NPM 078-2007

Requesting Entity: Province of Sarrangani

Issues Concern: Clarification of Certain Provisions of R.A. 9184 and its IRR-A



1. Who has the authority to determine what items are to be procured?

The preparation and updating of the PPMPs shall be the responsibility of the respective Project Management Offices or the end-user units of the procuring entity. The consolidation of these PPMPs into an APP shall be lodged with the Secretariat of the BAC of the procuring entity. (Section 7.4, IRR-A)

2. Can a bidder insist on its qualifications and its product, even if it did not conform to the specifications provided by the procuring entity?

Section 17 of the IRR-A provides that the specifications and other terms in the bidding documents shall reflect minimum requirements or specifications required to meet the needs of the procuring entity in clear and unambiguous terms. The BAC shall examine the technical components of the bids using the "pass/fail" criteria to determine whether all required documents are present. Only bids that are determined to contain all the bid requirements of the bid component shall be considered for opening and evaluation of their financial component.

Hence, the bidder cannot insist on its specification especially if said specification is inconsistent with those stated in the bidding documents.

3. Can a post-disqualified bidder be declared as qualified for failure of the procuring entity to rule on the motion for reconsideration or protest within the seven (7) calendar days upon verbal notification or receipt of the decision of the BAC? When is there undue delay?

Failure to decide on the protest within the prescribed seven (7) calendar day period, does not result in the automatic qualification of an ineligible bidder nor in the curing of any defect found in its bid. The head of the procuring entity may, however, be held administratively and/or criminially liable in case there is undue delay to observe such period (Section 65.1, IRR-A). There is undue delay in case the failure to observe the periods prescribed under R.A. 9184 and its IRR-A is without justifiable cause, without basis and arbitrary.
Hence, the post-disqualified bidder cannot be awarded the contract by mere failure of the head of the procuring entity to resolve or rule on the motion for reconsideration or protest. This is without prejudice to whatever sanctions that may be imposed upon the head of the procuring entity if there is delay without justifiable cause.

4. How do we construe the three (3)-month period for the bidding process vis-a-vis a protest filed beyond said three (3)-month period?

Decisions of the BAC with respect to the bidding may be protested in writing to the head of the procuring entity. The protest must be filed within seven (7) calendar days from receipt of the party concerned of the resolution of the BAC denying its motion for reconsideration (Section 55.1, IRR-A).

There may be some instances when the procurement process exceed the three (3) month period under Section 38.1 of the IRR-A. However, it will not preclude any bidder to file a protest in accordance with Section 55.1 of the IRR-A.

5. When is there a perfected contract?

The contract is perfected upon the signing thereof by the parties in accordance with existing laws, rules and regulations, and upon approval by the head of the procuring entity or his duly authorized representative, when further approval of higher authority is required, and submission of all the documentary requirements to perfect the contract (Section 37.4, IRR-A).

6. Does a post-disqualified bidder have the legal standing to question the ABC?

Inasmuch as there is no specific provision in IRR-A which specially prohibits a post-disqualified bidder to question the procuring entity's ABC, it may be presumed that the said bidder may probe into the propriety of the ABC.

7. When is the remedy of arbitration allowed?

Under Section 59 of IRR-A, any and all disputes arising from the implementation of a contract shall be submitted to arbitration in the Philippines in accordance with R.A. 876, otherwise known as the Philippine Arbitration Law. The process of arbitration shall be incorporated as a provision in the contract that will be executed pursuant to the provisions of R.A. 9184 and its IRR-A. By mutual agreement, the parties may agree in writing to resort to other alternative modes of dispute resolution.

What is the role of the GPPB in case of an appeal to the Regional Trial Court?

[T]he GPPB is an administrative body imbued with quasi-legislative or rule-making power to determine policy directions in the area of public procurement. It has no jurisdiction to rule over actual controversies with regard to the conduct of the bidding process considering that it has no quasi-judicial functions under the law.