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Can the bidders (Loser or winner) request for a copy of the BAC bidding report and TWG report on post qualification ?

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Can the bidders (Loser or winner) request for a copy of the BAC bidding report and TWG report on post qualification ?

Post by redxet on Mon Apr 01, 2013 10:27 pm

May I request your opinion on how to secure a copy of BAC bidding evaluation report and post qualification report of TWG? Can a requesting party (Winner and loser bidder) invoke Section 1,2 and 3 of Rule IV of the IRR of RA 6713 to secure these reports? What remedy if the BAC and HOPE denied the request?

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Re: Can the bidders (Loser or winner) request for a copy of the BAC bidding report and TWG report on post qualification ?

Post by regina avelino on Tue Apr 02, 2013 11:45 am

Let's do this one by one:

The bidder will only know if it passes the post-qualification once it receives the Notice of Award.

On the other hand, the bidder will only know if it fails the post-qualification when it receives a post-disqualication report from the procuring entity immediately once it was determined to be post-disqualified. This will be in compliance with section 34.5 and CIRCULAR No. 03-2012. Only the LCRB will undergo post-qualification stage.

LIkewise, i believe, the losing bidder will not know the post qualification report of the winning bidder to determine if there were collusion or concealment of irregularities conducted during the post qualification stage as the report shall be addressed only to the specific bidder.

All other losing bidders (not the lowest calculated bidder as a result of the bid evaluation stage) will know the decision of the procuring entity during the period when bac submits the Resolution of the BAC recommending the Award to the HOPE as per section 37.1.2. In my opinion, you can request a copy of the minutes of the meeting of the bid evaluation process conducted by the BAC as this is still considered public document and should be available upon written request by the bidder.


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Re: Can the bidders (Loser or winner) request for a copy of the BAC bidding report and TWG report on post qualification ?

Post by vines on Tue Apr 02, 2013 4:22 pm

what if they refused to furnish you the minutes, saying that it is not mentioned in the IRR, can we invoke the RA6713 as redxet has provided?
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Re: Can the bidders (Loser or winner) request for a copy of the BAC bidding report and TWG report on post qualification ?

Post by regina avelino on Thu Apr 04, 2013 9:47 am

then file the MR, then file protest and if still denied, go to proper court. you may also invoke section 5 of ra6713.

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Can we include another reasons to protest not included in the MR?

Post by redxet on Sat Apr 06, 2013 12:28 pm

The MR was denied on the specific issue raised by the bidder. The decision of the BAC was petitioned/questioned by the bidder to the HOPE. Aside from the information brought out in the MR, the complainant/bidder included new additional information such as NFCC and track record/completed project of the declared lowest bid cost bidder with 50% amount undertaking single contract in his protest to the HOPE? In addition, the complainant/bidder also included in his protest the concealment of NFCC and highest single completed previous contract by the other bidders awarded with a contracts other than the project bided by this complainant/protester included in this similar bidding. May I inquire your legal opinion on this matter?
1. Can we raise additional issues in the protest not included in the MR?
2. Can we present information/data such as NFCC and single highest completed contract not only of the specific bidder under protest but also other winning bidder or bidder awarded with contracts similar related project under protest? Let say other 5 bidders awarded with the contract but not qualified/en-eligible based on NFCC and completed single contract with highest bid cost/amount which the BAC concealed?
3. Anomalous bidding processes, concealment of information and rigging of bidding as a whole.
Please provide us a proper guidance

Thank you

redxet

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Re: Can the bidders (Loser or winner) request for a copy of the BAC bidding report and TWG report on post qualification ?

Post by regina avelino on Mon Apr 08, 2013 10:59 am

My opinion on the matter:
1. your verified position letter should focus on the issue raised in your motion for reconsideration.
2. had it been your mr raised was nfcc and track record issues, then this information would have been beneficial and relevant for the resolution to the protest. try to consult with your lawyer and perhaps they can provide other opinion about this matter.
3. the law provides us the protest mechanism and this is the only way we can do by availing such. Are you going all the way to pursue this? you can always go to the proper court once you have avail of the administrative remedies.

there are common types of irregularities and the only way to detect this is to have an in-depth understanding of the rules and regulations of the procurement law and how the actual events happen compared to what should have been the case (actual versus standards). the public and the private sectors should have the basic know-hows on the "red-flags" in government procurement activities and once you have detected them, it is not just enough that they exist, what is important is what do we do next. Do we just sit around and forget everything or do we go all the way to get them? I really appreciate this as it seems you want to get all the information you need to get this thing right. I just hope our legal experts who are members of the forum would take part in help out redxet in ironing this things out.


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Re: Can the bidders (Loser or winner) request for a copy of the BAC bidding report and TWG report on post qualification ?

Post by engrjhez® on Mon Apr 08, 2013 1:02 pm

redxet wrote:May I request your opinion on how to secure a copy of BAC bidding evaluation report and post qualification report of TWG? Can a requesting party (Winner and loser bidder) invoke Section 1,2 and 3 of Rule IV of the IRR of RA 6713 to secure these reports? What remedy if the BAC and HOPE denied the request?

