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Suspension and Blacklisting

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Suspension and Blacklisting

Post by ms.sweet18 on Thu Jun 30, 2011 4:13 pm

(a.) What is the legal significance of the phrase “ In addition to the provisions of Articles XXI and XXII of this Act..x x x ” found in section 69 of RA 9184?

Should a contractor first be found criminally and civilly liable (under articles XXI and XXII of R.A. 9184) before it can be penalized administratively (under article XXIII of R.A. 9184)?


(b.) Is criminal conviction (under articles XXI of R.A. 9184) a pre-requisite before a contractor can be penalized administratively (under article XXIII of R.A. 9184)?

Please enlighten thank you!
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Re: Suspension and Blacklisting

Post by silverthon on Thu Feb 09, 2012 11:55 am

Under the blacklisting guidelines under 4.4.1, it was mentioned that the following would be grounds for suspension or blacklisting:

"Submission of Bids that contain false information or falsified documents, or the
concealment of such information in the Bids in order to influence the outcome
of eligibility screening or any other stage of the public bidding"

I would like to know if submission of the single largest contract with concealed itemized pricing but with the same total sum would constitute falsification of documents when in fact the action did nothing to influence the outcome of eligibility?

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Re: Suspension and Blacklisting

Post by Jovinal on Thu Feb 09, 2012 1:33 pm

No.
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Re: Suspension and Blacklisting

Post by engrjhez® on Thu Feb 09, 2012 9:45 pm

ms.sweet18 wrote:(a.) What is the legal significance of the phrase “ In addition to the provisions of Articles XXI and XXII of this Act..x x x ” found in section 69 of RA 9184?

Should a contractor first be found criminally and civilly liable (under articles XXI and XXII of R.A. 9184) before it can be penalized administratively (under article XXIII of R.A. 9184)?


(b.) Is criminal conviction (under articles XXI of R.A. 9184) a pre-requisite before a contractor can be penalized administratively (under article XXIII of R.A. 9184)?

Please enlighten thank you!

The offense shall be made "without prejudice" to other penal laws (meaning, the case is independent of the others). If the law provides an administrative penalty, and the same offense is considered also with criminal and civil liability, the verdict to that administrative penalty should not be affected by the others and vice versa. Or for instance, you are acquitted of a criminal offense, does not mean you are also free from the other liabilities. This will also hold true to other offenses due to violation of pertinent laws such as but not limited to RA 3019 and RA 6713. Smile
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Re: Suspension and Blacklisting

Post by Jovinal on Fri Feb 10, 2012 7:50 am

I agree your point ENG. JHEZ.
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Re: Suspension and Blacklisting

Post by silverthon on Fri Feb 17, 2012 11:42 am

silverthon wrote:Under the blacklisting guidelines under 4.4.1, it was mentioned that the following would be grounds for suspension or blacklisting:

"Submission of Bids that contain false information or falsified documents, or the
concealment of such information in the Bids in order to influence the outcome
of eligibility screening or any other stage of the public bidding"

I would like to know if submission of the single largest contract with concealed itemized pricing but with the same total sum would constitute falsification of documents when in fact the action did nothing to influence the outcome of eligibility?

Sir RDV, any comments po on this?

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Re: Suspension and Blacklisting

Post by RDV @ GP3i on Fri Feb 17, 2012 7:02 pm

silverthon wrote:
silverthon wrote:Under the blacklisting guidelines under 4.4.1, it was mentioned that the following would be grounds for suspension or blacklisting:

"Submission of Bids that contain false information or falsified documents, or the
concealment of such information in the Bids in order to influence the outcome
of eligibility screening or any other stage of the public bidding"

I would like to know if submission of the single largest contract with concealed itemized pricing but with the same total sum would constitute falsification of documents when in fact the action did nothing to influence the outcome of eligibility?

Sir RDV, any comments po on this?

Thank you and welcome to this forum, silverthon!

The way I understand it, you would like to know if the submission of single largest contract with concealed information (itemized pricing) could be a basis for suspension of blacklisting.

