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Fictitious Documents

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Fictitious Documents

Post by Rick on Thu Nov 19, 2009 12:05 pm

During contract implementation or after the NOA has been awarded, can a losing bidder (or even non bidder) submit a letter to the BAC stating that the winning bidder has submitted fictitious documents? (of course with solid evidences/proof)

Will the contract implementation still continue?

Thank you.
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Re: Fictitious Documents

Post by Guest on Thu Nov 19, 2009 2:30 pm

non-bidder is not an interested party in a procurement process, it is a highly improbable situation.

You could file a MR to BAC within 3 days after posting of NOA to PhilGEPS.
otherwise
If no action on the contract is taken by the Head of the Procuring Entity or the appropriate approving authority within the periods specified in this IRR, the contract concerned shall be deemed approved: Provided, however, That where further approval by the Office of the President is required, the contract shall not be deemed approved unless and until the Office of the President gives actual approval to the contract concerned.

Read Gppb resolution 18-2004 for the grounds for termination of contracts

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Re: Fictitious Documents

Post by RDV @ GP3i on Thu Nov 19, 2009 4:21 pm

WormaixJr wrote:non-bidder is not an interested party in a procurement process, it is a highly improbable situation.

You could file a MR to BAC within 3 days after posting of NOA to PhilGEPS.
otherwise
If no action on the contract is taken by the Head of the Procuring Entity or the appropriate approving authority within the periods specified in this IRR, the contract concerned shall be deemed approved: Provided, however, That where further approval by the Office of the President is required, the contract shall not be deemed approved unless and until the Office of the President gives actual approval to the contract concerned.

Read Gppb resolution 18-2004 for the grounds for termination of contracts

WormaixJr, medyo naguluhan ako sa sagot mo.

Can you please clarify the following statements you made:

1. "You could file a MR to BAC within 3 days after posting of NOA to PhilGEPS." - The responsibility of the BAC has already ended with its recommendation to award the contract to the LCRB/HRRB. A NOA has already been issued by the HOPE. Can the BAC really still entertain an MR from a losing bidder? If it does, can the BAC recommend the recall of the NOA already issued by the HOPE? (Although I ask those questions, I believe that the answers are both NO, but with your statement it seems that your answer is YES, that is why I want to be clarified.)

2. "If no action on the contract is taken by the Head of the Procuring Entity or the appropriate approving authority within the periods specified in this IRR, the contract concerned shall be deemed approved" - After the issuance of the NOA, the contract is up for signing (within a 10-c.d. period) by both the procuring entity and the winning bidding. I know that your answer is quoted from the IRR, but if it is not clarified, it would be confusing. Contract signing is different from contract approval.

RDV
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Re: Fictitious Documents

Post by Guest on Thu Nov 19, 2009 4:53 pm

I said that on the belief that under the protest mechanism that all decision of the BAC can undergo the the protest mechanism during the procurement process. I`m sorry if im wrong and I stand corrected.

I was contemplating on the provisions of the protest mechanism, Section 37.1.4 provides that Notwithstanding the issuance of the NOA the bidder is still required to submit some requirements. x x x. and the GPPB Resolution No. 18-2004

that if the protest mechanism has jurisdiction over all decision of the procurement process therefore it is right to say that the losing bidder has the right to protest. And under section 37.1.4 the PE still requires the winning bidder to pass some requirements which can be the grounds for termination of the contract.

with regards to your question of the revocation of NOA, I believe the IRR and the RA 9184 is silent on the revocation of NOA but I know that the PE can surely terminate the contract base on using forge documents.


Last edited by WormaixJr on Thu Nov 19, 2009 5:10 pm; edited 1 time in total

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Re: Fictitious Documents

Post by RDV @ GP3i on Thu Nov 19, 2009 5:02 pm

WormaixJr wrote:I said that on the belief that under the protest mechanism that all decision of the BAC can undergo the the protest mechanism during the procurement process. I`m sorry if im wrong and I stand corrected.

Even then, Protest should not be entertained by the HOPE unless a prior MR has been made by the complaining party and that MR has been denied by the BAC.

At any rate, thank you for clarifying, WormaixJr.

RDV
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Re: Fictitious Documents

Post by Guest on Thu Nov 19, 2009 5:14 pm

Sir RDV

I edited my answer to add some basis for my first answer which I come to such belief that it is still possible

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Re: Fictitious Documents

Post by RDV @ GP3i on Thu Nov 19, 2009 5:41 pm

WormaixJr wrote:I said that on the belief that under the protest mechanism that all decision of the BAC can undergo the the protest mechanism during the procurement process. I`m sorry if im wrong and I stand corrected.

