Group IIIMembers:

Bacus, BonJamero, JacintoLapiña, JoanLao, LoveleanneSauro, Jo

Getting ContractCharges and Violations of ContractsRemedies and Settlement

IB 1 - Who may be allowed to Bida. Filipino

1. Citizens (single proprietorship)2. Partnership or corporation duly organized under the laws of the Philippines, and at least 75% of the capital stock of which belongs to Filipino citizens.

b. Contractors forming themselves into a joint venture i.e., a group of more contractors that intend to be jointly and severally responsible for a particular contract, shall, for purpose of bidding/tendering comply with LOI 630, and, aside from being currently and properly licensed by PCAB, shall comply with provisions of RA 4566 and its implementing rules and regulations, provided that joint ventures in which Filipino ownership is less than 75% may be qualified where the structures to be built require the application of techniques and/or technologies which are not adequately possessed by a Filipino entity as defined above.

c. Foreign contractors for internationally bid foreign-assisted projects as may be required by foreign financial institutions.

IB 2 - Organization of the BAC1.Each office/agency/corporation shall have in its head office or

in its implementing offices a Bid and Award Committee (BAC) or designated procurement unit which shall be responsible for the conduct of pre-qualification or eligibility screening, bidding, evaluation of bids, post qualification, and recommending award of contracts. Each committee shall be composed of the ff:

Chairman (regular)Executive Officer and Secretary (regular)Member (regular)Member (provisional)Members from the Private SectorObserver

Members/Observers of the BAC or designated procurement unit should receive the notice of meeting at least 2 calendar days before the date of meeting

2. Government owned or controlled corporations shall organize their own BACS or designated procurement units, the members of which shall be appointed by their respective boards preferably along the same line as other government offices.

3. Non-infrastructure agencies – that is, agencies other than the DPWH, DTC, their attached agencies and other infrastructure Corporations – that do not possess an in-house technical capability to constitute their own BACS or Designated procurement units shall cause the designation of either of the 2 infrastructure departments mentioned whichever is concerned, to undertake the pre-qualification/Eligibility of Screening, bid and award services, as well as the preparation of project plans and designs and supervision of construction.

IB 3 - Invitation to Pre qualify/Apply for Eligibility to Bid1. For locally funded contracts, contractors shall be invited

to apply for eligibility to bid through:

a. For contracts to be bid costing more than P5 Million the advertisement shall be made at least 3 times within a reasonable period depending upon the size and complexity of the contract to be bid but in no case less than 2 weeks in at least 2 newspapers of general nationwide circulation which have been regularly published for at least 2 years before the date of issue of the advertisement. During the same period that the advertisement is posted in the newspaper or for a longer period as determined by the head of the office/agency/corporation concerned, the same advertisement shall be posted in the website of the office/agency/corporation concerned and at the place reserved for this purpose in the premises of the office/agency/corporation concerned. For contracts to be bid costing P5 Million and below or for contracts authorized to be bid by the regional/district offices involving costs as may be delegated by the head of office/agency/corporation, the invitation to bid shall be advertised at least 2 times within 2 weeks in a newspaper of general local circulation in the region where the contract to be bid is located, which newspaper has been regularly published for at least 6 months before the date of issue of the advertisement. During the same period that the advertisement is posted in the newspaper or for a longer period as determined by the head of the office/agency/corporation concerned and at the place reserved for this purpose in the premises of the office/agency /corporation concerned. In addition to the forgoing, the invitation may

also be advertised through other forms of media such as radio and television, provided that based on the agency’s short list of contractors or referral with the PCAB, there are at least for contractors indigenous to the region duly classified and registered to undertake such contracts. The advertisement may likewise be made in a newspaper of general nationwide circulation as defined in the foregoing when there is evident lack of interest to participate among the region-based contractors.

b. Additionally, in the case of projects requiring special technology, direct invitation of contractors known for their capacity to undertake such type of projects.

2. For foreign-financed/assisted projects, contractors are invited under the same procedures above and/or in accordance with procedure established by ,and agreed upon with, the lending/financing institution.

Constructors not allowed to participate in the prequalification and bidding of government projects

A constructor who was suspended or disqualified by a government tendering agency and/or included in the CIAP consolidated government-level blacklisted constructors shall not be allowed to participate in the prequalification and bidding of all government tendering agencies during the period of suspension/disqualification unless a certificate from CIAP confirming a delisting order from the blacklisting agency has been submitted to the tendering agency concerned.

A joint venture or consortium with blacklisted member/s and/or an individual constructor who is a member of a blacklisted joint venture or consortium is likewise not allowed to participate in the prequalification and bidding of all government tendering agencies during the period or suspension.

Sanctions and Background for Blacklisting

I. Suspension for 1 year for 1st offense, disqualification of 2 year for

2nd offense and perpetual disqualification for succeeding offense

on any of the following: 1. Misinterpretation of concealment of any material fact or

information in the sworn prequalification statement and/or bids, including but not limited to:

>falsification of public documents>submission of borrowed license (license lending)>Submission of bids and/or detailed estimates that are

identical to each other or to the Approved Agency Estimate (AAE) which manifestly

indicate rigging or conclusion. 2. Participating in PBAC activities as a constructors association

representative where he/she has any pecuniary interest. 3. Other acts of constructors which directly or indirectly tend to

defeat the purpose of public bidding.

Prequalification, Bidding and Award Stage

II. Suspension for 6 months for 1st offense, disqualification for 1 year

for 2nd offense, disqualification for 2 year for 3rd offense, and perpetual disqualification for succeeding offense. 1. Non-submission or late submission of bids by pre qualified

constructors with out justifiable reason and written notice of withdrawal of intent to participate in the bidding of 5 working days before the deadline of submission of bids.