The basis for determininf by the BAC for compliance by a bidder of the requirement of a single largest contract is the 'Statement of all ongoing and completed government and private contracts." Per PBDs, the statement shall contain the following information: (1) name of contrast, (2) date of contract, (3) kinds of goods, (4) amount of contract and value of outstanding contracts, (5) date of delivery, and (6) end-user's acceptance or official receipts issued for the contract if completed. There is no requirement in the statement for the itemized pricing. Since it is not required, you could not be held liable for concealment.

If I understand correctly your question and the situation, that would be my position. Otherwise, please clarify more.
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Re: Suspension and Blacklisting

Post by Jovinal on Sat Feb 18, 2012 1:16 pm

I agree with SIR RVD.
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Re: Suspension and Blacklisting

Post by sniper930 on Thu Jul 19, 2012 4:51 pm

is it right to say that before the penalty of forfeiture of bid security and suspension or blacklisting is imposed, it presupposes the fact that the violation committed by the bidder should have been intentional?

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Re: Suspension and Blacklisting

Post by engrjhez® on Thu Jul 19, 2012 5:27 pm

sniper930 wrote:is it right to say that before the penalty of forfeiture of bid security and suspension or blacklisting is imposed, it presupposes the fact that the violation committed by the bidder should have been intentional?

There is none indicated in any of the penal, civil or administrative imposition about the intent. Hence, in my opinion, intent is immaterial as this partakes the nature of mala prohibita, where a mere act or omission constitutes an offense. Smile
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Re: Suspension and Blacklisting

Post by sniper930 on Thu Jul 19, 2012 9:51 pm

engrjhez® wrote:
sniper930 wrote:is it right to say that before the penalty of forfeiture of bid security and suspension or blacklisting is imposed, it presupposes the fact that the violation committed by the bidder should have been intentional?

There is none indicated in any of the penal, civil or administrative imposition about the intent. Hence, in my opinion, intent is immaterial as this partakes the nature of mala prohibita, where a mere act or omission constitutes an offense. Smile

thanks!

but is it not true that the IRR of RA 9184, Section 69(1) thereof, provides that among the grounds for the imposition of the penalty of suspension is the "submission of xxx falsified documents". is it not unfair to immediately impose the penalty of suspension without a finding first if the submission was intentional?

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Re: Suspension and Blacklisting

Post by engrjhez® on Fri Jul 20, 2012 9:25 am

sniper930 wrote:
engrjhez® wrote:
sniper930 wrote:is it right to say that before the penalty of forfeiture of bid security and suspension or blacklisting is imposed, it presupposes the fact that the violation committed by the bidder should have been intentional?

There is none indicated in any of the penal, civil or administrative imposition about the intent. Hence, in my opinion, intent is immaterial as this partakes the nature of mala prohibita, where a mere act or omission constitutes an offense. Smile

thanks!

but is it not true that the IRR of RA 9184, Section 69(1) thereof, provides that among the grounds for the imposition of the penalty of suspension is the "submission of xxx falsified documents". is it not unfair to immediately impose the penalty of suspension without a finding first if the submission was intentional?

I did not mention in my post to issue outright a suspension or blacklisting order. That is because in your post immediately preceding the last, you are simply asking what the provision presupposes.
sniper930 wrote:is it right to say that before the penalty of forfeiture of bid security and suspension or blacklisting is imposed, it presupposes the fact that the violation committed by the bidder should have been intentional?

Intentional or not, the offender is not deprived of due process and to to be heard. Such can be found in the "Uniform Guidelines for Blacklisting". Under the said guidelines:

5.2 Notification
Upon verification of the existence of grounds for blacklisting, the BAC shall
immediately notify the contractor concerned in writing, advising him that:

a) a complaint for suspension and blacklisting has been filed against him, or he
has been considered by the BAC for suspension and blacklisting, stating the
grounds for such;

b) he has the opportunity to show cause why he should not be suspended
and blacklisted;

c) a hearing shall be conducted before the BAC, upon his request, where he may
present documentary evidence, verbal testimony and cross-examine the
witnesses presented against him; and

d) the consequences of being suspended and blacklisted.
Within five (5) calendar days from receipt of notification, the contractor shall submit
its written answer with documentary evidence to the BAC with a manifestation for
request of hearing to determine questions of fact, if he so desires. No time extension
shall be allowed.

