Track Record VS. Years of Experience

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Track Record VS. Years of Experience

Post by orlan747 on Sun Nov 29, 2009 11:25 am

Hello everybody!!
Please help me regarding the following issue that is now a hot one here in our locality. The main contention of the issue is the requirement of “experience” and the number of finished projects as were specifically stated in the ITB for a 33M Sanitary Landfill project here in our city, to wit:

Minimum Requirements for the Contractor
A) Preparation of the Detailed Engineering Design
• With at least 7 years experience in similar projects
• Has designed at least two (2) local Sanitary Landfills that are already implemented and operational
B) Construction of Sanitary Landfill
• With at least 7 years experience in the Construction of Sanitary Landfills
• Has constructed and operated at least two (2) Sanitary Landfills

The group of contractors insists that the revised IRR categorically stated under IRR Section 23.5.2.1.
The following persons/entities shall be allowed to participate in the bidding for infrastructure projects:
….
"23.5.2.5. The prospective bidder must have an experience of having completed, within a period of ten (10) years from the date of submission and receipt of bids, at least one (1) contract that is similar to the contract to be bid, and whose value, adjusted to current prices using the NSO consumer price indices, must be at least fifty percent (50%) of the ABC to be bid: Provided, however, That contractors under Small A and Small B categories without similar experience on the contract to be bid may be allowed to bid if the cost of such contract is not more than fifty percent (50%) of the Allowable Range of Contract Cost (ARCC) of their registration based on the guidelines as prescribed by the PCAB.

For Foreign-funded Procurement, the GOP and the foreign government/foreign or international financing institution may agree on another track record requirement.

Moreover, a contract shall be considered “similar” to the contract to be bid if it has the same major categories of work."
....

During the Pre-Bid Conference however, the BAC Chairman refused to entertain this particular issue and insisted that these particular requirements do not violate any law. This project is now undergoing it’s Re-Bid process. The First Bidding was a Failure because nobody was able to pass these “stringent” (irregular?) requirements. There’s no significant change in the ITBs of the present and the previous advertisement for this project. Same requirements, same ABC, only the schedules were different.

The local group of contractors suspects that these stringent requirements are designed to favor their “anointed” contractor and/or it may just be a ploy so the procuring entity may resort to a “Negotiated Procurement” after the second failure.

Now, please enlighten us, is the procuring entity within its right to impose these stringent eligibility requirements?

Thank you.
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Re: Track Record VS. Years of Experience

Post by orlan747 on Sun Nov 29, 2009 11:38 am

Sir RDV,
In another post:
http://gppb.topicsolutions.net/competitive-bidding-f26/new-company-t545.htm?sid=9f025d0bbadcd3e638f7223e9f2c361c

You have stated that:

"That relevant period should be stated in the bidding documents. In other words, for some projects, maybe a period of experience longer than 3 years may be needed. For others less complex, a period shorter than 3 years may be sufficient for them, but this relevant period has to be indicated in the bidding documents or in the Invitation to Bid so that prospective bidders are properly guided."

May you please expound on this "relevant period" and if possible please give us a reference where we may look for the pertinent provisions regarding this "relevant period".

Thank you very much.
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Re: Track Record VS. Years of Experience

Post by engrjhez® on Sun Nov 29, 2009 2:29 pm

orlan,

First of all, the requirements set forth in the IRR regarding experience and contracting capabilities should be taken as just minimum requirements. The procuring entity is always given the prerogative to apply a higher criteria whenever the situation warrants so. Whether the speculations are true or not will still have to be proven. Nevertheless, you must take note that no other additional documents may be imposed in addition to what is enumerated in the Revised IRR (in the IRR-A, the PE may add other documents as necessary).

