Revisions (Additional) to the specific sections of the Revised IRR of RA 9184 by a procuring entity

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Revisions (Additional) to the specific sections of the Revised IRR of RA 9184 by a procuring entity

Post by Jessie C. Juaringon on Fri Nov 05, 2010 12:13 pm

Paragraph 4 section 25.2 of our revised IRR of RA 9184 clearly states:

" The signatory is the duly authorized representative of the prospective bidder, and granted full power and authority to do so, execute and perform any and all necessary and / or to represent the prospective bidder in the bidding, with the duly notarized Secretary's Certificate attesting to such fact, if the prospective bidder is a corporation, partnership or joint venture."

Can a procuring entity revised this particular section of the IRR of RA 9184 by adding supplemental statements as part of the Omnibus Sworn Statements?
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Re: Revisions (Additional) to the specific sections of the Revised IRR of RA 9184 by a procuring entity

Post by engrjhez® on Fri Nov 05, 2010 12:28 pm

Jessie C. Juaringon wrote:Paragraph 4 section 25.2 of our revised IRR of RA 9184 clearly states:

" The signatory is the duly authorized representative of the prospective bidder, and granted full power and authority to do so, execute and perform any and all necessary and / or to represent the prospective bidder in the bidding, with the duly notarized Secretary's Certificate attesting to such fact, if the prospective bidder is a corporation, partnership or joint venture."

Can a procuring entity revised this particular section of the IRR of RA 9184 by adding supplemental statements as part of the Omnibus Sworn Statements?
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Nope. The Omnibus Sworn Statement is a prescribed form by the GPPB, and not a sample form. Hence, we cannot do something about it now unless the GPPB intervenes. Smile
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Thanks for the reply...

Post by Jessie C. Juaringon on Fri Nov 05, 2010 9:06 pm

Thanks for the reply...

meaning if a competitive bidder got disqualified due to the supplemental statement added to the gppb's prescribed form (Omnibus Sworn Statement) much more that said supplemental statement is supposedly aimed at validating the signatures of the signatories of the bid documents (which is usually done during pre-qualification phase of the bidding process not on the pass/fail eligibility check criteria) then the disqualified bidder could reckon with his motion for reconsideration with high regard / positive outlook that the disqualification could be lifted.

Therefore, checklist provided by respective procuring entity should be patterned with the specific requirements of the Revised IRR of RA 9184 specifically sections 23.1 and 25.2 of Rule VIII. Should there be any requirements other than that mentioned on the aforesaid sections, the bidder has three (3) days to comply as per Section 34.2 of Rule X, am i right?

Lastly, what do we mean of paragraph (d) of section 34.2 of Rule X ... "Other appropriate licenses and permits required by law and stated in the bidding documents....? Could this be construed as documents other than the standard documentary requirements as per sections 23.1 and 25.2? please enlighten..

thank you very much sir...
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Re: Revisions (Additional) to the specific sections of the Revised IRR of RA 9184 by a procuring entity

Post by engrjhez® on Fri Nov 05, 2010 10:51 pm

Jessie C. Juaringon wrote:Thanks for the reply...

meaning if a competitive bidder got disqualified due to the supplemental statement added to the gppb's prescribed form (Omnibus Sworn Statement) much more that said supplemental statement is supposedly aimed at validating the signatures of the signatories of the bid documents (which is usually done during pre-qualification phase of the bidding process not on the pass/fail eligibility check criteria) then the disqualified bidder could reckon with his motion for reconsideration with high regard / positive outlook that the disqualification could be lifted.
No supplemental statement is necessary particularly in addressing the need to validate the proper signatory of documents because it is already clear in Sections 25.2.a(iv.4), 25.2.b(iv.4) and 25.2.c(vi.4) that "the signatory is the duly authorized and designated representative of the prospective bidder, and granted full power and authority to do, execute and perform any and all acts necessary and/or to represent the prospective bidder in the bidding, with the duly notarized Secretary’s Certificate attesting to such fact, if the prospective bidder is a corporation, partnership or joint venture".

