No Contact Rule

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No Contact Rule

Post by jomadel86 on Tue Oct 27, 2009 2:30 pm

Section 32 of the Revised IRR of RA 9184 states that: "Members of the BAC, including its staff and personnel, as well as its Secretariat and TWG are prohibited from making or accepting any communication with any bidder regarding evaluation of their bids until the issuance of the Notice of Award. However, the BAC through its Secretariat, may ask in writing the bidder for a clarification of its bid. All responses to requests for clarification shall be in writing.

This is one of the provisions of RA 9184 which I find impractical. How can you determine whether the lowest calculated bidder is technically and financially capable during post qualification if the BAC and the TWG will not visit its office or manufacturing plant. This is especially true in the procurement of equipment such as mechanical flatbed dryers and other highly technical equipment. Under the maxim "to see is to believe" in the case of procurement of agricultural equipment, the BAC must ascertain that the LCB must be actually performing fabrication or manufacturing activities to determine whether it is technically capable. I presume that the COMELEC visited the office of SMARTMATIC or the supplier of counting machines during their post qualification of the said supplier. Another thing is how can you determine the veracity or truthfullness of the list of similar completed government/private contracts submitted by the clients of the LCB if you will not visit this projects implemented by the LCB.

If one will only resort to writing for clarification purposes, naturally the LCB would reply in a favorable manner which will defeat the purpose of post qualification.
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Re: No Contact Rule

Post by sunriser431 on Tue Oct 27, 2009 4:21 pm

Practical Tip GPM 2006
On clarifications during bid evaluation (the “no-contact” rule)
The BAC and the TWG shall not entertain clarifications from Bidders, neither shall they initiate communication with the Bidders, during the bid evaluation stage. There are two reasons for this rule:
1. There is no need for clarifications of technical issues since the evaluation is focused on arithmetical computations which are determined from the face of the bid itself; and
2. Communications with the Bidders might lead to possible collusion or the Bidder might try to unduly influence the outcome of the bidding process. bounce
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Re: No Contact Rule

Post by jomadel86 on Wed Oct 28, 2009 9:10 am

However, the prohibition or no contract rule under section 32 of the revised-IRR of RA 9184 seems to be absolute because the provisions clearly states that "Members of the BAC, including its staff and personnel, as well as it Secretariat and TWG are prohibited from making or accepting any communication with any bidder regarding the evaluation of their bids until the issuance of the notice of award.

Otherwise stated, the no contact rule does not only cover bid evaluation which involves merely arithmetical corrections but until the post qualification stage since the provision provides "until the issuance of the notice of award". Again, as I have mentioned, this is impractical considering that the law requires a legally, technically and financially capable bidder and there are some procurements that are highly technical in nature which requires the occular inspection of its manufacturing or fabricating plants especially during the post qualification stage. No No No No No
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Re: No Contact Rule

Post by jomadel86 on Wed Oct 28, 2009 9:20 am

Oh by the way, I forgot to answer one of your points which states comments from the bidders might lead to possible collusion or the bidders might try to unduly influence the outcome of the bidding process........

While it is true that contact with the bidders might lead to possible collusion or might try to unduly influence the outcome of the bidding process, however, the occular inspection should also be accompanied by photographs and other evidence showing actual fabrication activitie in the LCB area of operation. Besides, it is only the LCB that is being subjected to post qua evaluation so the possibility of collusion might be minimal.
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Re: No Contact Rule

Post by riddler on Wed Oct 28, 2009 9:42 am

jomadel86 wrote:Oh by the way, I forgot to answer one of your points which states comments from the bidders might lead to possible collusion or the bidders might try to unduly influence the outcome of the bidding process........

While it is true that contact with the bidders might lead to possible collusion or might try to unduly influence the outcome of the bidding process, however, the occular inspection should also be accompanied by photographs and other evidence showing actual fabrication activitie in the LCB area of operation. Besides, it is only the LCB that is being subjected to post qua evaluation so the possibility of collusion might be minimal.

reading your abovementioned topic, nice point jom. the " no contact rule" of the IRR is really hard to implement while for me, it is very common to some members of the BAC Secretariat to have an "official contact" (how do we delienate what's official or not?) with the bidders from posting until awarding... Some bidders are not reading/do not understand the PBD's and the (our) Secretariat are made to answer their verbal queries.. pag hindi sila (bidders) marunong, sometimes nagkkroon ng failure of bidding which maybe detrimental to public service.
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Re: No Contact Rule