III. Forfeiture of bid security for 1st offense, forfeiture of bid security and suspension of 1 year for 2nd offense, and forfeiture of bid security and perpetual disqualification of succeeding offense on any of the following:1. Unjustified failure or unreasonable refusal of the winning bidder to accept or signify conforme to the notice of award (NOA).2. Non-submission by the proposed awardee within the Agency

prescribed time of the performance security and other requirements

necessary for contract preparation, i.e., Contractor’s All Risk (CAR)

insurance, Affidavit of No pending Case for Non-Payment of Tax,

construction Schedule, Cash Flow and other requirements necessary for

the formalization of the contract.3. Unjustified refusal or failure of the proposed awardee to enter or sign

the prepared contract within the agency prescribed time.

IV. Suspension for 5 years for 1st offense and perpetual disqualification

for succeeding offense:1. Receiving a fee, gift, or other valuable thing in relation to, or in

connection with, PBAC activities from any person/entity in the hope or

expectation of receiving favor or other treatment than that accorded

other persons;2. Committing Acts punishable under the anti-graft laws.

IB 4 - Issuance of Qualification Statements/Forms1. The BAC or Designated procurement Unit shall provide

prospective bidders with the Notice for Prequalification/Eligibility Screening, to contain, among others, the following information to guide them in evaluating their capabilities and decide whether or not to participate in the bidding of a specific contract: a. Name and location of Project

b. Project background and other relevant information regarding the proposed work, including a brief technical description of the work as to size, type, major items, and other important features of the work.

c. Approved budget for the project to be bid and source of funding.

d. Criteria to be used by the office/agency/corporation in the prequalification or eligibility screening contractors, the evaluation of bids, and the post qualification of the lowest calculated bid.

e. Cost and place of issuance of Eligibility Forms and Bid/Tender documents

f. Date, time and place of:Submission of Accomplished Eligibility formsPre-bid conferenceSubmission of BidsOpening of Bids

2. Prequalification or Eligibility Statements shall be required by the contracting government office/agency/corporation for every contract in which the contractor intends to bid. It shall be submitted not later than the deadline set in the published Invitation to Prequalify or Apply for Eligibility and to Bid, after which date no Application Prequalification or Eligibility shall be submitted and received.

3. The following documents shall comprise the prequalification or eligibility statements, to be submitted by the contractor, which shall consist of the following documents which embody the non-discretionary “pass/fail” criteria for Prequalification or Eligibility for the contract to be bid, which shall be under oath and duly notarized:a. Legal Document 1. Contractor’s Valid PCAB License for the type and cost of the contract to be bid 2. Valid joint venture agreement in the case of a joint venture 3. Letter authorizing the head of office/agency/corporation or his duly authorized

representative to verify any or all of the documents submitted for eligibility

screening. 4. Statement that his firm is not included in the “blacklist” of Contractors issued by

the CIAP

b. Technical Documents 1. A statement of all government and private construction contracts, completed in at least the last 3 years as specified in the notice for prequalification/eligibility screening, which are similar in nature and complexity to the contract to be bid. “Similar” contracts shall be defined by the concerned office/agency/corporation in the notice for prequalification/eligibility screening. The contractor’s statement shall include, for each contract, the name of the contract, owner’s name and address, nature of work, contractor’s role (sole contractor, sub-contractor, or partner in a joint venture), total contract value at completion, and contract duration. The statement shall be supported by the contractor’s performance evaluation system (CPES) rating sheets, an/or certificates of completion and owner’s acceptance.

The value of the contractor’s larges single contract, escalated to present prices, completed within the period specified in the notice for prequalification/eligibility screening, and similar to the contract to be bid, must be at least 50% of the approved budget for the contract to be bid.

2. A statement of all ongoing government and private construction contracts, including contracts awarded but not yet started. This shall include, for each contract, the name of the contract, owner’s name and address, nature of work, contractor’s role, total contract value at award, date of award, percentages of planned and actual accomplishments, value of outstanding works, and estimated completion time. The statement shall be supported by the notices of award and/or notices to proceed by the owner.s

3. A statement that the contractor has key personnel, such as project manager, project engineer, materials engineer, and foreman, that may be used for construction contracts.

4. A statement that the contractor owns, and/or has under lease, and/or under purchase agreements, equipment that may be used for construction contracts.c. Financial Documents

Audited financial statements, stamped “received” by the bureau of international revenue, for at least the past 3 calendar years, showing, among others, the contractor’s total and current assets and liabilities.

The contractor’s net financial contracting capacity (NFCC), based on his net working capital (i.e. current assets less current liabilities) must be at least equal to the approved budget for the contract to be bid, calculated as follows:NFCC=K (current assets minus current liabilities) minus (Value of all outstanding works under ongoing contracts including awarded contracts yet to be started).

K=10 for a contract duration of 1 year or less, 15 for a contract duration of more than 1 year up to 2 years, and 20 for a contract duration of more than 2 years.

IB 6 - Prequalification or Eligibility Screening of contractors for specific contracts.

1. A bidder must be found to be qualified or eligible to submit a bid for the contract to be bid based on his prequalification or eligibility statements as evaluated by the BAC or designated procurement unit of the office/agency/corporation, based on the criteria stated in the notice for prequalification/eligibility screening.

2. Notwithstanding the prequalification or eligibility of a contractor, the Government reserves the right to review his prequalification or eligibility statements and other relevant information before the approval of the contract. Should such review uncover any misinterpretation made in the prequalification or eligibility statements, or any change in the situation of the contractor to downgrade the substance of his prequalification or eligibility statements, the Government shall disqualify him from submitting a bid or from obtaining any award or contract.

