NON-POLICY MATTER
OPINIONS (Updates)
BAC Composition
I.
BAC Composition
II.
NPM 024-2011
Re-assignment of
BAC member
NPM 19-2012
Indemnification for
BAC Members
NPM 044-2011
finally adjudged
Supplemental/Bid Bulletin
I.
Supplemental/Bid Bulletin
II. NPM 028-2011 - Modification of Bidding Documents
Submission of Photocopy of
Documentary Requirements
NPM 28-2011, NPM 09-2012
Counter-Offer/
Counter-Proposal
NPM 29-2012
bidders.
Nationality Preference
NPM 15-2012
No Contact Rule
NPM 03-2012
Bid Security
I.
NPM 23-2011 -
Forfeiture
Bid Security
II.
NPM 043-2011 -
Acceptable Forms
be
submitted
Submission of
Post-qualification Documents
NPM 09-2012
I.
Bidders are not precluded from submitting
the post-qualification documents during the
submission of bids.
However, in case there is delay in the conduct
of post-qualification, it is prudent for the Procuring
Entity to request for the latest and current legal
documents during post-qualification to ascertain,
validate and verify the authenticity and currency of
the documents and establish the eligibility and
responsiveness of the bidder.
Submission of
Post-qualification Documents
NPM 09-2012
II.
The BAC cannot require submission of the Original
Articles of Incorporation (AIs). Section 29.2 (d) speaks of
licenses and permits required by law and stated in the Bidding
Documents. Clearly, AIs do not fall in either type of
documents since this is a corporate document submitted to
the Securities and Exchange Commission as part of the
registration requirements.
Accordingly, if the requirement is merely to aid the
Procuring Entity or the BAC in verifying the eligibility
documents submitted, the bidder may simply submit copies of
the AOI that is material to the post-qualification proceedings
being conducted.
Blacklisting
NPM 33-2012
ALTERNATIVE METHODS
1.
SHOPPING
NEGOTIATED PROCUREMENT
2.
NPM 41-2011
3. Emergency Cases
NPM 045-2011
4. Adjacent or Contiguous
NPM 22-2012
5.
Agency-to-Agency Agreements
I.
Agency-to-Agency Agreements
II.
NPM 04-2012
6.
Procurement Agent
NEGOTIATED PROCUREMENT
Exemption from Resort to
Negotiated Procurement
NPM 05-2012, NPM 14-2012
NEGOTIATED PROCUREMENT
Resolution of the BAC
When necessary?
NPM 027-2011
Section 53.2 of the IRR allows procuring entities to directly negotiate
with a technically, legally and financially capable supplier or contractor in
emergency cases, provided that the required conditions or instances are
present. The determination of existence of these instances lies within the
discretion of the procuring entity.
Accordingly, if the project was not included in the APP of the
procuring entity, then it is essential that a BAC resolution recommending the
use of alternative method be made; and a supplemental APP or an
amendment thereto be issued before proceeding with the procurement.
Infrastructure Projects by
Administration
NPM 32-2012
PADPAO Rate
NPM 13-2012
The Philippine Association of Detective and
Protective Agency Operators (PADPAO) Rate includes three
components Total Amount to Guard and Government, Agency
Fee and VAT.
A Philippine Security Agency (PSA) bidding for
government contracts may offer different bid prices below the
PADPAO rate without being charged of cut-throat competition or
violating the provisions of the IRR of RA 5487, provided that they
do not go below the standard salaries and benefits for the guards
and the mandated taxes in the minimum cost distribution formula
in conformity with existing wage laws.
Impliedly, the PSA
can offer an amount lower than the PADPAO rate by reducing the
agency fee covering operational and administrative expenses in
computing for its bid price.
The administrative cost or agency fee is included in the
PADPAO rate.
THANK YOU
Comments Questions
Technical Specifications
COA vs. Link Worth Intl., Inc.