The requirements, whenever deviating from the IRR, must be specified in the Bidding Documents. Otherwise, the "default" setting must be observed - and you can always argue. Very Happy
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Re: Track Record VS. Years of Experience

Post by RDV @ GP3i on Sun Nov 29, 2009 6:18 pm

orlan747 wrote:Hello everybody!!
Please help me regarding the following issue that is now a hot one here in our locality. The main contention of the issue is the requirement of “experience” and the number of finished projects as were specifically stated in the ITB for a 33M Sanitary Landfill project here in our city, to wit:

Minimum Requirements for the Contractor
A) Preparation of the Detailed Engineering Design
• With at least 7 years experience in similar projects
• Has designed at least two (2) local Sanitary Landfills that are already implemented and operational
B) Construction of Sanitary Landfill
• With at least 7 years experience in the Construction of Sanitary Landfills
• Has constructed and operated at least two (2) Sanitary Landfills

The setting of the minimum requirement in term of experience and track record (which in the case of the P33M Sanitary Landfill is set at 7 years and at two (2) landfills designed/constructed and operated) is the prerogative of the procuring entity.

orlan747 wrote:The group of contractors insists that the revised IRR categorically stated under IRR Section 23.5.2.1.
The following persons/entities shall be allowed to participate in the bidding for infrastructure projects:
….
"23.5.2.5. The prospective bidder must have an experience of having completed, within a period of ten (10) years from the date of submission and receipt of bids, at least one (1) contract that is similar to the contract to be bid, and whose value, adjusted to current prices using the NSO consumer price indices, must be at least fifty percent (50%) of the ABC to be bid: Provided, however, That contractors under Small A and Small B categories without similar experience on the contract to be bid may be allowed to bid if the cost of such contract is not more than fifty percent (50%) of the Allowable Range of Contract Cost (ARCC) of their registration based on the guidelines as prescribed by the PCAB.

For Foreign-funded Procurement, the GOP and the foreign government/foreign or international financing institution may agree on another track record requirement.

Moreover, a contract shall be considered “similar” to the contract to be bid if it has the same major categories of work."
....

Having set the minimum experience of 7 years, is it in violation of the quoted provision which says that "the prospective bidder must have an experience of having completed within ten (10) years from the date of submission and receipt of bids"? The answer is NO. To be able to participate, the bidder must be able to show that it has an experience in similar projects for at least 7 years. A company with a 20-year experience of doing similar projects could very well be eligible as far as this requirement is concerned. However, although the company has 20-year experience, as far as the Single Largest Completed Contract (SLCC), only a similar project done within the last 10 years should be considered. Its value, adjusted for current prices, should be at least equal to the ABC.

The issue that is bothering you maybe is the requirement not only of the minimum experience of 7 years, but its experience has to be "similar" to the project, which is "sanitary landfill." The BAC should indicate in the bidding documents what are "similar" projects that would be allowable. Otherwise, that would be open ended and would give the BAC the discretion to allow or not a particular project. Another thing, as far as experience is concerned, the bidders will show their own experiences within the period and list down all completed and ongoing projects, whether similar or not. The requirement for the "similar" contract is only as far as the SLCC is concerned.

orlan747 wrote:During the Pre-Bid Conference however, the BAC Chairman refused to entertain this particular issue and insisted that these particular requirements do not violate any law. This project is now undergoing it’s Re-Bid process. The First Bidding was a Failure because nobody was able to pass these “stringent” (irregular?) requirements. There’s no significant change in the ITBs of the present and the previous advertisement for this project. Same requirements, same ABC, only the schedules were different.

The local group of contractors suspects that these stringent requirements are designed to favor their “anointed” contractor and/or it may just be a ploy so the procuring entity may resort to a “Negotiated Procurement” after the second failure.

Now, please enlighten us, is the procuring entity within its right to impose these stringent eligibility requirements?

Thank you.

After the first failure, the BAC should conduct a mandatory review of the terms, conditions, and specifications in the first bidding to find out the reason for the failure. I cannot blame you for suspecting that something might be cooking because despite the failure (which you think was because nobody could qualify because of the "stringent" requirement) there was no significant change in the bidding requirements.

In the second bidding, there is still a requirement for a Pre-Bid. You can argue your case in the pre-bid or you can write and request for clarification, including which are considered "similar" projects.

