ngayon ay nabawasan na sa lima hanggang anim ang kailangan. Sabay na rin sa pagbubukas ng unang envelope ang Eligibility Check sa Infrastuctures tulad ng sa Procurement of Goods.

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.

Technical Documents

iii) Statement of the prospective bidder of all its ongoing and completed 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, within the relevant period as provided in the Bidding Documents. The statement shall include all information required in the PBDs prescribed by the GPPB.

iv) 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

v) 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.

vi) The prospective bidder’s computation for its Net Financial Contracting

Capacity (NFCC) or a commitment from a Universal or Commercial Bank to extend a credit line in favor of the prospective bidder if awarded the contract to be bid (CLC).

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.

Kung para naman sa Consulting Services ang ikaapat na requirement (iv) ay mapapalitan lamang ng (kahalili ng PCAB License sa Infra):

iv) Statement of the consultant specifying its nationality and confirming that those who will actually perform the service are registered professionals authorized by the appropriate regulatory body to practice those professions and allied professions.

***

Q: If the bidder is a foreigner, what eligibility requirements will be submitted?

A: Under Section 23.2, the law states that:

“23.2. Subject to Section 37.1 of this IRR, in the case of foreign bidders, the foregoing eligibility requirements under Class “A” Documents may be substituted by the appropriate equivalent documents, if any, issued by the country of the foreign bidder concerned. The eligibility requirements or statements, the bids, and all other documents to be submitted to the BAC must be in English. A translation of the documents in English certified by the appropriate embassy or consulate in the Philippines must accompany the eligibility requirements under Class “A” and “B” Documents if they are in other foreign language.”

 
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Posted by on October 9, 2012 in BAC^k Issues

 

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Pre-Bidding Conference

Matapos masimulan ang pag-aanunsyo sa napipintong na procurement, tiyak na dadagsa ang mga interesadong bidder. Bawat isa sa mga ito ay tiyak na may mga tanong lalo pa kung malaki ang halaga ng proyekto. Minsan, kailangang may malinawan sa mga terms and conditions o maging sa specifications ng produkto o serbisyo. Dito pumapasok ang pangangailangan ng isang paghaharap ng BAC at ng mga bidders – ang pre-bid conference.

Binanggit sa Section 22 ng Revised IRR ang criteria kung kailan dapat magsagawa ng pre-bid conference:

22.1. For contracts to be bid with an approved budget of One Million Pesos (P1,000,000.00) or more, the BAC shall convene at least one (1) pre-bid conference to clarify and/or explain any of the requirements, terms, conditions, and specifications stipulated in the Bidding Documents. For contracts to be bid with an approved budget of less than One Million Pesos (P1,000,000), pre-bid conferences may be conducted at the discretion of the BAC. Subject to the approval of the BAC, a pre-bid conference may also be conducted upon written request of any prospective bidder.

22.2. The pre-bid conference shall be held at least twelve (12) calendar days before the deadline for the submission and receipt of bids. If the procuring entity determines that, by reason of the method, nature, or complexity of the contract to be bid or when international participation will be more advantageous to the GOP, a longer period for the preparation of bids is necessary, the pre-bid conference shall be held at least thirty (30) calendar days before the deadline for the submission and receipt of bids.

Sino-sino ba ang kailangang dumalo ng pre-bid conference? Bukod sa BAC at mga interesadong bidder nararapat din na makilahok ang end-user – o iyong mula sa nag-request o ahensyang tagapagpatupad –kung hindi man sila represented ng BAC.Marapat din na imbitahang makilahok ang isang auditor mula sa Commission on Audit, at observer mula sa technical at sa non-governmental organizations .Depende sa diskresyon ng BAC, maaaring yun lamang na bumili o nagbayad ng bidding documents fee ang payagang makadalo ng pre-bidding conference.

22.3. The pre-bid conference shall discuss, among other things, the eligibility requirements and the technical and financial components of the contract to be bid. Attendance of the bidders shall not be mandatory. However, at the discretion of the Procuring Entity, only those who have purchased the Bidding Documents shall be allowed to participate in the pre-bid conference and raise or submit written queries or clarifications.

***

Q: Can we change/modify the bidding documents after it has been posted?

A: Yes. Section 22.4 of the Revised IRR states that:

“22.4. The minutes of the pre-bid conference shall be recorded and made available to all participants not later than three (3) calendar days after the pre bid conference. Any statement made at the pre-bid conference shall not modify the terms of the Biddinag Documents, unless such statement is specifically identified in writing as an amendment thereto and issued as a Supplemental/Bid Bulletin.

 
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Posted by on October 8, 2012 in BAC^k Issues

 

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Contents of the Invitation to Bid

Kung ang Pre-Procurement Conference ang hudyat na magsisimula na ang procurement, ang pag-anunsyo o pag-post nito sa unang araw ang siyang tumpak na pagsisimula. Mula kasi sa araw na ito, maaari nang bumili ng bidding documents ang sinumang nagnanais sumali sa Public Bidding.