G.R. No. 182559 March 13, 2009
Procuring entity must verify, inspect and test
whether the technical specifications comply with
its requirements
Indeed, the reference to Section 30.4 of the IRR of Republic Act No. 9184 (a provision
specific to the procurement of goods) in the BSPs request for interest and to bid confirms
that the e-Passport Project is a procurement of goods and not an infrastructure project.
Thus, within the context of Republic Act No. 9184 which is the governing law for the ePassport Project the said Project is not an infrastructure project that is protected from
lower court issued injunctions under Republic Act No. 8975, which, to reiterate, has for its
purpose the expeditious and efficient implementation and completion of government
infrastructure projects.
Splitting of Contracts
Balderbin v. Sandiganbayan
G.R. Nos. 144950-71, March 22, 2007
A BAC member, aware of the splitting of transactions of
accounts, proceeded with signing the Abstract of Bids claiming
that the same was done in good faith and that he did not
participate in said splitting of accounts.
The BAC member cannot claim good faith and avoid criminal
liability. He knew of the splitting of contracts and the same
cannot be ignored.
Supreme Court cited COA Circular No. 76-41 in defining and
identifying forms of splitting of contracts.
61
NAPOCOR was not bound under any contract to approve PHIBRO's pre-qualification
requirements.
Where the right to reject is so reserved, the lowest bid or any bid for that matter may
be rejected on a mere technicality.
Where the government as advertiser, availing itself of that right, makes its choice in
rejecting any or all bids, the losing bidder has no cause to complain nor right to
dispute that choice unless an unfairness or injustice is shown.
Verily, a reservation of the government of its right to reject any bid, generally vests in
the authorities a wide discretion as to who is the best and most advantageous bidder.
The exercise of such discretion involves inquiry, investigation, comparison,
deliberation and decision, which are quasi-judicial functions, and when honestly
exercised, may not be reviewed by the court.
64
Perfection of Contract
The Insular Life Assurance Company, Ltd. Vs. Asset
Builders Corporation,
G.R. No. 147410 February 5, 2004
The effect of giving the Notice of Award would have
been the perfection of the contract. No such
acceptance was communicated to respondent;
therefore, no consent was given. Without that express
manifestation, as required by the terms of its
proposal, there was no contract.
65
Honoraria
Sison vs. Tablang
G.R. No. 177011, June 5, 2009
Section 15 of R.A. 9184 authorizing grant of honoraria is not
self-executing. It still needs an implementing guideline.
Honorarium is something given not as a matter of obligation but
in appreciation for services rendered. Section 15 uses the word
may.
NOTE: DBM Circ. No. 2004-5A, as amended by DBM Circ. 2007-3
Protest
Phil. Pharmawealth, Inc. v. Phil. Childrens
Medical Center BAC, et. al.
GR No. 167806 26 June 2006
The doctrine of exhaustion of administrative
68
Protest
LRA
v.
Lanting
Security
GR No.181735 July, 20, 2010
and
Watchman
Agency
Protest
DBM-PS vs. Kolonwel Trading
G.R. No. 17560, June 8, 2007
Three elements of a Protest:
In writing, in the form of a verified position paper
Submitted to the head of the procuring entity
Payment of a non-refundable protest fee
Protest
First United Constructors Corp. vs. Poro Point
Management Corp.
G.R. No. 178799, January 19, 2009
Petitioner violated doctrine of judicial hierarchy
in directly filing its petition for Certiorari before
the Supreme Court
One must first invoke special and important reasons
Facts:
The BAC awarded a bidder an infrastructure project despite
knowledge that the bidder (a construction firm) was not qualified for
not being accredited by the Philippine Contractors Accreditation
Board (PCAB). Hence, BAC members were accused of violating RA 3019
for knowingly approving or granting a license of any person not
qualified for or not legally entitled to such license.
