Award to the 2nd Lowest Calculated Bid

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Award to the 2nd Lowest Calculated Bid

Post by engrjhez® on Mon Jul 11, 2011 10:30 pm

This was posted in the Facebook® page. Please comment:
Ed Farrales wrote:greetings. . . .please enlighten us on bidding scenario we have participated on 3,700 school magazine .. . on the opening of bids, we were initially log as the lowest bidder in the amount of Php148K , and 2nd lowest bidder in the amount of Php155K w/ free 400 magazine copies as offered. . . initial words came from the BAC that they would consider the cost of the free copies offered and deduct it on the bid offered made by the 2nd lowest, thus would likely award it to the 2nd bidder since lalabas daw na mas mababa daw bid nang 2nd bidder. . . . is this legal?. . . on what provision in the IRR-A of RA9184 would be their bases or what provision we could defend our bid?. . . please post this issue and concern in GPPB forum for our reference and others to share views/legal arguments. thanks

Smile
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Re: Award to the 2nd Lowest Calculated Bid

Post by RDV @ GP3i on Wed Jul 13, 2011 10:47 pm

engrjhez® wrote:This was posted in the Facebook® page. Please comment:
Ed Farrales wrote:greetings. . . .please enlighten us on bidding scenario we have participated on 3,700 school magazine .. . on the opening of bids, we were initially log as the lowest bidder in the amount of Php148K , and 2nd lowest bidder in the amount of Php155K w/ free 400 magazine copies as offered. . . initial words came from the BAC that they would consider the cost of the free copies offered and deduct it on the bid offered made by the 2nd lowest, thus would likely award it to the 2nd bidder since lalabas daw na mas mababa daw bid nang 2nd bidder. . . . is this legal?. . . on what provision in the IRR-A of RA9184 would be their bases or what provision we could defend our bid?. . . please post this issue and concern in GPPB forum for our reference and others to share views/legal arguments. thanks

Smile

Here is my answer to the same post under another topic:

While arithmetical corrections are allowed, but generally these corrections are only for computational errors and omissions to enable proper comparison of all eligible bids.

Sec. 32.2.1(b) of the IRR on arithmetical corrections "may also consider bid modifications if expressly allowed in the Bidding Documents. Any adjustments shall be calculated in monetary terms to determine calculated prices." The situation of the 2nd lowest bidder as read may fall on this particular provision.

The BAC, therefore, can only apply its ruling if it is expressly allowed in the Bidding Documents, otherwise, it has no basis to consider the freebies over and above the minimum requirement of 3700 copies (4000 copies was mentioned by edprintshoppe aka Ed Farrales in that post) as an arithmetical correction. I am of the opinion, therefore, that what the BAC did is not in accordance with the IRR and its bidding documents if it was not expressly allowed in the bid docs.

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Re: Award to the 2nd Lowest Calculated Bid

Post by ikuz23 on Wed Jul 13, 2011 11:36 pm

i agree with your opinion sir RDV Smile
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Re: Award to the 2nd Lowest Calculated Bid

Post by engrjhez® on Thu Jul 14, 2011 2:06 am

This is one example of how important bidding documents are. The Schedule of Requirements should include the required quantity and timetable for the items to be procured. The figures will tell us what is our requirement. But in the scenario presented, it seems the requirement of PE is suddenly replaced by a bidder's proposal. It clearly defeats the purposes of planning.

Freebies, if any, should never be a factor for evaluation especially if it is not being asked. Smile
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Re: Award to the 2nd Lowest Calculated Bid

Post by sunriser431 on Thu Jul 14, 2011 10:45 pm

engrjhez® wrote:This was posted in the Facebook® page. Please comment:
Ed Farrales wrote:greetings. . . .please enlighten us on bidding scenario we have participated on 3,700 school magazine .. . on the opening of bids, we were initially log as the lowest bidder in the amount of Php148K , and 2nd lowest bidder in the amount of Php155K w/ free 400 magazine copies as offered. . . initial words came from the BAC that they would consider the cost of the free copies offered and deduct it on the bid offered made by the 2nd lowest, thus would likely award it to the 2nd bidder since lalabas daw na mas mababa daw bid nang 2nd bidder. . . . is this legal?. . . on what provision in the IRR-A of RA9184 would be their bases or what provision we could defend our bid?. . . please post this issue and concern in GPPB forum for our reference and others to share views/legal arguments. thanks

Smile
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Re: Award to the 2nd Lowest Calculated Bid

Post by edprintshoppe on Fri Jul 15, 2011 8:48 am

Received a letter from the BAC and quote;

"Please be informed that the quoted Section 17.4 of the IRR of RA9184 you used as basis was already amended as reflected on 2009 Handbook on Philippine Government Procurement,Fifth Edition, which includes Revised IRR of RA 9184, Section 17.4 can now read under Section 17.2, which states

17.2 "The Specifications and other terms in the Bidding Procurement shall reflect minimum requirement or specification required to meet the needs of the procuring entity in clear and ambigous teams-(a)

Clearly, the amended section no longer contains the 3rd sentence which states

XXX However, there shall not be given any bonus, credit or premium in the bid evaluationXXX

Thus, the BAC is correct in its opinion that ADD-ON/FREEBIES shall be given weight on value as basis of comparison of Bid offered, as this is of advantage to the PE at no extra cost."

and they further explained, to my understanding their stand on distance/expenditures between their office (PE) to our establishment than that of the 2nd lowest bidder which is within same city/place of the PE, thus the cost incurred for editing and proofreading in going to our establishment will cost higher expenditures against the difference of our bid and the 2nd lowest Bidder.

