"Special" Eligibility Document

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"Special" Eligibility Document

Post by orlan747 on Thu Feb 04, 2010 12:30 pm

The following section in the revised IRR is very clear, especially the bold underlined words:

“Section 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 X



Now here’s my question, what could be done to a BAC that adds a “special” eligibility requirement? In this particular case, the BAC required that a prospective bidder should have a Certification that it is a LWUA Accredited Contractor. The procuring entity is a Water District and not the LWUA itself. The BAC even issued an addendum that this particular accreditation “should be included in the documents comprising the Bid: Eligibility and Technical Components.”

The BAC has disqualified us for failure to submit this said special eligibility requirement. It has denied our Motion for Reconsideration despite our legal argument citing relevant provisions from the IRR and the Non-policy Opinion of GPPB, NPM 0065-2009.

Since it is very obvious and apparent that the PE is hell-bent in awarding this project to their favored contractor, filing a protest would be a waste of money. Do we have any redress available to us?
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Re: "Special" Eligibility Document

Post by charlie brown on Thu Feb 04, 2010 12:53 pm

orlan747 wrote:The following section in the revised IRR is very clear, especially the bold underlined words:

“Section 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 X



Now here’s my question, what could be done to a BAC that adds a “special” eligibility requirement? In this particular case, the BAC required that a prospective bidder should have a Certification that it is a LWUA Accredited Contractor. The procuring entity is a Water District and not the LWUA itself. The BAC even issued an addendum that this particular accreditation “should be included in the documents comprising the Bid: Eligibility and Technical Components.”

The BAC has disqualified us for failure to submit this said special eligibility requirement. It has denied our Motion for Reconsideration despite our legal argument citing relevant provisions from the IRR and the Non-policy Opinion of GPPB, NPM 0065-2009.

Since it is very obvious and apparent that the PE is hell-bent in awarding this project to their favored contractor, filing a protest would be a waste of money. Do we have any redress available to us?

The option available to you right now is really to file that protest under section 55. If still not satisfied you may now elevate it to the regular courts under section 58
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Re: "Special" Eligibility Document

Post by orlan747 on Thu Feb 04, 2010 9:45 pm

Thanks Charlie Brown.

Filing a protest would entail an expense of P467,000.00, I think I will cut my losses na lang.

Might as well wait for the awarding of contract and file a graft case at Ombudsman.
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Re: "Special" Eligibility Document

Post by fe a. araya on Fri Feb 05, 2010 5:08 pm

In the PBDs, the PE is given the option to require additional requirements. It clearly states the phrases "as apecified in the BDS" or "unless specified in the BDS". For example, in the PBD for Infra, ITB clause 12.1 (a) (i) states these phrases hence the BDS shows the provision that the PE can indicate additional required accreditation.

However, if this addl requirement was not indicated in the BDS, how will the prospective bidder know. Hence, if this happens, this situation is open to complaints of bidders who were disqualified for lack of this requirement.
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Re: "Special" Eligibility Document

Post by sunriser431 on Fri Feb 05, 2010 7:05 pm

orlan747 wrote:The following section in the revised IRR is very clear, especially the bold underlined words:

“Section 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 X

Now here’s my question, what could be done to a BAC that adds a “special” eligibility requirement? In this particular case, the BAC required that a prospective bidder should have a Certification that it is a LWUA Accredited Contractor. The procuring entity is a Water District and not the LWUA itself. The BAC even issued an addendum that this particular accreditation “should be included in the documents comprising the Bid: Eligibility and Technical Components.”

The BAC has disqualified us for failure to submit this said special eligibility requirement. It has denied our Motion for Reconsideration despite our legal argument citing relevant provisions from the IRR and the Non-policy Opinion of GPPB, NPM 0065-2009.

Since it is very obvious and apparent that the PE is hell-bent in awarding this project to their favored contractor, filing a protest would be a waste of money. Do we have any redress available to us?
I believe the Procuring Entity can consider suppliers appearing in a list maintained by LWUA that has expertise in the type of procurement concerned. LWUA also provide financial, Technical and advisory assistance to local water district, However if in the absence of a relevant government authority (LWUA), the Procuring Entity has to resort to open competitive bidding in its selection of a supplier. bounce
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Re: "Special" Eligibility Document

Post by RDV @ GP3i on Sat Feb 06, 2010 7:57 am

orlan747 wrote:Thanks Charlie Brown.

Filing a protest would entail an expense of P467,000.00, I think I will cut my losses na lang.

Might as well wait for the awarding of contract and file a graft case at Ombudsman.

Filing a Protest can really be a downer on the part of the bidder considering the cost (unrefundable at that) involved. Maybe what you can do in the meantime, before you file a possible graft case, is to inform the HOPE that the BAC violated the provisions of the IRR against requiring additional documents more than what is allowed under Sec. 23 and 24. Inform him of that specific provision.