Jessie C. Juaringon wrote:
Therefore, checklist provided by respective procuring entity should be patterned with the specific requirements of the Revised IRR of RA 9184 specifically sections 23.1 and 25.2 of Rule VIII. Should there be any requirements other than that mentioned on the aforesaid sections, the bidder has three (3) days to comply as per Section 34.2 of Rule X, am i right?
The checklist, if provided, must always be consistent with the RA 9184 and its IRR. In the same manner, the bidding documents also contain such requisites under "Instruction to Bidders". It would be noteworthy to emphasize that under the Revised IRR, the Procuring Entity can no longer ask for anything other than what is mentioned under Sec.23.1 for the purposes of eligibility check. Section 34.2 (Post Qualification) is already beyond eligibility check and those mentioned documents would only be asked from the Lowest Calculated Bid (LCB)/Highest Rated Bid (HRB).

Jessie C. Juaringon wrote:Lastly, what do we mean of paragraph (d) of section 34.2 of Rule X ... "Other appropriate licenses and permits required by law and stated in the bidding documents....? Could this be construed as documents other than the standard documentary requirements as per sections 23.1 and 25.2? please enlighten..
Unlike the previous IRR (IRR-A), what is being asked of Sec.34.2.d are licenses and permits (a) required by law AND (b) stated in the bidding documents. To qualify in asking such requirement, both conditions (a and b) must be satisfied. A very common example is the License to Operate from BFAD for drugs/medicine products. But even so, it must be stated clearly in the bidding documents to remove instantaneous requisites.

Jessie C. Juaringon wrote:
thank you very much sir...

You are welcome. Keep on posting...Smile
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Re: Revisions (Additional) to the specific sections of the Revised IRR of RA 9184 by a procuring entity

Post by RDV @ GP3i on Sat Nov 06, 2010 10:58 am

Jessie C. Juaringon wrote:
meaning if a competitive bidder got disqualified due to the supplemental statement added to the gppb's prescribed form (Omnibus Sworn Statement) much more that said supplemental statement is supposedly aimed at validating the signatures of the signatories of the bid documents (which is usually done during pre-qualification phase of the bidding process not on the pass/fail eligibility check criteria) then the disqualified bidder could reckon with his motion for reconsideration with high regard / positive outlook that the disqualification could be lifted.
The Omnibus Sworn Statement that should be prescribed by the procuring entity should be the GPPB-prescribed form in the Standard Philippine Bidding Documents, Section VIII (Bidding Forms).

One of the statements in that Omnibus Sworn Statement pertains to the authority of the signatory as provided for under Sec. 25.2.a.iv(4). However, that particular section, which you quoted in your original post, was restated by the GPPB in the Omnibus Sworn Statement itself. If the bidder is a partnership, corporation or JV, the statement is: "I am granted full power and authority to do, execute, and perform any and all acts necessary and/or to represent the [Name of Bidder] in the bidding as shown in the attached [state the attached documents showing proof of authorization (e.g. duly notarized Secretary's Certificate issued by the corporation or the members of the joint venture)]"

First, for a more comprehensive discussion on the issue, maybe you would like to share how the procuring entity re-stated or supplemented that particular statement, which you find not in accord with the spirit of the section on the authority of the signatory. Second, the validation on the authority of the signatory is done not during pre-qualification, which you mentioned, but during post-qualification. During the opening of the bid, you are correct, what the BAC should have done was to conduct just a preliminary examination (just using the "pass" and "fail" criteria) of the documents submitted and not go through the process of already verifying if the signatory is really the duly authorized representative.

Jessie C. Juaringon wrote:Therefore, checklist provided by respective procuring entity should be patterned with the specific requirements of the Revised IRR of RA 9184 specifically sections 23.1 and 25.2 of Rule VIII. Should there be any requirements other than that mentioned on the aforesaid sections, the bidder has three (3) days to comply as per Section 34.2 of Rule X, am i right?
When you bought the bidding documents, you were already provided with a checklist, right? What did you do after you noticed that there were additional requirements which you believed are not in accord with the IRR? Did you raise it through a query or clarification or during the pre-bid conference? It would have been good if you have raised your observation in advance.

At any rate, let me clarify. The eligibility requirements under Sec. 23.1 are already fixed. Procuring entities are really not allowed to prescribed more or less than those listed in that particular section. That particular section is quite clear, it says "only the following documents shall be prescribed by the BAC" followed by the listing of the Class A documents, plus Class B if the bidder is a joint venture or potential JV. If the BAC added additional documents to what are listed therein, then the BAC is already violating the bidding procedure.