Should the contractor fail to answer within the same period, the BAC shall issue a
resolution recommending to the Head of the Procuring Entity the immediate
suspension of the contractor from participating in any bidding process of the
agency and the forfeiture of his bid security.

You may want to download the guidelines from this link >>> http://www.gppb.gov.ph/issuances/Guidelines/2004/Blacklisting.pdf
Smile
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Re: Suspension and Blacklisting

Post by sniper930 on Fri Jul 20, 2012 2:54 pm

great!

thanks a lot!!! Very Happy

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Re: Suspension and Blacklisting

Post by engrjhez® on Fri Jul 20, 2012 6:06 pm

sniper930 wrote:great!

thanks a lot!!! Very Happy

You are welcome.


You may also want to visit the Facebook page : http://www.facebook.com/ra9184gpra

or follow on Twitter http://twitter.com/engrjhez

Have a nice day!
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Re: Suspension and Blacklisting

Post by sniper930 on Wed Aug 01, 2012 5:39 pm

Effect of Decision

A contractor is suspended upon receipt of the notice of decision prohibiting him
from participating in the bidding process of the agency. The suspension shall
remain in effect during the period of motion for reconsideration and protest and shall terminate only upon a reversal of the decision by the Head of the Procuring Entity or appellate authority.
If no motion for reconsideration or protest is filed, the decision shall become final and executory after the lapse of seven (7) calendar days from the receipt of the notice of decision. Thereafter, the Head of Procuring Entity shall issue a Blacklisting Order disqualifying the erring contractor from participating in the bidding of all government projects.


help please....i find the quoted provision a bit confusing. it states that if no motion for reconsideration (from the suspension) is filed within the 7-day reglementary period, the HOPE shall issue a Blacklisting Order. does it mean that if a bidder is suspended by a procuring entity and does not file an MR, he will be automatically blacklisted?

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Re: Suspension and Blacklisting

Post by engrjhez® on Thu Aug 02, 2012 10:40 am

sniper930 wrote:Effect of Decision

A contractor is suspended upon receipt of the notice of decision prohibiting him
from participating in the bidding process of the agency. The suspension shall
remain in effect during the period of motion for reconsideration and protest and shall terminate only upon a reversal of the decision by the Head of the Procuring Entity or appellate authority.
If no motion for reconsideration or protest is filed, the decision shall become final and executory after the lapse of seven (7) calendar days from the receipt of the notice of decision. Thereafter, the Head of Procuring Entity shall issue a Blacklisting Order disqualifying the erring contractor from participating in the bidding of all government projects.


help please....i find the quoted provision a bit confusing. it states that if no motion for reconsideration (from the suspension) is filed within the 7-day reglementary period, the HOPE shall issue a Blacklisting Order. does it mean that if a bidder is suspended by a procuring entity and does not file an MR, he will be automatically blacklisted?

Good observation. The GPPB should clarify this because a direct reading of the entire guidelines will cause the reader to believe that Blacklisting is resorted after the silence of the accused bidder to file MR and/or Protest.

The current practice distinguishes "suspension" from "blacklisting". The former being applicable only to the agency and the latter to all government agencies. This distinction however is not readily readable from the provisions of the guidelines. Hence, we have to recommend to revisit the guidelines considering the following:
  1. define clearly and distinguish "suspension" from "blacklisting";
  2. distinguish the process of "suspension" from "blacklisting"; and
  3. clarify the periods of imposition if there would be no limit to the commission, i.e. if committed to the 3rd time=3years, 4th time=4years, and so on?
Smile
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Re: Suspension and Blacklisting

Post by sniper930 on Thu Aug 02, 2012 11:38 am

i agree. this is very detrimental to bidders upon whom only the penalty of suspension was imposed. as a consequence of the gaping hole in the guidelines, the HOPE is left with no other recourse except to issue a blacklisting order, even if it intended only a penalty of suspension. note must be taken of the fact that there is no provision in the guidelines regarding the issuance by the HOPE of a suspension order.

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