NPM 041-2005

Requesting Entity: Air Transportation Office - Department of Transportation and Communication

Issues Concern: Clarification on the provisions of Republic Act 9184 (R.A. 9184) and its Implementing Rules and Regulations Part A (IRR-A)



Whether or not the Air Transportation Office (ATO) may deviate from certain provisions of the IRR-A of R.A. 9184

Largest Single Completed Contract as Eligibility Criterion

It must be stressed that compliance with the subject eligibility criterion is a condition sine qua non, an imperative, for a prospective bidder to be declared eligible to participate in the bidding proper, such that failure to conform thereto leaves the procuring entity with no other recourse but to declare the prospective bidder ineligible. x x x

As Section 23.6 of the IRR-A of R.A. 9184 is clear and emphatic on the bases of the eligibility of a prospective bidder, it is mandatory for a prospective bidder to show that the value of its largest single completed contract similar to contract to be bid is at least 50% of the approved budget for the contract to qualify it to bid in such project. Thus, this eligibility criterion cannot be dispensed with or compromised as this is one of the minimum requirements that a prospective bidder has to satisfy to establish its track record and capacity to perform contractual obligations.

Prohibition on Reference to Brand Names

[T]he rule with regard to the reference to brand names under R.A. 9184 is absolute. In specifying the goods sought to be procured, reference to brand names is prohibited. The prohibition is absolute in its terms and bars any exception as it is restrictive or preventive of any healthy competition. What a procuring entity may prudently do is to judiciously prepare its "technical specifications" so that it is instead bound by the technical nature of the item to be procured rather than by its brand.

Eligibility Check of Foreign Entities

In the procurement of goods as a rule, only Filipino citizens, partnerships and corporations, sixty percent (60%) of the interest or capital of which belongs to citizens of the Philippines are eligible to participate in the bidding for the supply of goods. However, when the goods to be procured are not available from local sources, when there is a need to prevent situations that defeat competition or restrain trade, or when foreign nationals are otherwise declared eligible to participate in public procurement under the principle of reciprocity with other nations, foreign suppliers are allowed to participate.

At this juncture we would like to inform your good office that the Government Procurement Policy Board last 12 September issued GPPB Resolution No. 018-2005, Guidelines in the Determination of Eligibility of Foreign Suppliers, Contractors, and Consultants to Participate in Government Procurement Projects which now clarifies under what conditions foreign nationals may participate in the public procurement of goods, infrastructure projects and consultancy services.