The winning bidder need not to ask for it. The losing bidders may, upon notification of the bid results, request for such document in line with public nature of transaction. In Chavez vs. Public Estates Authority and Amari Coastal Bay Development Corporation (G.R. No. 133250. July 9, 2002), the Supreme Court pointed out the source of right to information and the state policy of full disclosure:

Section 7, Article III of the Constitution explains the people's right to information on matters of public concern in this manner:

"Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law." (Emphasis supplied)

The State policy of full transparency in all transactions involving public interest reinforces the people's right to information on matters of public concern. This State policy is expressed in Section 28, Article II of the Constitution, thus:

"Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest." (Emphasis supplied)

These twin provisions of the Constitution seek to promote transparency in policy-making and in the operations of the government, as well as provide the people sufficient information to exercise effectively other constitutional rights. These twin provisions are essential to the exercise of freedom of expression. If the government does not disclose its official acts, transactions and decisions to citizens, whatever citizens say, even if expressed without any restraint, will be speculative and amount to nothing. These twin provisions are also essential to hold public officials "at all times x x x accountable to the people," for unless citizens have the proper information, they cannot hold public officials accountable for anything. Armed with the right information, citizens can participate in public discussions leading to the formulation of government policies and their effective implementation. An informed citizenry is essential to the existence and proper functioning of any democracy. x x x
The principle of transparency is well settled.

You will always find the remedy in courts after the exhaustion of administrative remedies in the agency. Smile
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Instead of responding to the issue raised in the MR, the BAC denied the MR due to technicality?

Post by redxet on Tue Apr 09, 2013 10:32 pm

The BAC disqualified the bidder for lack of the SEC General Information Sheet and the disqualified bidder filed a motion for reconsideration. The bidding was held on March 14,2013 and the disqualified bidder filed/sent his MR through LBC on March 16 at 5:30 pm and since it is beyond the cut off time of LBC it was remitted on the 17th of March and was received by the BAC on the 18th of March. The denied the MR for technical reason that the MR was filed beyond the 3 days period of filing? Is the BAC denial of MR valid considering it is administrative in nature and not the rule of court that shall be observed?

Please guide us

Thank you


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Re: Can the bidders (Loser or winner) request for a copy of the BAC bidding report and TWG report on post qualification ?

Post by engrjhez® on Thu Apr 11, 2013 9:43 am

redxet wrote:The BAC disqualified the bidder for lack of the SEC General Information Sheet and the disqualified bidder filed a motion for reconsideration. The bidding was held on March 14,2013 and the disqualified bidder filed/sent his MR through LBC on March 16 at 5:30 pm and since it is beyond the cut off time of LBC it was remitted on the 17th of March and was received by the BAC on the 18th of March. The denied the MR for technical reason that the MR was filed beyond the 3 days period of filing? Is the BAC denial of MR valid considering it is administrative in nature and not the rule of court that shall be observed?

Please guide us

Thank you


It is actually in the courts where an analogous circumstances may be permitted, under (Civil Procedure) Rule 13 Sec.12:

Section 12. Proof of filing. — The filing of a pleading or paper shall be proved by its existence in the record of the case. If it is not in the record, but is claimed to have been filed personally, the filing shall be proved by the written or stamped acknowledgment of its filing by the clerk of court on a copy of the same; if filed by registered mail, by the registry receipt and by the affidavit of the person who did the mailing, containing a full statement of the date and place of depositing the mail in the post office in a sealed envelope addressed to the court, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if not delivered. (emphasis supplied)


In my opinion, such MR may be permitted despite such slight delay. However, the BAC may still apply their ruling undermining the merits of the MR. In such cases, the next remedy would be to file a protest. If the protest will fail and all administrative remedies exhausted, will only then the courts take cognizance of the case.
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Can the BAC inaction to reply to MR filed beyond the regulamentary period meritorious?

Post by redxet on Fri Apr 12, 2013 9:07 pm

The BAC did not bothered to respond to MR filed one day beyond the 3 days reglementary period and it is almost one month now that the complainant/bidder did not received the respond of the BAC on the MR. The HOPE already awarded the contract upon the recommendation of the BAC even the MR is not yet resolved or the petition is not yet resolved. What remedial action/legal remedy can the complainant do? If the HOPE concurred the technical reason of the BAC denial of the MR and will use the same technical reason in asking the court to dismiss the case due to the same technical reason. Will the court also dismiss the case due to the same reason use by the BAC and HOPE?

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Re: Can the bidders (Loser or winner) request for a copy of the BAC bidding report and TWG report on post qualification ?

Post by engrjhez® on Mon Apr 15, 2013 3:02 pm

redxet wrote:The BAC did not bothered to respond to MR filed one day beyond the 3 days reglementary period and it is almost one month now that the complainant/bidder did not received the respond of the BAC on the MR. The HOPE already awarded the contract upon the recommendation of the BAC even the MR is not yet resolved or the petition is not yet resolved. What remedial action/legal remedy can the complainant do? If the HOPE concurred the technical reason of the BAC denial of the MR and will use the same technical reason in asking the court to dismiss the case due to the same technical reason. Will the court also dismiss the case due to the same reason use by the BAC and HOPE?

Since you are not afforded proper notification of the acceptance or denial of MR, it is clear that you are denied of administrative remedy, you can go to courts especially when the BAC and HOPE acted with (grave) abuse of discretion in continuing to award the contract.

In my opinion, GIS is not one of the requirements in the bidding process. The eligibility requirements are exclusive and absolute - no more, no less. The MR is meritorious, provided that there are no other defects in the rest of the documents. Smile
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