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Post-Disqualification Concern: Inconsistency in ITB/BDS

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Post-Disqualification Concern: Inconsistency in ITB/BDS

Post by ABBH100 on Thu Aug 23, 2012 12:48 am

I apologize for the long post but I hope you still take the time to read it. We hope to gain professional advice, helpful opinions, suggestions and more learning about this experience.

We have recently participated in a bidding for an infrastructure project. We were presumably the LCB but no winner was declared whatsoever, till now. As far as we know, we have complied with the requirements provided in their Bid Book, particularly with the Financial Component, that is:

13. Documents Comprising the Bid: Financial Component

13.1 Unless otherwise stated in the BDS, the Financial Component of the bid shall contain the following:
a.Financial Bid Form, in accordance with the form prescribed in Section IX Bidding Forms; and
b.Any other document required in the BDS.

The BDS Clause being referred to is 13.1, which states “No Additional Requirements”


Thus, being compliant that we are, we have submitted only the Financial Bid Form in the Financial Component envelope, though we did accomplish a Bill of Quantities and Detailed Estimates at hand.

Based on the previous bidding activities we have participated in, aside from the requirements stated in the ITB, the BAC provides further requirements in the BDS, such as BoQ, Detailed Estimates, Cash Flow, etc. In this case, the BDS confirms no other documents required.

Question 1: How mandatory is the IRR if the BDS can be modified by the BAC? Which stipulation should we have followed, that in the BDS or in the IRR?

During the bidding process, a few concerns were raised regarding improper marking (date and time error) committed by another bidder and absence of BoQ/DE by our party. Figures were posted and we had the lowest bid amount. But no winner was announced.

Two days after the bidding activity, we attempted to submit our BoQ and Detailed Estimates but the BAC refused to accept it. More than a week later, we received a Notice of Post-Disqualification on the ground that that the we did not submit a Bill of Quantities and Detailed Engineering Estimates, hence, no basis of evaluation by the TWG. They did not cite any stipulation as their basis.

Question 2: What stipulation could have they based that ground on?

The next day, we wrote a response requesting a reconsideration of their decision, citing:

*[ 1. Section II – ITB, Article E – Evaluation and Comparison of Bids, Item 27 – Detailed Evaluation and Comparison of Bids, 27.5 (page 23) states “Unless otherwise indicated in the BDS, the University’s evaluation of bids shall only be based on the bid price quoted in the Financial Bid Form.” Such BDS clause (page 31) indicates “No further instructions”. ]

*[ 13. Documents Comprising the Bid: Financial Component ]

*and the minutes of the bidding process wherein the Chair [pointed out that the BAC may opt to require submission of the documents at issue in support of the bid]. Our understanding of this statement is that the procuring entity has the option to post a notice requiring the documents for post-qualification if desired. However, the PE has not required such nor has sent a Notice to the bidder for such.

In a bidding activity conducted by the NHA, we were disqualified outright merely because we did not print the bidder's address in CAPITAL LETTERS. Our envelope was unopened.

Question 4: When I raised the similar concern during the bidding process, the other bidder having provided the wrong date and time on their envelope, the BAC asserted that this was "not ground" for disqualification. Does this implicate the BAC's preference over that other bidder or a collusion?

Question 5: Should the other bidder be disqualified as well?

And just this afternoon, the BAC has replied, maintaining their decision - post disqualification. Citing: Item 15 which reflects same policy under Section 32.2.1 of the Revised IRR, RA 9184. Further citing GPPB NPM 36-2012.

Question 6: Is any of the above citations a ground for our post-disqualification?

Question 7: Is it not the responsibility of the BAC to avoid causing ambiguity and misinterpretations in the ITB or BDS they have provided to the bidders?

Question 8: Can the bidding referred to be considered as having failed to comply to the rules of the process?

Question 9: Does the Procuring Entity have the power to declare this bidding process as failure, thus subject for re-bidding?

Question 10: Should we carry on and maintain our arguments against the BAC's decision? Or are we at a disadvantage from the very beginning?


