Requesting Entity: Office of the President
Issues Concern: Bids with Identical Offer
Clarification on methods to be used in order to break a tie among the participating bidders in the bidding for security services.
To illustrate and/or substantiate the wisdom underlying the use of non-discretionary/non-discriminatory criteria in breaking deadlocks in public bidding, it mat be well to cite as example one particular case contemplated in our election laws. The drawing of lots is used in resolving election contests where two candidates for the same position garnered the same number of votes; a situation akin to bids having identical financial proposals. At this point, it would be noteworthy to consider Section 240 of Batas Pambansa Bilang 881, otherwise known as the Omnibus Election Code of the Philippines. x x x
As may be elucidated from the above-quoted provision of law, in case of a tie occurring in an election, the use of drawing of lots is resorted to as the fair solution to the problem. Under such method, no discretion was made on the part of the board of canvassers, instead the decision made is based on pure luck or chance.
The situation addressed herein is analogous to a case of tie in the bidding process. Applying the foregoing principle in the case of breaking a tie, the use of any non-discretionary/non-discriminatory tie-breaking procedure seems to be an acceptable approach towards resolving such issue, considering that the real intent of R.A. 9184 is to eliminate all forms of discretion in bid evaluation on the part of the BAC, and that every bidder who passed the post-qualification stage is as much a LCRB as the others; hence, equally eligible and qualified.
There are other existing non-discretionary/non-discriminatory tie-breaking methods which the BAC may use “draw lots” or similar methods where determination of the winner is a consequence of the strike of luck or pure chance. A relevant consideration, however, is that fairness must always be primordial in resolving said issues.