Requesting Entity: Provincial Road Management Facility (PRMF) Australian AID
Issues Concern: Defects Liability Period (DLP) and Modification of the Provisions of the General Conditions of Contract (GCC)
Whether fair wear and tear is covered under the one (1) year DLP.
Since the cause of the repair that the Contractor is required to undertake is limited to damages to the Works on the account of the use of inferior quality materials, it can be deduced that the DLP does not include ordinary repairs necessitated by fair wear and tear due to the natural and consequential deterioration brought about by the continuous usage of the Works.
Thus, we are of the view that fair wear and tear resulting from the intended natural use of the Works, and not resulting from the use of inferior quality materials, or the fault, negligence, carelessness, or abuse of the Contractor, are not covered by the DLP.
Whether the Procuring Entity (PE) may be allowed to modify the provisions of the GCC under the Philippine Bidding Documents (PBDs) for the Procurement of Infrastructure Projects in the case of procurement of foreign-assisted projects.
In the absence of an express provision or stipulation on the applicable procurement procedures and guidelines in the Treaty or International or Executive Agreement covering the procurement activities under the PRMF, the procedures laid down in RA 9184 and its IRR would apply. Accordingly, the use of PBDs, Generic Procurement Manuals (GPMs), and other standard forms, issued by the Government Procurement Policy Board (GPPB), shall be mandatory upon the government agency.
[T]he PBDs, including the GCC, should be used unchanged, unless the Treaty or International or Executive Agreement covering the foreign-assisted procurement activity provides for the application of a different set of procurement guidelines other than RA 9184 and its IRR.