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LATEST NON-POLICY MATTER OPINIONS

LATEST NON-POLICY MATTER OPINIONS. Government Procurement Policy Board – Technical Support Office. Outline. Scope and Application Procurement Organizations PhilGEPS Bidding Documents Pre-Bid Conference Submission and Receipt of Bids Detailed Evaluation of Bids Post-qualification

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LATEST NON-POLICY MATTER OPINIONS

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  1. LATEST NON-POLICY MATTER OPINIONS Government Procurement Policy Board – Technical Support Office

  2. Outline • Scope and Application • Procurement Organizations • PhilGEPS • Bidding Documents • Pre-Bid Conference • Submission and Receipt of Bids • Detailed Evaluation of Bids • Post-qualification • Award of Contract • Alternative Methods of Procurement • Contract Implementation • Protest Mechanism • Blacklisting

  3. Philippine Procurement Paradigm Assess Selection HOPE HOPE • Post/Advertise opportunity • Open and evaluate bids • Post-qualify • Award and enter into contract • Review studies • Consolidate into APP • Decide procurement method • Approve APP • Determine readiness BAC BAC BAC Sec TWG Budget BAC Sec End User End User Implement Identify • Oversee implementation • Inspect and accept deliveries • Release payment • Cost-benefit analysis • Feasibility study • Market study • PPMP Needs Satisfaction

  4. Standardized Bidding Procedures for Goods and Works Pre-Procurement Conf. Advertisement Pre-Bid Conference Submission of Bids Opening of 1st Env. - Eligibility Docs & Technical Proposal Opening of 2nd Envelope – Financial Proposal Award of Contract Bid Evaluation & Ranking Post-qualification

  5. Scope and Application

  6. Scope and Application:Partly Funded by Private Funds • The mere fact that the procurement of the independent consultant is partly funded by private funds (i.e., 50% from the winning concessionaire) does not change the nature of the procurement nor take it outside the coverage of RA 9184 and its IRR, specifically so when the transaction involves the expenditure of public funds. • As long as public fund is utilized or contemplated to be spent for any procurement activity, it shall by force, fall within the ambit of the present procurement law. Reference: NPM 44-2013

  7. Scope and Application:Partnership with Private Entities • Transactions involving the contribution of money/capital, services, or assets by the parties to the transaction is considered a Joint Venture (JV) agreement under Section 5.7 of the Guidelines and Procedures for Entering Into Joint Venture Agreements Between Government and Private Entities (JV Guidelines). Reference: NPM 58-2013

  8. Scope and Application:Lease of Government-Owned Building • Transactions where a government agency leases out its real property for private use, such as in the case of a canteen or food concessionaire, are governed by Executive Order 301 (Series of 1987), particularly Section 7 thereof, and its associated guidelines. • Implementing Guidelines for Lease of Privately-Owned Real Estate guidelines will only apply to lease of privately-owned real estate by government agencies for official use. Reference: NPM 50-2013

  9. Scope and Application:Classification of ICT Services • PE is in the best position to determine the correct classification of its procurement based on its identified needs and the best way by which these needs may be addressed, managed, and satisfied. • In case of mixed procurements, its nature can be best determined based on the primary purpose of the contract. [§5(aa), RA 9184 IRR] • It is the motivation or intention of the PE in pursuing the project that will determine the primary purpose of a project. • PE should be guided by the parameters and conditions in the relevant provisions of RA 9184 and its IRR on what should be considered as Goods, Infrastructure Projects or Consulting Services procurement. Reference: NPM 11-2013

  10. Scope and Application:Multi-Year Contract for Engineering Services • General support services are understood to include those services that are essential, indispensable, or necessary to support the operations of the procuring entity or for the enhancement of the welfare of its personnel, including non-personal or contractual services. • It can be deduced from the foregoing that engineering services for the maintenance of the CCP offices and facilities may be considered as within the contemplated coverage of general support services, in the same vein as are the services for janitorial and security. Reference: NPM 82-2013

