Requesting Entity: Alenia Aermacchi
Issues Concern: Extension of Bid Closing Time; Late Issuance of Supplemental/Bid Bulletin; Declaration of Failure of Bidding
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. It should be noted, however, that 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."
Late Issuance of Supplemental/Bid Bulletin
In light of the mandatory directive to issue Supplemental/Bid Bulletin not later than the period prescribed in Section 22.5 of the IRR, we are of the view that Supplemental/Bid Bulletins issued by the BAC within seven (7) calendar days from the deadline of the submission and receipt of bids will be considered invalid and ineffective in modifying the Bidding Documents. If the BAC decides to carry the modifications made by an invalid Supplemental/Bid Bulletin in proceeding with the procurement activity, the BAC may be considered to have failed in following with the prescribed bidding procedures.
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 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.
[T]he BAC cannot declare a failure of bidding for reasons other than those provided in Section 35 of the IRR of RA 9184. 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.