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Ineligible for non-submission of "not applicable statement" for joint venture.

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Ineligible for non-submission of "not applicable statement" for joint venture.

Post by informer21 on Tue Jun 02, 2015 10:22 am

I'm just new here, please help by answering some questions below, and please give your own understanding and decision on below matter/situation.

On a public bidding for goods, bidder A, a sole proprietor, was declared ineligible by the BAC because they did not submit a "not applicable" statement for a joint venture. Was it right for the BAC to declare bidder A ineligible for that ground? Bidder A requested for reconsideration but when bidder A followed-up for the reply on their R/R (already more than seven days), the BAC said they will just send their reply, but informed bidder A that their reply would be a "deny". Sabi pa ng BAC hayaan na lang daw yung bidding na yun dahil marami pa naman daw kasunod, and also, tinuloy na raw nila kasi pag-process sa bid ng bidder B (who passed all the eligibility requirements.

From what the BAC told to bidder A, lumalabas na balewala lang pala na mag request for reconsideration pa yung bidder A, dahil automatic "deny" na rin lang pala.

Tama po ba yung ganitong gawain ng BAC and in the first place, tama po ba yung i-declare nila ineligible yung bidder A because of not submitting a "not applicable" statement for joint venture, samantalang yung bidder A ay isang sole proprietor, and they submitted naman all the requirements for sole proprietorship?

The request for reconsideration of Bidder A was based on section 23.5.1.1 of Revised IRR of 9184 (and section 5.1 of bidding documents) - The Eligibility Criteria, but it was denied by the BAC for the following grounds; "it is worth mentioning that during the bid opening, the JV agreement may not yet in existence and shall only be entered into after the contract award. This is the reason why the BAC must be informed whether or not the required JV agreement is applicable to your company so the BAC may properly evaluate the documents your company submitted".

Where (what part/section) in the bidding document or in the Revised IRR of RA 9184 you can find this reason of the BAC, for denying the request for reconsideration of Bidder A? Is there any provision in the Revised IRR of RA 9184 (and bidding documents), that the BAC must be informed by each eligible bidder whether or not the required JV agreement is applicable to their company? Is there also any provision in the Revised IRR (and bidding documents), that if one eligible bidder failed to inform BAC by not submitting the "not applicable" statement for JV, that bidder will be declared ineligible?

Section 23.5.1.1 (e) of the revised IRR of RA 9184 states that those persons/entities formed into a joint venture must submit their JVA, or a notarized statement for those potential joint venture partners, or those persons/entities that intend to be jointly and severally responsible or liable for a particular contract. Above reason of BAC for denying a request for reconsideration was not mentioned in this section (nor in any section) of the Revised IRR of RA 9184.

Was the above reason of the BAC for denying the request for reconsideration of Bidder A, the right, truthful and lawful one? Or in the first place, declaring Bidder A ineligible, for the same reason?

PLEASE HELP....

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Re: Ineligible for non-submission of "not applicable statement" for joint venture.

Post by engrjhez® on Fri Jun 05, 2015 10:24 am

informer21 wrote:I'm just new here, please help by answering some questions below, and please give your own understanding and decision on below matter/situation.

On a public bidding for goods, bidder A, a sole proprietor, was declared ineligible by the BAC because they did not submit a "not applicable" statement for a joint venture. Was it right for the BAC to declare bidder A ineligible for that ground? Bidder A requested for reconsideration but when bidder A followed-up for the reply on their R/R (already more than seven days), the BAC said they will just send their reply, but informed bidder A that their reply would be a "deny". Sabi pa ng BAC hayaan na lang daw yung bidding na yun dahil marami pa naman daw kasunod, and also, tinuloy na raw nila kasi pag-process sa bid ng bidder B (who passed all the eligibility requirements.

From what the BAC told to bidder A, lumalabas na balewala lang pala na mag request for reconsideration pa yung bidder A, dahil automatic "deny" na rin lang pala.

Tama po ba yung ganitong gawain ng BAC and in the first place, tama po ba yung i-declare nila ineligible yung bidder A because of not submitting a "not applicable" statement for joint venture, samantalang yung bidder A ay isang sole proprietor, and they submitted naman all the requirements for sole proprietorship?

The request for reconsideration of Bidder A was based on section 23.5.1.1 of Revised IRR of 9184 (and section 5.1 of bidding documents) - The Eligibility Criteria, but it was denied by the BAC for the following grounds; "it is worth mentioning that during the bid opening, the JV agreement may not yet in existence and shall only be entered into after the contract award. This is the reason why the BAC must be informed whether or not the required JV agreement is applicable to your company so the BAC may properly evaluate the documents your company submitted".

Where (what part/section) in the bidding document or in the Revised IRR of RA 9184 you can find this reason of the BAC, for denying the request for reconsideration of Bidder A? Is there any provision in the Revised IRR of RA 9184 (and bidding documents), that the BAC must be informed by each eligible bidder whether or not the required JV agreement is applicable to their company? Is there also any provision in the Revised IRR (and bidding documents), that if one eligible bidder failed to inform BAC by not submitting the "not applicable" statement for JV, that bidder will be declared ineligible?

Section 23.5.1.1 (e) of the revised IRR of RA 9184 states that those persons/entities formed into a joint venture must submit their JVA, or a notarized statement for those potential joint venture partners, or those persons/entities that intend to be jointly and severally responsible or liable for a particular contract. Above reason of BAC for denying a request for reconsideration was not mentioned in this section (nor in any section) of the Revised IRR of RA 9184.

