gppb updates and latest issuances january 2013 – may 2014 capacity development division government...

GPPB UPDATES AND LATEST ISSUANCES

January 2013 – May 2014

CAPACITY DEVELOPMENT DIVISIONGovernment Procurement Policy Board

Technical Support Office (GPPB-TSO)

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Outline

I. Scope and ApplicationII. Procurement OrganizationsIII. PhilGEPSIV. Bidding DocumentsV. Bidding ProcedureVI. Detailed Evaluation of BidsVII. Post-qualificationVIII. Award of ContractIX. Alternative Methods of ProcurementX. Contract ImplementationXI. Protest MechanismXII. Blacklisting

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SCOPE AND APPLICATION

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Scope and Application:Authority of GPPB

On Granting exemption from application of RA 9184

It is beyond the authority of the GPPB to grant exemptions from the application of RA 9184 and its IRR as it does not have the mandate to legislate nor determine the coverage of the law. The GPPB however, may render contemporaneous construction of the provisions of the law pursuant to its quasi-legislative fiat, and issue rules and regulations on the basis of its rule-making power.

NPM 100-2013

5


On Resolving issue on post-disqualificationGPPB cannot grant a bidder’s request to resolve the issue of their post-disqualification. Nonetheless, they are urged to follow the prescribed rules and procedures on Protest Mechanism laid down in Section 55 of the IRR of RA 9184.

Itcannot dictate to the procuring entity how to decide or resolve issues relative to its procurement activities. The GPPB is a quasi-legislative body mandated to formulate and amend the IRR. It has no quasi-judicial powers and functions; hence, cannot investigate and ascertain the existence of facts, hold hearings, and exercise discretion of a judicial nature over actual controversies with regard to the conduct of bidding by procuring entities.

NPM 104-2013

6


On Declaring Failure of Bidding

GPPB is not vested with the authority to declare a PE’s procurement activity to have incurred a failure of bidding.

Declaration of failure of bidding is within the authority and accountability of the Bids and Awards Committee and the Head of the Procuring Entity to exercise, under Sections 35 and 41 of the IRR of RA 9184, respectively.

NPM 99-2013

7

Scope and Application:Non-Applicability of RA 9184 and its IRR

Lease Concession Agreement This may be most appropriately conducted following PPP-related laws, rules, and regulations, such as BOT Law or JV Guidelines.

NPM 48-2013

Partnership with interested 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).

NPM 58-2013

8


Treaty or International Executive Agreements

Procurement rules shall not apply in cases when a Treaty or International or Executive Agreement expressly provides use of foreign government/foreign or international financing institution procurement procedures and guidelines.

NPM 47-2013

9


Disposal of Confiscated Properties

The Manual on the Disposal of Government Property covers the disposal of government properties. The issuance of rules or guidelines on disposal of government properties is outside the mandate of GPPB.

NPM 03-2014

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Leasing Out of Government Properties for Private Use

As long as lease out undertakings do not involve expenditure of public funds for the procurement of goods, works and consulting services, RA 9184, its IRR, and its associated rules will not apply.

Transactions involving lease of government properties for private use are covered by Executive Order No. 301, series of 1987 (EO 301).

NPM 10-2014

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Engagement of Personnel under Job Order and Contract of Service

RA 9184 and its IRR will not apply in the hiring of individual personnel under Job Order or Contract of Service :

a. The engagement does not require that level of expertise as primary consideration for its selection,

b. It is not what is contemplated under the definition and enumeration of what involves General Support Services and analogous services.

However, RA 9184 and its IRR find applicability in the engagement of non-personal service through sole proprietorship, partnership or a corporation contracted for the purpose.

NPM 15-2014

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Scope and Application:Expandable Supplies

Spare Parts as Expandable Supplies

If the spare parts sought to be procured have a life expectancy of more than one (1) year but which shall have decreased substantially in value after being put to use for only one (1) year, then the same shall be classified as expendable supplies.

NPM 14-2014

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Scope and Application:Procurement of Second-Hand Equipment

Procurement of second-hand, refurbished, or reconditioned equipment is allowed under RA 9184 and its IRR.

The decision of PE to procure second-hand, refurbished, or reconditioned equipment does not require prior approval or confirmation from GPPB inasmuch as the responsibility to identify projects, as well as its requirements and specifications, including considerations for the acquisition of brand new or second hand goods/ equipment, rests with the procuring entity.

NPM 11-2014

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Scope and Application: General Support Service

Engineering Services as General Services

For the maintenance of PE’s offices and facilities, engineering services may be considered as within the contemplated coverage of general support services, in the same vein as are the services for janitorial and security.

NPM 82-2013

15

Encoding Service as General Support Service

“General support services” is understood to include those services that are essential, indispensable, or necessary to support the operations of the procuring entity or for the enhancement of the welfare of its personnel, including non-personal or contractual services.

If the encoding services being acquired are essential, indispensable, or necessary to support of PE’S operations, then such service may be considered within the coverage of the term “general support services”.

Scope and Application: General Support Service

NPM 127-2013

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Scope and Application:Accreditation of Bidders

Accreditation System

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 9185 and its IRR 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 principles of competitive bidding.

NPM 48-2013

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Scope and Application:Registry System

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.

Prospective bidders not included in the registry system used by the procuring entity, whether the PhilGEPS or its own manual or electronic system, should not be precluded from participating in any procurement opportunity.

NPM 97-2013

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Scope and Application:Bidder’s Right to Ask Questions

Protest Mechanism

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.

ClarificationsSection 22 also 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

NPM 49-

2013

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Scope and Application:Mixed Procurement

Classification of ICT Services

An ICT procurement consisting of different components involving goods, infrastructure project or consulting service is regarded as a mixed procurement and the nature thereof is based on the primary purpose of the contract, which must be determined by the procuring entity based on its identified needs and the best way by which these needs may be addressed, managed and satisfied.

NPM 88-2013

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Scope and Application:Mixed Procurement

“Installation” of air conditioning system as a Construction Activity

The motivation and underlying reason behind the project is of primordial importance as this will dictate the nature and categorization of the procurement and the process and procedures to be adopted whether the procurement activity is treated as goods or infrastructure project.

NPM 04-2014

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Scope and Application:PADPAO Rates

PADPAO rates are rates issued and prescribed by the PADPAO, an organization of private security agencies (PSAs), in order to ensure that its member security agencies pay uniform rates for the service of its security guards.

However, said rate must be compliant to the wage orders issued by RTWPB which form part of the labor laws and standards in order to qualify PSA as bidder. Their compliance is ensured through the submission of an Omnibus Sworn Statement.

Non-compliance therewith shall result in the bidder’s disqualification.

NPM 91-2013

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Scope and Application:Extension of Mandatory Periods

Should PE decides 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

NPM 57-2013

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Scope and Application:Trade-in Transaction

Proposal amounts to an acquisition of brand new equipment, rather than just mere repair services, which is different from the original procurement activity.

Proposal is akin to a trade-in transaction. It involves two distinct, but relatively connected activities of government, namely, Disposal (EO 888) and Procurement (RA 9184).

Although trade-in is not prohibited, the PE must have intended to resort to such scheme from the start, and not merely as an after-thought, considering that corresponding disposal and procurement processes and documentations must be complied with.

NPM 41-2013

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Scope and Application:Joint Venture Agreements

The IAESP reveals that the Project pertains to a JV between a GOCC and a private entity in pursuit of development goals.

