Delayed Issuance of Notice of Award and Notice to Proceed

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Delayed Issuance of Notice of Award and Notice to Proceed

Post by Jack909 on Fri Sep 09, 2011 1:30 pm

Good morning everyone,

I have these questions and I would like to get your views and advice regarding these problems: 

1. Notice of Award  was issued after the lapse of a one year period from the date of bidding.  The Notice to proceed was issued a period of 8 months from the date of the notice of award and after one year of the bidding. Total delays of 1 year and 8 months almost 2 years. 

The late issuance of the Notice to proceed from the date of the biddings and Notices of award had actually prejudiced the contractor as the cost of materials had considerably rose from the date of the Notice of Award of the contract to the date of the notices to proceed. How can I be compensated due to the above mentioned delay?

I would really appreciate all of your help regarding this matter.

Thank you so much.  May God Bless us all.


Last edited by Jack909 on Sat Sep 10, 2011 11:56 am; edited 3 times in total (Reason for editing : Too long)

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Re: Delayed Issuance of Notice of Award and Notice to Proceed

Post by RDV @ GP3i on Tue Sep 13, 2011 10:54 pm

Jack909 wrote:Good morning everyone,

I have these questions and I would like to get your views and advice regarding these problems: 

1. Notice of Award  was issued after the lapse of a one year period from the date of bidding.  The Notice to proceed was issued a period of 8 months from the date of the notice of award and after one year of the bidding. Total delays of 1 year and 8 months almost 2 years. 

The late issuance of the Notice to proceed from the date of the biddings and Notices of award had actually prejudiced the contractor as the cost of materials had considerably rose from the date of the Notice of Award of the contract to the date of the notices to proceed. How can I be compensated due to the above mentioned delay?

I would really appreciate all of your help regarding this matter.

Thank you so much.  May God Bless us all.

You should not have accepted the Notice of Award if it was already delayed by almost 2 years. Your bid and bid security were no longer valid at that time, therefore you were no longer obligated to accept the award particularly since the cost of the materials have considerably increased by the time the NOA was issued. You cannot claim for price escalation because the increase in prices was prior to actual implementation of the project. So, I don't know how you could be compensated for the delay.
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Re: Delayed Issuance of Notice of Award and Notice to Proceed

Post by Jack909 on Wed Sep 14, 2011 2:17 am

Salamat for answering my query. It's been 2 years na since the date of the bidding. Nanalo ako as 3rd lowest bidder dahil disqualified yung first 2 bidders. But it's been two years na since the date of the bidding. Kung tatanggapin ko at ibabalik ang project sa akin pwede bang ma adjust ang price?

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Re: Delayed Issuance of Notice of Award and Notice to Proceed

Post by RDV @ GP3i on Wed Sep 14, 2011 7:13 am

Jack909 wrote:Salamat for answering my query. It's been 2 years na since the date of the bidding. Nanalo ako as 3rd lowest bidder dahil disqualified yung first 2 bidders. But it's been two years na since the date of the bidding. Kung tatanggapin ko at ibabalik ang project sa akin pwede bang ma adjust ang price?

Expired na ang validity ng bid mo at ang bid security mo kaya hindi na dapat magkaroon ng award. Dapat bago nag expire ang mga sinabi ko ang dapat na ginawa ng procuring entity ay hiningi sa inyo na i-extend ang validity ng bid at bid security mo. Dahil sa tumaas na ang presyo ng construction materials ang gagawin mo naman ay tanggihan ang hinihingi ng procuring entity at karapatan mo yun at hindi ka nila pwede i-sanction dun.

Dahol paso na nga ang bid at bid security mo, dapat ang gagawin ngayon ng BAC ay mag-declare ng failure of bidding at magkaroon ng re-bidding. Kung tatanggapin mo ang award kahit expired na ang sinasabi ko, risk mo yan. HIndi ka pwede humingi ng adjustment ng price. Hindi ka pwede humingi ng contract price escalation kasi hindi mo pa sinisimulan ang project ng mangyari ang pagtaas ng presyo ng materyales.
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Re: Delayed Issuance of Notice of Award and Notice to Proceed

Post by Jack909 on Wed Sep 14, 2011 12:02 pm

Thanks again. Notice to proceed nalang ang hinihintay ko. I complied all the requirements sa notice of award including performance guarantee, CARI kaya hind na bid security ang pinaguusapan dito. Imbis na notice to proceed ang I issue. Notice of Termination. Ano ang dapat Kung gawin? God bless

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Re: Delayed Issuance of Notice of Award and Notice to Proceed

Post by RDV @ GP3i on Wed Sep 14, 2011 9:30 pm

Jack909 wrote:Thanks again. Notice to proceed nalang ang hinihintay ko. I complied all the requirements sa notice of award including performance guarantee, CARI kaya hind na bid security ang pinaguusapan dito. Imbis na notice to proceed ang I issue. Notice of Termination. Ano ang dapat Kung gawin? God bless

In the first place you should not have signed the contract if you were already prejudiced due to the delay in issuance of the NOA. But you signed the contract anyway even if you know that your bid is no longer valid and after signing the contract and prior to receiving the Notice to Proceed, which according to you again took 8 months to be issued after the issuance of NOA, you did not ask for the termination of the contract.

