NPM 023-2009

Requesting Entity: Steamatic Total Cleaning and Restoration

Issues Concern: Guidance Relative to Certain Provisions of R.A. 9184 and its IRR-A



1. Whether a written response of the BAC to a letter query is tantamount to an amendment of the bidding documents binding upon both the procuring entity and other bidders.

Section 8.4.2 of the IRR-A states that clarifications and amendments to the Invitation to Apply for Eligibility and to Bid (IAEB) and to the bidding documents, in order to be binding on bidders, must be in the form of Supplemental/Bid Bulletin posted in the Phil G-EPS bulletin board. These, along with notices, must be sent to the e-mail addresses indicated in the bidders' registration. Hence, any clarifications prior to the submission of bids which may be amendatory, including those raised and addressed during the pre-bid conference, must be in the form of Supplemental/Bid Bulletin disseminated as mentioned, to be binding not only to the requesting bidder but to other bidders as well.

2.(a) Whether similar projects executed by the prospective bidder overseas are considered in the computation of the fifty percent (50%) single largest completed contract criterion in the evaluation of bids.

(b)Whether contracts "not specific" to the bid fall within the definition of similar contracts in the computation of the single largest contract criterion.

Under Non-Policy Matter Opinion No. 30-2005, dated 21 June 2005, a contract shall be considered "similar" to the contract to be bid if it involves goods or related services of the same nature and complexity as those which are the subject of the public bidding concerned. It does not qualify whether the contracts shall be limited only to those performed within the country. Hence, inasmuch as the said NPM and the law are silent on the matter, it shall be within the prerogative of the BAC whether or not to include the same in the computation. Further, if the bid documents do not specify whether such contracts should be included, clarification on the matter may be made upon request of a bidder or upon initiative of the procuring entity, at the opportune time.

3. Whether the procuring entity, during bid opening, may proceed with the opening of the second envelope despite the failure of the bidder to comply with the single largest contract requirement.

In determining the bidders compliance with the documents required for the first component of the bid, the BAC shall check the submitted documents of each bidder against a checklist of required documents using non-discretionary "pass/fail" criteria as stated in the IAEB and the ITB.
It is only in cases where one or more of the eligibility documents are missing, incomplete, or patently insufficient, that the BAC shall rate the bid as "failed" and immediately return to the bidder concerned its second bid envelope (Section 30.1).

4. Whether a substantial net loss, negative stockholders equity and a gross annual income equivalent to 21% of the ABC disqualifies a bidder despite the submission of the cash deposit certificate and/or credit line commitment from a licensed bank.

In the manner of establishing the financial capacity of the bidder, only the financial documents required under Section 23.6.1 (j) shall be sufficient for the purpose.

Thus, submission of the audited financial statements, and either the NFCC requirement, the credit line commitment under a licensed bank, or cash deposit certificate are adequate under the rules as proof of financial stability regardless of any substantial net loss, negative stockholders equity or gross annual income of less than fifty per cent (50%) of the ABC, which a bidder incurs, as may be determined by the BAC.