The rules for such transaction are either covered by the Joint Venture Guidelines issued by NEDA pursuant to §8 of EO 423 (s. 2005); or by RA 6957 (BOT Law), as amended by RA 7718.

Since the Project involves a JVA, RA 9184 and its IRR, including its associated guidelines, such as the Guidelines on the Sale of Bidding Documents, do not apply.

NPM 28-2013

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Scope and Application:Submission of Letter of Intent (LOI)

The submission of LOI is no longer required upon the effectivity of GPPB Resolution No. 27-2012 on 10 September 2013.

NPM 101-2013

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Scope and Application:Projects Partly Funded by Private 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.

NPM 44-2013

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Scope and Application:Grant of Honoraria

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

NPM 59-2013

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Scope and Application:Grant of Honoraria

Section 5 of DBM BC 2004-5A provides that the Chairs and members of the BAC and its TWG may be paid honoraria only for successfully completed procurement projects.

If the items awarded in the first bidding and those subject of the re-bidding belong in the same procurement project that is identified, described, detailed, scheduled, and budgeted for in the procuring entity’s PPMP, the BAC may only claim honoraria once all items have been successfully awarded. Hence, if the BAC has already received its honoraria, it should no longer be entitled to claim on the basis of the successfully awarded items during the re-bid.

The grant of honoraria shall not exceed the rates and limits prescribed in Sections 5.3 and 5.4 of BC 2004-5A

NPM 108-2013

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PROCUREMENT ORGANIZATIONS

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Procurement Organizations:Head of the Procuring Entity

Designation as OIC, although temporary in nature, entails the assignment of additional functions bestowed upon him – functions which otherwise would have been performed by a duly appointed regular Chief.

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.

Hence, the OIC is authorized to make decisions on procurement activities of the PE, subject to the limits stated in the Department Circular.

NPM 14-2013

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On Declaration of failure of bidding

The authority of the BAC to declare a failure of bidding is limited to instances enumerated in Section 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 post-qualification, or, in the case of consulting services, there is no successful negotiation, or (d) the bidder with the LCB or HRB refuses to accept the award.

The BAC cannot declare a failure of bidding for reasons other than those provided in Section 35. It cannot exercise the reservation clause provided in Section 41 of the IRR in declaring a failure of bidding since such authority exclusively belongs to the HOPE.

Procurement Organizations:BAC Functions

NPM 122-2013

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Procurement Organizations:BAC Functions

On evaluation of bids

The BAC, in line with its function of determining the eligibility of prospective bidders, conducting the evaluation of bids and undertaking post-qualification, is in the position to rate bidders as having “passed” or “failed” in complying with the requirements in the Bidding Documents in accordance with the provisions of RA 9184 and its IRR.

NPM 94-2013

33

Procurement Organizations:Qualifications of a BAC Chair

Procuring entity’s compliance with the ranking requirement under Section 11.2.2 of RA 9184 and its IRR for its BAC composition and membership is based on the term “permanent”.

The term “permanent”, does not qualify whether the personnel occupying the plantilla position holds the same in a contractual, regular, or permanent status, rather the concern specifically refers to whether the position exists within the organizational structure of the procuring entity.

HOPE may appoint someone as BAC Chairperson provided that he is occupying a plantilla position that is at least third ranking within the organizational structure of the PE and is not a designated approving authority.

NPM 95-2013

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Procurement Organizations: Qualifications of a BAC Chair

4th Level Official cannot be designated as BAC Chairperson

The absence of a personnel occupying the position of Sr. Vice President (second ranking), does not make the plantilla positions for the Sr. Department Manager (fourth ranking) a third ranking plantilla position.

As long as the entire organizational structure has the Sr. Vice President position in the plantilla, the Sr. Department Manager position remains a fourth ranking plantilla position, for which reason the Sr. Department Manager cannot be designated as BAC Chairman.

NPM 02-2014

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Executive Assistant of the General Manager as BAC Vice-Chairperson

The EA of the GM may be appointed as Vice-Chairman of the BAC provided that he possesses all the qualifications as a regular member of the BAC under Section 11.2.2(b) or Section 11.2.2(c) of the IRR of RA 9184, and does not have an approving authority delegated unto him by the HOPE.

The prohibition stated in Section 11.2.5 of IRR of RA No. 9184 is limited to the HOPE and/or approving authority wherein they cannot be the Chairman or a member of the BAC. It is the approving authority that may be deemed the alter-ego of the HOPE. Thus, for the Alter-Ego Principle to apply, the EA should be the designated approving authority by the HOPE.

Procurement Organizations: Qualifications of a BAC Vice-Chairman

NPM 134-2013

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Procurement Organizations:Qualifications of a BAC Member

4th Level Official as BAC Member

The BAC for regional offices consists of at least three (3) regular members, and at least two (2) provisional members. The regular BAC members, including the BAC Chairperson, shall be at least third ranking permanent officials.

Fourth ranking permanent officials of regional offices are disqualified from becoming regular BAC members, but may be designated as a provisional BAC member since Section 11 of the IRR does not require a provisional BAC member to be of a specific rank, thus implying that an employee of any rank can qualify as a provisional BAC member.

NPM 001-2014

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Procurement Organizations:Concurrent Positions in the BAC and its Secretariat

RA 9184 and its IRR do not categorically prohibit the HOPE from designating the same personnel as BAC member and BAC Secretariat Head.

Nevertheless, procurement officials should avoid holding concurrent positions in the BAC and its Secretariat in accordance with the thrust to professionalize the procurement organization geared towards strengthening the procurement functions in order to increase operational effectiveness and efficiency.

NPM 001-2014

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Procurement Organizations:Authority of BAC Sec Head to Notarize

It is not advisable that the BAC Secretariat Head be the same Notary Public who will notarize the ensuing contract for the project although the BAC Secretariat Head is, technically speaking, not a party to a contract between the procuring entity and the winning bidder.

It is worthy to stress that questions, insinuations and doubts on the execution of documents should be obviated at all times.

NPM 66-2013

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Procurement Organizations:Authority of BAC Sec Head to Sign Document

BAC Secretariat Head’s authority to sign procurement-related documents should be confined to those that are within the scope of her duties and responsibilities under Republic Act (RA) No. 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

NPM 66-2013

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Procurement Organizations:Authority of BAC Sec to Open and Examine Bids

Sections 12.1, 30.1 and 30.2 of the revised IRR of RA 9184 categorically vests upon the BAC the authority to determine each bidder's compliance with the required documents for purposes of eligibility

Such authority cannot be delegated to the BAC Secretariat

NPM 69-2013

41

Section 12.1 of the IRR of RA 9184 categorically vests upon the BAC the authority to process and evaluate the procurement requirements of bidders.

The BAC Secretariat, which is tasked to assist the BAC, cannot be delegated with the functions expressly conferred upon the BAC by RA 9184 and its IRR. An exception to this policy was established for procurement using Shopping and Negotiated Procurement (Small Value Procurement) under GPPB Resolution No. 09-2009 for the reason that these particular methods of procurement are used for contracts that are of considerably small amount and are generally simple/routinary, such that delegating the functions to another unit will be more efficient and economical for the procuring entity.

However, GPPB Resolution No. 09-2009 did not provide that the same exception be applicable to LSB inasmuch as the circumstances surrounding procurement activities using LSB are not similar to those covered by Shopping and Negotiated Procurement (Small Value Procurement).

