NPM 039-2007

Requesting Entity: House of Representatives

Issues Concern: Eligibility Requirements and Request for Contract Price Escalation



1. Whether the BAC may exercise discretion in the interpretation and determination of compliance of an additional, as opposed to standard or prescribed, eligibility requirements under the GPRA?

Section 17.3 of the IRR-A of R.A. 9184 allows the procuring agency to require additional document requirements or specifications such as summary of data, facilities and/or services where applicable and necessary to complete the information required for the bidders to prepare and submit their bids. The procuring entity may also require other appropriate licenses to be submitted as eligibility requirements whenever necessary and applicable taking into account the size, cost and type of project being bidded out (Sections 23.6.1 and 24.7.1, IRR-A).

The BAC shall determine if each prospective bidder is eligible to participate in the bidding by examining the completeness of the bidder's eligibility requirements or statements against a checklist of requirements using a non-discretionary "pass/fail" criteria, as stated in the IAEB, and shall be determined as either "eligible" or "ineligible" (Section 23.2 of the IRR-A).

Thus, the BAC may require additional documents to be submitted. However, the BAC shall only use the non-discretionary "pass/fail criteria" in determining the existence or non-existence of said additional document/s required in the IAEB.

2. Whether an alternative eligibility statement or document submitted by a prospective bidder may qualify as a legal and valid substitute in good faith and in substantial compliance of the particular eligibility requirement (i. e. Official Receipt in lieu of current Mayor's Permit/Municipal Permit) in case the BAC has objectively determined that the finding of fault in the non-submission of the required eligibility document may be directly attributed to the failure, delay or inaction of the issuing authority?

[A]cceptance of an alternative eligibility document or statement submitted by the bidder will lead to an exercise of discretion among the BAC members - an action which R. A. 9184 and its IRR-A expressly prohibit during the eligibility check and bid evaluation. In using the non-discretionary "pass/fail" criteria under Section 23.2 of the IRR-A, the BAC merely checks for the presence or absence of the required document. A bidder is declared to be eligible if such document is present, complete, and sufficient. Otherwise, the absence, incompleteness, or insufficiency of a requirement will result to a bidder's ineligibility to bid. (NPM 007-2006 dated 06 April 2006)

Thus, the submission of an alternative document other than that required by the procuring entity as contained in the bid documents cannot be considered as sufficient compliance, regardless of whether the non-issuance of the required document is due to the fault of issuing authority.

3. Whether an escalation in the selling price of food products sold by food concessionaires may be permitted in the light of prevailing economic and market conditions despite prior expressed prohibition mutually agreed upon by the Contracting Parties.

[A]ll bid prices shall be considered as fixed prices, and therefore not subject to price escalation during contract implementation, except under extraordinary circumstances and upon prior approval of the GPPB (Section 61.1 of the IRR-A). The burden of proving the occurrence of extraordinary circumstances that will allow for price escalation shall rest with the entity requesting for such escalation.