NPM 043-2005

Requesting Entity: Leyte Normal University

Issues Concern: Interpretation of Section 17.7.1 of the Implementing Rules and Regulations Part A of Republic Act 9184 and Clarification on the Use of Standard Forms and the Philippine Bidding Documents

Details

1. Effect of non-compliance with Section 17.7.1 of the Implementing Rules and Regulations Part A (IRR-A) of Republic Act 9184 (R.A. 9184).

Generally, failure of a bidder to submit the documentary requirement referred to in section 17.7.1 of the IRR-A does not result to such bidder’s disqualification. Notice should be taken of the fact that the documentary requirement under Section 17.7.1 is a responsibility imposed by the IRR-A upon the bidders and not upon the procuring entity. This is because the repercussions of a bidder’s inability to comply with the responsibilities enumerated under Section 17.7.1 of the IRR-A operate not against the interest of the procuring entity but the bidder itself. This is supported by the fact that the subject documentary requirement is mandated to be submitted as a mere annex to the technical proposal and cannot therefore be considered as an integral part thereof that is subject to the non-discretionary “pass/fail” criterion used in determining compliance.

However, when the procuring entity requires in the bidding documents, the submission of the documentary requirement mentioned in Section 17.7.1 of the IRR-A it, in effect, recognizes the importance of a bidders’ manifestation that it has observed the responsibilities prescribed in the afore-mentioned section of the IRR-A. Having categorically required the submission of a sworn statement attesting the compliance with the prescribed responsibilities, the procuring entity is deemed to have considered it a criteria for qualification, among others stated in the ITB. Thus, the failure to submit the said document necessarily calls for the bidder’s disqualification.

2. Conflicts between the PBDs and the Sample Forms

In compliance with Section 6.2 of the IRR-A, the Government Procurement Policy Board, through its Resolution 10-2005, approved and adopted the PBDs Edition II and specified the date for its mandatory use by all procuring entities. On the basis of the said GPPB Resolution, procuring entities are required to use the PBDs in all its procurement activities starting 01 July 2005.

The Sample Forms on the other hand, has not yet been officially released by the GPPB for mandatory use by procuring entities and prospective bidders alike. It was made available by this office only for purposes of information and guidance, the use of which is not binding upon procuring entities; rather it shall serve only as basis or guide from which an improved or customized form may be developed.

In this regard, any conflict between the requirements provided in the PBDs and the Sample Forms should be resolved in favor of the former.