Procurement Organizations:BAC Sec to Conduct Limited Source Bidding

NPM 135-2013

42

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.

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.

NPM 32-2013

Procurement Organization:Provisional Member

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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, provided it is warranted by: the number of the items, and the complexity of the items to be procured by the PE.

Rank requirement for BAC members provided in §11.2.2 of the IRR should be followed in the creation of separate BACs.

NPM 04-2013

State University 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.

It may create separate BACs for each of its campuses.NPM 26-2013

Procurement Organization:Separate BAC

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The BAC composition established in Section 11.2 of the IRR of RA 9184 requires that the members be permanent officials of the procuring entity, i.e., those occupying plantilla position in the procuring entity.

The concept of a multi-agency joint procurement that will be conducted using a Special BAC composed of the agencies’ respective officials will run counter to the provisions of RA 9184 and its IRR.

Procurement Organization:Special BAC for Multi-Agency Joint Procurement

NPM 131-2013

45

Conflict of interest arises when, in the case of the subject matter of the inquiry, the Chairman of the BFP-BAC that conducted the earlier procurement was eventually designated as OIC-BFP Chief.

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.

NPM 14-2013

Procurement Organization:Conflict of Interest

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PhilGEPS

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§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.

NPM 34-2013

PhilGEPS:Registration

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Although bidders are not precluded from submitting the post-qualification documents required in §34.2 RA 9184 IRR during submission of bids, it is prudent for the PE to request the latest and current documents during post-qualification

PE cannot recommend the award of contract if the bidder failed to submit a current and updated PhilGEPS Registration Certificate within 3 calendar days from its receipt of the BAC’s notice.

Its belated submission of a renewed PhilGEPS Registration Certificate does not cure the defect, and should result in the disqualification of the bidder and forfeiture of its bid security.

NPM 19-2013

PhilGEPS:Registration Certificate

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BIDDING DOCUMENTS

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Bidding Documents:Wage Adjustment in ABC

§35.2 of RA 9184 IRR provides that when there is failure of bidding, the BAC shall conduct mandatory review and evaluation of the terms, conditions, and specifications in the bidding documents.

Prior to the 2nd bidding, PE may modify the ABC for its procurement of security services to incorporate the new minimum wage rate/adjustment, subject to the necessary approval processes in changing the APP to reflect the revised ABC for the project.

NPM 18-2013

51

Bidding Documents:Authorized Representative

§25.2 RA 9184 IRR requires the bidder or its duly authorized representative to issue a sworn statement that the signatory is the duly authorized representative, and granted full power and authority to represent the bidder.

§29 RA 9184 IRR provides that bidders or their duly authorized representative may attend opening of bids.

PE cannot restrict participation only to the principal/bidder, but shall likewise extend the representation to the duly authorized representative of the sole proprietorship.

NPM 43-2013

52

Bidding Documents:Technical Specifications

PEs are precluded from requiring specific country of origin as part of the technical specifications for the project.

Specifications shall be based on the performance requirements and recognized industry standards and not on the basis of country of origin.

NPM 22-2013

53

Bidding Documents:Net Financial Contracting Capacity (NFCC)

Required Amount of NFCC

Participating bidder should be required to submit an NFCC that is at least equal to all the lots to which it participated in, in order to establish the bidder’s financial liquidity and absorptive capacity in carrying out the contractual obligations required by the lots to which it participated in.

NOTE: Credit Line Commitment shall no longer be accepted as an alternative to the prospective bidder’s computation of Net Financial Contracting Capacity. (GPPB Resolution 20-2013)

NPM 76-2013

54


NFCC Computation

During the preliminary examination of bids, the BAC shall examine the NFCC computation submitted by the bidder based on a non-discretionary “pass/fail” criterion.

Bidders shall be deemed compliant with the requirement if the submitted NFCC computation is at least equal to the ABC; otherwise, it will be declared “failed” regardless of the fact that the computation was based on an erroneous data or a mistake in arithmetical computation.

NPM 08-2014

55


Basis in the Computation of NFCC

The total “current” assets and liabilities as indicated in the prospective bidder’s AFS, which is stamped “received” by the BIR or its duly accredited and authorized institutions for the preceding calendar year, should be the basis for computing the NFCC.

NPM 08-2014

56

Bidding Documents:Similar Contracts

Nature of Similar Contracts

PEs have the responsibility to clarify in the Bidding Documents what projects can be considered similar to the contract being bid out, for purposes of determining compliance with the SLCC requirement.

As guidance, a contract shall be considered "similar" to the contract to be bid if it involves goods or services of the same nature and complexity as the subject matter of the project being procured. Similarity of contract should be interpreted liberally in the sense that it should not refer to an exact parallel, but only to an analogous one of similar category. NPM 42-2013

57

Bidding Documents:Similar Contracts

Definition or description of a “similar contract” should not unreasonably limit competition and inequitably bar participation of capable suppliers.

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.

NPM 54-2013

58

Bidding Documents:Single Largest and Completed Contract (SLCC) IRR does not give the PE the option to adopt a

different criterion for eligibility.

PE cannot aggregate the amount of two (2) contracts as compliance with the eligibility criterion on SLCC under Section 23.5.2.5 of the IRR.

NPM 85-2013

59

Bidding Documents:Single Largest and Completed Contract (SLCC)

Sub-contracting to be included in SLCC

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. It can be inferred from the PBDs that sub-contracts should be included in the statement together with the percentage of the bidder’s participation as a sub-contractor.

NOTE:

The 10-year limitation under Section 23.5.2.5 is no longer applicable. (GPPB Resolution No. 11-2012, )

NPM 77-2013

60


SLCC Requirement for Small A and Small B Projects

A contractor will be qualified even if it does not have at least fifty percent (50%) SLCC if such bidder is either a Small A or Small B contractor participating in a project the Approved Budget for the Contract for which is within fifty percent (50%) of its ARCC.

NPM 118-2013

61


SLCC Requirement for Several Lots

In the case of a procurement activity that is divided into several lots, where each lot may result in a separate contract, the ABC for each lot becomes the reference of the required minimum percentage of the amount of the SLCC to be complied.

The participation of a bidder in several lots does not require the submission of an SLCC that will specifically correspond to each lot. It is sufficient that the bidder presents an SLCC that complies with the percentage requirement for every lot that it participates in.

NPM 123-2013

62

Bidding Documents:Statement of Ongoing Contracts

Bidder should submit a statement of all its on-going government and private contracts within the relevant period stated in the Bid Documents, including contracts awarded but not yet started, if any, as part of the Class “A” Eligibility Documents.

Additional documentary proof to support the statement of on-going contracts such as contracts and notices to proceed need not be attached. However, the BAC may request for additional proof (e.g. copies of contracts and notices to proceed) during post-qualification in order to verify, validate and ascertain all statements made and documents submitted by the bidder.

NPM 86-2013

63


Projects where a NOA has been issued, but for which no contract has been signed yet, should be included in the statement of ongoing government and private contracts because these are already considered awarded contracts.

NPM 111-2013

64


The statement of ongoing government and private contracts to be submitted by the bidder should include all of its ongoing government and private contracts, even if they are immaterial or dissimilar to the contract to be bid.