And now that a Notice to Proceed was issued you were asking that instead of the NTP what should have been issued is a Notice of Termination. And you were asking also if you will be entitled for price adjustment or to be compensated for the delay?

Well, for me, you were a willing party to an irregular process. Why should the government be prejudiced by your actions? You were not prejudiced because you have not started the project, but accepting the project and hoping that you will be entitled to price adjustment or compensation for the delay, it is actually the government that will be prejudiced by the actions of the contracting parties because it is the government that will have to shoulder the additional cost. I think, legally, you are not entitled to price adjustment or compensation.
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Re: Delayed Issuance of Notice of Award and Notice to Proceed

Post by Engineer in Blue Jeans on Tue Nov 08, 2011 10:50 am

Good Day po... yan po ba yung tinatawag nilang "short of award" sa mga government projects? Minsan po kasi nakaka encounter kami ng ganyan...

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Re: Delayed Issuance of Notice of Award and Notice to Proceed

Post by chrissy on Tue Nov 08, 2011 4:54 pm

Yung "short of award" is when you bid out projects without the SARO or the funds. IN the event that the funds were released after a year which is more than 120 calendar days bid validity, the procuring entity cannot oblige or compel you to accept the award.
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Re: Delayed Issuance of Notice of Award and Notice to Proceed

Post by friend toe on Wed Feb 01, 2012 6:30 am

greetings to all... may i butt in? this could be a similar case. Award was suspended for a certain project because along the process, there was a request from legislators to re-align the funds to another project. however, for almost a year, the request was not granted. Due to time elapsed, the supposedly winning bidder no longer wanted to accept the project, but the second lowest bidder wanted to accept the project. Would it be proper to post qualify the next lowest bidder and award the project? Hope to have an idea of the course of correct/right action on this matter...

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Re: Delayed Issuance of Notice of Award and Notice to Proceed

Post by RDV @ GP3i on Wed Feb 01, 2012 7:21 am

friend toe wrote:greetings to all... may i butt in? this could be a similar case. Award was suspended for a certain project because along the process, there was a request from legislators to re-align the funds to another project. however, for almost a year, the request was not granted. Due to time elapsed, the supposedly winning bidder no longer wanted to accept the project, but the second lowest bidder wanted to accept the project. Would it be proper to post qualify the next lowest bidder and award the project? Hope to have an idea of the course of correct/right action on this matter...

You can no longer proceed with the award, whether to the lowest or the 2nd lowest calculated and responsive bidder because, if it is already almost a year after the bidding, the bids and bid security of all the bidders which participated in the bidding process have all been expired. You cannot not make an award to an expired bid.

The only way to go is to declare a failure of bidding and conduct a new bidding. If you proceed with the award, the awardee may just request for price escalation later because the prices of materials would have already increased since his offer was made almost a year ago. In that case, the procuring entity is not really justified awarding the project because the bid offer is advantageous to the government today because there is always that possibility that the awardee will later on request for price escalation.
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Re: Delayed Issuance of Notice of Award and Notice to Proceed

Post by friend toe on Wed Feb 01, 2012 10:23 pm

thanks for the reply... but what if the 2nd lowest bidder is sincere with his intent to accept the project even without escalation price because granting of escalation price is difficult to justify, could this be an exemption to the rule on bid validity inasmuch that the offer could be advantageous to the government? and if there will be instructions from higher authorities to proceed with procurement because the fund will expire in due time and that the shortest period of procurement is beyond the expiration date of SARO... what could be the implications?

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Re: Delayed Issuance of Notice of Award and Notice to Proceed

Post by RDV @ GP3i on Thu Feb 02, 2012 7:05 am

friend toe wrote:thanks for the reply... but what if the 2nd lowest bidder is sincere with his intent to accept the project even without escalation price because granting of escalation price is difficult to justify, could this be an exemption to the rule on bid validity inasmuch that the offer could be advantageous to the government? and if there will be instructions from higher authorities to proceed with procurement because the fund will expire in due time and that the shortest period of procurement is beyond the expiration date of SARO... what could be the implications?

Instructions from higher authority notwithstanding. The bid of the bidder is no longer valid, it has expired. How can you accept an expired offer? The bid has an expiration because, aside from prices probably increasing, the situation of the bidder in terms of legal, technical and financial eligibility may have already changed from the time it originally submitted its bid to the time you are ready to accept it. One year is a long period.