  11. Scope and Application:Extension of Contracts • RA 9814 and its IRR, including the various guidelines apply to all procurement activities of all government agencies. • Until the actual turnover of AHEPP to the new private owner is made, the government agency having control over AHEPP may still consider the extension of contract for its general support services, subject to the conditions under §4 of the Guidelines. Reference: NPM 30-2013

  12. Scope and Application:Demolition of Building • RA 9184 and its IRR do not cover disposal of government properties. • Disposal of unserviceable equipment and property of all government agencies is covered by EO 888 (s. 1983). • EO 285 (s. 1987) has identified DPWH as the agency-in-charge with the disposal of government-owned buildings. In line with this, DPWH, DBM, and DENR issued Joint Circular No. 1, which provides the procedures on demolition of buildings. • Disposal and Procurement are two distinct government transactions covered by different rules and regulations. Reference: NPM 165-2012

  13. 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. Reference: NPM 41-2013

  14. 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. Reference: NPM 28-2013

  15. Scope and Application:Authority of GPPB • GPPB has no jurisdiction to rule over actual controversies with regard to the conduct of the bidding since it has no quasi-judicial functions under the law. • It is the prerogative and discretion of the procuring entity through its BAC to come up with the declaration since they are in the best position to determine the details of their Project. Reference: NPM 56-2013

  16. Procurement Organizations

  17. 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 Head of the Procuring Entity. • Designation entails exercise and execution of actual, related, incidental power and authority inherent in the office, unless designation contains specific reservations, limitations, or qualifications on the functions to be performed. • Purpose of designation is to prevent hiatus in the operations of the PE, such that during the interregnum that there is no regular head of office, the duties, responsibilities, and functions of the office are continuously performed and exercised so that the service to the public is not tolled or affected despite the vacancy in the office of the head of agency. • Hence, the OIC is authorized to make decisions on procurement activities of the PE, subject to the limits stated in the Department Circular. Reference: NPM 14-2013

  18. Procurement Organizations:Authority of BAC Sec Head to Notarize • The BAC Sec provides a vital supporting role for the PE in the procurement process. • If the BAC Sec Head is to notarize the resulting contract, she would then take on a more central role by bestowing upon the contract the imprimatur of a legal attestation by a third person. • The sharp contrast in the roles of a BAC Sec Head and a Notary Public when exercised by the same person may invite suspicion of unfaithfulness, conflict of interest, which may cast doubt on the contract in particular, and the entire procurement activity as a whole. Reference: NPM 66-2013

  19. 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 RA 9184 and its IRR, and should exclude those that require the exercise of discretion, consent or approval on matters under the jurisdiction of a different authority. Reference: NPM 66-2013

  20. 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 • Section 14 limits the responsibilities of the BAC Secretariat to administrative support functions and primarily ministerial duties. Since the BAC Secretariat is limited to these functions, the conduct of opening and preliminary examination of bids, where discretion and sound judgment are required, cannot be considered as clerical or secretariat nature; therefore, outside the functions of the BAC Secretariat. Reference: NPM 69-2013

  21. Procurement Organization:Conflict of Interest • Conflict of interest arises when, in the case of the subject matter of the inquiry, the Chairman of the BAC that conducted the earlier procurement was eventually designated as OIC of the Procuring Entity. • In this case, the subject procurement is deprived of checks and balances as one of the persons conducting the bid evaluation and post-qualification, who is no less than the BAC Chair, may have that degree of proclivity towards the recommended action of the BAC; thus, the subsequent award of contract may no longer enjoy the cold neutrality of an impartial HOPE. Reference: NPM 14-2013

  22. Procurement Organizations:BAC Membership • §11.2.2 of RA 9184 IRR provides that BAC composition and membership is based on the term “permanent”, i.e., plantilla position within the PE. • Hence, plantilla of the agency will define whether the position qualifies for regular BAC membership, and the determination of ranking should take into consideration the hierarchy of plantilla positions in the PE. • The Division Chief is the sixth ranking personnel, and will remain as such even for offices or bureaus without ABDs so long as the entire organizational structure of the PE has an identified ABD position in the plantilla. Reference: NPM 160-2012