Maybe, it is would be even advisable, in case the BAC Chair still refuses to entertain issues raised during the pre-bid, for you to still write a request for clarification (which should be received by the BAC not later than 10 days after the pre-bid) because it is incumbent upon the BAC to respond also in writing to that request for clarification and/or issue Supplemental/Bid Bulletin.

In case the second bidding continues and results to another failure because there was no change in the requirement, my only advise is for you to be vigilant in case the next procedure would be Negotiated Procurement. In case of Negotiated Procurement, the procuring entity has to invite a "sufficient number" to negotiate the contract with. Negotiation has to be simultaneous and final offers have to be submitted (sealed) and presence of Observers are still required.
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Re: Track Record VS. Years of Experience

Post by orlan747 on Wed Dec 02, 2009 9:12 am

Thank you very much Sir Engrjhez and Sir RDV,

Allow me however to express my disagreement with some of your “statements”:

Sir Engrjhez said that:

“First of all, the requirements set forth in the IRR regarding experience and contracting capabilities should be taken as just minimum requirements. The procuring entity is always given the prerogative to apply a higher criteria whenever the situation warrants so.”

Sir RDV seconded that with:

“The setting of the minimum requirement in term of experience and track record (which in the case of the P33M Sanitary Landfill is set at 7 years and at two (2) landfills designed/constructed and operated) is the prerogative of the procuring entity.”

I beg your pardon sirs, but who gave this prerogative to the procuring entity? Or, I mean, where do they get this prerogative of setting a higher criterion, higher than that set by the IRR of RA9184? How high could they set the criteria then? Is there a maximum to this? If your statements are true, then I fear that corrupt and unscrupulous procuring entities will always use this prerogative to Tailor-fit the requirement of experience and contracting capabilities to that of their favored contractors.

Is it not that one of the Governing Principles on Government Procurement is “Competitiveness by extending equal opportunity to enable private contracting parties who are eligible and qualified to participate in public bidding.”? confused

Is it not that the ELIGIBILITY REQUIREMENTS are specifically stipulated in RA 9184 and its IRR? While you are saying that these requirements set forth in the IRR are the minimum that a Procuring Entity may require from the prospective bidders, my understanding and belief is that it is the other way around; “these requirements are the minimum required from prospective bidders to be able to participate in a competitive bidding”. Thus, a newly formed company will be extended equal opportunity to compete against the giants in the industry provided it meets the minimum requirements set forth in the IRR.

Thanks again.
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Re: Track Record VS. Years of Experience

Post by amang'65 on Wed Dec 02, 2009 2:22 pm

i think the term "minimum requirement" is not the right term in describing what are set forth in the IRR, i would rather term it as "generic", because considering the 33M landfill project, the BAC imposed a requirement of "With at least 7 years experience in similar projects" wich is absolotely very specific, when the provisions stipulated in the IRR is much broader and could be participated by more bidders, regardles whether their experience is 1,2, 3... years provided it is within the IRR provsion which is having an experience of "within a period of ten (10) years from the date of submission and receipt of bids, at least one (1) contract that is similar to the contract to be bidxxx". indeed it is BACs prerogative but they should see to it that when setting additional requirements, no bidders should be discriminated when it fact they are much qualified as far as the provisions in the IRR is concerned. I believe RA9184 was created for wider participation and transparency and not to be varied in order to favor a few and limited participation and not to result into further confusion or misunderstanding and eventually may lead to filing of charges among others. Anyways, just what RDV said you can always seek clarification and argue your case but again you should obseved the proper duration when writting. and most especially be vigilant when ever the method of procurement is shifted to negotiation baka nga may something else cooking dyan.
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Re: Track Record VS. Years of Experience

Post by sunriser431 on Wed Dec 02, 2009 3:48 pm

For information purpose only.
To all procurement practioner read this, click this link for complete details.
Re: http://www.lawphil.net/judjuris/juri2009/jan2009/gr_178799_2009.html


Last edited by sunriser431 on Thu Dec 03, 2009 3:15 pm; edited 1 time in total (Reason for editing : edit text)
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Re: Track Record VS. Years of Experience

Post by RDV @ GP3i on Thu Dec 03, 2009 11:04 am

orlan747 wrote:Thank you very much Sir Engrjhez and Sir RDV,

Allow me however to express my disagreement with some of your “statements”:

Sir Engrjhez said that:

“First of all, the requirements set forth in the IRR regarding experience and contracting capabilities should be taken as just minimum requirements. The procuring entity is always given the prerogative to apply a higher criteria whenever the situation warrants so.”