Once aware of that specific provision, the HOPE can exercise his Reservation Clause under Sec. 41 of the IRR. One of the reasons by which the HOPE could either declare a failure of bidding or not award the contract, as recommended by the BAC, is if "the BAC did not follow the required bidding procedures." If despite that information to the HOPE, they still proceeded to award the contract, you can have more evidence against them if you later on decide to file graft cases against those involved.
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Re: "Special" Eligibility Document

Post by charlie brown on Mon Feb 08, 2010 12:22 pm

I would just like to lay my thoughts on whether or not it is proper for agencies to require additional documents:

In the eligibility requirements and technical proposal (goods and infra) i dont see much leeway for PEs to insert additional requirements. This is only proper because if im not mistaken, among the reasons for the "overhaul" of the requirements is to lower the barriers to entry and therefore maximise competition - at least in the first phase of the bidding process. Also allowing for arbitrary insertion of requirements could result to monopolies and the stifling of competition. An eligibility requirement is supposed to guarantee the PE that the prospective bidder possessES the minimum legal, technical and financial eligibility. thus care must be exercised to ensure that the requirements are there to protect the PE from bidders or suppliers with questionable eligibility. At the same time, the PE must also keep an eye on the possibility that a requirement will unneccesarily favor a particular bidder without necessarily improving on the quality of the supplier's eligibility. I would like to cite as an example the tendency of Local Chief Executives to require A SEPARATE mayors permit (before the revised IRR) from the locality where the bidding is conducted and making it difficult for those not favored to obtain such a permit.

I am not familiar as to what a LWUA accreditation would add to the capability of the bidder to undetake a waterwork project so I guess it is not for me to say whether it is proper or not. However, if we look at the ITB/BDS the additional requirement is only allowed during post qualification under 29.2 (d) and it has to be stated in the bid docs. The other instance is in the financial docs which i believe is not at issue here.
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Re: "Special" Eligibility Document

Post by orlan747 on Mon Feb 15, 2010 8:21 am

Thank you very much guys for the advises. My apologies for the late reply. Been trying to snag a project from the grand bonanza of DPWH, tsk tsk was not successful though.

RDV wrote:
orlan747 wrote:Thanks Charlie Brown.

Filing a protest would entail an expense of P467,000.00, I think I will cut my losses na lang.

Might as well wait for the awarding of contract and file a graft case at Ombudsman.

Filing a Protest can really be a downer on the part of the bidder considering the cost (unrefundable at that) involved. Maybe what you can do in the meantime, before you file a possible graft case, is to inform the HOPE that the BAC violated the provisions of the IRR against requiring additional documents more than what is allowed under Sec. 23 and 24. Inform him of that specific provision.

Once aware of that specific provision, the HOPE can exercise his Reservation Clause under Sec. 41 of the IRR. One of the reasons by which the HOPE could either declare a failure of bidding or not award the contract, as recommended by the BAC, is if "the BAC did not follow the required bidding procedures." If despite that information to the HOPE, they still proceeded to award the contract, you can have more evidence against them if you later on decide to file graft cases against those involved.

Thank you RDV. I will ask our lawyer to draft the necessary letter right away.
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Re: "Special" Eligibility Document

Post by orlan747 on Mon Feb 15, 2010 8:37 am

charlie brown wrote:I would just like to lay my thoughts on whether or not it is proper for agencies to require additional documents:

In the eligibility requirements and technical proposal (goods and infra) i dont see much leeway for PEs to insert additional requirements. This is only proper because if im not mistaken, among the reasons for the "overhaul" of the requirements is to lower the barriers to entry and therefore maximise competition - at least in the first phase of the bidding process. Also allowing for arbitrary insertion of requirements could result to monopolies and the stifling of competition. An eligibility requirement is supposed to guarantee the PE that the prospective bidder possessES the minimum legal, technical and financial eligibility. thus care must be exercised to ensure that the requirements are there to protect the PE from bidders or suppliers with questionable eligibility. At the same time, the PE must also keep an eye on the possibility that a requirement will unneccesarily favor a particular bidder without necessarily improving on the quality of the supplier's eligibility. I would like to cite as an example the tendency of Local Chief Executives to require A SEPARATE mayors permit (before the revised IRR) from the locality where the bidding is conducted and making it difficult for those not favored to obtain such a permit.

I am not familiar as to what a LWUA accreditation would add to the capability of the bidder to undetake a waterwork project so I guess it is not for me to say whether it is proper or not. However, if we look at the ITB/BDS the additional requirement is only allowed during post qualification under 29.2 (d) and it has to be stated in the bid docs. The other instance is in the financial docs which i believe is not at issue here.

Thanks Charlie Brown.

