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Notice of Award was issued but subsequently recalled after one of the disqualified bid was reconsidered

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Notice of Award was issued but subsequently recalled after one of the disqualified bid was reconsidered

Post by asthor on Thu Nov 07, 2013 12:19 pm

magandang umaga po!

Here are the facts:

1. Bidding was conducted for the provision of janitorial services.
2. 4 bidders submitted bid proposals
3. after thorough evaluation of the 4 bids, bidder No. 1, 2, 3 were disqualified due to the following reasons:

Bidder no 1 (lowest bidder) - failed to include in the computation of the agency fee the cost of supplies and materials in the detailed costing submitted by the bidder.

Bidder no. 2 - failed to indicate the BFAD/Food and Drug Administration registration number of the products/cleaning supplies which is a mandatory requirement as stated in the bid documents and emphasized during the pre-bid conference.

Bidder no. 3 - non-responsive as it failed to include the cost of supplies and materials as part of the agency fee as shown in the detailed costing submitted by the bidder. it also submitted an incomplete BFAD/FDA registration number for some cleaning products.

Bidder no. 4 (highest bidder) - declared as single calculated/rated and responsive bid and was issued the Notice of Award.

5. Bidder No. 1 & 2 filed a motion for reconsideration.
6. Motion of Bidder No. 1 was granted and the Notice of Award that was issued to Bidder No. 4 was recalled.
7. Bidder No. 4 also filed their MR but was also denied.

As of this writing, a new resolution was issued recommending Award of Contract to Bidder no. 1.

Tanong ko lang po if ok lang po bang iapprove ng HOPE ung bagong resolution considering what was mentioned above?

ano po ang mga possible issues na pwedeng mag arise and ano po ang best remedy?

Thank you po in advance.





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Re: Notice of Award was issued but subsequently recalled after one of the disqualified bid was reconsidered

Post by Abecedarian on Mon Nov 11, 2013 1:20 pm

Unless the chairman informed the losing bidders of their disqualification during bid opening, the BAC should issued a notice to the losing bidders of their disqualification and in the same letter inform them that they have three days to seek reconsideration of their disqualification. Concomitant to the issuance of notices of disqualification is the notice to the winning bidder informing him as the single calculated bidder and require him to submit within three days from receipt of the notice additional documents for evaluation. So, while the losing bidder is preparing his motion for reconsideration, the winning bidder is also preparing the required additional documents for submission and evaluation by the BAC. If after evaluation the winning bidder was found responsive, the BAC should issue a resolution declaring the winning bidder as single calculated responsive bidder and recommend to HOPE the award of the contract.

If there was already Notice of Award issued to the winning bidder, it means the 3-day period for the losing bidders to seek reconsideration had already lapsed, therefore the issuance of Notice of Award in favor of the winning is a matter of course.

I believed there is no legal basis to recall the Notice of Award.
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Re: Notice of Award was issued but subsequently recalled after one of the disqualified bid was reconsidered

Post by regina avelino on Thu Nov 14, 2013 10:17 am

I agree with sir abecedarian that if the losing bidder failed to file a motion for reconsideration within 3 days from receipt of verbal or written disqualification, the losing bidder has failed to availe of its remedy as provided under section 55 of the irr of ra9184.

the case sir asthor, you did not mentioned whether the issuance was issued during the 3-day period or after the 3-day period. If you issued the NOA before the lapsed of the 3-day period of bidder No. 1, then you violated the provision of the law that no NOA shall be issued unless all motion are resolved. If you issued the NOA after the lapsed of the 3-day period of bidder 1, then there is no need to recall the NOA issued to bidder No. 4 as mentioned by sir abecedarian.

you need to review first the dates of the events that have transpired. No need to make another resolution if the motion was issued beyond the 3-day period of bidder no. 1 and your issuance of the notice of award is justified to bidder no. 4.

if in case the motion was filed within the 3-day period and the motion was not yet resolved and yet you issued the NOA to bidder no. 4 and subsequently you find merits to the motion of bidder no.1, then comes the bigger problem. you recall the NOA issued to bidder no. 4 and issue NOA to bidder no. 1. this is of course you expect legal action from bidder No. 4 for doing so.

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Re: Notice of Award was issued but subsequently recalled after one of the disqualified bid was reconsidered

Post by asthor on Thu Nov 14, 2013 5:07 pm

Sirs, the motion was filed within the 3-day period.

dagdag lang po, bidder no. 4 also filed a motion questioning the recall of the NOA but same was denied. as of this writing, no protest was filed by bidder no. 4 to head of the agency pursuant to Section 55.2 of the IRR of RA 9184.

considering that bidder no. 4 did not avail of the remedy under Section 55.2, which means it did not exhaust all options under the law, can the bidder still file a case against the agency?

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Re: Notice of Award was issued but subsequently recalled after one of the disqualified bid was reconsidered

Post by Abecedarian on Fri Nov 15, 2013 12:26 pm

Exhaustion of administrative remedies cannot be invoked by the agency concerned when there is a patent violation of the law.