Sir RDV seconded that with:

“The setting of the minimum requirement in term of experience and track record (which in the case of the P33M Sanitary Landfill is set at 7 years and at two (2) landfills designed/constructed and operated) is the prerogative of the procuring entity.”

I beg your pardon sirs, but who gave this prerogative to the procuring entity? Or, I mean, where do they get this prerogative of setting a higher criterion, higher than that set by the IRR of RA9184? How high could they set the criteria then? Is there a maximum to this? If your statements are true, then I fear that corrupt and unscrupulous procuring entities will always use this prerogative to Tailor-fit the requirement of experience and contracting capabilities to that of their favored contractors.

Is it not that one of the Governing Principles on Government Procurement is “Competitiveness by extending equal opportunity to enable private contracting parties who are eligible and qualified to participate in public bidding.”? confused

Is it not that the ELIGIBILITY REQUIREMENTS are specifically stipulated in RA 9184 and its IRR? While you are saying that these requirements set forth in the IRR are the minimum that a Procuring Entity may require from the prospective bidders, my understanding and belief is that it is the other way around; “these requirements are the minimum required from prospective bidders to be able to participate in a competitive bidding”. Thus, a newly formed company will be extended equal opportunity to compete against the giants in the industry provided it meets the minimum requirements set forth in the IRR.

Thanks again.

You are still welcome, orlan747. It is perfectly alright that you express your disagreement with our view. That is actually the essence of this online forum. Others may agree to disagree, I sometimes do also.

You have a lot of questions that need answer. I may not be able to answer all of them now because I am going to another procurement training in a short while (having just arrived from another training after I was invited by engrjhez for their LGU, that is the reason why we both were not able to answer your questions immediately because the cellular signal there is very intermittent and unreliable, but the place is such a "paradise".)

It is true that the IRR provides the minimum requirements, but in some instances in the eligibility requirements, the procuring entities are given the discretion to set their requirements depending on the nature and complexity of their procurement. However, these requirements set by the procuring entity has to be clearly indicated in the bidding documents which they will prepare and issue to all prospective bidders.

Take for example the following eligibility requirement for technical documents under Class A (Sec. 23.1.a.iii of the revised IRR) . It requires a statement from the prospective bidder of all its ongoing and completed contracts, whether similar or not in nature and complexity to the contract to be bid within the relevant period as provided in the Bidding Documents. The relevant period is left open for the procuring entity to set. Yes, there is discretion on this part, but the procuring entity is also responsible that there is no grave of abuse of that discretion, otherwise they could also be held responsible (Principle of Accountability.) I hope you remember just the recent NIA case which came out in the newspapers lately when the experience set for eligible bidders was something like more than 20 years.

In Sec. 23.5.2.5 of the IRR, the phare: "Provided, however, That contractors under Small A and Small B categories without similar experience on the contract to be bid may be allowed to bid if the cost of such contract is not more than 50% of the Allowable Range of Contract Cost (ARCC) of their registration based on the guidelines as prescribed by the PCAB." From that quoted provision, the use of the word "may" is only permissive and not mandatory on the procuring entity, and even if those without experience are allowed, they are only allowed to bid up to 50% of their ARCC. If the project is P33M it is very definite that Small A and Small B contractors would not qualify as it is more than 50% of their ARCC. I think, under existing PCAB rules, they can bid for projects up to 10M only. Half of that (50%), that means that they may be allowed to participate in the bidding only projects no more than P5M. Definitely, they cannot participate for the sanitary landfill with an ABC of P33M.

Those are initially my answers to your concerns. As soon as I have the time, I will clarify further, including the concerns of amang and the jurisprudence hyperlinked by sunriser.