3. The BAC or Designated Procurement Unit shall determine if each contractor is prequalified or eligible to submit bids for the contract to be bid by evaluating his prequalification or eligibility statements, using the non-discretionary “Pass/Fail” criteria or requirements stated in IB4-3 and in the notice for prequalification/eligibility screening, based solely and exclusively on his prequalification or eligibility statements. If the contractor passes all of the said contract to be bid. If the contractor fails any of the said criteria, he shall be considered ineligible to submit a bid for the contract to be bid.

4. After undertaking the above processes, the BAC or Designated Procurement Unit shall mark the set of prequalification or eligibility documents of each contractor “Eligible”, or “ineligible” as the case may be, and the same shall be countersigned by the Chairman or the duly designated authority. The documents shall then be submitted to the head of office/agency/corporation concerned or his duly authorized representative for review and approval. Accordingly, the BAC or Designated Procurement Unit shall inform in writing the eligible bidders within 7 calendar days after approval. Applicants found ineligible shall likewise be informed accordingly in writing within the same period by the BAC or Designated Procurement Unit, stating the grounds for their disqualification or ineligibility. Those found ineligible have 7 calendar days upon receipt of notice within which to appeal to the head of the office/agency/corporation for reconsideration.

IB 7 – Issuance of Plans, Specifications, Proposal Book Form (s) and Draft Contract

1. The BAC or Designated Procurement Unit shall issue the plans, specification, proposal book(s) for the contract to be bid to the eligible bidders under the relevant classification, upon payment of the corresponding price thereof to the collecting/disbursing officer of the office/agency/corporation concerned in accordance with the following schedule:

Estimated Project Cost (PhP) Issuance of Plans, Specifications,Proposal ____________________ Book Form(s) and Draft Contracts

a. Up to 5 Million; 15 Days before the date of bidding b. Above 5 Million up to 30 Days before the date of

bidding 25 Million

c. Above 25 Million up to 45 Days before the date of bidding 50 Million

d. Above 50 Million up to 60 Days before the date of bidding

100 Million e. Above 100 Million 90 Days before the date of

bidding2. The aforementioned schedules shall be considered as

prescribed minimum and may be extended depending on the complexity of the project to be bid subject to the approval of the office/agency/corporation head concerned.

3. In case of a simple repetitive standardized jobs where time is of the essence, the head of the office/agency/corporation may reduce the above time of issuance to not less than 50 percent.

4. A draft Contract shall be issued to the eligible bidders to form part of the bid documents.

Jamero, Jacinto Jr. R. 2:30Group 3

REVISED CLASSIFICATION AND CATEGORIZATION TABLE FOR CFY 2005-2006

CLASSIFICATION CATEGORY

MINIMUM QUALIFICATION REQUIREMENTS

(1)FINANCIAL CAPACITY

(2)STE MIN. CONST.

EXP. REQUIREMENT

(3)OVERALLCREDITPOINTSREQUIRED

STOCKHOLDER'SEQUITY

CREDIT POINTS (C.P.)REQ'D.

INDIVI-DUAL

AGGRE-GATE

MIN.C.P.REQ'D.

I. GENERAL ENGINEERING AAA P60,000,000.00 600.00 10 60 300 1,650.00

GE-1 Road, Highways, PavementRailways, Airport horizontalStructure, and Bridges

GE-2 Irrigation or Flood ControlGE-3 Dam, Reservoir or TunnelingGE-4 Water SupplyGE-5 Port, Harbor or Offshore

Engineering

AA

ABCD

30,000,000.00

6,000,000.003.000,000.001,500,000.00

600,000.00

300.00

60.0030.0015.00

6.00

10

7533

50

211033

250

105501515

765.00

235.00107.5051.5021.00

II. GENERAL BUILDING GB-1 Building or Industrial Plant GB-2 Sewerage or Sewage System GB-3 Water Treatment Plant & System GB-4 Park, Playground or Recreational Work

AAAAAABCD

P60,000,000.0030,000,000.00

6,000,000.003,000,000.001,500,000.00

600,000.00

600.00300.00

60.0030.0015.00

6.00

10107533

6050211033

300250105501515

1,610.00745.00231.00105.5060.5021.00

SPECIALTY SP-FP Foundation Work FP1- Piling Work FP2- Soil Stabilization/ Slope

Protection/ Reinforce Earth SP-SS Structural Steel WorkSP-CC Concrete Pre-casting, Pre-Stress or Post- tensioningSP-PS Plumbing & Sanitary WorkSP-EE Electrical WorkSP-ME Mechanical Work SP-AC Airconditioning or

RefrigerationSP-ES Elevator or EscalatorSP-FP Fire Protection WorkSP-WP Waterproofing WorkSP-PN Painting WorkSP-WD Well-Drilling WorkSP-CF Communication FacilitiesSP-MS Metal Roofing & Siding

InstallationSP-SD Structural DemolitionSP-LS Landscaping SP-EM Electro Mechanical WorkSp- NF Navigational Facilities

AAA

AA

A

B

C

D

P60,000,000.00

30,000,000.00

6,000,000.00

3.000,000.00

1,500,000.00

600,000.00

600.00

300.00

60.00

30.00

15.00

6.00

10

10

7

5

3

3

60

50

21

10

3

3

300

250

105

50

15

15

1,210.00

545.00

181.00

95.50

45.50

21.00

IV. SP-TRADE TRADE 30,000.00 0.30 none none none 0.30

* Minimum Qualification Requirements for Principal Classification ** For Other Classification/s, Minimum of 3 Years Actual Construction Experience*** Overall credit points inclusive of Equipment Capacity (1 point/P100Th); Experience of Firm (10 points/year of active existence; & 1 point/P100Th of 3 year Average Annual Volume of Work Accomplished; and COMTCP points if STEs are COMTCP certified

bidding proceduresbidding proceduresbidding failurebidding failureawarding of contractawarding of contractcontract documentscontract documents

by: lapiña, joan by: lapiña, joan marie e.marie e.