Issue:
Whether or not a BOT project proponent needs to register with and
be accredited by the PCAB
Whether or not a MOA under the BOT scheme is valid without
public bidding
Facts:
Facts:
Pursuant to RA 8189 or the Voters Registration Act
of 1996, COMELEC promulgated Resolution No. 00-0315
on the VRIS Project. PHOTOKINA won the public bidding
conducted for the project for the bid amount of P6.588
billion pesos. Both parties proceeded to formalize the
contract. However, the budget appropriated for the
modernization project under RA 8760 was only P1 billion
and actual available funds under the CAF was only P1.2
billion. The contract was not executed because former
Chairman Demetriou objected to the contract. Her
successor, Chairman Benipayo, scrapped the project.
Issue:
Whether or not the contract between PHOTOKINA
and COMELEC is valid and binding upon the unqualified
acceptance of the bid?
Ruling:
There is no way that a government agency could
enter into a contract with a bidder whose accepted bid
was way beyond the amount appropriated by law for the
project. The BAC should have rejected the bid for being
excessive or should have withdrawn the Notice of Award
on the ground that in the eyes of the law, the same is
null and void.
Facts:
Bohol Agricultural College purchased chemicals
priced at P10,633.00 from JDS Traders, which was one of
the three suppliers requested by the College for
quotations. Accused Froilan of the JDS Traders signed a
certification stamped on the purchase order that he will
refund the difference if the prices are found to be
overpriced. Three years after, COA demanded the
settlement from Froilan of a refund of the amount found
to have been overpriced, P5,233.17. Notwithstanding
the refund made by Froilan, an information for violation
of Sec 3(g) of RA 3019 was filed against him.
Issue:
Whether or not Froilan was guilty of
causing damage to the government in terms of
overpricing when he guaranteed the refund of
whatever overprice the COA will find later on?
Ruling:
Conspiracy in this case could not have existed in the criminal
act of causing damage to the government in terms of overpricing
the goods bought by the latter from petitioner when, in reality,
petitioner gave his guarantee to refund whatever overpricing the
Commission on Audit will find out later on. It was not disputed that
when the COA found an overprice in the amount of P5,232.87 and
sought a refund thereof, petitioner, true to his promise, did actually
make a refund.
When the government is amply protected in a procurement
transaction, the contract is not grossly and manifestly
disadvantageous to it. Conspiracy could not exist in the criminal
act of causing damage to the government in terms of overpricing
the goods bought by the government from a private entity when
the latter gave its guarantee to refund whatever overpricing the
Commission on Audit will find out later on.
Rodolfo Madrid, Jr. vs. Hon. Aniano A. Desierto, G.R. No. 143684
July 31, 2000
Facts:
Rodolfo Madrid, Jr. vs. Hon. Aniano A. Desierto, G.R. No. 143684
July 31, 2000
Issues:
Whether or not the lease transaction falls
under the BOT law or RA 9184?
Whether or not the payment of rent on an
annual basis is prejudicial to the government?
Facts:
During the rebidding conducted by the
Committee on Bids (composed of City Mayor,
Treasurer and Auditor), it was alleged that the
Mayor was represented by someone else.
There was contention that the Committee on
Bids was illegally convened as the law does not
allow substitution.
Issue:
Facts:
Issue:
Whether or not the Governor (as local
chief executive) is authorized to approve
purchase orders issued in connection with the
procurement of supplies, materials, equipment,
including fuel, repairs and maintenance of the
Sangguniang Panlalawigan.
Ruling:
The Supreme Court held that it is the ViceGovernor who has such authority. Under Rep. Act
No. 7160, local legislative power for the province is
exercised by the Sangguniang Panlalawigan and
the Vice-Governor is its presiding officer. Being
vested with legislative powers, the Sangguniang
Panlalawigan enacts ordinances, resolutions and
appropriates funds for the general welfare of the
province in accordance with the provisions of Rep.
Act No. 7160.
THANK YOU
Atty. Dennis S. Santiago
Executive Director III
Comments, Questions?