  23. Procurement Organizations:Provisional Member • Alter Ego principle (also Doctrine of Qualified Political Agency) falls under the control power of the President, and dictates that department secretaries are considered alter egos of the President. • Various jurisprudence limit application of Alter Ego principle to the President. • Approving authority may be deemed the alter ego of the HOPE. Thus, for the Alter Ego principle to apply, the EA must be designated as the approving authority. • It is only when the EA is an approving authority that it is disqualified under §11.2.5 of the IRR of RA 9184 from becoming a BAC member. Reference: NPM 32-2013

  24. Procurement Organizations:Alternate BAC Members • The phrase “shall have the same qualifications as their principals” should be understood together with the clause “as set in the Act and this IRR” • The qualifications set in the IRR that were used in determining the principal will be the same qualifications under which the alternate will be chosen • An alternate BAC Chairperson and its alternate BAC member should be at least a 3rd ranking and a 5th ranking permanent official of the PE, respectively Reference: NPM 160-2012

  25. Procurement Organizations:Separate BAC • The HOPE may create a separate BAC pursuant to §11.1.2 of the IRR to expedite the bidding of its numerous projects without the need of securing any approval or ratification from GPPB. • Rank requirement for BAC members provided in §11.2.2 of the IRR should be followed in the creation of separate BACs. Reference: NPM 04-2013

  26. Procurement Organizations:Separate BAC • §11.1.2 RA 9184 IRR states that, in order to expedite the procurement process, the HOPE may create separate BACs, organized either according to geographical locations or nature of procurement, where the number and complexity of the items so warrant. • CSU has authority to establish separate BACs upon its determination that the creation of separate BACs according to its geographical location is necessary to expedite the procurement process. • CSU may create separate BACs for each of its campuses. Reference: NPM 26-2013

  27. Procurement Organizations:Sub-BAC • PE’s creation of sub-BACs to be placed under a main BAC is not in compliance with the requirements under Sec 11 of the IRR of RA 9184. • PE may, however, establish separate BACs with the composition of the BAC members subject to the qualifications under Section 11.2.2 of the IRR of RA 9184. Each BAC shall not be considered as decentralized committees pursuant to Section 11.1.2 of the IRR since it will be headed by a single HOPE Reference: NPM 74-2013

  28. Procurement Organizations:Multi-Agency BAC • The creation of special BAC composed of officials from various PEs will run counter to the provisions of RA 9184 and its IRR. • The concept of multi-agency joint procurement that will be conducted using a special BAC composed of the agencies’ respective officials does not find support in RA 9184 and its IRR. Reference: NPM 74-2013

  29. Procurement Organizations:Declaration of Failure of Bidding by the BAC • The authority of the BAC to declare a failure of bidding is limited to instances enumerated in Sec. 35.1 of the IRR of RA 9184, specifically, when (a) no bids are received, (b) all prospective bidders are declared ineligible, (c) all bids fail to comply with all the bid requirements or fail post-qualification, or, in the case of consulting services, there is no successful negotiations, or (d) the bidder with the LCB or HRB refuses to accept the award. • The BAC cannot declare failure of bidding for reasons other than those provided in Sec. 35 of the IRR of RA 9184. It cannot exercise the reservation clause provided in Sec. 41 of the same IRR since such authority exclusively belongs to the HOPE. Reference: NPM 122-2013

  30. Procurement Organizations:DBM Circular No. 2004-5A • Payment of honoraria is limited to procurement that involves competitive bidding: • Competitive Bidding (Section 10), • Limited Source Bidding (Section 49), • Negotiated Procurement under Two-Failed Biddings (Section 53.1) • Honoraria will not be paid when procurement is through all the other alternative modes of procurement where competitive bidding or a semblance thereof is considered not present. • Honoraria is given for “successfully completed procurement projects”, which not only includes Competitive Bidding, but also alternative methods of procurement where competition is present Reference: NPM 59-2013

