Non-issuance of Notice of Award to winning and legitimate bidder

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Non-issuance of Notice of Award to winning and legitimate bidder

Post by Jessie C. Juaringon on Wed Oct 06, 2010 12:30 am

What will happen to a government bidding which does not fully consumate every phase of the bidding processes? More specifically, the non issuance of the Notice of Award to the winning and legitimate bidder / contractor.
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Re: Non-issuance of Notice of Award to winning and legitimate bidder

Post by sunriser431 on Wed Oct 06, 2010 12:48 am

Jessie C. Juaringon wrote:What will happen to a government bidding which does not fully consumate every phase of the bidding processes? More specifically, the non issuance of the Notice of Award to the winning and legitimate bidder / contractor.
Hi "Jessie" welcome to the forum, regarding your concern, Try this LINK , it might help.
Further readings try this LINK bounce
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Re: Non-issuance of Notice of Award to winning and legitimate bidder

Post by jcolas on Wed Oct 06, 2010 9:59 am

"Sir Jessie wrote".

the non issuance of the Notice of Award to the winning and legitimate bidder / contractor.

Welcome to the Forum Sir Jessie. The Procuring Entity has to be reminded that procurement activities are covered by the "Period of Action on Procurement Activities", one of which is the issuance of the Nortice of Award. Non-issuance of the Notice of Award to the winning and legitimate bidder without justifiable cause is punishable under Section 65.1(b), Rule XXI of the Revised IRR.
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Re: Non-issuance of Notice of Award to winning and legitimate bidder

Post by charlie brown on Wed Oct 06, 2010 3:52 pm

jcolas wrote:"Sir Jessie wrote".

the non issuance of the Notice of Award to the winning and legitimate bidder / contractor.

Welcome to the Forum Sir Jessie. The Procuring Entity has to be reminded that procurement activities are covered by the "Period of Action on Procurement Activities", one of which is the issuance of the Nortice of Award. Non-issuance of the Notice of Award to the winning and legitimate bidder without justifiable cause is punishable under Section 65.1(b), Rule XXI of the Revised IRR.

I agree with the position of jcolas. this is particularly true in competitive bublic bidding where timelines and bid validity is stated. Once the BAC has made a recommendation, the HOPE will only have 2 options: to approve or disapprove.
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Re: Non-issuance of Notice of Award to winning and legitimate bidder

Post by Niwram on Wed Oct 06, 2010 6:08 pm

good afternoon everyone.. i just want some clarification..

in a negotiated procurement under two failed bidding there's a need of posting. what if the PE did not follow said provision what will be the effect of the contract if there is a perfected contract?

do the PE have the discretion to delete all the technical specification, even the date of deivery for the reason that all the same bidders knew already the specifications and terms and conditions?

can the declared winning bidder change his mode of payment under his original bid?

can the PE allow said changes for the reason that it is favorable to said PE?

can the PE accept the delivery even it is not covered by LC which is the original proposal of the winning bider?

what is your stand?
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Re: Non-issuance of Notice of Award to winning and legitimate bidder

Post by RDV @ GP3i on Wed Oct 06, 2010 6:49 pm

Niwram wrote:good afternoon everyone.. i just want some clarification..

in a negotiated procurement under two failed bidding there's a need of posting. what if the PE did not follow said provision what will be the effect of the contract if there is a perfected contract?
The contract is still a valid contract.

Niwram wrote:do the PE have the discretion to delete all the technical specification, even the date of deivery for the reason that all the same bidders knew already the specifications and terms and conditions?
No. How will the PE know that "same bidders" who already knew of the specifications and terms and conditions will be participating if it is public bidding?

Niwram wrote:can the declared winning bidder change his mode of payment under his original bid?

can the PE allow said changes for the reason that it is favorable to said PE?
I don't think the "mode of payment" is included as part of the bidder's bid. The mode of payment is part of the bidding documents issued by the PE, specifically the GCC/SCC. The 2 contracting parties, however, may agree to change the terms in the mode of payment. It is not a unilateral act of any one of the contracting parties.

Niwram wrote:can the PE accept the delivery even it is not covered by LC which is the original proposal of the winning bider?

what is your stand?
Sorry, I don't get the essence of the question. What is the purpose of the LC? Is it delivery of foreign goods? Is a foreign supplier involved?
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Re: Non-issuance of Notice of Award to winning and legitimate bidder

Post by sunriser431 on Wed Oct 06, 2010 10:33 pm

Niwram wrote:
in a negotiated procurement under two failed bidding there's a need of posting. what if the PE did not follow said provision what will be the effect of the contract if there is a perfected contract?
1. Non posting of bid opportunities could be in violation of the GPRA. If the procedure was not followed as prescribed in the GPRA, there is already a deficiency. In addition, COA can disallow it in audit. The HOPE procuring entity may also held liable for failure to excersice due care in the procurement transactions involved. bounce