Ciao!
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Re: Track Record VS. Years of Experience

Post by engrjhez® on Thu Dec 03, 2009 1:58 pm


orlan747,

I will try to answer your query the best that I can soon as I arrive home. Right now, we are still at the airport after the recently concluded ORIENTATION SEMINAR and TRAINING WORKSHOP.

Meanwhile, I would like you to think the other way around. Instead of your experience being short for the eligibility criteria set forth by the procuring entity, think of yourself as over qualified for the criteria. Halimbawa lang naman po ito. Kung 1 year of experience lang ang kailangan at kayo naman ay twenty years na in business, and you think that one year is too short to be a requirement, would you agree with the PE? That in the less stringent requirement, there are hundreds that would qualify (but not necessarily capable).

Sana makasagot din ang mga friendly friends natin dito sa forum.Very Happy
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Re: Track Record VS. Years of Experience

Post by Guest on Thu Dec 03, 2009 3:15 pm

Forgive me dear sirs for going the other way.

23.1. For purposes of determining the eligibility of bidders using the criteria stated in Section 23.5 of this IRR, only the following documents shall be required by the BAC, using the forms prescribed in the Bidding Documents;

x x x

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.


What was prescribed by the GPPB in the PBD?

According to the BDS

If the Funding Source is GOP, maintain the ITB Clause and insert any of the following: The Bidder must have completed, within ten (10) years from the submission of bids, a single contract that is similar to this Project, equivalent to at least fifty percent (50%) of the ABC.
If the Funding Source is a foreign government/foreign or international financing institution, maintain ITB Clause and state “No further instructions” or explain the applicable eligibility criterion.

For this purpose, similar contracts shall refer to [insert description of similar contracts or state “No further instructions”].


These are the only options provided.

The IRR and the PBD provides that we are limited to the requirement on the provisions of the IRR by virtue of Section 23 and the PBD by virtue of Section 6.

Furthermore, such requirement shall contradict the rule on competitiveness that anyone who has the requirement under the law may join a public bidding.

I say that the provisions of the law is not a minimum requirement but the only requirement unless otherwise provided. bounce

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Re: Track Record VS. Years of Experience

Post by orlan747 on Thu Dec 03, 2009 9:54 pm

Thank you very much esteemed sirs.

I will wait for the "much longer replies" from Sirs Engrjhez and RDV, and hopefully the rebuttal of Sirs WormaiXjr and Amang. Smile

(To Sir RDV: Just for clarification, our company is Medium B in size range and License Category A as per our PCAB Registration, thus we can bid for projects up to 200M.)
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Re: Track Record VS. Years of Experience

Post by fe a. araya on Fri Dec 04, 2009 5:32 pm

to orlan747: I'll try to crack my head on this issue you raised but please allow me to react on this after I am through with the bidding documents am preparing for so many projects. Actually, i already discussed this with our BAC members and iba-iba ang opinion. Will try to post later.
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Re: Track Record VS. Years of Experience

Post by engrjhez® on Fri Dec 04, 2009 5:34 pm

WormaixJr,

With due respect, no problem with me. Your statement doesn't necessarily conflict with mine - and your last statement perfectly agrees as it conflicts at the same time:
WormaixJr wrote:I say that the provisions of the law is not a minimum requirement but the only requirement unless otherwise provided.
Why specify "unless provided"?

Maybe because it is under BDS (Sec.III), where additional details may be provided to support the "unchanged" ITB (Sec.II). The requirement of 10 years is mainly to limit experience as to the current technology of practices. What was acceptable and economical more than ten years ago, may not be acceptable and economical nowadays. Maybe the firm have done the same project twenty years ago but the technology used then may be very different from the current practice.

------------------------------------------------------------------------------
To orlan747,

As to the basis of my answer,a reading of Sec.17.2 reveals:

17.2. The specifications and other terms in the Bidding Documents shall reflect minimum requirements or specifications required to meet the needs of the procuring entity in clear and unambiguous terms.
RDV have already mentioned specifically Sec.23.5.2.5 that provides "permissive" and not mandatory provisions. Moreso, in case of conflicts and ambiguities between the PBDs and the IRR, the latter shall prevail.