GPPB Resolution No. 29-2012 provides that the failure to include or disclose complete information in the statement of contracts shall result in the “disqualification of the bidder for non-compliance with the eligibility requirement under Sections 23.1 or 24.1 of the revised IRR.” and may also be a ground for blacklisting under Section 65.3 (a) or (b) of the revised IRR

NPM 08-2014

65

Bidding Documents:Charging of fees Decision in charging fees for bidding documents, whether

for the first bidding or any subsequent re-bidding, depends upon the procuring entity, taking into account the need to recover the cost of its preparation and development vis-a-vis the effects on competition and participation of bidders.

However, fees must conform with the standard rates for the sale of bidding documents under GPPB Resolution No. 04-2012, which took effect on 4 September 2012.

NPM 68-2013

66

Bidding Documents:Discounts Discounts stated in the Bid Form allow bidders to itemize

the application of discounts that are not yet reflected in the amounts specified in its BOQ and detailed estimates vis-à-vis the program of works, as there could be a situation that the decision to offer a discount came long after these amounts have been prepared, finalized, and reflected in the bid documents, and changing the entries may be too cumbersome and time consuming for the bidder.

Discount offered in the Bid Form may be accepted even though the financial documents do not contain or indicate any reference to such discount.

NPM 17-2013

67

Although Section 32.2.4 of the IRR does not mention the word “discount”, ITB Clause 27.4 of the PBDs for the Procurement of Infrastructure Projects provides that the determination of the Lowest Calculated Bid requires the evaluation and correction for computational errors, discounts and other modifications.

If the offered discount does not qualify the methodology of its application, it can be presumed that the discount will apply to the whole amount of the identified bid price. For instance, the bidder’s offer is PhP961,474.88, and offered a discount 5%. The total calculated bid will be determined by deducting 5% from the bid price of PhP961,474.88.

The clause “excluding any discounts offered in item (d) below found in paragraph (b) of the Bid Form, please note that considering that discounts cannot be offered in relation to performance security, such clause will have no effect on the computation of the bid price vis-à-vis the offered discount to arrive at the total calculated bid price.

Bidding Documents:Discounts

NPM 126-2013

68

Bidding Documents:Re-advertisement of IB

Advertisement or posting requirement under §21 RA 9184 IRR serves as a notice to bidders informing them, directly or by reference, of the matters to be bid upon and of the time and place of receiving bids.

Re-advertisement is not necessary since the original IB that was advertised already provided the necessary and relevant information that would sufficiently notify the public of the procurement opportunity, including relevant components and the corresponding ABC for each component.

NPM 46-2013

69

Bidding Documents:Supplemental/Bid Bulletin §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.

NPM 46-2013

70

Conduct of a new pre-bid conference

In the case of a new procurement activity or a re-bidding activity, bidders are informed of the details of the pre-bid conference through the IB, which should comply with the posting/advertisement requirements under Section 21.2 of the IRR of RA 9184.

In case the BAC decides to conduct new pre-bid conference not included in the IB, it has to issue a Supplemental/Bid Bulletin on the matter. The Supplemental/Bid Bulletin should be posted on the PhilGEPS and the website of the procuring entity, if available.

The BAC must inform bidders who have submitted bids before the issuance of Supplemental/Bid Bulletin.

Bidding Documents:Supplemental/Bid Bulletin

NPM 124-2013

71

Extension of the bid closing time

If the procuring entity intends to postpone or reschedule the deadline for the submission and receipt of bids, it may do so by issuing a Supplemental/Bid Bulletin specifying the revised schedule for the procurement activity.

Section 22.5.2 of the IRR of RA 9184 provides that “Supplemental/Bid Bulletins may be issued upon the procuring entity’s initiative for purposes of clarifying or modifying any provision of the Bidding Documents at least seven (7) calendar days before the deadline for the submission and receipt of bids.”


NPM 122-2013

72

Failure to Post

Section 22.5.3 of the IRR of RA 9184 states that “[a]ny Supplemental/Bid Bulletin issued by the BAC shall also be posted on the PhilGEPS and the website of the procuring entity concerned, if available.”

The phrase “if available” refers to the phrase “the website of the procuring entity”, and not “the PhilGEPS”.

PE is mandated to post the Supplemental/Bid Bulletin in the PhilGEPS website. 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 Head of the Procuring Entity pursuant to Section 41 (b) of the IRR of RA 9184.


NPM 121-2013

73

Multi-Year Contract

General Appropriations Act provides that no agency shall enter into a multi-year contract without securing a Multi-Year Obligational Authority (MYOA) from the DBM following the provisions of Circular Letter No. 2004-12 dated 27 October 2004.

As such, PE must first verify if it is allowed to enter into multi-year contracts or whether its governing board is authorized to enter into multi-year contracts under its enabling law or corporate charter. In the event that the confirmation yields a negative result, the contract should be procured on a yearly basis.

Bidding Documents: Contracts for General Support Services

NPM 130-2013

74

Amendment of Existing Multi-Year Contract

Section 5 of the Guidelines on the Procurement of Security and Janitorial Services provides that all bid prices for a duration of three (3) years shall be fixed and shall not be adjusted during contract implementation.

One of the exceptions is, when during the term of the contract the procuring entity sees the need for an increase or decrease in the number of security guards, it may make the necessary adjustments in the bid price provided that the resulting cost does not exceed the Approved Budget for the Contract (ABC) for the relevant year.


NPM 05-2014

75

Extension of contract for additional guards procured through SVP

The Guidelines for Extension of Contracts do not require that the original contract to be extended was awarded as a result of competitive bidding. Hence to maintain status quo in the operations of the procuring entity, the contract for additional guards procured through SVP may be extended subject to the other conditions provided in the Guidelines.


NPM 05-2014

76

Contract Implementation: Contracts for General Support Services

Contract Extension for General Support Services of a Province

All contract extensions shall be subject to the prior approval of the HOPE upon recommendation of the BAC. If the proposed contract extension exceeds six (6) months, the HOPE is required to inform the GPPB in writing of its intent to extend beyond six (6) months.

Approval of the GPPB to extend the ongoing contracts for general support services of the Province is not necessary, since it could do so as long as the a conditions provided in the Guidelines are complied with.

NPM 107-2013

77

Bidding Documents:Additional Participants in Consultancy Service ContractSection 61.1 provides that all bid prices shall be considered as fixed prices, and therefore not subject to price adjustment and escalation during the contract implementation.Section 2 of Annex F of the IRR of RA 9184 reiterates the same principle and adds that any extension of the contract time shall not involve any additional cost. Clause 55.6 of the GCC of the Philippine Bidding Documents for the Procurement of Consulting Services provides that no additional payment for variation order, if any, shall be allowed for the consultancy contract Contract Implementation Guidelines for the Procurement of Consulting Services.Additional participants may be allowed provided that there will be no increase in contract cost, otherwise it shall be considered violative of the provisions of RA 9184, its IRR and associated issuances.

NPM 70-2013

78

Bidding Documents:Additional Deliverables in Consultancy Contract

PE may revise an existing design contract to include additional deliverables, provided, that such revision will entail no additional payment or cost.

NPM 119-2013

79

Bidding Documents:Modification of Bidding Documents

Modifying or Adding to the Statements in the Invitation to BidProcuring entities are allowed to insert any necessary information in the Invitation to Bid as it deems relevant to the procurement project. However, such information must conform to the Instructions to Bidders and, in particular, to the relevant information in the Bid Data.

Clause 20.3 of the PBDs for the Procurement of Goods provides that the original and copies of the envelopes containing the technical and financial components of the bid shall be signed by the bidder, but is silent whether the same should be done with the single envelope where all the envelopes containing the original and copies of the technical and financial components of the bid are enclosed.