BIDDING PROCEDURESBIDDING PROCEDURES Preparation of Bids and Bid Bonds, and Preparation of Bids and Bid Bonds, and

Pre-qualification/Eligibility StatementPre-qualification/Eligibility Statement

a.a. Bids shall be prepared on the proposal book form in accordance w/ Bids shall be prepared on the proposal book form in accordance w/ the Instructions to Bidders.the Instructions to Bidders.

b.b. The original copy of the bid shall be accompanied by a The original copy of the bid shall be accompanied by a bid securitybid security in an amount equivalent to a percentage of the APPROVED in an amount equivalent to a percentage of the APPROVED BUDGET FOR THE CONTRACT to be bid.BUDGET FOR THE CONTRACT to be bid.

c.c. No bid securities submitted by any eligible bidder shall be returned No bid securities submitted by any eligible bidder shall be returned after the opening of the bids. Except by those that failed to comply after the opening of the bids. Except by those that failed to comply w/ any of the requirements to be submitted in the 1w/ any of the requirements to be submitted in the 1stst envelope of the envelope of the bid.bid.

Submission, Opening and Abstracting of BidsSubmission, Opening and Abstracting of Bids

a.a. Bids in the prescribed bid form including its annexes shall be Bids in the prescribed bid form including its annexes shall be submitted in two (2) sealed envelopes w/ the submitted in two (2) sealed envelopes w/ the name of the Contractname of the Contract to to be bid and the be bid and the name of the biddername of the bidder in capital letters addressed to the in capital letters addressed to the designated procurement unit of the office concerned.designated procurement unit of the office concerned.

b.b. The 1The 1stst envelope shall contain the following: envelope shall contain the following:

• Authority of the Signing OfficialAuthority of the Signing Official• Construction Schedule and S-CurveConstruction Schedule and S-Curve• Construction MethodsConstruction Methods• Organizational Chart for the contract to be bidOrganizational Chart for the contract to be bid• List of Contractor’s Personnel to be assigned to the contract to be bid, List of Contractor’s Personnel to be assigned to the contract to be bid,

w/ their complete qualification and experience dataw/ their complete qualification and experience data

Personpower schedulePersonpower schedule List of Contractor’s Equipment Units, owned and/or under lease and/or List of Contractor’s Equipment Units, owned and/or under lease and/or

under purchase agreements, supported by duly executed contracts, under purchase agreements, supported by duly executed contracts, intended for use exclusively in the contract to bidintended for use exclusively in the contract to bid

Equipment Utilization ScheduleEquipment Utilization Schedule Certificate of Site InspectionCertificate of Site Inspection Bid SecurityBid Security Certification that the detailed estimate, cash flow by quarter and payments Certification that the detailed estimate, cash flow by quarter and payments

schedule are in the second envelopeschedule are in the second envelope Commitment from the Contractor’s Bank to extend to him a credit line if Commitment from the Contractor’s Bank to extend to him a credit line if

awarded the contract to be bid, or a cash deposit certificate.awarded the contract to be bid, or a cash deposit certificate. Construction safety and health program required by the DOLEConstruction safety and health program required by the DOLE Other non-discretionary criteriaOther non-discretionary criteria

The 1The 1stst envelope shall be opened envelope shall be opened in publicin public to determine the to determine the contractor’s compliance w/ the above documents required.contractor’s compliance w/ the above documents required.

c. c. The 2The 2ndnd envelope shall contain the following: envelope shall contain the following:

• Bid Prices in the BILL OF QUANTITIESBid Prices in the BILL OF QUANTITIES• Detailed Estimated including summary sheet indicating the unit Detailed Estimated including summary sheet indicating the unit

prices of construction materials, labor rates, and equipment rentals prices of construction materials, labor rates, and equipment rentals used in coming up with the bidused in coming up with the bid

• Cash Flow by quarter and Payments ScheduleCash Flow by quarter and Payments Schedule

The 2The 2ndnd envelope shall be opened envelope shall be opened in publicin public immediately after the immediately after the opening of the 1opening of the 1stst envelope. envelope. BUTBUT only for the contractors that only for the contractors that complied with the requirements in the 1complied with the requirements in the 1stst envelope. envelope.

d. Bids shall be received d. Bids shall be received on or beforeon or before the designated time and date to the designated time and date to be eligible for consideration. Bids may be withdrawn only in be eligible for consideration. Bids may be withdrawn only in writing writing 5 working days5 working days before the deadline of submission of bids. before the deadline of submission of bids.

e.e. Bids shall be opened at the place, date and time specified in the Bids shall be opened at the place, date and time specified in the advertisement by the BAC. The advertisement by the BAC. The bidder or their duly authorized bidder or their duly authorized representative may attendrepresentative may attend the opening of the bids. the opening of the bids.

f.f. Bids w/ submitted bid prices that are Bids w/ submitted bid prices that are higher than the approved budget higher than the approved budget for the contractfor the contract under bidding shall be under bidding shall be rejectedrejected outright. outright.

g.g. After all the bids have been received and opened, the corresponding After all the bids have been received and opened, the corresponding Abstract of BidsAbstract of Bids shall be prepared. It shall contain the ff: shall be prepared. It shall contain the ff:

(a) Name of the Project and its location, (a) Name of the Project and its location, (b) Time, date, and place of bidding, and (b) Time, date, and place of bidding, and (c) Names of the bidders and their bids arranged (c) Names of the bidders and their bids arranged

from the lowest to the highest.from the lowest to the highest.