Post by sunriser431 on Wed Oct 28, 2009 7:07 pm

PBDs for Goods/Infrastructure/
Section II. Instructions to Bidders
E. Evaluation and Comparison of Bids
25.Process to be Confidential
25.1.Members of the BAC, including its staff and personnel, as well as its Secretariat and TWG, are prohibited from making or accepting any kind of communication with any bidder regarding the evaluation of their bids until the issuance of the Notice of Award, unless otherwise allowed in the BDS or in the case of ITB Clause 26
ITB clause 26. Clarification of Bids
To assist in the evaluation, comparison, and post-qualification of the bids, the Procuring Entity may ask in writing any Bidder for a clarification of its bid. All responses to requests for clarification shall be in writing. Any clarification submitted by a Bidder in respect to its bid and that is not in response to a request by the Procuring Entity shall not be considered.
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Re: No Contact Rule

Post by jomadel86 on Thu Oct 29, 2009 8:33 am

I am very much aware of ITB clause 26 regarding clarification of bids which should merely be in writing. However, again, I would like to reiterate that we are bidding technical agricultural equipments which requires a no-nonsense examination and inspection of the technical and financially capability of the LCB which no amount of written clarifications could satisfy.If you rely on their written answers sure they will only submit answers that are favorable. As I said once again."to see is to believe", how can you determine if the LCB is actually performing fabrication activities if you will not visit its site. Good for you, you are just connected with a local government unit in Jolo, and I presume that you don't involve yourself in procurement of goods amounting to more than P 50,000,000.00. I hope you get my point.

What I am trying to drive is the impractically of the no contact rule provisions. Or is it really absolute? Although one of the speakers from COA during the updates on R.A. 9184 whcih was sponsored by the Association of Government Internal Auditors (AGIA) told us that the no contact rule can be relaxed during the post qualifications while our other speakers told us that the rule is absolute. Ano ba talaga Kuya?
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Re: No Contact Rule

Post by sunriser431 on Thu Oct 29, 2009 4:41 pm

jomadel86 wrote:I am very much aware of ITB clause 26 regarding clarification of bids which should merely be in writing. However, again, I would like to reiterate that we are bidding technical agricultural equipments which requires a no-nonsense examination and inspection of the technical and financially capability of the LCB which no amount of written clarifications could satisfy.If you rely on their written answers sure they will only submit answers that are favorable. As I said once again."to see is to believe", how can you determine if the LCB is actually performing fabrication activities if you will not visit its site. Good for you, you are just connected with a local government unit in Jolo, and I presume that you don't involve yourself in procurement of goods amounting to more than P 50,000,000.00. I hope you get my point.

What I am trying to drive is the impractically of the no contact rule provisions. Or is it really absolute? Although one of the speakers from COA during the updates on R.A. 9184 whcih was sponsored by the Association of Government Internal Auditors (AGIA) told us that the no contact rule can be relaxed during the post qualifications while our other speakers told us that the rule is absolute. Ano ba talaga Kuya?
Section 23.
a. Class "A" Documents
Legal Documents
i) xxxx
ii) xxxx
Technical Documents
iii)Statement of the prospective bidder of all its ongoing and completed government and private contracts, including contracts awarded but not yet started, if any, whether similar or not similar in nature and complexity to the contract to be bid, within the relevant period as provided in the Bidding Documents. The statement shall include all
information required in the PBDs prescribed by the GPPB.

I would say this "no contact rule" is not absolute, there are situation in post qualification in which the BAC/TWG have to satisfy for themselves personally, (as you have said "To see is to believe" ) please be reminded that in the section 23 one of the requirements is the submission of statement of the Prospective bidder of all its ongoing and completed government and private contracts, this will definetly help the BAC/TWG in making a sound decission in recommending to the HOPE, (not just by merely examining verifying, validating those documents)
Moreover the bidder is required to submit SF-INFR-23 (Letter of Authority to validate submitted documents.) and this was mentioned in the revised IRR of 9184 in setion 25.2(b)iv which states
It is authorizing the Head of the Procuring Entity or his duly authorized representative/s to verify all the documents submitted;
This have to be read in conjunction to section 23.7
Notwithstanding the eligibility of a prospective bidder, the procuring entity concerned
reserves the right to review the qualifications of the bidder at any stage of the
procurement process if the procuring entity has reasonable grounds to believe that a
misrepresentation has been made by the said prospective bidder, or that there has
been a change in the prospective bidder’s capability to undertake the project from
the time it submitted its eligibility requirements. Should such review uncover any
misrepresentation made in the eligibility requirements, statements or documents, or
any changes in the situation of the prospective bidder which will affect the capability
of the bidder to undertake the project so that it fails the eligibility criteria, the
procuring entity shall consider the said prospective bidder as ineligible and shall
disqualify it from obtaining an award or contract, in accordance with Rules XXI, XXII,
and XXIII of this IRR.
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Re: No Contact Rule

Post by RDV @ GP3i on Thu Oct 29, 2009 5:54 pm

jomadel86 wrote:Section 32 of the Revised IRR of RA 9184 states that: "Members of the BAC, including its staff and personnel, as well as its Secretariat and TWG are prohibited from making or accepting any communication with any bidder regarding evaluation of their bids until the issuance of the Notice of Award. However, the BAC through its Secretariat, may ask in writing the bidder for a clarification of its bid. All responses to requests for clarification shall be in writing.