I hope to get answers to all questions. Thank you! Smile

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Re: Post-Disqualification Concern: Inconsistency in ITB/BDS

Post by elib on Thu Aug 23, 2012 1:54 pm

abhorca100,

this is how i understand your case:

you have been post-disqualified by the PE for having not complied with the requirements under sec. 32.2.1 of the irr and you are counter-claiming that the said requirements have been repealed by the bds clause stating "no additional requirements".

32.2.1. The BAC shall immediately conduct a detailed evaluation of all bids using nondiscretionary criteria in considering the following:
Completeness of the bid. Unless the Instructions to Bidders specifically allow partial bids, bids not addressing or providing all of the required items in the Bidding Documents including, where applicable, bill of quantities, shall be considered non-responsive and, thus, automatically disqualified. In this regard, where a required item is provided, but no price is indicated, the same shall be considered as non-responsive, but specifying a “0” (zero) for the said item would mean that it is being offered for free to the Government
;

if this is the case, in my opinion the PE had done a fair determination with regards to your post disqualification.

to summarised my answer, merely seeing a passage/clause in the bds stating "no additional requirements" does not mean that it has repealed or that other clauses have been waived. It only suggests that there will be"no additional requirements" needed as the requirements under 32.2.1 or as required on other clauses will already suffice the needs.

often times,most persons are having different interpretation/meaning, seeing the same facts. as can be observed in these scenario.

this is just my opinion,

well for the meantime i'll crawl to my cave now and wait what others would say....

cheers....Very Happy
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Re: Post-Disqualification Concern: Inconsistency in ITB/BDS

Post by RDV @ GP3i on Thu Aug 23, 2012 2:21 pm

elib wrote:abhorca100,

this is how i understand your case:

you have been post-disqualified by the PE for having not complied with the requirements under sec. 32.2.1 of the irr and you are counter-claiming that the said requirements have been repealed by the bds clause stating "no additional requirements".

32.2.1. The BAC shall immediately conduct a detailed evaluation of all bids using nondiscretionary criteria in considering the following:
Completeness of the bid. Unless the Instructions to Bidders specifically allow partial bids, bids not addressing or providing all of the required items in the Bidding Documents including, where applicable, bill of quantities, shall be considered non-responsive and, thus, automatically disqualified. In this regard, where a required item is provided, but no price is indicated, the same shall be considered as non-responsive, but specifying a “0” (zero) for the said item would mean that it is being offered for free to the Government
;

if this is the case, in my opinion the PE had done a fair determination with regards to your post disqualification.

merely seeing a passage/clause in the bds stating "no additional requirements" does not mean that it has repealed or that other clauses have been waived. It only suggests that there will be"no additional requirements" needed as the requirements under 32.2.1 will already suffice the needs.

often times,most persons are having different interpretation/meaning, seeing the same facts. as can be observed in these scenario.

this is just my opinion,

well for the meantime i'll crawl to my cave now and wait what others would say....

cheers....Very Happy

I agree with elib.

The Bill of Quantities (BOQ) is a mandatory requirement for the procurement of infra. If the procuring entity is using the PBDs (which it should), the BOQ is Section VIII of the PBDs. It is the responsibility of the P.E. to indicate the quantities of work necessary to be performed on the project. On the other hand, it is your responsibility, as a bidder, to indicate your bid price for each unit of work, which should also be the basis of your total bid price.

If you did not indicate your unit prices for each unit of work, following Sec. 32.2.1 of the IRR, quoted by elib above, then the BAC has no other recourse but to disqualify you for failing to indicate your price for all the items of work required by the P.E.

We have to be very careful in interpreting the bidding documents some other way, particularly if your interpretation is already inconsistent with the law and its IRR. You have to remember that, in case of inconsistency between the bid docs and the IRR, the IRR will still prevail.

Make use of the pre-bid conference to clarify any ambiguity that you find. Other than the pre-bid, you can still write the BAC to clarify any ambiguity that you find provided your written clarification reaches the BAC not later than 10 c.d. before the deadline for submission of bids. Be aware of those things. It is such a waste that you spend not only money, but time and effort as well in submitting your bid, only to end up being disqualified.

