Requesting Entity: Philippine Institute for Development Studies (PIDS)

Issues Concern: Change of Specifications

Details

Whether the offer of a contractor to deliver an item with specifications different from that indicated in the bidding documents is acceptable.

Public bidding will cease to be competitive if PEs will be permitted to make substantial variance between the conditions under which the bids are invited and the contract executed after the award. In effect, bidders will no longer bid on the basis of the prescribed terms and conditions in the bid documents but will formulate their bid in anticipation of the execution of a future contract containing new and better terms and conditions that were not previously available at the time of the bidding.

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The contract between the PE and the winning bidder is the law between the parties. From the moment that the contract is perfected, which is upon compliance with the specific requirements under Section 37 of the IRR of RA 9184, the parties are bound to the fulfillment of what has been expressly stated in the contract. Since the offer of the winning bidder is already part of the contract, it is duty-bound to deliver the specific items it mentioned in the offer. The winning bidder must perform this obligation in faithful compliance with the contract executed with the PE.

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Procurement contracts should be strictly performed according to its specifications. In case of change or modification in the specifications during contract implementation, the PE is best fit to determine the acceptability of such change taking into consideration the identified needs of the PE, the bidder’s responsibility and the materiality of such proposed change, alongside the pronouncement of the Supreme Court in the Capalla case, in that – “[s]uch changes must not constitute substantial or material amendments that would alter the basic parameters of the contract and would constitute a denial to the other bidders of the opportunity to bid on the same terms.”