Juridical Entity of the principal bidder and its representative

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Juridical Entity of the principal bidder and its representative

Post by MIGZ98 on Thu Nov 25, 2010 1:47 pm

Good afternoon!

We had conducted a bidding where we only invited local manufacturers and foreign manufacturers with authorized local representatives.

One of the requirements in the bidding is the submission of Statement of Completed and Ongoing Government and Private Contracts by the bidder within the last five years reckoned from the date of bid submission and it should be supported by NOA, NTP, Contracts and Acceptance Reports.

During the bidding, the foreign manufacturer has submitted a Statement of Completed and Ongoing Government and Private Contracts. For its contracts in their country, the bidder did not submit the supporting documents due to confidentiality reason. The bidder did not even stated to present it during the post qual for verification purposes only. For its Philippine Government contracts, the bidder submitted a contract under the name of its local representative, not under the name of the principal bidder. This observation was raised during the bidding but since the bidder has submitted the requirements, the BAC declared the documents passed subject to post qualification.

Upon verification with the Office that handles the contracts of the procuring entity, it was found out that there are no contracts entered into by the principal bidder with the procuring entity. All they have are contracts by the procuring entity with its local representative. A certification relative to this was also issued. The representative of the principal bidder said that the principal and the local representative, both are corporations, are considered as one. A JV agreement was not even entered to by both parties. Is this a valid statement? Is there a jurisprudence regarding the juridical entity of two corporations that could clear this matter?

Moreover, is it a valid reason to say that the contracts of the foreign bidder with an entity in their country as "Confidential" to restrict the BAC from verifying the veracity of the statements? If they insist on not showing the documents to the TWG only, can this be a basis for DQ?

Thank you,

MIGS98
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Re: Juridical Entity of the principal bidder and its representative

Post by MIGZ98 on Mon Nov 29, 2010 7:48 pm

Good evening!

I hope my query will be answered the soonest.

Thank you
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Re: Juridical Entity of the principal bidder and its representative

Post by RDV @ GP3i on Tue Nov 30, 2010 9:40 am

MIGZ98 wrote:Good afternoon!

We had conducted a bidding where we only invited local manufacturers and foreign manufacturers with authorized local representatives.

One of the requirements in the bidding is the submission of Statement of Completed and Ongoing Government and Private Contracts by the bidder within the last five years reckoned from the date of bid submission and it should be supported by NOA, NTP, Contracts and Acceptance Reports.

During the bidding, the foreign manufacturer has submitted a Statement of Completed and Ongoing Government and Private Contracts. For its contracts in their country, the bidder did not submit the supporting documents due to confidentiality reason. The bidder did not even stated to present it during the post qual for verification purposes only. For its Philippine Government contracts, the bidder submitted a contract under the name of its local representative, not under the name of the principal bidder. This observation was raised during the bidding but since the bidder has submitted the requirements, the BAC declared the documents passed subject to post qualification.

Upon verification with the Office that handles the contracts of the procuring entity, it was found out that there are no contracts entered into by the principal bidder with the procuring entity. All they have are contracts by the procuring entity with its local representative. A certification relative to this was also issued. The representative of the principal bidder said that the principal and the local representative, both are corporations, are considered as one. A JV agreement was not even entered to by both parties. Is this a valid statement? Is there a jurisprudence regarding the juridical entity of two corporations that could clear this matter?

Moreover, is it a valid reason to say that the contracts of the foreign bidder with an entity in their country as "Confidential" to restrict the BAC from verifying the veracity of the statements? If they insist on not showing the documents to the TWG only, can this be a basis for DQ?

Thank you,

MIGS98

Maybe there is a confidentiality clause in the contract that prohibits the contractor in divulging information on the contract without the consent of the other contracting party. However, I don't see any reason why copies of the NOA, NTP or acceptance report could not be provided also. Assuming that disclosure of the said documents are prohibited as well, the bidder should have raised the issue during the pre-bid conference considering the submission of any of the said documents is a mandatory requirement as indicated in the bidding documents and failure to support the Statement of Completed, Ongoing and Awarded projects with any of these documents is a ground for its disqualification.

On the issue on the juridical personality of the bidder as against that of its local representative, whether they are separate entities or are one and the same entity, I believe that one way of determining whether they really are one entity or not is to look at the articles of incorporation of the local representative.

It is possible that the local representative may have been created for a different purpose but, along the way, an agreement may have been reached with the foreign company to become its local representative as well. If that is the case, then they should be considered separate entities.

It is also possible that the local representative was created for the sole purpose of being a local representative and to transact business in the country for and in behalf of the foreign corporation. If that is the case, then it is likely that they could be considered as one entity.
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Re: Juridical Entity of the principal bidder and its representative

Post by MIGZ98 on Tue Nov 30, 2010 2:53 pm

Than you for the reponse.
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