You have so many questions but I dont think it is anymore necessary to answer each one, considering that your post-disqualification has enough basis.
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Re: Post-Disqualification Concern: Inconsistency in ITB/BDS

Post by ABBH100 on Thu Aug 23, 2012 3:39 pm

I respect your responses. We have more or less accepted our disqualification anyhow regardless of the ambiguity of their BDS. But word has reached me that the BAC is intending to award the contract to the bidder who made improper markings, and that is, without doubt, also emphasized in the IRR. This is our concern in Question 4 & 5. Doesn't this exemplify an inconsistency in the decision of the BAC? The same bidder also has the highest bid amount. There were 3 of us bidders. Shouldn't they be evaluating the bidder with the next lowest bid amount?

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Re: Post-Disqualification Concern: Inconsistency in ITB/BDS

Post by elib on Thu Aug 23, 2012 5:23 pm

ABBH100,

In a bidding activity conducted by the NHA, we were disqualified outright merely because we did not print the bidder's address in CAPITAL LETTERS. Our envelope was unopened.

Question 4: When I raised the similar concern during the bidding process, the other bidder having provided the wrong date and time on their envelope, the BAC asserted that this was "not ground" for disqualification. Does this implicate the BAC's preference over that other bidder or a collusion?

Question 5: Should the other bidder be disqualified as well?

an excerpt from PBD_Infra_4thEd,"sealing and marking of bids"

20.4. All envelopes shall:
(a) contain the name of the contract to be bid in capital letters;
(b) bear the name and address of the Bidder in capital letters;
(c) be addressed to the Procuring Entity’s BAC identified in ITB Clause 10.1;
(d) bear the specific identification of this bidding process indicated in the Invitation to Bid; and
(e) bear a warning “DO NOT OPEN BEFORE…” the date and time for the opening of bids, in accordance with ITB Clause 21.

20.5. If bids are not sealed and marked as required, the Procuring Entity will assume no responsibility for the misplacement or premature opening of the bid.

let me list some of the advantages why the bids needs be properly sealed and marked :
a)bid docs is not misplaced
b)bids not prematurely opened
c)proper/clear identification
d)as is required under the PBD_Infra_4thEd

by examination of the above (20.4 & 20.5), the provision does not clearly provide that any bidder who did not sealed or marked his tender properly will be disqualified, however, there is this high risk of bid docs being misplaced and his bid prematurely openned ,which as for any other contractor, is a disadvantage.

i am of the opinion that for this case, the PE have misinterpreted the above provisions .having small letters as a ground for disqualification. and for such action,PE also have made a lost to making the bidding process competetive. what if youre bid is the LCB????

you should have not been disqualified....

my opinion to question 5 would be the same above.

Cheers....Very Happy
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Re: Post-Disqualification Concern: Inconsistency in ITB/BDS

Post by RDV @ GP3i on Thu Aug 23, 2012 5:28 pm

ABBH100 wrote:I respect your responses. We have more or less accepted our disqualification anyhow regardless of the ambiguity of their BDS. But word has reached me that the BAC is intending to award the contract to the bidder who made improper markings, and that is, without doubt, also emphasized in the IRR. This is our concern in Question 4 & 5. Doesn't this exemplify an inconsistency in the decision of the BAC? The same bidder also has the highest bid amount. There were 3 of us bidders. Shouldn't they be evaluating the bidder with the next lowest bid amount?

You mean the other bidder wrote in the bid envelope (among other things required): "DO NOT OPEN BEFORE ___" and on the blank space wrote a wrong date and time? If that is so, your contention is that it is an improper marking and that the said bidder should be disqualified as well?

May I just refer you to that section in the Instructions to Bidders (ITB) on the Sealing and Marking of Bids, which says: "If bids are not sealed and marked as required, the Procuring Entity will assume no responsibility for the misplacement or premature opening of the bid." It does not state, that the bid will be disqualified for improper marking.
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Re: Post-Disqualification Concern: Inconsistency in ITB/BDS

Post by RDV @ GP3i on Thu Aug 23, 2012 5:37 pm

elib wrote:ABBH100,

In a bidding activity conducted by the NHA, we were disqualified outright merely because we did not print the bidder's address in CAPITAL LETTERS. Our envelope was unopened.