Niwram wrote: do the PE have the discretion to delete all the technical specification, even the date of deivery for the reason that all the same bidders knew already the specifications and terms and conditions?
2. In negotiated procurements (2 failed biddings), the procedure in section 53.1.1 of the revised IRR will have to be applied. Excerpt from the section 53.1.1 which is self explanatory .
xxxx. After conduct of the mandatory review of the terms, conditions, specifications,
and cost estimates, as prescribed in Section 35 of this IRR, the BAC shall revise and agree on the minimum technical specifications, and if necessary, adjust the ABC, subject to the required approvals. However, the ABC cannot be increased by more than twenty percent (20%) of the ABC for the last failed bidding.
bounce

Niwram wrote: can the declared winning bidder change his mode of payment under his original bid
Niwram wrote: can the PE allow said changes for the reason that it is favorable to said PE?
Niwram wrote:can the PE accept the delivery even it is not covered by LC which is the original proposal of the winning bider?
3. My opinion was premise on the limited facts presented, I dont think its possible, because the PE was not able to follow the prescribe bidding procedure as stated in reason number 1 above . The contact was not perfected since there are requirements that need to be followed like the posting of bid opportunities. N.B. LC is like advance payment bounce
Hope it might help.

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Re: Non-issuance of Notice of Award to winning and legitimate bidder

Post by charlie brown on Thu Oct 07, 2010 3:08 pm

Niwram wrote:good afternoon everyone.. i just want some clarification..

in a negotiated procurement under two failed bidding there's a need of posting. what if the PE did not follow said provision what will be the effect of the contract if there is a perfected contract?

if the contract is challenged by an outsider (observer, other contractors, or by the resident auditor) for having been been in violation of the procedures than the HOPE will be answerable
.

do the PE have the discretion to delete all the technical specification, even the date of deivery for the reason that all the same bidders knew already the specifications and terms and conditions?

same as RDV

can the declared winning bidder change his mode of payment under his original bid?

from peso to usd? lump-sum to progress billing? In any case modification of terms is not unilateral

can the PE accept the delivery even it is not covered by LC which is the original proposal of the winning bider?

the LC as a payment term is used when the supplier is not a domestic entity and has no branch/office here in the philippines. It is for the protection of the supplier that a LC is opened by the PE. perhaps there is a need to present more info for us to fully appreciate the issue





what is your stand?
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Re: Non-issuance of Notice of Award to winning and legitimate bidder

Post by Niwram on Thu Oct 07, 2010 10:40 pm

sunriser431 wrote:
Niwram wrote:
in a negotiated procurement under two failed bidding there's a need of posting. what if the PE did not follow said provision what will be the effect of the contract if there is a perfected contract?
1. Non posting of bid opportunities could be in violation of the GPRA. If the procedure was not followed as prescribed in the GPRA, there is already a deficiency. In addition, COA can disallow it in audit. The HOPE procuring entity may also held liable for failure to excersice due care in the procurement transactions involved. bounce

Niwram wrote: do the PE have the discretion to delete all the technical specification, even the date of deivery for the reason that all the same bidders knew already the specifications and terms and conditions?
2. In negotiated procurements (2 failed biddings), the procedure in section 53.1.1 of the revised IRR will have to be applied. Excerpt from the section 53.1.1 which is self explanatory .
xxxx. After conduct of the mandatory review of the terms, conditions, specifications,
and cost estimates, as prescribed in Section 35 of this IRR, the BAC shall revise and agree on the minimum technical specifications, and if necessary, adjust the ABC, subject to the required approvals. However, the ABC cannot be increased by more than twenty percent (20%) of the ABC for the last failed bidding.
bounce

Niwram wrote: can the declared winning bidder change his mode of payment under his original bid
Niwram wrote: can the PE allow said changes for the reason that it is favorable to said PE?
Niwram wrote:can the PE accept the delivery even it is not covered by LC which is the original proposal of the winning bider?
3. My opinion was premise on the limited facts presented, I dont think its possible, because the PE was not able to follow the prescribe bidding procedure as stated in reason number 1 above . The contact was not perfected since there are requirements that need to be followed like the posting of bid opportunities. N.B. LC is like advance payment bounce
Hope it might help.


thanks Sunriser.. your opinion is of great help..
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Re: Non-issuance of Notice of Award to winning and legitimate bidder

Post by RDV @ GP3i on Fri Oct 08, 2010 10:46 am

Niwram wrote:can the PE accept the delivery even it is not covered by LC which is the original proposal of the winning bider?