The instruction that “all envelopes shall be duly signed in the sealed overlaps or flaps by the bidder or duly authorized representative in order to maintain the integrity of the documents” may be considered an additional information that procuring entities may validly include in the Invitation to Bid inasmuch as it is not contrary to the provisions of the PBDs.

NPM 102-2013

80

Bidding Documents:Modification of Bidding Documents

Change in Project Site

The change in the project site after the issuance of Notice of Award amounts to modification of bidding documents and it is not allowed under RA 9184 and its IRR.

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. (Mata v. San Diego G.R. No. L-30447, 21 March 1975.)

NPM 90-2013

81

As provided in the template for the IB in the PBDs for the Procurement of Infrastructure Projects, the source of funding and the year to be indicated shall be the Budget for the contract approved by the respective Sanggunian of the local government unit.

The information required in the IB should be clear and adequate for the prospective bidder to understand and identify in accordance with the guide notes provided in the PBDs, failure to comply with which may affect the validity of the process.

NPM 115-2013

Bidding Documents:Source of Funds

82

Bidding Documents:Bill of Quantities

The Bill of Quantities forms part of the Philippine Bidding Documents (PBDs) for Goods and Infrastructure Projects, which should be properly filled-out and submitted by the bidder as part of his Bidding Documents, and evaluated by the bids and Awards committee (BAC) using a non-discretionary “pass/fail” criterion.

When a quantity of an item submitted by the bidder does not comply with the quantity prescribed in the Bill of Quantities, the bid shall be considered non-responsive and the bidder shall be disqualified accordingly.

NPM 78-2013

83

Bidding Documents:Bill of Quantities

Unless the Instructions to Bidders allow partial bids, bids that do not address or provide all the required items or where no price was indicated in the Bidding Documents, including bill of quantities, shall be considered non-responsive, and thus, automatically disqualified.

Specifying a “0” (zero) or a “-” (dash) for an item would mean that it is being offered for free to the Government.

NPM 80-2013

84

Bidding Documents:Bid Securing Declaration

Section 27.2 gives bidders the option to choose from the acceptable forms of Bid Security, including the Bid Securing Declaration.

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.

NOTE:

Bid Securing Declaration as an additional form of bid security

(GPPB Resolution 03-2012)

NPM 85-2013

85

BIDDING PROCEDURES

86

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.

NPM 54-2013

Bidding Procedures:Pre-Qualification

87

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.

NPM 48-2013

Bidding Procedures:Pre-Bid Conference

88

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.

NPM 67-2013

Bidding Procedures:Refusal to Accept a Bid

89

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.

NPM 69-2013

Bidding Procedures:Bid Opening

90

Section 30 requires that the preliminary examination of bids be conducted by merely checking for the presence or absence of documentary requirements using a non-discretionary “pass/fail” criterion.

However, the BAC has the right to review the qualifications of a bidder during the same stage if it has reasonable grounds to believe that a misrepresentation has been made or there has been changes in the bidder’s capability to undertake the project.

NPM 54-2013

Bidding Procedures:Opening of a Reconsidered Bid

91

DETAILED EVALUATION OF BIDS

92

The process of rounding off numbers may be construed as an arithmetical correction which may be done during the evaluation of bids for the determination of the LCB. However, the details on how the prices should be rounded off should be clearly stated by the procuring entity in its Invitation to Bid (IB), and applied similarly to all bids so as to ensure that bids are evaluated on equal footing, to ensure fair and competitive bid evaluation Item 7, IB for Goods; Item 8, IB for Infrastructure Projects.

Having made the arithmetical correction, and the bidder with the LCRB fails, refuses or is unable to enter into contract with the procuring entity and furnish the required performance security within ten (10) calendar days from receipt of the notice of award, the bid security shall be forfeited and appropriate sanctions provided in the IRR and existing laws shall be imposed

Detailed Evaluation of Bids:Arithmetical Corrections

NPM 125-2013

93

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

NPM 71-2013

Detailed Evaluation of Bids:Valid PCAB License

94

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.

NPM 17-2013

Detailed Evaluation of Bids:PCAB License for JV

95

Detailed Evaluation of Bids:Audited Financial Statement

Failure to submit documents or the submission of an otherwise incomplete or patently insufficient AFS will disqualify the bidder based on the non-discretionary “pass/fail” criterion under Section 30.1 of the IRR.

AFS must comply with the requirements under Section 23.1(a)(v) of the IRR of RA 9184, namely, (i) showing the prospective bidder’s current assets and liabilities, (ii) stamped “received” by the BIR or its duly accredited and authorized institutions, and (iii) for the preceding calendar year which should not be earlier than two (2) years from the date of bid submission.

The term “earlier” means that if the bid submission date is on 2013, an AFS for the year 2011 can be considered compliant, provided that such AFS is the most recent document that can be produced by the bidder without fault or delay on its part in filing the same with the BIR.

NPM 103-2013

96

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.

NPM 42-2013

Detailed Evaluation of Bids:Equivalent Document

97

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.

NPM 31-2013

Detailed Evaluation of Bids:Track Record

98

Corporation is an artificial being created by operation of law, and has a legal personality of its own, separate and distinct from the persons composing it, as well as any other legal entity to which it may be related.

JV, professional partnerships, or sole proprietorships cannot be credited with the past experiences of their corporation of origin.

§§24.5.3(a) and 33.2.2(b) of RA 9184 IRR provides that, in case of new firms, the individual experiences of the principal and key staff, including the times when employed by other consultants, may be considered as part of the new firms’ overall experience.

NPM 40-2013

Detailed Evaluation of Bids:Track Record

99

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.

NPM 29-2013

Detailed Evaluation of Bids:Compliance with DOLE DO 18-A

100

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.

NPM 07-2013

Detailed Evaluation of Bids:No Contact Rule

101

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 may be a ground to disqualify a bidder.

NPM 36-2013

Detailed Evaluation of Bids:Sealing and Marking of Bids

102

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.

NPM 51-2013

Detailed Evaluation of Bids:Discrepancies in Bid Price

103

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.

NPM 36-2013

Detailed Evaluation of Bids:Nature of Bidder’s Business

104

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.

NPM 10-2013

Detailed Evaluation of Bids:Conflict of Interest

105

Detailed Evaluation of Bids: Functional Testing The product testing, during which the procuring entity may

conduct the “functional test” and other test parameters is done during the post-qualification stage. Thus, before BAC could even conduct the product testing, it should first ensure that the bidder who will undergo post-qualification has submitted all the legal, technical, and financial requirements, and declared as the LCB/HRB.

Subjecting all bids declared as “passed” during the bid evaluation to a “functional test” before the verification, validation, and ascertainment of the submitted documents of the Lowest Calculated Bid (LCB) runs counter to the provisions of Section 32 and 34 of RA 9184 and its IRR.

NPM 106-2013

106

POST-QUALIFICATION

107

Post-Qualification:Requiring Additional Documents

PE may request for the submission of additional documents from the bidder in support of the information it has provided in the bidding documents.

However, non-submission of the additional supporting documents requested cannot be a ground for the bidder’s post-disqualification, as a bidder may be post-disqualified only upon ascertainment, validation, and verification of its non-compliance with the legal, technical, and financial requirements of the project as provided in the bidding documents.

NPM 25-2013

108

Post-Qualification:Submission of Additional Requirements The three (3) calendar day period under §34.2 of the

IRR is mandatory and should not be extended.