Question 4: When I raised the similar concern during the bidding process, the other bidder having provided the wrong date and time on their envelope, the BAC asserted that this was "not ground" for disqualification. Does this implicate the BAC's preference over that other bidder or a collusion?

Question 5: Should the other bidder be disqualified as well?

an excerpt from PBD_Infra_4thEd,"sealing and marking of bids"

20.4. All envelopes shall:
(a) contain the name of the contract to be bid in capital letters;
(b) bear the name and address of the Bidder in capital letters;
(c) be addressed to the Procuring Entity’s BAC identified in ITB Clause 10.1;
(d) bear the specific identification of this bidding process indicated in the Invitation to Bid; and
(e) bear a warning “DO NOT OPEN BEFORE…” the date and time for the opening of bids, in accordance with ITB Clause 21.

20.5. If bids are not sealed and marked as required, the Procuring Entity will assume no responsibility for the misplacement or premature opening of the bid.

let me list some of the advantages why the bids needs be properly sealed and marked :
a)bid docs is not misplaced
b)bids not prematurely opened
c)proper/clear identification
d)as is required under the PBD_Infra_4thEd

by examination of the above (20.4 & 20.5), the provision does not clearly provide that any bidder who did not sealed or marked his tender properly will be disqualified, however, there is this high risk of bid docs being misplaced and his bid prematurely openned ,which as for any other contractor, is a disadvantage.

i am of the opinion that for this case, the PE have misinterpreted the above provisions .having small letters as a ground for disqualification. and for such action,PE also have made a lost to making the bidding process competetive. what if youre bid is the LCB????

you should have not been disqualified....

my opinion to question 5 would be the same above.

Cheers....Very Happy

At any rate, if you do not agree with the BAC decision, the law and the IRR provides for administrative remedies, that is filing a request for reconsideration within the period allowed. If denied, then you can file a Protest, subject to the requisites for filing a valid protest, as provided for under Sec. 55-58 of RA 9184 and its IRR.
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Re: Post-Disqualification Concern: Inconsistency in ITB/BDS

Post by ABBH100 on Thu Aug 23, 2012 6:51 pm

May I just refer you to that section in the Instructions to Bidders (ITB) on the Sealing and Marking of Bids, which says: "If bids are not sealed and marked as required, the Procuring Entity will assume no responsibility for the misplacement or premature opening of the bid." It does not state, that the bid will be disqualified for improper marking. - RDV @ GP3i

I refer you back to a portion of my original post:

In a bidding activity conducted by the NHA, we were disqualified outright merely because we did not print the bidder's address in CAPITAL LETTERS. Our envelope was unopened.

Question 4: When I raised the similar concern during the bidding process, the other bidder having provided the wrong date and time on their envelope, the BAC asserted that this was "not ground" for disqualification. Does this implicate the BAC's preference over that other bidder or a collusion?

Question 5: Should the other bidder be disqualified as well?

Kindly clarify this in relevance to the reply above

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Re: Post-Disqualification Concern: Inconsistency in ITB/BDS

Post by ABBH100 on Fri Aug 24, 2012 12:51 pm

i am of the opinion that for this case, the PE have misinterpreted the above provisions .having small letters as a ground for disqualification. and for such action,PE also have made a lost to making the bidding process competetive. what if youre bid is the LCB????

you should have not been disqualified.... - elib

Yes, I believe so too. But that's what happened, we were disqualified due to improper markings. And to think of it, NHA is a government agency. This shows that there has always been a great deal of inconsistencies and difference in the interpretation of the rules, ergo manifesting its AMBIGUITY.

This also means that bidders, regardless of complying with what is written in the ITB/BDS, will always be at the mercy of the PE/BAC's interpretation of the rules. Which is NOT fair.

We have participated in many bidding activities already and this has been the only Bid Book which requires No additional requirements in the BDS for the Financial Component.

Can we admit our mistake of not including our BoQ and DE in the submitted envelope? We can, we do.

But did the BAC admit their improvidence when they did not clearly specify the requirements? They did not. They kept their mouth shut on it. I would suggest that they re-write their BDS to avoid any more misunderstanding between the BAC and the bidders in the future. Because, bluntly speaking, their BDS will be rendered useless if they, themselves, cannot operationalize their own rules.