I hope we end up learning here Very Happy
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Re: Track Record VS. Years of Experience

Post by engrjhez® on Fri Dec 04, 2009 5:41 pm

fe a. araya wrote:to orlan747: I'll try to crack my head on this issue you raised but please allow me to react on this after I am through with the bidding documents am preparing for so many projects. Actually, i already discussed this with our BAC members and iba-iba ang opinion. Will try to post later.
Likewise, same here. Nasa office pa. Pero I feel I need to answer this question promptly as because orlan747 may suspect I am in "kontrabida mode". Hehe, joke lang po. Very Happy
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Re: Track Record VS. Years of Experience

Post by orlan747 on Sat Dec 05, 2009 9:36 am

Thanks po, Ma'am Fe. I will wait na lang po for your post later.

No problem, Sir Engrjhez, I am grateful for your prompt replies. No, no sir, I don't mind even if you are really in a "kontrabida mode", which I know you are not. Your replies, and those that go along your line of reasoning, make me prepared to formulate rebuttals in case the PE here, use those same provisions you cited. Likewise I am in the look out for provisions provided by those who go along with my own point of view. He Smile he Smile he I already used the argument of Sir WormaiXjr in my Request for Clarification which I submitted yesterday.
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Re: Track Record VS. Years of Experience

Post by sunriser431 on Sat Dec 05, 2009 11:16 am

For information purpose only.
To all procurement practioner read this, click this link for complete details.
Re: http://sc.judiciary.gov.ph/jurisprudence/2009/september2009/188456_puno.htm#_ftnref94 bounce
Watch mode on this topic lol! peace
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Re: Track Record VS. Years of Experience

Post by amang'65 on Sat Dec 05, 2009 3:58 pm

eto na naman tayo, ang saya saya talaga dito, it tickles my micro nerves, heh.he... wag naman jhez let us not stop our learnings here baka naman gustong magcomment yung 366 na forum members and besides learings never stop it is a continuing process kahit na may nose bleeding pa. actually gusto ko pang mag comment pero wag na, lets give others the chance, for orlando, just bear in mind, always know your rights. lol! let peace be upon you, malapit na Christmas. Merry Christmas to one and all!!!
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Re: Track Record VS. Years of Experience

Post by engrjhez® on Sun Dec 06, 2009 9:24 am

amang1965 wrote:eto na naman tayo, ang saya saya talaga dito, it tickles my micro nerves, heh.he... wag naman jhez let us not stop our learnings here baka naman gustong magcomment yung 366 na forum members and besides learings never stop it is a continuing process kahit na may nose bleeding pa. actually gusto ko pang mag comment pero wag na, lets give others the chance, for orlando, just bear in mind, always know your rights. lol! let peace be upon you, malapit na Christmas. Merry Christmas to one and all!!!

Please do not misinterpret me. I am never closed-minded as far as learning is concerned. Actually, the point of this intelligent debate is really to see if the requirements are fixed pre-set or minimum set requirements. But as I stood on my learning that the latter must be true, I will stick to it unless otherwise "challenged in court". Very Happy

Well if sooner refuted for my misunderstanding of the law, I will humbly accept the fact that the law is always above itself, and the law must always be executable where clarified. Peace po! Smile
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Re: Track Record VS. Years of Experience

Post by Guest on Sun Dec 06, 2009 3:53 pm

engrjhez wrote:
WormaixJr,

With due respect, no problem with me. Your statement doesn't necessarily conflict with mine - and your last statement perfectly agrees as it conflicts at the same time:
WormaixJr wrote:I say that the provisions of the law is not a minimum requirement but the only requirement unless otherwise provided.
Why specify "unless provided"?

Maybe because it is under BDS (Sec.III), where additional details may be provided to support the "unchanged" ITB (Sec.II). The requirement of 10 years is mainly to limit experience as to the current technology of practices. What was acceptable and economical more than ten years ago, may not be acceptable and economical nowadays. Maybe the firm have done the same project twenty years ago but the technology used then may be very different from the current practice.