Para sa kaalaman ng lahat, ang Invitation to Bid (Request for Expression of Interest sa Consulting Services) ay dapat naglalaman ng mga pangunahing detalye tulad ng nakasaad sa  Section 21 ng Revised IRR (RA.9184):

21.1. Contents of the Invitation to Bid/Request for Expression of Interest The Invitation to Bid/Request for Expression of Interest shall provide prospective bidders the following information, among others:

a) For the procurement of:

i) Goods, the name of the contract to be bid and a brief description of the goods to be procured;

ii) Infrastructure projects, 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; and

iii) Consulting services, the name of the contract to be bid, a general description of the project and other important or relevant information;

b) A general statement on the criteria to be used by the procuring entity for the eligibility check, the short listing of prospective bidders, in the case of the procurement of consulting services, the examination and evaluation of bids, post-qualification, and award;

c) The date, time and place of the deadline for the submission and receipt of the eligibility requirements, the pre-bid conference if any, the submission and receipt of bids, and the opening of bids;

d) Approved Budget for the Contract (ABC) to be bid;

e) The source of funding;

f) The period of availability of the Bidding Documents, the place where the Bidding Documents may be secured, the website where the Bidding Documents may be downloaded, and, where applicable, the price of the Bidding Documents;

g) The contract duration or delivery schedule;

h) The name, address, telephone number, facsimile number, e-mail and website addresses of the concerned procuring entity, as well as its designated contact person; and

i) Such other necessary information deemed relevant by the procuring entity.

Lahat ng mga impormasyong ito ay kasama sa mga pinag-uusapan sa Pre-Procurement Conference. Kung hindi man napag-usapan o hindi nagkaroon ng ‘pre-proc’dapat ay malinaw mula sa PPMP ng End-User ang kanilang nais i-procure. Lahat ng description at technical specifications ay dapat kasing magmumula sa requesting office o end-user.

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Q: When is publication of advertisement to newspapers not required?

A: Section 21.2.2 of the Revised IRR shall answer your question: 

“21.2.2. Advertisement of the Invitation to Bid/Request for Expression of Interest in a newspaper of general nationwide circulation provided in Section 21.2.1(a) shall not be required for contracts to be bid with an approved budget of Two Million Pesos (P2,000,000.00) and below for the procurement of goods, Five Million Pesos (P5,000,000.00) and below for the procurement of infrastructure projects, and One Million Pesos (P1,000,000.00) and below or those whose duration is four (4) months or less for the procurement of consulting services.”

 
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Posted by on October 7, 2012 in BAC^k Issues

 

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Pre-Procurement Conference

Alam na natin na bago magsimula ang Public Bidding, dumaan na ito sa paggawa ng PPMP, ng APP, ng Annual Budget, at Supplemental APP kung may Supplemental Budget. Ngunit ang mga dokumentong may kinalaman sa aktwal na pangangailangan ng ahensya ay hindi pa rin malinaw. Dahil dito, kailangan ng isa o higit pang meeting o conference para makumpleto ang mga detalyeng kailangan. Iyon ang magiging hudyat ng pagsisimula ng procurement – ang pagsasagawa ng Pre-Procurement Conference.

Ayon sa Section 20 ng Revised IRR (RA.9184):

“20.1. Prior to the advertisement or the issuance of the Invitation to Bid/Request for Expression of Interest for each procurement undertaken through a public bidding, the BAC, through its Secretariat, shall call for a pre-procurement conference. The pre-procurement conference shall be attended by the BAC, the Secretariat, the unit or officials, including consultants hired by the procuring entity, who prepared the Bidding Documents and the draft Invitation to Bid/Request for Expression of Interest for each procurement. During this conference, the participants, led by the BAC, shall:

a)      Confirm the description and scope of the contract, the ABC, and contract duration.

b)      Ensure that the procurement is in accordance with the project and annual procurement plans;

c)      Determine the readiness of the procurement at hand, including, among other aspects, the following:

i)        availability of appropriations and programmed budget for contract;

ii)      completeness of the Bidding Documents and their adherence to relevant general procurement guidelines;

iii)    completion of the detailed engineering according to the prescribed standards in the case of infrastructure projects; and

iv)    confirmation of the availability of ROW and the ownership of affected properties.

d)      Review, modify and agree on criteria for eligibility screening, evaluation and post-qualification;

e)      Review and adopt the procurement schedule, including deadlines and time frames for the different activities; and

f)       Reiterate and emphasize the importance of confidentiality , in accordance with Section 19 of this IRR, and applicable sanctions and penalties, as well as agree on measures to ensure compliance with the foregoing. x x x”

 Sa panahon ng pre-procurement, nag-uusap ang mga miyembro ng BAC, ng Secretariat, ng TWG kung kinakailangan, ng opisinang may pangangailangan o end-user, at ng iba pang may kinalaman sa procurement. Hindi pa kailangan ng observers at bidders dahil mahigpit na ipinagbabawal ang maagang pagpapalabas ng impormasyon bago pa man lumabas ang anunsyo ng Public Bidding.

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Q: Do we still have to conduct a pre-procurement conference considering the project ABC is only P90,000.00?

 A: Section 20.2 of the Revised IRR shall answer your question:

“20.2. The holding of a pre-procurement conference may not be required for small procurements, i.e., procurement of goods costing Two Million Pesos (P2,000,000.00) and below, procurement of infrastructure projects costing Five Million Pesos (P5,000,000.00) and below, and procurement of consulting services costing One Million Pesos (P1,000,000.00) and below.”

Nevertheless, it will be a good practice to conduct pre-procurement even for projects below the threshold indicated above. This will ensure that all information on the bidding documents shall be properly clarified and resolved accordingly.

 
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Posted by on October 4, 2012 in BAC^k Issues

 

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