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Re: Post-Disqualification Concern: Inconsistency in ITB/BDS

Post by RDV @ GP3i on Fri Aug 24, 2012 1:44 pm

ABBH100 wrote:
i am of the opinion that for this case, the PE have misinterpreted the above provisions .having small letters as a ground for disqualification. and for such action,PE also have made a lost to making the bidding process competetive. what if youre bid is the LCB????

you should have not been disqualified.... - elib

Yes, I believe so too. But that's what happened, we were disqualified due to improper markings. And to think of it, NHA is a government agency. This shows that there has always been a great deal of inconsistencies and difference in the interpretation of the rules, ergo manifesting its AMBIGUITY.

This also means that bidders, regardless of complying with what is written in the ITB/BDS, will always be at the mercy of the PE/BAC's interpretation of the rules. Which is NOT fair.

We have participated in many bidding activities already and this has been the only Bid Book which requires No additional requirements in the BDS for the Financial Component.

Can we admit our mistake of not including our BoQ and DE in the submitted envelope? We can, we do.

But did the BAC admit their improvidence when they did not clearly specify the requirements? They did not. They kept their mouth shut on it. I would suggest that they re-write their BDS to avoid any more misunderstanding between the BAC and the bidders in the future. Because, bluntly speaking, their BDS will be rendered useless if they, themselves, cannot operationalize their own rules.

A Bill of Quantities (BOQ) is one of the basic documents that should be accomplished by the bidder as to the its bid prices and rates for all the items of work, based on the BOQ prepared by the procuring entity.

Since it is a basic document, an integral part of the PBDs, the fact that the procuring entity has indicated in the Sec. 13.1 of the BDS "No Additional Requirement", that should not be interpreted to mean that you should not fill in the required information in the BOQ.

Take note of the following instructions in Sec. 15 of the Instructions to Bidders (ITB):

"15. Bid Prices
15.1. The contract shall be for the whole Works, as described in ITB Clause 1.1, based on the priced Bill of Quantities submitted by the Bidder.
15.2. The Bidder shall fill in rates and prices for all items of the Works described in the Bill of Quantities. Bids not addressing or providing all of the required items in the Bidding Documents including, where applicable, bill of quantities, shall be considered non-responsive and, thus, automatically disqualified. In this regard, where a required item is provided, but no price is indicated, the same shall be considered as non-responsive, but specifying a "0" (zero) for the said item would mean that it is being offered for free to the Government.
x-x-x" (underscoring mine)

If the procuring entity failed to include the BOQ in the bidding documents that you obtained from them, then you have reason to object to your disqualification. For how can you fill in the rates and unit prices if the procuring entity failed to include the BOQ in the bidding documents indicated therein the items of works required by the procuring entity for the infra project.

But if the BOQ is included but you failed to indicate your unit prices or rates therein, then following Sec. 15 of the ITB, even if you miss only one item, then your bid will have to be considered non-responsive; hence, you should be automatically disqualified.

In the case of your experience with NHA, that is the sad fact, and unfortunately, some BACs up to this point misinterpret the intent of the law. Putting small letters rather than CAPITAL LETTERS do not in anyway disadvantaged the government. On the other hand, as again correctly pointed out by elib, your disqualification in that case put the government in a disadvantage as it was deprived of the opportunity to see whether your offer is the lowest in that particular case. The BAC's action then was contrary to the principle of competitiveness being espoused by the law.

I hope you are not discouraged in continuing to participate in government projects and hopefully the others should learn from your experience.

Just remember, the law provides you the administrative remedies and if still not satisfied with the decision of the BAC/HOPE, you can always file an appropriate relief before the courts.
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Re: Post-Disqualification Concern: Inconsistency in ITB/BDS

Post by ABBH100 on Fri Aug 24, 2012 3:38 pm

Thank you for that RDV. We won't be discouraged, though this will serve as a lesson for us to be more careful next time. On the bright side, we have learned more about the IRR.

What we've been trying to point out is that we did not fail to fill in the rates in our BoQ and DE, it was only a matter of not putting it inside the envelope.