  31. PhilGEPS

  32. PhilGEPS:Registration • §8.5.1 RA 9184 IRR requires suppliers, contractors, consultants to register with PhilGEPS. It does not qualify based on threshold. • Inapplicability of the posting requirement is not tantamount to a situation where PhilGEPS registration may also be dispensed with since the amount of the project is not a factor for the condition to apply. • Registration with PhilGEPS is absolute, and must be complied with regardless of the cost of procurement. Reference: NPM 34-2013

  33. PhilGEPS:Registration Certificate • 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. Reference: NPM 19-2013

  34. Bidding Documents

  35. 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. Reference: NPM 68-2013

  36. 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. Reference: NPM 18-2013

  37. 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. Reference: NPM 43-2013

  38. Bidding Documents:Eligibility Criteria on SLCC • Since Section 23.5.2.5 of the IRR of RA 9184 does not give the procuring entity the option to adopt a different criterion for eligibility, we are of the considered view that the PE cannot aggregate the amount of two contracts as compliance with the eligibility criterion on SLCC. Reference: NPM 85-2013

  39. Bidding Documents:Reference to Brand Names • §18 RA 9184 and IRR prohibits reference to brand names. • The PE cannot refuse to accept the delivery of an item that is compliant with the technical specifications provided in the bidding documents. • If bidding documents identified a specific brand, PE may consider declaring failure of bidding as the BAC failed to conform with the prescribed bidding procedures. Reference: NPM 156-2012

  40. Bidding Documents: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. Reference: NPM 53-2013

  41. 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. Reference: NPM 22-2013

  42. Bidding Documents: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. Reference: NPM 42-2013

  43. Bidding Documents:Design and Build Projects • Non-compliance with the requirements in the Guidelines amounts to the failure of the BAC to comply with the requirements of the law and its associated rules and guidelines, which may result in the disallowance by COA and imposition of administrative sanctions. • HOPE may declare failure of bidding pursuant to §41 RA 9184 IRR in light of the BAC’s failure to follow the prescribed procurement process, and impose administrative sanctions against the erring officials. Reference: NPM 162-2012

  44. Bidding Documents:Payment for the 2nd Bidding • Where there was a failure of bidding for the first time, the decision of charging fees for the Bidding Documents for the subsequent re-bidding depends upon the discretion of the procuring entity, taking into account the need to recover the cost of its preparation and development vis-à-vis the effects on competition and participation of bidders. • The preparation and development of the revised Bidding Documents may entail upon the procuring entity another set of costs and expenses. Based on these costs and expenses, procuring entities may deem it necessary to charge bidders anew for the purpose of recovering the costs for its development and preparation. Reference: NPM 163-2012

  45. Bidding Documents:Discounts • Although discounts are not entirely prohibited, it should be made an integral part of the original bid such that the discount and the bid price have the same validity period in order for it to be considered for purposes of bid evaluation; otherwise, the bid shall be evaluated sans the discount.  • The discount proposed by the bidder after the submission, receipt and opening of bids should not be considered by the BAC as part of the bidder’s bid price. Acceptance of the discount offered and made manifest only after the deadline for submission of bids, and after the bids were opened would constitute improvement or modification of bids, which is prohibited under §26.1 of the IRR. Reference: NPM 154-2012

  46. 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. Reference: NPM 17-2013

  47. Bidding Documents:Review of IB • PEs need not submit to GPPB or its Technical Support Office their IB for review as PEs may refer to the appropriate standardized Philippine Bidding Documents for guidance. Reference: NPM 150-2012

  48. 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. Reference: NPM 46-2013

  49. 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. Reference: NPM 46-2013

  50. Pre-Bid Conference

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