On the other hand, Section 25.2 on the contents of the Technical Envelope, the procuring entity may require additional technical proposal submission over and above those listed therein. Notice the use of the phrase "at the least" at the end of the provision of Sec. 25.2. That would only be construed to mean that the list following that section is the minimum that a procuring entity could require. Therefore, it could require the submission of additional technical information/documents.

Jessie C. Juaringon wrote:Lastly, what do we mean of paragraph (d) of section 34.2 of Rule X ... "Other appropriate licenses and permits required by law and stated in the bidding documents....? Could this be construed as documents other than the standard documentary requirements as per sections 23.1 and 25.2? please enlighten..
Yes, those are other than those required in those sections, but, in order to avoid abuse by procuring entities in requiring just any additional documents, it is limited only to licenses and permits, which are appropriate to the contract and only those required by law, and stated/itemized in the bidding documents.
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Once again, Thank you very much !!!

Post by Jessie C. Juaringon on Sat Nov 06, 2010 1:30 pm

Sirs,

This forum is really of great help... Thanks a lot for the insights you've shared... Rest assured that i'll keep on posting whatever there is to be clarified.

For sir RDV, here's an excerpt of what the procuring entity wrote on their checklist:

" That the signatory is the duly authorized representative of the prospective bidder, and granted full power and authority to do, execute and perform any and all acts necessary and/or to represent the prospective bidder in the bidding, with the duly notarized Secretary's Certificate attesting to such fact, if the prospective bidder is a corporation, partnership or joint venture and must submit photocopies of Identification Card issued by government agencies such as but not limited to SSS, GSIS, BIR & LTO, showing picture and signature of both the attorney-in-fact and affiant

Those underlined were the supplemental statements i am referring to. And thanks alot for the correcting me, yes, its on the post-qualification phase not on the pre-qualification.... thanks a lot and more power
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Re: Revisions (Additional) to the specific sections of the Revised IRR of RA 9184 by a procuring entity

Post by cgga91 on Sun Nov 07, 2010 3:57 am

can i ask a question that is relevant to the provision of r.a. 9184 that is beeing asked and this has something to do with the gppb approved procurement manual for locally funded projects of the dpwh.

in the dpwh manual and i have asked this question with their bac-twg at the head office, it states that only the owner in the case of a single pproprietorship could conduct business with the dpwh. is this not contrary to the provisions that is being discussed here?

correct me if i am wrong but, the way i understand, a single proprietorship could designate an attorney-in-fact as long as said attorney has all the necessary conditions stated in this particular provision of r.a. 9184.

let me give you guys an example. an owner of a single proprietorship company is outside of the country and he/she executed an attorney-in-fact with all the provisions needed, i.e., "authority to do, execute and perform any and all acts necessary and/or to represent the prospective bidderin the bidding", that is duly notarized by a consular officer in the country where he/she is in right now, is this a valid authorization of the signatory?

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Re: Revisions (Additional) to the specific sections of the Revised IRR of RA 9184 by a procuring entity

Post by RDV @ GP3i on Sun Nov 07, 2010 10:20 am

Jessie C. Juaringon wrote:Sirs,

This forum is really of great help... Thanks a lot for the insights you've shared... Rest assured that i'll keep on posting whatever there is to be clarified.

For sir RDV, here's an excerpt of what the procuring entity wrote on their checklist:

" That the signatory is the duly authorized representative of the prospective bidder, and granted full power and authority to do, execute and perform any and all acts necessary and/or to represent the prospective bidder in the bidding, with the duly notarized Secretary's Certificate attesting to such fact, if the prospective bidder is a corporation, partnership or joint venture and must submit photocopies of Identification Card issued by government agencies such as but not limited to SSS, GSIS, BIR & LTO, showing picture and signature of both the attorney-in-fact and affiant

Those underlined were the supplemental statements i am referring to. And thanks alot for the correcting me, yes, its on the post-qualification phase not on the pre-qualification.... thanks a lot and more power

That "supplemental statement" is totally unnecessary, for the following reasons:

1) The procuring entity is mandated to use the GPPB-prescribed Omnibus Sworn Statement form prescribed under Section VIII (Bidding Forms) of the Standard Philippine Bidding Document;

2) The government issued identification card (ID), being asked to be submitted, should have been already identified in the JURAT in accordance with the 2004 Rules on Notarial Practice;

3) During post-qualification, the BAC, if it really wants to make sure, if it so much doubted the statement that such a government-issued ID card was really presented before the notary public, could have just make the verification during the post-qualification process; and

4) The BAC can ask during postqual. for presentation to it of the same ID card the duly authorized signatory presented before the Notary Public and indicated in the JURAT, but not ask for it is advance and if not included as part of the bid submission used as basis for disqualifying a bidder. That action is not only detrimental to the bidder concerned but also to the government because it deprives the government of possibly obtaining the best possible price had the said bidder not been disqualified and its financial proposal been allowed to be opened.