This is one of the provisions of RA 9184 which I find impractical. How can you determine whether the lowest calculated bidder is technically and financially capable during post qualification if the BAC and the TWG will not visit its office or manufacturing plant. This is especially true in the procurement of equipment such as mechanical flatbed dryers and other highly technical equipment. Under the maxim "to see is to believe" in the case of procurement of agricultural equipment, the BAC must ascertain that the LCB must be actually performing fabrication or manufacturing activities to determine whether it is technically capable. I presume that the COMELEC visited the office of SMARTMATIC or the supplier of counting machines during their post qualification of the said supplier. Another thing is how can you determine the veracity or truthfullness of the list of similar completed government/private contracts submitted by the clients of the LCB if you will not visit this projects implemented by the LCB.

If one will only resort to writing for clarification purposes, naturally the LCB would reply in a favorable manner which will defeat the purpose of post qualification.

If you will carefully read the provision of Sec. 32.1 of the revised IRR, as quoted by jomadel86 above, you will notice that the prohibition is only with regards to the evaluation of the bidder's bid. The prohibition against communication or the "No Contact Rule" is from the time the BAC conducts the bid evaluation until the issuance of the Notice of Award. Although the post-qualification stage is within that period as it is done prior to the issuance of the NOA, the post-qualification no longer refers to the evaluation of the bidder's bid, but involves the process of verification, validation, and ascertainment of the compliance of the LCB to the requirements of the procuring entity. Post-qualification, being beyond bid evaluation already since an LCB has already been determined, is therefore not covered by the said "No Contact Rule". That is, therefore, the exception to the rule.

The reason for the "No Contact Rule" during bid evaluation is for the BAC to be insulated from any pressure from any bidder as it proceeds with the bid evaluation. Bid evaluation is only involved with the mathematical computations of the financial proposal of the bidder. Bid evaluation does not pertain to determining whether the equipment that the bidder is proposing to deliver conforms to the specifications. Bid evaluation does not pertain to the determination of whether the supplier has really a manufacturing plant that could produce the required items on time and according to the specification. Bid evaluation is only with respect to the financial bid of the bidder, and not his technical proposal. (You only conduct preliminary examination of the technical proposal and only once declared the LCB will you go to the details but that is already post-qualification.)

The IRR already provides for the rules in bid evaluation, such as "a bid must be complete" (Sec. 32.2.1). Another rule is that if there are discrepancies, then the BAC/TWG will follow the rules provided in case of any discrepancy (Sec. 32.2.3). There is a rule on arithmetical corrections, there is a rule on bids to be evaluated on equal footing. Given these rules, the BAC will only have to apply them.

One revision in the revised IRR, which is not in IRR-A, is allowing the BAC, through the BAC Secretariat, to ask for a clarification (only if necessary) with the bidder regarding its bid, but such clarification has to be in writing. The bidder's responsibility is only to respond, also in writing, to such request. The bidder, on its own, does not have such right to seek any clarification. It will only be after the bidder has been informed in writing about the results of the bid evaluation (as when it is required to submit the additional documents as the LCB) or the result of the post-qualification (such as a Notice of Post-Qualification or Notice of Post-Disqualification) will it be able to know of the results. But that is not the end of the bidder as it has the right to file a motion for reconsideration if he does not agree with the results.

Sunriser is correct is saying that the no contact rule is not absolute.

RDV
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Re: No Contact Rule

Post by jomadel86 on Fri Nov 06, 2009 2:55 pm

Thanks RDV and Sunriser for enlightening me regarding the no contact rule which is not really absolute especially during post qualification evaluation. I point this particular provision because everytime we are bidding agricultural equipment such as flatbed mechanical dryers and shredders more so if the ABC amounts to more than Php 10 million, we usually conduct ocular inspection of the manufacturing plant of the LCB (which is of course after bid evaluation). Now, I know we are not violating the IRR in doing so.

Once again thank you very much RDV and sunriser and more power to both of you. Very Happy Very Happy Very Happy
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Re: No Contact Rule

Post by sunriser431 on Sat Nov 07, 2009 12:16 am

jomadel86 wrote:Thanks RDV and Sunriser for enlightening me regarding the no contact rule which is not really absolute especially during post qualification evaluation. I point this particular provision because everytime we are bidding agricultural equipment such as flatbed mechanical dryers and shredders more so if the ABC amounts to more than Php 10 million, we usually conduct ocular inspection of the manufacturing plant of the LCB (which is of course after bid evaluation). Now, I know we are not violating the IRR in doing so.

Once again thank you very much RDV and sunriser and more power to both of you. Very Happy Very Happy Very Happy
You are welcome jomadel86, Smile. I'm busy for this past few days, preparing our corporate budget for next year (2010), complete with pre determine guidelines, hopefully it will approve with flying colors (Governing Board). bounce
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