I was contemplating on the provisions of the protest mechanism, Section 37.1.4 provides that Notwithstanding the issuance of the NOA the bidder is still required to submit some requirements. x x x. and the GPPB Resolution No. 18-2004

that if the protest mechanism has jurisdiction over all decision of the procurement process therefore it is right to say that the losing bidder has the right to protest. And under section 37.1.4 the PE still requires the winning bidder to pass some requirements which can be the grounds for termination of the contract.

The submission of documents after/notwithstanding the issuance of NOA, is only specific to submission of JVA (if applicable) and valid PCAB license for foreign bidders. Other than those two (2), no other documents are supposed to be required. The other document that could probably be submitted is the actual credit line, only if the bidder submitted a credit line commitment as part of its eligibility requirement. To allow the procuring entity to require submission by the bidder of any other document would be opening the process to abuse by the former.

Again, I would submit that although the losing bidder may file a Protest, let us bear in mind that Sec. 55.2 of the revised IRR provides "That a prior request for reconsideration should have been filed by the party concerned" with the BAC and the BAC denied that request for reconsideration. Finding none, that Protest should be denied outright by the HOPE.

WormaixJr wrote:with regards to your question of the revocation of NOA, I believe the IRR and the RA 9184 is silent on the revocation of NOA but I know that the PE can surely terminate the contract base on using forge documents.

Although there is no such provision in the IRR and RA 9184 on the revocation of the NOA, I think it is within the power of the HOPE, who issued the NOA, to revoke the same provided there is no grave abuse of authority.

Finally, I agree with you that the contract could be terminated and that would only be the most logical thing to do on the part of the procuring entity. That could fall under the purview of "Termination for Unlawful Acts."

RDV
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Re: Fictitious Documents

Post by Rick on Fri Nov 20, 2009 2:30 pm

There is a provision in the IRR that states....

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, .... 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.

Will the bidder who has gotten his NOA get in trouble because there are evidences to prove (although filed late) that his documents are fictitious?

Also, I think any citizen can file a complaint since according to IRR of RA 6713:

Section 2. It is the responsibility of heads of departments, offices and agencies to establish measures and standards that will ensure transparency of and openness in public transactions in their respective offices, such as in biddings, purchases, other financial transactions including contracts, status of projects, and all other matters involving public interest.

Section 3. Every department, office or agency shall provide official information,
records or documents to any requesting public...

Section 6. All public documents must be made accessible to, and readily
available for inspection by, the public during office hours...

It's not easy to say that "You did not join the bidding so you cannot complain even though there are fictitious documents!"

I believe part of the spirit of RA 9184 is full transparency and equality. What do you guys think?

Thanks.
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Re: Fictitious Documents

Post by RDV @ GP3i on Fri Nov 20, 2009 2:44 pm

Rick wrote:There is a provision in the IRR that states....

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, .... 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.

Will the bidder who has gotten his NOA get in trouble because there are evidences to prove (although filed late) that his documents are fictitious?

Also, I think any citizen can file a complaint since according to IRR of RA6713:

Section 2. It is the responsibility of heads of departments, offices and agencies to establish measures and standards that will ensure transparency of and openness in public transactions in their respective offices, such as in biddings, purchases, other financial transactions including contracts, status of projects, and all other matters involving public interest.

Section 3. Every department, office or agency shall provide official information,
records or documents to any requesting public...

What do you guys think?

Thanks.

You are right there, Rick, there is that provision in the IRR.

A bidder could still be disqualified, even if he was already declared eligible at the early stages of the procurement process, at any stage of the procurement process which includes until issuance of Notice of Award. That is why, I mentioned in my reply to WormaixJr that even if the IRR is silent on the revocation of NOA, the HOPE can still revoke the same if he has reasonable grounds to believe that an award should not have been made. I think, we can site as an example here the case of DepEd where the DepEd Secretary (as HOPE) withdraws his award made to the noodle supplier because of certain allegations made.

Definitely, the bidder who has been issued a NOA, will get into trouble if evidences prove that documents submitted are fictitious. Submission of falsified or fictitious eligibility documents or bid documents are among the prohibited acts which, if proven true, could be penalized administratively (suspension or blacklisting) or even criminally (6 years and 1 day to 15 years imprisonment) as provided for under Sections 69.1 and 65.3 of the revised IRR, respectively.

RDV
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Re: Fictitious Documents

Post by sunriser431 on Sat Nov 21, 2009 11:42 pm

For purpose of Discussion
In the revised 3rd edition of the PBDs a prospective bidder is now required to submit affidavit "Omnibus Sworn Statement", the HOPE can use this for reference in revoking the NOA, if there is reasonable ground/evidence against the bidder.
consider this
1. xxxx
2.xxxx
4.Each of the documents submitted in satisfaction of the bidding requirements is an authentic copy of the original, complete, and all statements and information provided therein are true and correct.
5.[Name of Bidder] is authorizing the Head of the Procuring Entity or its duly authorized representative(s) to verify all the documents submitted. bounce
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