Requesting Entity: Fellowship of Christians in Government, Inc.

Issues Concern: Clarification on the provisions of Republic Act 9184 (R.A. 9184) and its Implementing Rules and Regulation Part A (IRR-A)

Details

1. Whether or not it is valid for the Bids and Awards Committee (BAC) to accept documents other than those specified in the Bidding Documents.

[M]atters regarding the interpretation of additional eligibility requirements required by the procuring entity in their bidding documents and the determination of whether the submitted eligibility documents of the prospective bidders comply with their requirements is properly within the domain and prerogative of the procuring entity, specifically the BAC, that is most disposed to rule on the matter.

With reference however to the Tax Clearance Certificate requirement, please take note that in addition to the Class “A” Legal Documents required under the Eligibility Requirements for the procurement of Goods and Infrastructure Projects, and Consulting Services, procuring entities by virtue of GPPB Circular No. 02-2005 are now mandated to require prospective bidders the submission of tax returns and tax clearances (for purpose of Executive Order 398) in compliance with the provisions of Executive Order No. 398 (E.O. 398), Revenue Regulation No. 03-2005 (RR 03-2005), and Revenue Memorandum Circular No. 16-2005 (RMC 16-2005).

2. Whether or not the decision of the BAC in accepting the 2005 Mayor’s permit and the submission by a bidder of only one (1) envelope containing all the documents, instead of three (3) separate envelopes,is permissible under R.A. 9184.

Section 23.6 of the IRR-A of R.A. 9184 provides that the determination of eligibility of prospective bidders shall be based on the submission of the documents enumerated in the bidding documents, among which, is a valid and current mayor’s permit/municipal license. Moreover, Section 23.2 of the said IRR-A provides that the determination of eligibility shall be through an examination of the completeness of each prospective bidder’s eligibility requirements or statements against a checklist of requirements using a non-discretionary “pass/fail” criteria. In using the non-discretionary “pass/fail” criteria, the BAC merely checks for the presence or absence of the required documents. A prospective bidder is declared to be “eligible” for a particular requirement if such document is present, complete, and patently sufficient; otherwise, the absence, incompleteness, or patent insufficiency of a requirement will result to a prospective bidder’s ineligibility to bid.

In this regard, the submission of documents other than the actual/original mayor’s permit itself cannot be considered as sufficient compliance with the requirement, regardless of the fact that such documents tend to prove that a mayor’s permit has been applied for. Consideration of the documents submitted in lieu of the mayor’s permit will lead to an exercise of discretion among the BAC members – an action which the IRR-A of R.A. 9184 expressly prohibits during eligibility check.

With reference to the propriety of the BAC’s act in accepting the bidder’s submission of one (1) envelope containing all the documents necessary for bidding, please take note [of] Item 24.1 of the Instruction to Bidders (ITB) in the Philippine Bidding Documents Edition II. As can be inferred [therefrom], prospective bidders are not precluded to make his/her bid submission in this format, provided however, that the eligibility documents, as well as the technical and financial documents are contained separately in three (3) different envelopes and thereafter contained in one outer envelope as provided under Section 25.1 of the IRR-A.

3. Whether or not the action of the BAC in post-qualifying two (2) bidders and not further validating the documents submitted, even if there were apparent indications that the lowest bidder and the next lowest bidder were owned by the same family or clan, valid in light of R.A. 9184 and its IRR-A? Is there a rule for “sister companies?” Does Section 65.2.2 of the GPRA refer to sister companies?

A perusal of the aforementioned provision would lead us to infer that the raison d’etre for the post-qualification stage is essentially to authenticate and certify the veracity of the representations made by a prospective bidder as contained in the documents submitted by them which could not have been certified by the BAC during the Eligibility Check considering that the mechanism involved at this stage is a pass/fail criterion. We are of the opinion, however, that the refusal by the BAC to make a detailed check as to the veracity of the submitted documents, since this would entail a longer period of time and may even result to court cases, does not find legal basis under the law. In fact, in exceptional cases, the seven (7) calendar day period provided for post-qualifying the Lowest Calculated Bid or the Highest Rated Bid, as the case may be, may be extended by the GPPB.

With reference to the last issue, Section 65.2.2 of the IRR-A explicitly prohibits the submission of different bids through two or more persons, corporations, partnerships or any other business entity in which the bidder has an interest to create the semblance of competition. Corollary to this, the procuring entity is given the right to reject any and all bids if there is prima facie evidence of collusion between or among bidders, including any act which restricts, suppresses or nullifies or tends to restrict, suppress or nullify competition.