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Re: Notice of Award was issued but subsequently recalled after one of the disqualified bid was reconsidered

Post by attywaws on Mon Nov 18, 2013 5:44 pm

In my opinion, resort to the courts cannot be had since the filing of the protest and its subsequent resolution is a condition which must first be satisfied as provided for under Sec. 58.1 of the Revised IRR of R.A. 9184. It is also provided therein that the "Court Action" is governed by Rule 65 of the Revised Rules of Court.

Under the Revised Rules of Court, a Petition for Certiorari (Rule 65) may only be availed of if there is no other plain, speedy, and adequate remedy in the ordinary course of law and the Protest Mechanism is the "plain, speedy, and adequate remedy" under R.A. 9184.

In fine, resort to the court using R.A. 9184 would only fail for not being the "plain, speedy and adequate remedy under the law. However, this does not prevent the aggrieved party to go against the members of the Committee who has violated his rights. This may be done by resorting to other laws such as Anti-Graft and Corrupt Practices Act.
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Re: Notice of Award was issued but subsequently recalled after one of the disqualified bid was reconsidered

Post by regina avelino on Wed Nov 20, 2013 11:49 am

asthor wrote:Sirs, the motion was filed within the 3-day period.

dagdag lang po, bidder no. 4 also filed a motion questioning the recall of the NOA but same was denied. as of this writing, no protest was filed by bidder no. 4 to head of the agency pursuant to Section 55.2 of the IRR of RA 9184.

considering that bidder no. 4 did not avail of the remedy under Section 55.2, which means it did not exhaust all options under the law, can the bidder still file a case against the agency?  
this is where the bid problem comes in. you should have not issued a NOA until after you have resolved all motion for reconsideration and protest from other bidder. let's wait and see if they will file case based on the ra6713 as mentioned by our forum member. if not, then good for you. just be careful next time para iwas problema.

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Re: Notice of Award was issued but subsequently recalled after one of the disqualified bid was reconsidered

Post by Abecedarian on Wed Nov 20, 2013 12:49 pm

asthor wrote:magandang umaga po!


As of this writing, a new resolution was issued recommending Award of Contract to Bidder no. 1.

Tanong ko lang po if ok lang po bang iapprove ng HOPE ung bagong resolution considering what was mentioned above?

ano po ang mga possible issues na pwedeng mag arise and ano po ang best remedy?

Thank you po in advance.


The HOPE should ignore that resolution issued in favor of Bidder No. 1 because the issuance of the Notice of Award in favor Bidder No. 4 operates to terminate the procurement activity of that particular project.
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Re: Notice of Award was issued but subsequently recalled after one of the disqualified bid was reconsidered

Post by asthor on Tue Nov 26, 2013 9:13 am

madam/sir, will it be okay if the HOPE does not sign the new resolution (resolution awarding the contract to bidder no. 1)? or disapprove it?

to sir abecedarian, pwede po pakiclarify ung statement nyo "issuance of the Notice of Award in favor of bidder no. 4 operates to terminate the procurement activity of that particular project."

sensya na po sa late post.

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Re: Notice of Award was issued but subsequently recalled after one of the disqualified bid was reconsidered

Post by Abecedarian on Tue Nov 26, 2013 9:42 am

Procurement is just like playing basketball. The BAC, by way resolution, declares a bidder "lowest/single calculated bidder" and requires such bidder additional documents for post-qualification. Thereafter, if the BAC is satisfied of the documents the bidder has submitted, the BAC issues a resolution declaring the bidder as the lowest/single calculated responsive bidder and recommends to the HOPE the award of the contract. At this stage, the procurement lies now with the HOPE either to award the contract to the bidder recommended by the BAC or to another bidder. By issuance of that resolution aforementioned, as if the BAC passed the ball to the HOPE and it is now to the HOPE to shot that ball or not. So, once the BAC issues a resolution recommending to HOPE the award of contract, it is now the HOPE who is control of the procurement.
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Re: Notice of Award was issued but subsequently recalled after one of the disqualified bid was reconsidered

Post by attywaws on Tue Nov 26, 2013 12:08 pm

asthor wrote:madam/sir, will it be okay if the HOPE does not sign the new resolution (resolution awarding the contract to bidder no. 1)? or disapprove it?
Yes. The HOPE has the authority not to sign the resolution or otherwise disapprove it. The approval of the procurement process is lodged on the HOPE and the BAC merely recommend for its approval.

Moreover, under Section 41 of the Revised IRR of R.A. 9184 (Reservation Clause), "The HOPE reserves the right to reject any and all bids, declare a failure of bidding, or not award the contract in the following situations:
a) xxxxxx;
b) If the BAC is found to have failed in following the prescribed bidding procedures, or;
c) xxxxxx.


Take note however that this should be done with notice to the concerned bidder as the period of procurement from the time the Notice of Award may have lapsed and the contract shall be deemed approved. Under Sec. 38.3 of the Revised IRR, if no action on the contract is taken by the HOPE or the appropriate approving authority within the periods specified in this IRR, the contract concerned shall be deemed approved.
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Re: Notice of Award was issued but subsequently recalled after one of the disqualified bid was reconsidered

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