Requesting Entity: Caveat Law

Issues Concern: Eligibility Requirements and Single Largest Completed Contract

Details

Whether a prospective bidder which has been pre-qualified and found eligible to bid may be subsequently declared ineligible on bid opening.

[T]he practice of pre-qualification has been abandoned in RA 9184 and its IRR, and the current government procurement policy adopts the more efficient process of simple eligibility checking whereby prospective bidders’ eligibility to participate in the bidding is determined through a preliminary examination of bids against a checklist of documentary requirements using non-discretionary “pass/fail” criterion during the opening of bids.

Consequently, the results of a pre-qualification have no legal force and effect, bearing or weight, and cannot preempt the findings of the BAC during the preliminary examination of bids conducted during the opening of bids. Hence, a bidder may still be declared ineligible during the opening of bids despite a finding of qualification during the purported pre-qualification exercise.

Whether the BAC can set aside the non-discretionary “pass/fail” criterion on bid opening and examine the documents during such stage rather than pronouncing that the bidder “passed” for submitting the required documents.

Although Section 30 requires that the preliminary examination of bids be conducted by merely checking for the presence or absence of documentary requirements using a non-discretionary “pass/fail” criterion, the BAC has the right to review the qualifications of a bidder during the same stage if it has reasonable grounds to believe that a misrepresentation has been made or there has been changes in the bidder’s capability to undertake the project.

What does the term “similar contract” contemplate.

Similar contracts, in the case of procurement of goods, are defined or described by the procuring entity in the bidding documents. However, such definition or description should not unreasonably limit competition and inequitably bar participation of capable suppliers. Hence, similarity of contract should be interpreted liberally in the sense that it should not refer to an exact parallel, but only to an analogous one of similar category.