Does any context of the IRR-A of 9184 expounds the legality of said argument? even if in case mentioned by BAC that pre-bid was held clarifying said issue?





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Re: Award to the 2nd Lowest Calculated Bid

Post by edprintshoppe on Fri Jul 15, 2011 2:58 pm

Assuming Pre-Bid were done and even in our absence in the pre-bid, is it the BAC obliged to post an Addendum on the Philgeps / or send a copy of the addendum to the participating bidder or even on the day of the bidding the bid docs was purchased prior to deadline of the dropping? So as to have an equal footing in the bid proposal, what context in the IRR-A of RA 9184 governs this issue?

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Re: Award to the 2nd Lowest Calculated Bid

Post by engrjhez® on Tue Jul 19, 2011 5:54 pm

edprintshoppe wrote:Received a letter from the BAC and quote;

"Please be informed that the quoted Section 17.4 of the IRR of RA9184 you used as basis was already amended as reflected on 2009 Handbook on Philippine Government Procurement,Fifth Edition, which includes Revised IRR of RA 9184, Section 17.4 can now read under Section 17.2, which states

17.2 "The Specifications and other terms in the Bidding Procurement shall reflect minimum requirement or specification required to meet the needs of the procuring entity in clear and ambigous teams-(a)

Clearly, the amended section no longer contains the 3rd sentence which states

XXX However, there shall not be given any bonus, credit or premium in the bid evaluationXXX

Thus, the BAC is correct in its opinion that ADD-ON/FREEBIES shall be given weight on value as basis of comparison of Bid offered, as this is of advantage to the PE at no extra cost."

and they further explained, to my understanding their stand on distance/expenditures between their office (PE) to our establishment than that of the 2nd lowest bidder which is within same city/place of the PE, thus the cost incurred for editing and proofreading in going to our establishment will cost higher expenditures against the difference of our bid and the 2nd lowest Bidder.

Does any context of the IRR-A of 9184 expounds the legality of said argument? even if in case mentioned by BAC that pre-bid was held clarifying said issue?

Its seems to me that the BAC invoked the rule of statutory construction "Inclusio unius est exclusio alterius" or "what is not included is excluded." - a clever but misleading take.

  • First, the removal of the third sentence in the previously 17.4 of IRR-A (now 17.2 under Revised IRR) did not alter spirit of the law but simplify the seemingly redundant statements;

  • Second, a more basic and fundamental rule in bid evaluation can only be administered if bid evaluation is done "on equal footing";

  • Third, the specifications speak of minimum requirements "...to meet the needs of the procuring entity in clear and unambiguous terms" which I believe is clear in their "Schedule of Requirements" as part of the Bidding Documents;

  • Fourth and lastly, the statutory principles are not "self-executing provisions" but be shall read in the whole context of the law as "it is not the letters that killeth but the spirit that vivifieth...".

Thus, in my humble opinion BAC's decision is NOT IN ORDER.

Further, the augmenting statement of the BAC (proximity of the 2nd lowest bidder) has no bearing because it defeats the basic principle of GPRA which is "competitiveness" which gives equal opportunity to every bidder to participate in the bidding process. Smile
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Re: Award to the 2nd Lowest Calculated Bid

Post by engrjhez® on Tue Jul 19, 2011 6:00 pm

edprintshoppe wrote:Assuming Pre-Bid were done and even in our absence in the pre-bid, is it the BAC obliged to post an Addendum on the Philgeps / or send a copy of the addendum to the participating bidder or even on the day of the bidding the bid docs was purchased prior to deadline of the dropping? So as to have an equal footing in the bid proposal, what context in the IRR-A of RA 9184 governs this issue?
Supplemental/Bid Bulletin must be issued at least seven (7) calendar days before the deadline of submission and receipt of bids. The particular provision of equal footing is read as follows (from the IRR):

32.2.2. The BAC shall evaluate all bids on an equal footing to ensure fair and competitive bid comparison. For this purpose, all bidders shall be required to include the cost of all taxes, such as, but not limited to, value added tax (VAT), income tax, local taxes, and other fiscal levies and duties which shall be itemized in the bid form and reflected in the detailed estimates. Such bids, including said taxes, shall be the basis for bid evaluation and comparison.

Now, is it fair to consider the freebies where in fact the PE just needed the items without the freebies? I believe it's not. If they can really offer the lowest price, why not bid with the lowest they can for the required quantity? And why give the PE more that what they need? If the freebies would not be an issue, there is no harm and the government gets the advantageous deal. But the story is different if there are competing bidders and you are evaluating one with freebies and the other without. Smile
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