Was the above reason of the BAC for denying the request for reconsideration of Bidder A, the right, truthful and lawful one? Or in the first place, declaring Bidder A ineligible, for the same reason?

PLEASE HELP....

The BAC should not have disqualified the bidder without the Class "B" document mentioned when such is not applicable in the case. The BAC should have reconsidered the RFR if the disqualified bidder had properly argued that such requirement is not applicable in their case. Sec. 30.1 of the IRR provides:

The BAC shall open the first bid envelopes of prospective bidders in public to determine each bidder’s compliance with the documents required to be submitted for eligibility and for the technical requirements, as prescribed in this IRR. For this purpose, the BAC shall check the submitted documents of each bidder against a checklist of required documents to ascertain if they are all present, using a non-discretionary “pass/fail” criterion, as stated in the Instructions to Bidders. If a bidder submits the required document, it shall be rated “passed” for that particular requirement. In this regard, bids that fail to include any requirement or are incomplete or patently insufficient shall be considered as “failed”. Otherwise, the BAC shall rate the said first bid envelope as “passed”.

Hence if the document is not required, as in the case the bidder is not a JV, then the Class B document is not a requirement.

There is no merit BAC's reason that: "it is worth mentioning that during the bid opening, the JV agreement may not yet in existence and shall only be entered into after the contract award. This is the reason why the BAC must be informed whether or not the required JV agreement is applicable to your company so the BAC may properly evaluate the documents your company submitted"

It is clear that in either case where JVA or a notarized statement is required, the bidder already presented itself as a JV or potential JV. In the instant case, if the documents submitted by the bidder clearly presents itself as a single proprietor and never as a party to a JV or potential JV, then there can never be a Class B requirement since such bidder can never subsequently enter into a JV thereafter. Such bidder cannot be disqualified solely on the ground that no "statement for a joint venture" was submitted.
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Re: Ineligible for non-submission of "not applicable statement" for joint venture.

Post by informer21 on Sat Jun 06, 2015 8:57 am

Thank you very much sir engrjhez for your reply and for the clear explanation on the situation, however, the BAC already disqualified bidder A for the above mentioned reason.

Mayroon po bang paraan para mahabol ng bidder A ma-reverse yung decision ng BAC and maging eligible bidder sila, although more than seven days na from receipt of the BAC's reply on RFR?

Actually, bidder A is our company and the BAC is from Government Arsenal. We did not file a protest anymore because the BAC told us that their reason and decision was based on the memorandum issued by the GPPB.

Again, is there a way we could reverse the decision of the BAC aside from filing a protest? Hindi na po kasi yata kami pwede mag file ng protest kasi more than seven days na ng ma-received namin reply and decision ng BAC sa RFR namin, dahil din po kasi yan sa sinabi nga po ng BAC na may bagong memo daw po kasi ang GPPB na pinagbasehan nila ng kanilang decision. How can we get the BAC's attention that disqualifying us (and other bidder) for their reason/s above was wrong? Baka po kasi maulit lang ng maulit sa mga sa mga bidders sa mga susunod pang public biddings ng Government Arsenal.

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Re: Ineligible for non-submission of "not applicable statement" for joint venture.

Post by informer21 on Thu Jun 11, 2015 6:17 am

Hi Sir engrjhez, can we have your answer/reply again on the above? Thank you very much.

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Re: Ineligible for non-submission of "not applicable statement" for joint venture.

Post by attywaws on Thu Jun 11, 2015 11:29 am

informer21 wrote:Thank you very much sir engrjhez for your reply and for the clear explanation on the situation, however, the BAC already disqualified bidder A for the above mentioned reason.

Mayroon po bang paraan para mahabol ng bidder A ma-reverse yung decision ng BAC and maging eligible bidder sila, although more than seven days na from receipt of the BAC's reply on RFR?

Actually, bidder A is our company and the BAC is from Government Arsenal. We did not file a protest anymore because the BAC told us that their reason and decision was based on the memorandum issued by the GPPB.

Again, is there a way we could reverse the decision of the BAC aside from filing a protest? Hindi na po kasi yata kami pwede mag file ng protest kasi more than seven days na ng ma-received namin reply and decision  ng BAC sa RFR namin, dahil din po kasi yan sa sinabi nga po ng BAC na may bagong memo daw po kasi ang GPPB na pinagbasehan nila ng kanilang decision. How can we get the BAC's attention that disqualifying us (and other bidder) for their reason/s above was wrong? Baka po kasi maulit lang ng maulit sa mga sa mga bidders sa mga susunod pang public biddings ng Government Arsenal.

Hi! The IRR provides that a protest is a condition precedent before resort to the courts may be had. If you file it directly with the Court, it may be denied for non-compliance with the provisions of the Procurement Law.
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Re: Ineligible for non-submission of "not applicable statement" for joint venture.

Post by informer21 on Thu Jun 11, 2015 12:41 pm

Hi attywaws! Thank you very much for your reply, and I agree with what you say. But, how can we be able to reverse the decision of the BAC? From what we learned from the revised IRR, the protest must be filed within seven days from receipt of the reply of the BAC to R/R, and its more than seven days already from the day we received their reply. Can we still file a protest? If not, is there another way to reverse the decision of the BAC? Or how can we make the BAC know that their reason and decision was not right?

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Re: Ineligible for non-submission of "not applicable statement" for joint venture.

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