NPM 029-2012

Requesting Entity: Subic Bay Metropolitan Authority

Issues Concern: Counter-offer or Counter Proposal



Whether the BAC will be violating any rules under Republic Act (RA) 9184 and its Implementing Rules and Regulations (IRR) if it decides to consider the bid of a lone bidder, which complied with all the legal and technical requirements of the project, but qualified its bid with a condition requiring SBMA to post a security.

x xx Article 1319 of the Civil Code of the Philippines provides that the offer must be certain and the acceptance absolute in order to manifest the meeting of minds. In addition, the Supreme Court held in the case of Development Bank of the Philippines vs. Ben Medrano and Privatization Management Office that a qualified offer constitutes a counter-offer. Applying the DBP case alongside Section 23 of the IRR and Clause 12 of the Instruction to Bidders in the Philippine Bidding Documents (PBDs), it is clear that both the offer and the acceptance must be made absolutely without any qualifications or reservations.

x xx

[E]ven if the lone bidder complies with all the legal and technical requirements in Section 23 of the IRR and its corresponding clause in the PBDs, it is not acceptable for the bidder to provide a condition that the procuring entity must first post a security equivalent to the credit line before it enters into a contract. The lone bidder, in making its offer, should strictly conform with all the requirements provided in the bidding documents, including the submission of all eligibility, technical, and financial documents without any qualifications and reservations.