In case PE accepts the post-qualification documentary requirements beyond the reglementary period, it must show that there is a compelling, sufficient, valid, reasonable, and justifiable cause for such extension, so that penal sanction or liability will not set in. Applicable administrative and civil sanctions or liabilities may also be imposed against the concerned officials.

NPM 27-2013

109

Post-Qualification:Additional Eligibility Requirements

Procuring entities are proscribed from requiring additional eligibility requirements because the list of minimum eligibility requirements has been streamlined/simplified such that only those requirements enumerated in Sections 23.1, 24.1, and 25.1 of the IRR of RA 9184 are necessary for purposes of determining a bidder’s eligibility.

NPM 53-2013

110

Post-Qualification:Tax Returns

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. (Amended by GPPB Resolution 11-2013)

Only EFPS-filed tax returns are now allowed and accepted. NPM 01-2013

NOTE:Mandatory requirement for the filing of tax returns and payment of taxes through the EFPS. (GPPB Resolution 11-2013)

111

Post-Qualification:Submission of Tax Clearance

EO 398 specifically requires the submission of Tax Clearance issued by the BIR. It refers to the clearance issued by the Collection Enforcement Division of BIR attesting that the bidder has no outstanding Final Assessment Notice and/or delinquent account.

Hence, submission of the enumerated documents cannot be considered as compliance.

NPM 02-2013

112


Submission of BIR receipt for renewal of Tax Clearance will not suffice in lieu of a valid Tax Clearance Requirement since substitution is not allowed under Section 34.2 of the IRR of RA 9184.

The Tax Clearance must be valid and existing at the time it is submitted to BAC and must be submitted within three (3) calendar days from receipt of the notice from the BAC that the bidder has the LCB. Failure to comply with the requirement for the submission of a valid Tax Clearance shall be a ground for post-disqualification of the bidder.

NPM 48-2013

113


Submission of a Tax Clearance must be required and must be indicated in the invitation to negotiate and submitted along with the proposals or quotations; otherwise disqualification is in order.

If not initially included as one of the eligibility documents in the invitation to negotiate PE could still require its mandatory submission as it is necessary in determining the legal and financial capability of the prospective suppliers, contractors, and consultants.

NPM 65-2013

114

Post-Qualification:Tax Clearance of Foreign Bidder

Under §24.1(b) of the IRR, each JV partner shall submit the legal eligibility documents under §24.1(a) and (b), and documentary legal requirements for post-qualification under §34.2 of the IRR.

A Delinquency Verification Certificate issued to Non-Resident Foreign Corporations (NRFC)/Non-Resident Aliens Not Engaged in Trade or Business (NRANETB) pursuant to BIR RR 3-2005, attesting to the fact that the taxpayer has no outstanding Final Assessment Notice and/or delinquent account may be submitted as a form of Tax Clearance required under Sec 34.2 of the IRR.

NPM 02-2013

115

The PE cannot require the submission of originals or certified true copies as even the procurement rules allow the submission of copies as sufficient compliance with the requirements.

Section 25.2(a)(iv) of the IRR provides that a prospective bidder or its duly authorized representative is required to submit a Sworn Statement in the form prescribed by the GPPB, certifying under oath, among other things, that each of the documents submitted in satisfaction of the bidding requirements is an authentic copy of the original, complete, and all statements and information provided therein are true and correct.

Post-Qualification:Submission of Certified True Copies

NPM 133-2013

116

Post-Qualification:Observers’ Participation §13 of RA 9184 expressly states that the BAC shall, in "all

stages of the procurement process", invite Observers to sit in the proceedings.

BAC is mandated to invite Observers in all stages of the procurement process, including post-qualification stage.

GPM enumerates the parties who are to conduct post-qualification. Although Observers do not conduct post-qualification of the bidder, they are not precluded from being invited and be present in the meeting.

NPM 05-2013

117

Post-Qualification:Submission of SampleIn the event that a sample product, indicating its brand and model, has to be submitted, this requirement must be clearly specified in the bidding documents. Absent any clear requirement regarding the matter, the procuring entity has no basis to disqualify the bidder.

NPM 49-2013

118

Post-Qualification:End User Complaint

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

NPM 24-2013

119

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.

NPM 51-2013

120

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 Section 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.

Post-Qualification: Post-qualification Team

NPM 117-2013

121

Post-Qualification: Internal Post-Qualification Procedures

Procuring entity 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 procuring entity the confidence of and certainty in declaring the bidder as having submitted the Lowest Calculated Responsive Bid.

Adoption of an internal procedure on the manner of conducting post-qualification is well within the discretion and accountability of the procuring entity to undertake, and does not need the clearance or authority from the GPPB as long as it does not run counter to the provisions of RA 9184 and its IRR.

NPM 114-2013

122

Post-Qualification: Certification of Domestic Preference

PEs cannot require a bidder to submit a Certificate claiming domestic preference as this is not an eligibility requirement and not among those expressly required and enumerated by the IRR.

If a bidder wishes to claim domestic preference, it should include said Certification as among the documents in the Second Envelope, forming part of the Financial Component of the bid.

A bidder waives its right to claim preference as a Domestic Bidder or Domestic Entity if it does not include said Certification as among the documents to be included in the Second Envelope comprising the Financial Component of the bid.

NPM 79-2013

123

AWARD OF CONTRACT

124

Award of Contract:Performance SecuritySubmission 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.

NPM 35-2013

125

Award of Contract:Higher Approving Authority§37.3 of RA 9184 IRR recognizes that there are decisions on procurement activities that may require further approval by higher authority.

In exercising the power to approve, the approving authority is likewise deemed to have the mandate to disapprove any recommendation on the matter.

To interpret that the recommending official is only required to elevate those matters it favorably recommends weakens the mandate of the higher approving authority to take full jurisdiction and cognizance of the matter.

NPM 14-2013

126

Should the appropriation ordinance already contain in sufficient detail the project and cost of a capital outlay such that all that the local chief executive needs to do after undergoing the requisite public bidding is to execute the contract, no further authorization is required, the appropriation ordinance already being sufficient.

But if the appropriation ordinance describe the projects in generic terms there is an obvious need for a covering contract for every specific project that in turn requires approval by the sanggunian. (Ex. “infrastructure projects,” “inter-municipal waterworks, drainage and sewerage, flood control, and irrigation systems projects,” “reclamation projects” or “roads and bridges”)

NPM 17-2014

Award of Contract:Authorization from the Sangguniang Bayan

127

ALTERNATIVE METHODS OF PROCUREMENT

128

When there is no appropriation law or ordinance that earmarks an amount for projects to be specifically contracted out to NGOs, procuring entities cannot resort to Negotiated Procurement (NGO Participation) and use the Guidelines for the selection of the supplier, contractor, or consultant that will perform the project.

PE cannot limit its selection process to NGOs when the same condition for a specifically earmarked budget is wanting. The general rule on public or competitive bidding provided in Section 10 of RA 9184 and its IRR will apply, and the selection of the supplier, contractor, or consultant for the project shall be open to all entities allowed under Sections 23 and 24 of the same law and rules.

Alternative Methods of Procurement:NGO Participation

NPM 137-2013

129

Posting of Performance Security

Regardless of the category of procurement for a contract where the NGO is engaged using Negotiated Procurement (NGO Participation) under Section 53.11 of the IRR of RA 9184 and Section 6 of the Guidelines, the selected NGO is required to post a performance security upon signing of the MOA.

