Requesting Entity: Civil Aviation Authority of the Philippines (CAAP)
Issues Concern: Purchase and Use of Bidding Documents, Philippine Contractors Association Board (PCAB) License, and Joint Venture (JV) Agreement
(1) Can a prospective bidder buy Bidding Documents for a particular project even if it does not possess the required PCAB license?
The purchase of Bidding Documents is separate and distinct from the stage of eligibility screening of prospective bidders x x x. At any rate, the purchase of the Bidding Documents by a prospective bidder cannot be an assurance that it will be participating in the public bidding.
In this regard, it is not necessary that prospective bidders possess the required qualifications at the time they bought the bidding documents, e.g., PCAB license. It is, however, necessary that they prove their qualifications during the eligibility check through the submission of the required documents.
(2) Can a supposed JV partner, taking into consideration the contents of a Letter of Intent (LOI) submitted by the other partner, use the Bidding Documents purchased by the latter and participate in the bidding?
RA 9184 and its IRR do not expressly provide that the purchase of Bidding Documents shall vest solely on a particular buyer or prospective bidder the right to participate in the bidding process using the very set of Bidding Documents purchased.
Pursuant to Section 17.4 of the IRR, “[b]idders may be asked to pay for the Bidding Documents to recover the cost of its preparation and development. The BAC shall issue the Bidding Documents upon payment of the corresponding cost thereof to the collecting/disbursing officer of the procuring entity concerned.”
A perusal of the cited provision shows that it does not in any way restrict the use or the transfer of the right or privilege arising from the purchase of the Bidding Documents. What is necessary, however, is that the Bidding Documents used by the bidder in submitting its bid has been paid for in case the procuring entity charges for its Bidding Documents.
(3) Is a JV Agreement necessary for the purpose of manifesting their intention to participate in the bidding of a particular project?
[A] JV Agreement is not necessary for the purpose of manifesting the prospective bidders’ intention to participate in the bidding of a particular project. Section 23.1 (b) provides that a valid JV agreement, in cases the joint venture is already in existence, shall be required only for the purpose of determining the eligibility of bidders using the criteria stated in Section 23.5.
[T]he submission of a JV Agreement is mandatory in the eligibility screening stage and not for the purpose of manifesting intention to participate in the bidding. In fact, when the JV is not yet in existence, the potential JV partners are merely required to submit the notarized statements, in lieu of the JV Agreement x x x.