As to the expiration of the SARO, if it is not December 31, 2011, the next expiration is still the end of this year. It is quite a long time from now. If its expiration is December 31, 2011, it is too late to make a decision on it now, right?
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Re: Delayed Issuance of Notice of Award and Notice to Proceed

Post by friend toe on Thu Feb 02, 2012 8:57 pm

thank you very much sir RDV. by the way sir, if bid validity was extended then procurement can proceed?

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Re: Delayed Issuance of Notice of Award and Notice to Proceed

Post by jcolas on Fri Feb 03, 2012 8:24 am

"friend toe wrote"

thank you very much sir RDV. by the way sir, if bid validity was extended then procurement can proceed
If the bid validity/security has been extended and I wish to contratulate the PE for having a good foresight, if that is really the case, then you may proceed with the procurement but, you have to be very sure that the situation obtaining during the time of the bidding is still the same after the lapse of one year. The legal, technical and financial capability of the second bidder as posted by Sir RDV might have changed; the environment surrounding the project might have been altered by man or by nature, and the funds might have been reverted by to the National Treasury by operation of law. For me, I recommend that you lay off the project as it has so many legal questions. I hope I have not muddled the issue.
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Re: Delayed Issuance of Notice of Award and Notice to Proceed

Post by friend toe on Sat Feb 04, 2012 10:22 pm

thank you very much sir... actually this could happen in our department wherein legislators meddle, most particularly if the winning bidder happens to be from other place(non-resident). and we just know that we have a system to follow which DBM could not just easily approve the re-alignment. the only question i think if it would be proper for us to request the bidders to extend their bid validity for an undisclosed number of 120 C.D. each extension until there would be a result for the re-alignment?... i don't know... it's really difficult...

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Re: Delayed Issuance of Notice of Award and Notice to Proceed

Post by Jovinal on Sun Feb 05, 2012 9:54 pm

Your procurement has a technical funding issues , to be safe, you may cancel the procurement, and wait the outcome of the re-alignment, then conduct a new procurement.
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Re: Delayed Issuance of Notice of Award and Notice to Proceed

Post by Tunying01 on Tue Jun 19, 2012 4:04 pm

Good day sir and maam! regarding this issue meron din po kaming related happenings here in our office. We posted an invitation to bid at PhilGEPS and natapos na po yung bidding at meron naman pong qualified bidder. Pero ang problem po ay gusto ng HOPE na iba na lang po ang paggamitan ng budget. Ibang equipment na lang po ang plan na i-purchase, kaya di pa po namin ina-award. Is it still legal if we cancel the bidding for the first equipment though may qualified bidder po?? hope you can help us. Thanks and God Bless.

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Re: Delayed Issuance of Notice of Award and Notice to Proceed

Post by regina avelino on Tue Jun 19, 2012 5:32 pm

Section 41 of the IRR expressly provides that the the Head of the Procuring Entity reserves the right to reject any and all bids, declare a
failure of bidding, or not award the contract. However, if the HOPE decides not to award the contract, it should be based on the grounds cited in section 41 a, b and c. If the reason of the HOPE is not predicated from section 41, then there would be violation with the said provision. The Lowest Calculated and Responsive Bidder (as i assumed from your term " qualified bidder") might resort to court action in reference to section 65.1 b. That is of course after taking into consideration the bidder's right to avail of administrative remedies as provided for also in Sec. 55 of RA 9184 and its IRR, and these are, filing a motion for reconsideration, and, if denied, by filing a verified protest. It is also after the bidder has completed these administrative remedies that the court would have jurisdiction over the final decision of the HOPE (Sec. 58).

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Re: Delayed Issuance of Notice of Award and Notice to Proceed

Post by Dave Jubilado on Thu Oct 22, 2015 9:32 am

Good day.
Our Agency conducted a bidding for construction materials sometime in March 2015, however the award was made only in July due to the delay in the releasing of our SAA from the DBM. The supplier informed us in writing that he can no longer accept the award since his bid offer is no longer valid. However, he expressed his willingness to still accept the award for all other items except for one (cement) due to price escalation. In the exigency of the service, can we still issue the award for all other items except for cement and conduct a re-bidding for that item alone, or should we go to through the process of public bidding again for all the items being procured?

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Re: Delayed Issuance of Notice of Award and Notice to Proceed

Post by meijunji on Sat Mar 04, 2017 9:29 pm

Good day po!

Kapag sa procurement one (1) year of security services, yung post-qualification proceedings ay nasubject po ng TRO and/Or injunction, kaya po temporarily held in abeyance yung proceedings, kaya wala po notice of award.

Paano po kapag po ang case ay naresolve after one (1) year, at naglapse na yung period ng bidded contract,

(1) paano po kaya yung supposed to LCR Bidder? Ma-award pa po kaya contract sa kanya? just in case po awarded sa kanya, one (1) year po ba dapat yun?
(2) kailangan na po magkaroon ng panibagong bidding, considering naglapse na po yung contract in question?

sana po makatulong kayo sa akin, salamat po.

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