Niwram, charlie brown and I are hoping that you could expound more on this question. Please see our comments/questions above.
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Re: Non-issuance of Notice of Award to winning and legitimate bidder

Post by sunriser431 on Fri Oct 08, 2010 9:10 pm

Niwram wrote:
sunriser431 wrote:
Niwram wrote:
in a negotiated procurement under two failed bidding there's a need of posting. what if the PE did not follow said provision what will be the effect of the contract if there is a perfected contract?
1. Non posting of bid opportunities could be in violation of the GPRA. If the procedure was not followed as prescribed in the GPRA, there is already a deficiency. In addition, COA can disallow it in audit. The HOPE procuring entity may also held liable for failure to excersice due care in the procurement transactions involved. bounce

Niwram wrote: do the PE have the discretion to delete all the technical specification, even the date of deivery for the reason that all the same bidders knew already the specifications and terms and conditions?
2. In negotiated procurements (2 failed biddings), the procedure in section 53.1.1 of the revised IRR will have to be applied. Excerpt from the section 53.1.1 which is self explanatory .
xxxx. After conduct of the mandatory review of the terms, conditions, specifications,
and cost estimates, as prescribed in Section 35 of this IRR, the BAC shall revise and agree on the minimum technical specifications, and if necessary, adjust the ABC, subject to the required approvals. However, the ABC cannot be increased by more than twenty percent (20%) of the ABC for the last failed bidding.
bounce

Niwram wrote: can the declared winning bidder change his mode of payment under his original bid
Niwram wrote: can the PE allow said changes for the reason that it is favorable to said PE?
Niwram wrote:can the PE accept the delivery even it is not covered by LC which is the original proposal of the winning bider?
3. My opinion was premise on the limited facts presented, I dont think its possible, because the PE was not able to follow the prescribe bidding procedure as stated in reason number 1 above . The contact was not perfected since there are requirements that need to be followed like the posting of bid opportunities. N.B. LC is like advance payment bounce
Hope it might help.


thanks Sunriser.. your opinion is of great help..
as always you are welcome "Niwram". Smile Peace
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"Justifiable cause" on holding notice of award to winning bidder

Post by Jessie C. Juaringon on Fri Oct 29, 2010 1:31 am

Thank you very much for your insights. But let me clarify this one: How justifiable is "justifiable cause" by the procuring entity on deferring notice of award to the winning bidder? Are there any legal options available for the winning and legitimate bidder to reckon with in protecting company's interest over the project? I am definitely sure that the non-availability of funds could not be used as "justifiable cause" in holding issuance of notice of awards... But what if that would be the stand of the procuring entity? comments please...
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Re: Non-issuance of Notice of Award to winning and legitimate bidder

Post by RDV @ GP3i on Fri Oct 29, 2010 3:10 pm

Jessie C. Juaringon wrote:Thank you very much for your insights. But let me clarify this one: How justifiable is "justifiable cause" by the procuring entity on deferring notice of award to the winning bidder? Are there any legal options available for the winning and legitimate bidder to reckon with in protecting company's interest over the project? I am definitely sure that the non-availability of funds could not be used as "justifiable cause" in holding issuance of notice of awards... But what if that would be the stand of the procuring entity? comments please...

First, let me be clear. When you joined the bidding process, you were fully aware of the following reservation clause in the invitation to bid:

"The (procuring entity) reserves the right to accept or reject any bid, to annul the bidding process, and to reject all bids at any time prior to contract award, without thereby incurring any liability to the affected bidder or bidders."

Its basis in law is Section 41 of R.A. 9184 and also Sec. 41 of its IRR, which declares that: "The Head of the Agency reserves the right to reject any and all Bids, declare a failure of bidding, or not award the contract in the following situations..." It then states the three (3) situations it could be exercised by the HOPE and/or the justifiable grounds and reasonable grounds.

What has the Supreme Court got to say on such use of the reservation clause? The SC has spoken a number of times that:

"The discretion to accept or reject a bid and award contracts is vested in the government agencies entrusted with that function. The discretion given to authorities to accept or reject a bid is of such wide latitude that courts will not interfere, unless it is apparent that it is exercised arbitrarily, or, in the language of Bureau Veritas vs. Office of the President, used as a shield to a fraudulent award. The exercise of that discretion is a policy decision that necessitates prior inquiry, investigation, comparison, evaluation, and deliberation. This task can best be discharged by the concerned government agencies, not by the courts. The role of the courts is to ascertain whether a branch or instrumentality of the government has transgressed its constitutional boundaries. Courts will not interfere with executive or legislative discretion exercised within those boundaries. Otherwise, they stray into the realm of policy decision-making." However, if there were clear "abuse of discretion" on the part of the procuring entity, then the courts may interfere.

Since the court will only interfere if there are clear (patent or gross) abuse of discretion, you as a bidder can avail of your administrative remedies as provided for also in Sec. 55 of RA 9184 and its IRR, and these are, filing a motion for reconsideration, and, if denied, by filing a verified protest. It is also after you have completed these administrative remedies that the court would have jurisdiction over the final decision of the HOPE (Sec. 58).
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