Okay granting that the law provides for minimum requirement still the requirement on the given facts still violates the PCAB provision. Bear in mind that in the PCAB issuances it provides that a certain level of contractors may join up to a ceratin limit without th experience needed.

This is what I meant by unless otherwise provided, some provisions of the IRR provides for some exemptions thus "unless otherwise provided by the IRR.

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Re: Track Record VS. Years of Experience

Post by engrjhez® on Sun Dec 06, 2009 4:52 pm

WormaixJr wrote:
Okay granting that the law provides for minimum requirement still the requirement on the given facts still violates the PCAB provision. Bear in mind that in the PCAB issuances it provides that a certain level of contractors may join up to a ceratin limit without th experience needed.

This is what I meant by unless otherwise provided, some provisions of the IRR provides for some exemptions thus "unless otherwise provided by the IRR.

True. That is because PCAB licenses are evaluated differently and the GPRA provides evaluation of available and applicable PCAB licences already issued. What would be required on the contractor's accreditation and rating to obtain a category shall not necessarily reflect the experience prescribed by the procuring entity.

There is actually no violation as to PCAB provision. Say for example contractors under Small A and Small B. They shall not be allowed directly to contract above their ARCCs. Q: Are they absolutely free to join? The answer is YES, but they are not be absolutely qualified (subject to other requirements that would ensure effective and efficient implementation of the contract).

In any case, after the mandatory review of the terms (after the first failure) and that the reason for failure is because no contractor can comply, the PE should have revised the terms to lesser criteria (say 5 years similar exp and 1 landfill exp.) Considering that for the second time the PE published the same requirements notwithstanding the reason of failure, I must admit there is an immediate irregularity.

Imposing stringent requirements must still pass reasoning, justification, and accountability of actions. It should not be imposed to break the fundamental principles particularly transparency and competitiveness.
Very Happy
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Re: Track Record VS. Years of Experience

Post by orlan747 on Mon Dec 07, 2009 1:19 am

engrjhez wrote:
xxx

Imposing stringent requirements must still pass reasoning, justification, and accountability of actions. It should not be imposed to break the fundamental principles particularly transparency and competitiveness.[/justify]
Very Happy

Precisely why I posted this query. It is my fear that a procuring entity could unilaterally impose stringent requirement that is more than what the provision of the law provides. And does anyone know the limit of the severity of the requirements that can be imposed? Who sets the limit? Granting that the PE could unilaterally impose these stringent requirements,(though I have reservations on this view), the big questions are, who makes the determination that the imposition of these stringent requirements passes reasoning, justification and accountability of actions? And also, who determines that the imposition does not break the fundamental principles of transparency and competitiveness? The BAC itself? The HOPE? The Courts? Sad

Oh yes, I am familiar with the protest mechanism as per Rule XVII of the IRR. The more notable section is Section 55.3:
"The protest must be filed within seven (7) calendar days from receipt by the party concerned of the resolution of the BAC denying its request for reconsideration. A protest may be made by filing a verified position paper with the Head of the Procuring Entity concerned, accompanied by the payment of a non-refundable protest fee. The non-refundable protest fee shall be in an amount equivalent to no
less than one percent (1%) of the ABC."

The amount of P330,000.00 (1% of ABC{33M}) is enough deterrent against frivolous and whimsical protests, right? WRONG!!! This particular procuring entity set the protest fee at 3%!!! When asked why during the Pre-Bid Conference, the BAC Chairman just referred us to Section 55.3 and instructed us to look for the words " no less than one percent of the ABC". (Please note that on their other projects, they set protest fee at 1% only.) Mad
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Re: Track Record VS. Years of Experience

Post by RDV @ GP3i on Mon Dec 07, 2009 9:00 am

orlan747 wrote:
engrjhez wrote:
xxx

Imposing stringent requirements must still pass reasoning, justification, and accountability of actions. It should not be imposed to break the fundamental principles particularly transparency and competitiveness.[/justify]
Very Happy