Those are my view on the situation you just brought out. If you are in the process of filing an MR, I wish you Good Luck.


Last edited by RDV @ GP3i on Sun Nov 07, 2010 10:24 am; edited 1 time in total
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Re: Revisions (Additional) to the specific sections of the Revised IRR of RA 9184 by a procuring entity

Post by sunriser431 on Sun Nov 07, 2010 10:22 am

cgga91 wrote:can i ask a question that is relevant to the provision of r.a. 9184 that is beeing asked and this has something to do with the gppb approved procurement manual for locally funded projects of the dpwh.

in the dpwh manual and i have asked this question with their bac-twg at the head office, it states that only the owner in the case of a single pproprietorship could conduct business with the dpwh. is this not contrary to the provisions that is being discussed here?

correct me if i am wrong but, the way i understand, a single proprietorship could designate an attorney-in-fact as long as said attorney has all the necessary conditions stated in this particular provision of r.a. 9184.

let me give you guys an example. an owner of a single proprietorship company is outside of the country and he/she executed an attorney-in-fact with all the provisions needed, i.e., "authority to do, execute and perform any and all acts necessary and/or to represent the prospective bidderin the bidding", that is duly notarized by a consular officer in the country where he/she is in right now, is this a valid authorization of the signatory?
Maybe this will help. click this LINK and Arrow HERE .


Last edited by sunriser431 on Sun Nov 07, 2010 11:17 am; edited 1 time in total
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Re: Revisions (Additional) to the specific sections of the Revised IRR of RA 9184 by a procuring entity

Post by RDV @ GP3i on Sun Nov 07, 2010 10:49 am

cgga91 wrote:can i ask a question that is relevant to the provision of r.a. 9184 that is beeing asked and this has something to do with the gppb approved procurement manual for locally funded projects of the dpwh.

in the dpwh manual and i have asked this question with their bac-twg at the head office, it states that only the owner in the case of a single pproprietorship could conduct business with the dpwh. is this not contrary to the provisions that is being discussed here?

correct me if i am wrong but, the way i understand, a single proprietorship could designate an attorney-in-fact as long as said attorney has all the necessary conditions stated in this particular provision of r.a. 9184.

let me give you guys an example. an owner of a single proprietorship company is outside of the country and he/she executed an attorney-in-fact with all the provisions needed, i.e., "authority to do, execute and perform any and all acts necessary and/or to represent the prospective bidderin the bidding", that is duly notarized by a consular officer in the country where he/she is in right now, is this a valid authorization of the signatory?

I am afraid that I may have to correct you in those underlined statement. That was the previous view and that was also what you can deduce from the non-policy opinion by the GPPB for which sunriser provided the LINK, but under the revised IRR and in the PBDs it now appears that a single proprietorship can no longer appoint an attorney-in-fact as its authorized signatory and to represent it in the bidding process.

Under Sec. 25.2 of the revised IRR, on the contents of the first envelope, one required document is the "Sworn statement of the prospective bidder or the duly authorized representative in the form prescribed by the GPPB, which contains, among others, that "the signatory is the duly authorized representative of the prospective bidder..."

Going over the GPPB-prescribed omnibus sworn statement, if the bidder is a sole proprietor, the statement appears, thus: "As the owner and sole proprietor [Name of Bidder], I have full power and authority to do, execute and perform any and all acts necessary to represent it in the bidding for [Name of the Project] of the [Name of the Procuring Entity]." It, therefore, does not allow for the owner and sole proprietor to be represented by anybody other than him/herself.

It is only if the bidder is a partnership, corporation, cooperative, or joint venture that a duly authorized representative is allowed to be supported by a document showing proof of authorization such as a Secretary's Certificate.
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