Determination of the Lowest Calculated Determination of the Lowest Calculated Responsive BidResponsive Bid

a.a. The BAC or Procurement Unit shall determine the The BAC or Procurement Unit shall determine the “Lowest “Lowest Calculated Responsive Bid”Calculated Responsive Bid”, which is the bid (a) , which is the bid (a) with the lowest with the lowest priceprice as calculated based on the provisions in the Evaluation of Bids, as calculated based on the provisions in the Evaluation of Bids, and (2) and (2) which complies w/ all the requirementswhich complies w/ all the requirements in the “Post- in the “Post-qualification of Contractor w/ the lowest calculated bid”.qualification of Contractor w/ the lowest calculated bid”.

b. b. The lowest calculated responsive bid shall therefore be determined The lowest calculated responsive bid shall therefore be determined in two steps:in two steps:

- - the detailed evaluation of all the bids the detailed evaluation of all the bids - the post-qualification of the bidder w/ the lowest calculated - the post-qualification of the bidder w/ the lowest calculated

bidbid

Detailed Evaluation of BidsDetailed Evaluation of Bids

- - to establish the correct calculated prices of the bids accdg. to the to establish the correct calculated prices of the bids accdg. to the requirements, and to det. the order or ranking of the total bid prices as requirements, and to det. the order or ranking of the total bid prices as so calculated from the lowest to the highest.so calculated from the lowest to the highest.

a. Shall be conducted w/in 7 days from the date of opening of a. Shall be conducted w/in 7 days from the date of opening of the the bids.bids.

b. At the time of the opening of the bids, there shall be at least 2 b. At the time of the opening of the bids, there shall be at least 2 competing bidders.competing bidders.

c. The respective designated procurement units should normally c. The respective designated procurement units should normally complete the evaluation of bids not later than 30 calendar complete the evaluation of bids not later than 30 calendar days days from the date of the opening of bids.from the date of the opening of bids.

Post-qualification of Contractor w/ the Post-qualification of Contractor w/ the lowest calculated bidlowest calculated bid

- based on the results of the evaluation. This shall verify and - based on the results of the evaluation. This shall verify and ascertain whether the bidder w/ the lowest calculated bid complies ascertain whether the bidder w/ the lowest calculated bid complies w/ or is responsive to all the requirements (legal, technical, and w/ or is responsive to all the requirements (legal, technical, and financial) of the contract under bidding.financial) of the contract under bidding.

a. Shall be conducted, on the bidder w/ the lowest calculated bid, a. Shall be conducted, on the bidder w/ the lowest calculated bid, w/in 30 days from the completion of the first step (Evaluation of w/in 30 days from the completion of the first step (Evaluation of Bidders)Bidders)

BIDDING FAILUREBIDDING FAILURE

- May be due to dishonesty in the competition or bidding processMay be due to dishonesty in the competition or bidding process

- Example: Submitting more than 1 bid apparently different but Example: Submitting more than 1 bid apparently different but actually comes from the same party.actually comes from the same party.

- Bidding failure may be declared if there is evidence of Bidding failure may be declared if there is evidence of conspiracy or conspiracy or agreementagreement among contractors. among contractors.

AWARDING OF CONTRACTAWARDING OF CONTRACT

By Bid ContractBy Bid Contract

1. If the BAC or designated Procurement Unit finds that the contractor 1. If the BAC or designated Procurement Unit finds that the contractor w/ the lowest calculated total bid pricew/ the lowest calculated total bid price passes passes the post-qualification the post-qualification criteria, his bid shall be considered the criteria, his bid shall be considered the “Lowest calculated responsive “Lowest calculated responsive bid”bid”, and the office shall award the contract to him., and the office shall award the contract to him.

2. If, however, the BAC or the designated Procurement Unit finds that 2. If, however, the BAC or the designated Procurement Unit finds that the contractor w/ the the contractor w/ the lowest calculated total bidlowest calculated total bid fails fails the post-the post-qualification criteria, the office shall immediately notify him in qualification criteria, the office shall immediately notify him in writing that he is post-disqualified and in the same notice be informed writing that he is post-disqualified and in the same notice be informed of the grounds for his post-disqualification. The bidder shall have 7 of the grounds for his post-disqualification. The bidder shall have 7 days from receipt of the notification to request from the BAC, days from receipt of the notification to request from the BAC, if he so if he so wishes,wishes, a reconsideration of this decision. a reconsideration of this decision.

3. After the office has notified the 13. After the office has notified the 1stst contractor of his post- contractor of his post-disqualification, the BAC or the designated procurement unit shall disqualification, the BAC or the designated procurement unit shall initiate and, w/in initiate and, w/in 7 days7 days, complete the same post-qualification process , complete the same post-qualification process on the contractor w/ the on the contractor w/ the second lowest calculated bid. second lowest calculated bid. If the 2If the 2ndnd contractor contractor passes passes the post-qualification criteria, and provided that the the post-qualification criteria, and provided that the request for reconsideration of the bidder with the lowest calculated bid request for reconsideration of the bidder with the lowest calculated bid is denied, is denied, the bid of the 2the bid of the 2ndnd lowest contractor shall be considered as lowest contractor shall be considered as the lowest calculated responsive bid.the lowest calculated responsive bid.

4. If the 24. If the 2ndnd contractor, however, contractor, however, failsfails the post-qualification criteria, the the post-qualification criteria, the previous process is repeated for the bidder w/ the next lowest previous process is repeated for the bidder w/ the next lowest calculated bid(s), until the lowest calculated responsive bid is obtained calculated bid(s), until the lowest calculated responsive bid is obtained for award.for award.

5. In the event of 5. In the event of refusalrefusal or or failurefailure of the lowest Calculated Responsive of the lowest Calculated Responsive Bidder for award to enter into contract w/in the stipulated time, the Bidder for award to enter into contract w/in the stipulated time, the Government shall impose the appropriate sanctions.Government shall impose the appropriate sanctions.