Precisely why I posted this query. It is my fear that a procuring entity could unilaterally impose stringent requirement that is more than what the provision of the law provides. And does anyone know the limit of the severity of the requirements that can be imposed? Who sets the limit? Granting that the PE could unilaterally impose these stringent requirements,(though I have reservations on this view), the big questions are, who makes the determination that the imposition of these stringent requirements passes reasoning, justification and accountability of actions? And also, who determines that the imposition does not break the fundamental principles of transparency and competitiveness? The BAC itself? The HOPE? The Courts? Sad

Oh yes, I am familiar with the protest mechanism as per Rule XVII of the IRR. The more notable section is Section 55.3:
"The protest must be filed within seven (7) calendar days from receipt by the party concerned of the resolution of the BAC denying its request for reconsideration. A protest may be made by filing a verified position paper with the Head of the Procuring Entity concerned, accompanied by the payment of a non-refundable protest fee. The non-refundable protest fee shall be in an amount equivalent to no
less than one percent (1%) of the ABC."

The amount of P330,000.00 (1% of ABC{33M}) is enough deterrent against frivolous and whimsical protests, right? WRONG!!! This particular procuring entity set the protest fee at 3%!!! When asked why during the Pre-Bid Conference, the BAC Chairman just referred us to Section 55.3 and instructed us to look for the words " no less than one percent of the ABC". (Please note that on their other projects, they set protest fee at 1% only.) Mad

The discussions here are getting to be interested. Unfortunately, I am unable to participate in the past few days because I have been to Tacloban City during the weekend and the cellular signal there, particularly of Globe, is very intermittent so I was unable to use my Tattoo.

Our office will be conducting also a procurement training for NGAs/GOCCs/SUCs/WDs today, so I will be unable to join in the discussion. After which, I will going to Pto Princesa on Wednesday until Friday.
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Re: Track Record VS. Years of Experience

Post by Guest on Mon Dec 07, 2009 9:32 am

Sir engrjhez,

W/ all do respect the provision of the IRR provides That contractors under Small A and Small B categories without similar experience on the contract to be bid may be allowed to bid if the cost of such contract is not more than fifty percent (50%) of the Allowable Range of Contract Cost (ARCC) of their registration based on the guidelines as prescribed by the PCAB.

Yes its true that in reality some of the requirements of the contractors falling in PCABs category may not be able to provide for the other requirements however still the additional requirement of the Procuring Entity of 7 years experience is in violation of PCAB and IRR.

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Re: Track Record VS. Years of Experience

Post by engrjhez® on Mon Dec 07, 2009 10:34 am

WormaixJr wrote:Sir engrjhez,

W/ all do respect the provision of the IRR provides That contractors under Small A and Small B categories without similar experience on the contract to be bid may be allowed to bid if the cost of such contract is not more than fifty percent (50%) of the Allowable Range of Contract Cost (ARCC) of their registration based on the guidelines as prescribed by the PCAB.

Please enlighten us on such provisions (underlined) either by enumerating it or by providing appropriate link (for discussion purposes).

Thank you. Very Happy
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Re: Track Record VS. Years of Experience

Post by Guest on Mon Dec 07, 2009 10:42 am

engrjhez wrote:
WormaixJr wrote:Sir engrjhez,

W/ all do respect the provision of the IRR provides That contractors under Small A and Small B categories without similar experience on the contract to be bid may be allowed to bid if the cost of such contract is not more than fifty percent (50%) of the Allowable Range of Contract Cost (ARCC) of their registration based on the guidelines as prescribed by the PCAB.

Please enlighten us on such provisions (underlined) either by enumerating it or by providing appropriate link (for discussion purposes).

Thank you. Very Happy

The Procuring entity here requires 7 years of experience but according to the provision 23.5.2.5, first of all the provision provided for the period of within 10 years of experience.. But limiting it to 7 years means those contractors who have below 7 years of similar experience is ineligible. Second the same provision those contractors under PCAB small A and small B w/ no experience may be allowed to join a public bidding. Thus the requirement provided is in violation of the IRR. (PCAB Circular 01-2009)

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