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Re: Post-Disqualification Concern: Inconsistency in ITB/BDS

Post by RDV @ GP3i on Fri Aug 24, 2012 4:02 pm

ABBH100 wrote:Thank you for that RDV. We won't be discouraged, though this will serve as a lesson for us to be more careful next time. On the bright side, we have learned more about the IRR.

What we've been trying to point out is that we did not fail to fill in the rates in our BoQ and DE, it was only a matter of not putting it inside the envelope.

If you fail to put it inside the envelope, it still amounts to non-submission and, under the pass-fail criteria, you will have to be automatically be disqualified.

The BAC cannot and should not accept also any submission after bid opening, except the additional documents which are allowed to be submitted under Sec. 34.2 of the IRR.

Those are the painful lessons that we have to learn, but I do hope that bidders should really be very careful as all effort, time and money spent by them would be put to waste. Happy Bidding. Very Happy
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Re: Post-Disqualification Concern: Inconsistency in ITB/BDS

Post by elib on Fri Aug 24, 2012 6:37 pm

hi guys,

this thread has become very interesting,

pondering to the statements below;

We have participated in many bidding activities already and this has been the only Bid Book which requires No additional requirements in the BDS for the Financial Component.

Can we admit our mistake of not including our BoQ and DE in the submitted envelope? We can, we do.

But did the BAC admit their improvidence when they did not clearly specify the requirements? They did not. They kept their mouth shut on it. I would suggest that they re-write their BDS to avoid any more misunderstanding between the BAC and the bidders in the future. Because, bluntly speaking, their BDS will be rendered useless if they, themselves, cannot operationalize their own rules.


then, i'll make a fabricated assumption here:

What if the PE leave the bds blancked "list of additional requirements = blanck"

can this be construed as an ambiguity/flaw in the documents. can we say that putting no additional requirements or leaving it blanck will have the same effect?

for,

This also means that bidders, regardless of complying with what is written in the ITB/BDS, will always be at the mercy of the PE/BAC's interpretation of the rules. Which is NOT fair.

the law doesnt tolerate an imbalance obligations/rights to a bargain. if in any case the other party feels that he is being aggrieved of his rights by the other, or one party have overused its rights/powers vested in him, the law provides some sort of mechanism to balance it as correctly pointed out by RDV @ GP3i.



just my opinion,

cheers....Very Happy
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Re: Post-Disqualification Concern: Inconsistency in ITB/BDS

Post by ABBH100 on Sun Aug 26, 2012 12:45 pm

It's all about respecting and knowing the rules before doing any actions. Our compliance was not at test in that experience but rather our patience. We followed a Bid Book which was not clearly well-thought of. Maybe the BAC was a little lethargic when they were reproducing the Bid Book, "Oh let's not waste time and just encode 'No additional requirements' in the BDS and let the bidders figure it out on their own. We have the IRR to counter their complains anyway."

We are currently preparing our bid docs for a DOH contract, and of course, like any other, their BDS specifies additional requirements such as BoQ, DE, Cash Flow, etc. See? No room for misinterpretations. If this time, we do not include the BoQ and DE, then it's clearly our fault.

We complied with what is written and still we ended up looking like ignorant people.

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Re: Post-Disqualification Concern: Inconsistency in ITB/BDS

Post by ABBH100 on Tue Aug 28, 2012 3:47 pm

Make use of the pre-bid conference to clarify any ambiguity that you find. Other than the pre-bid, you can still write the BAC to clarify any ambiguity that you find provided your written clarification reaches the BAC not later than 10 c.d. before the deadline for submission of bids. Be aware of those things. It is such a waste that you spend not only money, but time and effort as well in submitting your bid, only to end up being disqualified.

Yes, another bidder raised this concern during the pre-bid conference. He asked whether the BAC requires additional documents other than the Financial Bid Form or not. The BAC did confirm what they wrote in the BDS.

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Re: Post-Disqualification Concern: Inconsistency in ITB/BDS

Post by ABBH100 on Mon Oct 22, 2012 11:21 am

UPDATE:

The have awarded the contract to the Highest Calculated Bidder, without notifying us.

During a pre-bid of their new contract early this month, they admitted that their previous BDS was not updated and they have revised it as of today.

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Re: Post-Disqualification Concern: Inconsistency in ITB/BDS

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