Alternative Methods of Procurement:NGO Participation

NPM 120-2013

130

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.

NPM 38-2013

Alternative Methods of Procurement:Negotiated Procurement (Procurement Agent)

131

For multi-agency joint procurement

Negotiated Procurement (Procurement Agent) under Section 53.6 of the IRR of RA 9184 may be adopted as a modality to address multi-agency bulk procurement.

The member-offices may agree with the procurement agent to assign its officials as part of the Technical Working Group that will assist the BAC of the procurement agent in the procurement activity in order to ensure that the views of member-offices are taken into consideration.

Each member-office has the authority to approve the award of contract that will be recommended by the BAC of the procurement agent, thereby maintaining the power to make the final decision on the process.

Alternative Methods of Procurement:Negotiated Procurement (Procurement Agent)

NPM 131-2013

132

Alternative Methods of Procurement:Negotiated Procurement (Two-Failed Bidding) In the implementation of this alternative modality of procurement,

Section 53.1.5 of the IRR requires that the procuring entity shall select the successful offer on the basis of the best and final offer which meets:

1.The procuring entity’s minimum technical requirements 2.An offer that does not exceed the ABC.

Failure of a bidder to satisfy either one will result in its disqualification.

NPM 109-2013

133

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.

NPM 72-2013

Alternative Methods of Procurement:Negotiated Procurement (Two-Failed Bidding)

134

Minimum Number of Contractors Engaging in Negotiation Section 53.1.2 of the IRR of RA 9184 provides that where there has been a failure of public bidding for the second time, the BAC shall invite and engage in negotiations with a sufficient number of suppliers, contractors or consultants to ensure effective negotiations.

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. Accordingly, 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 in accordance with Section 53.1.2 of the IRR of RA 9184.

Alternative Methods of Procurement:Negotiated Procurement (Two-Failed Bidding)

NPM 136-2013

135

Alternative Methods of Procurement:Adjustment of ABC after Two-Failed BiddingAfter two failed biddings under Section 35 of the IRR, and the PE decides to resort to Negotiated Procurement (Two-Failed Biddings), Section 53.1.1 of the IRR requires the BAC to conduct a mandatory review of the terms, conditions, specifications, and cost estimates; and, when necessary, increase the ABC provided that it is not more than twenty percent (20%) of the ABC for the last failed bidding.

NPM 93-2013

136

Alternative Methods of Procurement:Negotiated Procurement (Adjacent or Contiguous)The determination and the decision to resort to the alternative modality of Negotiated Procurement (Adjacent or Contiguous) under Section 53.4 of IRR of RA 9184 is subject to the prior approval of the HOPE upon favorable recommendation of the BAC, provided that the conditions set forth therein are present.

The phrase “adjacent or contiguous” refers to projects that are in actual physical contact with each other in the case of infrastructure projects. Thus, the physical connection of the two (2) projects should be actual and not superficial. The objective of this policy is to take the advantage of the economy and efficiency in engaging the contractor for the on-going project, and ensure that the two structures are soundly connected.

NPM 96-2013

137

Alternative Methods of Procurement:Negotiated Procurement (Adjacent or Contiguous)Use of the Same Prices or Lower Unit Prices

Section 53.4 of the IRR stating that the contractor/consultant shall use the same or lower unit prices as in the original contract, applies only to the scopes of work that are present in both projects and should not be interpreted as a qualification that only adjacent or contiguous projects that have the exact same scopes of work shall be acceptable.

If there are no similar scope of work between the two projects, compliance with such condition is not necessary. The procuring entity, however, should ensure that the unit prices are lower than or equal to the prevailing market prices.

NPM 112-2013

138

Alternative Methods of Procurement:Negotiated Procurement (Adjacent or Contiguous)Submission of Offer by the Original Contractor

Although the rules are silent as to the submission by the contractor of a formal offer for the adjacent/contiguous project, it is imperative that the original contractor submits an offer that is acceptable to the procuring entity as compliant with the terms and conditions the latter has adopted for the adjacent/contiguous project, in order to establish the basis for the new contract.

NPM 112-2013

139

Alternative Methods of Procurement:Negotiated Procurement (Agency-to-Agency)

Non-chartered GOCCs as Servicing Agency

Non-chartered GOCCs may be engaged as Servicing Agency by procuring entities in contracts procured using Negotiated Procurement (Agency-to-Agency) under Section 53.5 of the IRR of RA 9184 starting 13 November 2013, subject to the requirements provided in the Guidelines.

GPPB Resolution No. 12-2013 removes the disqualification of non-chartered GOCCs from being engaged as Servicing Agency for projects procured through Negotiated Procurement (Agency-to-Agency).

NPM 110-2013

140

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.

NPM 37-2013


141

Guidelines on the Procurement of Printing Services provides that … Accountable Forms and Sensitive High Quality/Volume Requirements should be sourced from Recognized Government Printers (RGPs), through Negotiated Procurement under Section 53.5

If SSS plans to procure printing services for some of its forms through public bidding, it has to identify whether said forms are considered Accountable Forms, and therefore subject to the Guidelines. If SSS determines that said forms are not Accountable Forms, printing services for its procurement may be engaged through Competitive Bidding under RA 9184 and its IRR.

NPM 62-2013


142

For the procurement of CTC, the more appropriate method to be used is A to A rather than Direct Contracting

In cases where procurement from another agency of the government is more efficient and economical, Negotiated Procurement under Section 53.5 (Agency-to-Agency Agreements) may be resorted to. This rule allows a government entity to procure from another government entity without need of public bidding, subject to compliance with the prescribed conditions and procedures under existing rules and the Guidelines on Agency-to-Agency Agreements (Guidelines).

NPM 52-2013


143

Alternative Methods of Procurement:Negotiated Procurement (Emergency Cases)GPPB Resolution No. 34-2013

GPPB Resolution No. 34-2013 dated 14 November 2013, has granted authority to all concerned government procuring entities to procure goods and infrastructure projects, for the purpose of providing rescue, recovery, relief, and/or rehabilitation efforts for, and to continue to provide basic services to victims in areas affected by Typhoon Yolanda, through Negotiated Procurement (Emergency Cases) under Section 53.2 of the IRR of RA 9184 with an ABC of at least Five Hundred Million Pesos (PhP500,000,000.00) for the duration of the State of Calamity until lifted by the President pursuant to Proclamation No. 682, Series of 2013.

The same GPPB Resolution requires all concerned procuring entities to submit to this office a list of all transactions covered by the grant of authority at the end of every month.

NPM 107-2013

144

Alternative Methods of Procurement:Negotiated Procurement (Emergency Cases)GPPB Resolution No. 34-2013

The grant of authority in GPPB Resolution No. 34-2013 is limited to the use of Negotiated Procurement under Section 53.2 of the IRR of RA 9184. Procurement activities for contracts amounting to at least Five Hundred Million Pesos using alternative method of procurement other than Negotiated Procurement under Section 53.2 of RA 9184 and its IRR are still subject to the requirement for prior GPPB approval pursuant to Section 4 of EO No. 423, s. 2005, even if the purpose is to provide rescue, recovery, relief, and/or rehabilitation efforts for, or to continue to provide basic services to victims in areas affected by Typhoon Yolanda.

NPM 06-2014

145

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.

NPM 41-2013

Alternative Methods of Procurement:Direct Contracting

146

Alternative Methods of Procurement:Direct Contracting

Assuming that only one supplier has been given a certification by PTRI for being compliant to RA 9242, it does not automatically provide a basis to resort to direct contracting.

