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Violations of specific provisions of the IRR-A of R.A. 9184

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Violations of specific provisions of the IRR-A of R.A. 9184

Post by dunkin on Fri Mar 27, 2009 7:27 pm

In instances where certain specific provisions of the IRR are not followed would it warrant a rebidding?
1.For instance in Rule VI Sec. 17.5 - If the bid documents are not issued promptly when the IAEB is first advertised but sometime after thereby not affording bidders with ample time.This paves the way for allegations of favoring certain parties by way of abbreviated time periods for the project to be bid.

2.If the IAEB is advertised not in a newspaper of general nationwide circulation as provided for under Sec.21.2.1 of the IRR-A even if the project cost is a big amount in excess of several millions.

3.The absence of the COA and Observers or the lack of it in all stages of the procurement process.More so if the project costs more than a P100M.

4.The specifications set for the goods to be bought although not mentioning a particular brand would favor it.Specifications are not as generic as intended.
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Re: Violations of specific provisions of the IRR-A of R.A. 9184

Post by RDV @ GP3i on Sat Mar 28, 2009 10:08 pm

dunkin wrote:In instances where certain specific provisions of the IRR are not followed would it warrant a rebidding?
1.For instance in Rule VI Sec. 17.5 - If the bid documents are not issued promptly when the IAEB is first advertised but sometime after thereby not affording bidders with ample time.This paves the way for allegations of favoring certain parties by way of abbreviated time periods for the project to be bid.

You are correct here, the bidding documents should already be made available on the first day of the advertisement/posting. However, the allegation that it is done to favor certain parties could remain only as an allegation. It may not be sufficient to warrant a rebidding.

dunkin wrote:2.If the IAEB is advertised not in a newspaper of general nationwide circulation as provided for under Sec.21.2.1 of the IRR-A even if the project cost is a big amount in excess of several millions.

Advertisement in a newspaper of general nationwide circulation is mandatory for goods with ABC of above P2 million and infra with ABC of above P5 Million. If only posting was made by the BAC and the BAC Secretariat, then there is an obvious disregard of the provisions of RA 9184 and its IRR-A. Under Sec. 41 of IRR-A, one of the instances when the HOPE can declare a failure of bidding is when the BAC did not follow the required bidding procedures. Advertisement in a newspaper when the ABC is more than the thresholds mentioned above is one of the required bidding procedures, therefore, not advertising as required is a violation of the bidding procedures. Once the HOPE declares a failure of bidding, it would warrant a rebidding.

dunkin wrote:3.The absence of the COA and Observers or the lack of it in all stages of the procurement process.More so if the project costs more than a P100M.

Absence of Observers will not nullify the bidding process provided they were invited in writing at least two (2) days prior to the stages of the procurement process.

dunkin wrote:4.The specifications set for the goods to be bought although not mentioning a particular brand would favor it.Specifications are not as generic as intended.

You may have to prove that the specifications are tailor-fitted to a particular brand. Because if they were, it could be a violation of Sec. 18 of the law on the prohibition on reference to brand names. Even if the brand name is not mentioned in the specification, however, if there is no doubt that the specs refers to a particular brand and no other, that could still be considered as violation of that particular provision of the law.
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Re: Violations of specific provisions of the IRR-A of R.A. 9184

Post by dunkin on Sun Mar 29, 2009 11:55 am

Thank you for your enlightening opinion.Just a few further questions though:
1. Assuming any one or all of these specific violations have been committed what recourse does one have if the HOPE refuses to act and declare a failure of bidding despite having these failures in following prescribed procedures brought to his/her attention?

2. On the issue of advertisement in a newspaper of general nationwide circulation.If the IAEB is advertised in a local paper or a regional paper only contrary to what is mandated by law would it be a valid ground for questioning it,seeing this as a failure to follow prescribed procedures under Sec. 41?

3.If it is shown that no observers or COA were notified either in writing or verbally at least two days prior to the BAC proceedings what effect would this have?

4. Even without assumptions of allegations of favored parties can the mere non-observance of this rule on the issuance of bid documents be taken again as a failure to follow prescribed procedures?

The reason we are bringing all these up is because taken altogether the various deviations from procedures have resulted to suppress, nullify and stifle competition which is the essence of a competitive bidding.The results of a bidding show only limited participation by bidders and seem to bolster suspicions that there are favored parties . The procedures are in question if it is in accordance with what is prescribed in the IRR and what remedies if any are available to anyone who seeks to have a review of the same?
Although allegations of favoritism, etc. would be a totally different matter.
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Re: Violations of specific provisions of the IRR-A of R.A. 9184

Post by RDV @ GP3i on Sun Mar 29, 2009 12:25 pm

dunkin wrote:Thank you for your enlightening opinion.Just a few further questions though:
1. Assuming any one or all of these specific violations have been committed what recourse does one have if the HOPE refuses to act and declare a failure of bidding despite having these failures in following prescribed procedures brought to his/her attention?
As a bidder, administrative remedies are available to you under Sthe GPRA and IRR-A. These are filing motion for reconsideration with the BAC and, if denied, a Protest with the HOPE. If the HOPE 'refuses to act', then you can file the appropriate relief in the Regional Trial Court.

dunkin wrote:2. On the issue of advertisement in a newspaper of general nationwide circulation.If the IAEB is advertised in a local paper or a regional paper only contrary to what is mandated by law would it be a valid ground for questioning it,seeing this as a failure to follow prescribed procedures under Sec. 41?
I think so, because there is a violation of a specific mandatory requirement of the law.

dunkin wrote:3.If it is shown that no observers or COA were notified either in writing or verbally at least two days prior to the BAC proceedings what effect would this have?
It could invalidate the bidding process, but it has to be proven.

dunkin wrote:4. Even without assumptions of allegations of favored parties can the mere non-observance of this rule on the issuance of bid documents be taken again as a failure to follow prescribed procedures?

If you were deprived of the opportunity to participate because of the non-observance of the rule, maybe it can. But, going back to my answer on question no. 1, you should have first exercised your administrative remedies.

Directly going to the courts without exhausting your administrative remedies will most likely result to a dismissal by the appropriate court for lack of jurisdiction under the legal principle on "non-exhaustion of administrative remedies." (See Sec. 58 of GPRA and IRR-A).
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Re: Violations of specific provisions of the IRR-A of R.A. 9184

Post by dunkin on Mon Mar 30, 2009 10:15 am

Thank you once again for the enlightening points.
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