6. In the event of refusal, inability or failure of the lowest Calculated 6. In the event of refusal, inability or failure of the lowest Calculated Responsive Bidder to make good his bid by entering into contract and Responsive Bidder to make good his bid by entering into contract and to post his performance security w/in the time provided therefore, the to post his performance security w/in the time provided therefore, the 22ndnd lowest calculated responsive bidder shall be considered for award lowest calculated responsive bidder shall be considered for award at his calculated bid price at his calculated bid price provided that his provided that his calculated bid calculated bid shall not shall not exceed the APPROVED BUDGET FOR THE CONTRACT hereofexceed the APPROVED BUDGET FOR THE CONTRACT hereof. . This rule shall likewise apply to the 3This rule shall likewise apply to the 3rdrd lowest calculated responsive lowest calculated responsive bidder in case the 2bidder in case the 2ndnd lowest calculated responsive bidder shall lowest calculated responsive bidder shall likewise likewise refuse to enter into contract with the governmentrefuse to enter into contract with the government. . Otherwise, Otherwise, the Contract shall be advertised anew for bidding.the Contract shall be advertised anew for bidding.

7. If after re-bidding, 7. If after re-bidding, no bid still comes w/in the limits of award of the no bid still comes w/in the limits of award of the contractscontracts, the contract may be recommended to the head of office , the contract may be recommended to the head of office concerned for prosecution by administration or by negotiated contract concerned for prosecution by administration or by negotiated contract in accordance w/ existing laws, rules and regulations.in accordance w/ existing laws, rules and regulations.

8. Normally w/in 8. Normally w/in 30 calendar days30 calendar days from the date the evaluation of bids from the date the evaluation of bids shall have been completed. Post-qualification of the lowest calculated shall have been completed. Post-qualification of the lowest calculated bidder to determine its responsiveness shall have been done and a bidder to determine its responsiveness shall have been done and a decision on the results of the post-qualification shall be made.decision on the results of the post-qualification shall be made.

If the decision is to award the contract, the NOTICE OF AWARD shall If the decision is to award the contract, the NOTICE OF AWARD shall be issued normally w/in be issued normally w/in 7 calendar days 7 calendar days from the date the decision to from the date the decision to award is made. award is made.

- for foreign-assisted projects the decision to award the contract - for foreign-assisted projects the decision to award the contract shall be transmitted to the concerned foreign shall be transmitted to the concerned foreign financial institution for financial institution for concurrence as may be required normally w/in 7 calendar days from the concurrence as may be required normally w/in 7 calendar days from the date decision to award is made. Likewise, the Notice of Award shall be date decision to award is made. Likewise, the Notice of Award shall be issued w/in 7 calendar days.issued w/in 7 calendar days.

The successful bidder or his duly authorized representative shall execute The successful bidder or his duly authorized representative shall execute the contract w/ the office concerned normally w/in the contract w/ the office concerned normally w/in 15 calendar days15 calendar days from receipt of the Notice of Award.from receipt of the Notice of Award.

9. The Government, however, 9. The Government, however, reserves the right to reject any or all bids and reserves the right to reject any or all bids and to declare a failure of biddingto declare a failure of bidding, , or not to award the contractor not to award the contract if there is, if there is, among others evidence of collusion among contractors and other parties among others evidence of collusion among contractors and other parties resulting in no competition.resulting in no competition.

By Negotiated ContractBy Negotiated Contract- - Negotiated contract may be entered into only where any of the ff. Negotiated contract may be entered into only where any of the ff.

conditions exists and the implementing office is not capable of undertaking conditions exists and the implementing office is not capable of undertaking the project by administration:the project by administration:

a. In times of emergencies arising from natural calamities where a. In times of emergencies arising from natural calamities where immediate action is necessary to prevent imminent loss of life and/or immediate action is necessary to prevent imminent loss of life and/or property or to restore vital public services, infrastructure an utilities such property or to restore vital public services, infrastructure an utilities such as collapsed bridges, etc.as collapsed bridges, etc.

b. Failure to award the contract after 2 public biddings for valid cause or b. Failure to award the contract after 2 public biddings for valid cause or causes.causes.

c. Where the subject project is c. Where the subject project is adjacent or contiguous to an ongoing adjacent or contiguous to an ongoing projectproject and it could be and it could be economically prosecuted by the same economically prosecuted by the same contractor contractor provided that subject project has similar or related scope of provided that subject project has similar or related scope of works and is w/in the contracting capacity of the contractorworks and is w/in the contracting capacity of the contractor, in which , in which case, direct negotiation may be undertaken w/ the said contractor.case, direct negotiation may be undertaken w/ the said contractor.

d. For contracts terminated in accordance w/ the provisions of d. For contracts terminated in accordance w/ the provisions of Presidential Decree No. 1870 (Authorizing the government’s take over Presidential Decree No. 1870 (Authorizing the government’s take over by administration of delayed infrastructure projects or awarding of the by administration of delayed infrastructure projects or awarding of the contract to the other qualified contractors) or other similar laws.contract to the other qualified contractors) or other similar laws.

The Government assumes no obligation whatsoever to compensate or indemnify (reimburse) the bidders for any expenses or loss that may incur in the preparation of their bid nor does the Government guaranteed than an award will be made.

DOCUMENTS COMPRISING THE DOCUMENTS COMPRISING THE CONTRACTCONTRACT

The ff. documents shall form part of the contract:The ff. documents shall form part of the contract:

a. Contract Agreementa. Contract Agreementb. Conditions of Contractb. Conditions of Contractc. Drawing/Plansc. Drawing/Plansd. Specificationsd. Specificationse. Invitation to bide. Invitation to bidf. Instructions to Biddersf. Instructions to Biddersg. Addendag. Addendaf. Bid Form including the f. Bid Form including the two sealed envelopestwo sealed envelopesi. Performance Securityi. Performance Securityj. Pre-qualification Statementsj. Pre-qualification Statements

k. Credit Line issued by an authorized k. Credit Line issued by an authorized bank in an amount equal to the bank in an amount equal to the ave. operating expenses of the ave. operating expenses of the project for 2 months or 10% of project for 2 months or 10% of the total project cost, whichever the total project cost, whichever is less.is less.

l. Notice of Award of Contract and l. Notice of Award of Contract and Contractor’s “Conforme“ theretoContractor’s “Conforme“ thereto

m. Other Contract documents that m. Other Contract documents that may be required by the may be required by the office/agency/corporation office/agency/corporation concerned. concerned.