PE has to first provide sufficient justification and proof of the following(Section 50):

a. Procurement of goods of proprietary nature which can be obtained only from the proprietary source

b. When the procurement of critical components from a specific supplier is a condition precedent to hold a contractor to guarantee its project performance, in accordance with the provisions of its contract, or

c. Those sold by an exclusive dealer or manufacturer which does not have sub-dealers selling at lower prices and for which no suitable substitute can be obtained at more advantageous terms to the government.

NPM 89-2013

147

PE may extend the duration or effectivity of contracts of lease of office space that are about to expire, for a period not exceeding one (1) year, as an emergency measure to maintain status quo in its operations and to avoid interruption of such services that are essential, indispensable, or necessary to support the operations of PE.

In the event of failure of bidding for the new contract, PE may further extend the duration of the contract provided that the aggregate period of all extensions shall not exceed one (1) year in accordance with Section 4.1 of the Guidelines.

Under Section 5.2 of the Guidelines, if the proposed contract extension exceeds six (6) months, the HOPE shall immediately report to the GPPB through its TSO in writing of PCSO’s intent to extend beyond six (6) months.

Alternative Methods of Procurement:Extension of Lease of Office Space

NPM 132-2013

148

Alternative Methods of Procurement:Direct Transaction in Lease of Office SpaceThere are only two modalities that would permit direct transaction with a building owner without need of inviting other owners, i.e., Negotiated Procurement (Emergency Cases) under Section 53.2 and Negotiated Procurement (Take Over of Contracts) under Section 53.3.

However, PE may resort to any of the alternative modalities if it cannot establish the conditions allowing the afore-mentioned modalities of procurement provided that it can establish and justify the existence of the conditions warranting its use.

NPM 113-2013

149

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.

NPM 13-2013

Alternative Methods of Procurement:Repeat Order

150

Clearance from GPPB is not a requirement in implementing projects by administration

Undertaking infrastructure projects by administration is a decision that appropriately falls within the discretion and responsibility of the procuring entity concerned. In the same vein, it falls upon the same procuring entity to ensure that the conditions and requirements established in the Guidelines are complied with.

NPM 12-2014

Alternative Methods of Procurement:By Administration

151

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.

NPM 61-2013

Alternative Methods of Procurement:LSB for the Procurement of Catering Services

152

Section 49 of the IRR provides that LSB may be resorted to only under two possible conditions:

(a)procurement of highly specialized types of goods and consulting services which are known to be obtainable only from a limited number of sources; and(b) procurement of major plant components

In order to apply LSB on the subject procurement, PE should first establish that the motor vehicle sought to be procured is either a highly specialized type of goods or a major plant component; otherwise, Competitive Bidding shall apply.

NPM 63-2013

Alternative Methods of Procurement:LSB for the Procurement of Utility Motor Vehicle

153

CONTRACT IMPLEMENTATION

154

Contract Implementation:Notice to Proceed

PE cannot forego the issuance of the Notice to Proceed (NTP) for the procurement of goods and services based on the claim that the issued Purchase Order or Job Order already contains the conforme of the winning supplier and indicates the delivery date, which in effect authorizes the supplier to proceed and deliver the required goods and services.

RA 9184, having been enacted for the advancement of public welfare, contains mandatory provisions. Failure to follow such rules render the proceeding to which it relates illegal and void, or the violation of which makes the decision rendered therein invalid.

NTP together with the approved contract should be issued by PE to the successful bidder within three (3) calendar days from the date of the approval of the contract.

NPM 87-2013

155

Contract Implementation:Advance Payment

Advance payment in case of infrastructure projects may be granted by the procuring entity upon compliance with the conditions provided in Section 4 of the Guidelines and only for the purpose of mobilization.

Thus, if the contractor has already mobilized its equipment and has commenced with the required works under the contract, advance payment can no longer be provided as doing so already negates the very purpose of granting such privilege to the contractor.

NPM 56-2013

156

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.

NPM 64-2013

157

Contract Implementation:Variation OrderDeletion of Work Through Variation Order

Section 1.1 of Annex E of the IRR of RA 9184 provides that the scope of works shall not be reduced so as to accommodate a Positive Variation Order. In addition, the Manual of Procedures for the Procurement of Infrastructure Projects provides that the “addition/deletion of works should be within the general scope of the project as bid and awarded, and the deletion of the work should not affect the integrity and usefulness of the structure.”

It should be satisfactorily shown that the suggested deletion will not affect the integrity and usefulness of the structure, why it is no longer necessary and was not meant to accommodate a Positive Variation Order.

It is also necessary to verify whether the claim was made within the applicable time required under Section 1.5 of Annex E of the IRR of RA 9184.

NMP 84-2013

158

PROTEST MECHANISM

159

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.

NPM 39-2013

Protest Mechanism:Rationalized Protest Fee

160

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.

NPM 39-2013

Protest Mechanism:Protest Fee

161

Only upon the final resolution of the protest can the aggrieved party be said to have exhausted the available remedies at the administrative level. In other words, only then can he viably avail of the remedy of certiorari before the proper courts. Non-compliance with this statutory requirement, under Section 58 of R.A. No. 9184, constitutes a ground for the dismissal of the action for lack of jurisdiction.” (Dimson (Manila), Inc. and Phesco, Inc. v. Local Water Utilities Administration)

Pending a request for reconsideration or protest, the aggrieved bidder must await its resolution, unless it can establish that there is no other plain, speedy, and adequate remedy in the ordinary course of law then extraordinary remedies of certiorari and mandamus may be resorted to.

NPM 116-2013

Protest Mechanism: Remedy Pending Protest

162

BLACKLISTING

163

Blacklisting:Applicability

Section 2 of the Guidelines expressly provides that the Blacklisting Order shall apply to all the JV partners as they are treated collectively as one bidder.

The members of the JV expectedly intend themselves to be jointly and severally responsible or liable for the obligations and civil liabilities actually incurred by the particular joint venture.

NPM 23-2013

164

Blacklisting:ApplicabilityAffiliate Company

Affiliate/sister company of a blacklisted bidder may only be considered as blacklisted upon determination by the procuring entity that the blacklisted entity has that degree of relationship or extent of representation mentioned in Section 2 of the Guidelines existing in the affiliate/sister company. If the blacklisted entity and its affiliate/sister company are sole proprietorships owned by the same person, the blacklisting order applies to the affiliate/sister company since a sole proprietorship does not have a separate juridical nor legal personality from its owner, and it is thru the individual doing business under the name and style of the sole proprietorship who would in effect be blacklisted under the Guidelines. In this regard, the blacklisted person remains blacklisted regardless of the name and number of sole proprietorships registered under her name, and shall not be allowed to participate in the bidding of all government projects during the period of disqualification unless delisted as provided for in the Guidelines.

NPM 92-2013

165

Blacklisting: Applicability

Forfeiture of Performance Security Prior to Award of NOA

Section 7 of the Uniform Guidelines for Blacklisting states that if the Blacklisting Order is issued prior to the date of the NOA, the blacklisted entity shall not be qualified for the award, and such project or contract shall be awarded to another bidder.

The performance security posted by a bidder who has been issued a Blacklisting Order prior to the issuance of NOA should not be forfeited, but instead returned in accordance with the principle of solutio indebiti under Article 2154 of the Civil Code of the Philippines.

NPM 98-2013

166

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