Supporting Documents:Supporting Documents:

--to facilitate the approval of the contract, the ff. documents to facilitate the approval of the contract, the ff. documents shall be submitted:shall be submitted:

a. Duly Approved Program of Work and Cost Estimatesa. Duly Approved Program of Work and Cost Estimatesb. Certificate of Availability of Fundsb. Certificate of Availability of Fundsc. Approved BUDGET FOR THE CONTRACTc. Approved BUDGET FOR THE CONTRACTd. Abstract of Bidsd. Abstract of Bidse. Resolution of the BAC or the BAC recommending Awarde. Resolution of the BAC or the BAC recommending Awardf. Approval of Award by Approving Authorityf. Approval of Award by Approving Authorityg. Concurrence of Lending institution in case of Foreign- g. Concurrence of Lending institution in case of Foreign- assisted Projectsassisted Projectsh. Other pertinent documents as may be reasonably required h. Other pertinent documents as may be reasonably required by by existing laws.existing laws.

COURT LITIGATION

By: Liezl Jo Sauro

Disputes concerning any question arising under Agreement which is not disposed of by agreement between the parties, shall be decided by the Head of the agency concerned who shall furnish Consultant a written copy of his decision.

Decisions reached by arbitration may be enforced by either of the parties in any court of competent jurisdiction in the Philippines. In case of suit arising in connection with the terms of this Agreement, the parties hereto expressly submit to the jurisdiction of the said court.

Litigation Process

1) Plaintiff files a written document(complaint) in court-In the complaint, the plaintiff alleges or claims that the party who is being sued, the defendant, has done something, or has failed to do something, which entitles the plaintiff to some sort of relief.

Relief: frequently money, but may involve nonmonetary matters, such as issuing an injunction(an order requiring the defendant to do something or to stop doing something).

Example:Suppose that two individuals, A and B, enter into contract in which B agrees to sell A her house. Before the transfer is completed, B changes her mind about selling and refuses to comply with the terms of the contract. On the other hand,she could sue for specific performance of the contract. This means she is asking the court to force B to fulfill the terms of their agreement.

2) Defendant is given the opportunity to contest the lawsuitA document called an Answer is filed in the court.In an answer the defendant: states why the plaintiff is not entitled to any relief can challenge a lawsuit by raising certain legal issues ignore the complaint and do nothing(default)

OBJECTIONS TO THE COURT'S JURISDICTION OR THE NAMED DEFENDANT

If the defendant intends to take any objection to all or any part of the claimant's claim on the grounds that

(i) the court lacks jurisdiction, (ii) the matter should be referred to arbitration, or (iii) the defendant named in the letter of claim is the wrong

defendant, that objection should be raised by the defendant within 28 days after receipt of the letter of claim. The letter of objection shall specify the parts of the claim to which the objection relates, setting out the grounds relied on, and, where appropriate, shall identify the correct defendant. Any failure to take such objection shall not prejudice the defendant's rights to do so in any subsequent proceedings, but the court may take such failure into account when considering the question of costs.

THE DEFENDANT'S RESPONSE

Within 28 days from the date of receipt of the letter of claim, or such other period as the parties may reasonably agree (up to a maximum of 4 months), the defendant shall send a letter of response to the claimant which shall contain the following information:

the facts set out in the letter of claim which are agreed or not agreed, and if not agreed, the basis of

the disagreement; which claims are accepted and which are rejected, and

if rejected, the basis of the rejection;

if a claim is accepted in whole or in part, whether the damages, sums or extensions of time claimed are accepted

or rejected, and if rejected, the basis of the rejection;

if contributory negligence is alleged against the claimant, a summary of the facts relied on;

whether the defendant intends to make counterclaim, and if so, giving the information which is required to be given in a letter of claim;

the names of any experts already instructed on whose evidence it is intended to rely, identifying the issues to which that evidence will be directed;

If no response is received by the claimant within the period of 28 days (or such other period as has been agreed between the parties), the claimant shall be entitled to commence proceedings without further compliance.

CLAIMANT'S RESPONSE TO COUNTERCLAIM

The claimant shall provide a response to any counterclaim within the equivalent period allowed to the defendant to respond to the letter of claim.

3) Discovery

Litigation proceeds if both the plaintiff and defendant filed appropriate documents with the court with the parties trying to find out as much as they can about the other side’s case.

Parties may request various orders from the court dealing with the case prior to the trial. These request may range from very simple procedural issues to more complicated legal issues. These requests are known as motions.

If the parties are unable to settle their dispute, and the case is not disposed of by a motion, then normally the parties will eventually go to court and present evidence to support their claims.

The litigation process does not necessarily end at trial because both sides have the right to appeal the decision to a higher court.

Prior to commencing proceedings, the claimant or his solicitor shall send to each proposed defendant a copy of a letter of claim which shall contain the following information:

the claimant's full name and address;

the full name and address of each proposed defendant;

a clear summary of the facts on which each claim is based;

the basis on which each claim is made, identifying the principal contractual terms and statutory provisions relied on;

the nature of the relief claimed: if damages are claimed, a breakdown showing how the damages have been quantified; if a sum is claimed pursuant to a contract, how it has been calculated; if an extension of time is claimed, the period claimed;

where a claim has been made previously and rejected by a defendant, and the claimant is able to identify the reason(s) for such rejection, the claimant's grounds of belief as to why the claim was wrongly rejected;

the names of any experts already instructed by the claimant on whose evidence he intends to rely, identifying the issues to which that evidence will be directed.

RIGHT OF WAY CONSIDERATION

By: LOVELEANE MARIE LAO

EASEMENT OF RIGHT OF WAY

ART. 649. The owner, or any person who by virtue of a real right may cultivate or use any immovable, which is surrounded by other immovables pertaining to other persons without adequate outlet to a public highway, is entitled to demand right of way through the neighboring estates, after payment of the proper indemnity.

Should this easement be established in such a manner that its use may be continuous for all the needs of the dominant estate, establishing a permanent passage, the indemnity shall consist of the value of the land occupied and the amount of the damage caused to the servient estate.

In the case the right of way is limited to the necessary passage for the cultivation of the estate surrounded by others and for the gathering of its crops through the servient estate without a permanent way, the indemnity shall consist in the payment of the damage caused by such encumbrance.This easement is not compulsory if the isolation of the immovable is due to the proprietor’s own acts.

“EASEMENT OF RIGHT OF WAY” DEFINED

This is the easement or privilege by which one person or a particular is allowed to pass over another’s land, usually thru one particular path or line.

The term “right of way”, upon the other hand, may refer either to the easement itself, or simply, to the strip of land over which passage can be done.

REQUISITES FOR THE EASEMENT

a) The property is surrounded by estates of others.

b) There is no adequate outlet to the public highway. If outlet is thru the water, like a river or sea, under Spanish Law, the easement cannot be demanded for there exists an adequate outlet; it is believed that in the Philippines, a distinction must be made, dependent on danger, convenience and cost.

c) There must be payment of the proper indemnity (but later on, the amount may be refunded when the easement ends).

d) It must be established at the point least prejudicial to the servient estate. (This is generally but not necessarily, the shortest distance).

e) The isolation must not be due to the proprietor’s own acts.

f) Demandable only by the owner or one with a real right like a usufructuary. (The lessee should ask the lessor to demand the easement from the adjoining estates).

PROPER INDEMNITY

a) If the passage is permanent, pay the value of land occupied by the path plus damages. (Upon extinction of the easement, the indemnity is returned without interest, for the interest is considered rent).

b) If temporary, pay for the damages caused. (it is temporary when, for example, the estate is not being cultivated the whole year round, and when harvesting is only once in a while or when the carrying of materials is needed to improve a building).

CLASSIFICATION OF RIGHT OF WAYThe right of way may be:

a) PRIVATE (such as the right given in Art.649)

b) PUBLIC ( one available to the general public – but then in such a case, the land involved would no longer be private land but a “highway” or a “public road”).

EASEMENT IN FAVOR OF THE GOVERNMENT

The servitude which a private property owner is ordered to recognize in favor of the Government is the easement of a “public highway, way, private way established by law, or any government canal or lateral thereof” (Sec. 39, Land Registration Act), where the certificate of title does not state that the boundaries thereof have been determined. But even in this case, it is necessary that the easement should have been pre-existing at the time of registration of the land in order that the registered owner may be compelled to respect it.

Where the easement is not pre-existing and is sought to be imposed only after the land has been registered under the Land Registration Act, proper expropriation proceedings, should be had, and just compensation paid to the registered owner thereof. For, it is elementary that public use may not be imposed on private property without expropriation proceedings and payment of just compensation made to the owner.

Art 651. The width of the easement of right of way shall be that which is sufficient for the needs of the dominant estate, and may accordingly be changed from time to time.

WIDTH OF PATH:a) The width may be modified from time to time

depending upon the reasonable needs of the dominant estate.

b) Nowadays, the use of automobiles is vital necessity, hence the pathway should be sufficient for this.

CAUSES OF EXTINGUISHMENT OF THE EASEMENT OF RIGHT OF WAY

a) Opening of a new road.b) Joining the dominant estate to another (that is the

latter becomes also the property of the dominant owner) which abuts, and therefore has access to the public highway. But the new access must be adequate and convenient.

EXTINGUISHMENT NOT AUTOMATIC

The extinguishment is not automatic, because the law says that the servient owner “may demand”. It follows that if he chooses not to demand, the easement remains and he has no duty to refund the indemnity.

Art.7. PERMITS, TAXES AND SURVEYS

7.01. PERMITS AND LICENCES: The Owner, with the Contractor’s assistance, shall secure and pay all construction permits and licenses necessary for the execution of the Work or of any temporary work and easements in relation thereof.The Contractor shall secure the final occupancy permit but he shall not be responsible to the owner if, without his fault, the license is not issued or there was delay in its issuance.

7.02. TAXES. Wherever the law of the place where the project is located requires a sales, consumer, use, or other similar tax related or pertinent only to the constructions of the project, the Contractor shall pay such tax.

7.03. CONSTRUCTION STAKES AND REFERENCE MARK. The owner shall furnish all surveys describing the physical characteristics, legal limitations, and utility locations of the site. He shall also furnish right-of-way for access to the site. The owner shall be responsible for the establishment of lot lines, boundary lines, easements and benchmarks which shall be made by a certified surveyor.

7.04. SERVICES OF GEODETIC ENGINEER. The contractor shall, at his option or when so required under the contract, engage the services of a licensed Geodetic Engineer to confirm and certify the location of column centers, piers, walls, pits, trenches, pipe work, utility lines and work of a similar nature. If the Geodetic Engineer finds any deviation from the drawings in the work of the contractor, he shall report his findings to the owner within 24 hours from discovery. The contractor shall be responsible for loss or damage caused by the act or omission of the Geodetic Engineer.