The required "LWUA Accreditation for Contractors" for this particular agency was aimed mainly to stifle the competition. I have called up the BAC Secretariat of LWUA itself and they were very clear, "Even those who were not accredited are allowed to participate in their own LWUA projects provided all the needed Eligibility Requirement will be submitted." So you see, an accreditation is not an Eligibility Requirement even for the projects of LWUA itself.
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Re: "Special" Eligibility Document

Post by sunriser431 on Sun Feb 21, 2010 7:04 pm

orlan747 wrote:
charlie brown wrote:I would just like to lay my thoughts on whether or not it is proper for agencies to require additional documents:

In the eligibility requirements and technical proposal (goods and infra) i dont see much leeway for PEs to insert additional requirements. This is only proper because if im not mistaken, among the reasons for the "overhaul" of the requirements is to lower the barriers to entry and therefore maximise competition - at least in the first phase of the bidding process. Also allowing for arbitrary insertion of requirements could result to monopolies and the stifling of competition. An eligibility requirement is supposed to guarantee the PE that the prospective bidder possessES the minimum legal, technical and financial eligibility. thus care must be exercised to ensure that the requirements are there to protect the PE from bidders or suppliers with questionable eligibility. At the same time, the PE must also keep an eye on the possibility that a requirement will unneccesarily favor a particular bidder without necessarily improving on the quality of the supplier's eligibility. I would like to cite as an example the tendency of Local Chief Executives to require A SEPARATE mayors permit (before the revised IRR) from the locality where the bidding is conducted and making it difficult for those not favored to obtain such a permit.

I am not familiar as to what a LWUA accreditation would add to the capability of the bidder to undetake a waterwork project so I guess it is not for me to say whether it is proper or not. However, if we look at the ITB/BDS the additional requirement is only allowed during post qualification under 29.2 (d) and it has to be stated in the bid docs. The other instance is in the financial docs which i believe is not at issue here.

Thanks Charlie Brown.

The required "LWUA Accreditation for Contractors" for this particular agency was aimed mainly to stifle the competition. I have called up the BAC Secretariat of LWUA itself and they were very clear, "Even those who were not accredited are allowed to participate in their own LWUA projects provided all the needed Eligibility Requirement will be submitted." So you see, an accreditation is not an Eligibility Requirement even for the projects of LWUA itself.
I think, we have to differentiate the term " Acccreditation" and "Registry" for suppliers.
opinion of the GPPB, click this link for complete details. http://www.gppb.gov.ph/opinions/view_opinion.asp?o_id=333
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Re: "Special" Eligibility Document

Post by charlie brown on Mon Feb 22, 2010 11:22 am

sunriser431 wrote:
orlan747 wrote:
charlie brown wrote:I would just like to lay my thoughts on whether or not it is proper for agencies to require additional documents:

In the eligibility requirements and technical proposal (goods and infra) i dont see much leeway for PEs to insert additional requirements. This is only proper because if im not mistaken, among the reasons for the "overhaul" of the requirements is to lower the barriers to entry and therefore maximise competition - at least in the first phase of the bidding process. Also allowing for arbitrary insertion of requirements could result to monopolies and the stifling of competition. An eligibility requirement is supposed to guarantee the PE that the prospective bidder possessES the minimum legal, technical and financial eligibility. thus care must be exercised to ensure that the requirements are there to protect the PE from bidders or suppliers with questionable eligibility. At the same time, the PE must also keep an eye on the possibility that a requirement will unneccesarily favor a particular bidder without necessarily improving on the quality of the supplier's eligibility. I would like to cite as an example the tendency of Local Chief Executives to require A SEPARATE mayors permit (before the revised IRR) from the locality where the bidding is conducted and making it difficult for those not favored to obtain such a permit.

I am not familiar as to what a LWUA accreditation would add to the capability of the bidder to undetake a waterwork project so I guess it is not for me to say whether it is proper or not. However, if we look at the ITB/BDS the additional requirement is only allowed during post qualification under 29.2 (d) and it has to be stated in the bid docs. The other instance is in the financial docs which i believe is not at issue here.

Thanks Charlie Brown.

The required "LWUA Accreditation for Contractors" for this particular agency was aimed mainly to stifle the competition. I have called up the BAC Secretariat of LWUA itself and they were very clear, "Even those who were not accredited are allowed to participate in their own LWUA projects provided all the needed Eligibility Requirement will be submitted." So you see, an accreditation is not an Eligibility Requirement even for the projects of LWUA itself.
I think, we have to differentiate the term " Acccreditation" and "Registry" for suppliers.
opinion of the GPPB, click this link for complete details. http://www.gppb.gov.ph/opinions/view_opinion.asp?o_id=333

the issue here is not the difinition of an accredited supplier vis a viz a registered supplier but rather whether an accreditation can ba added as an eligibility requirement. the link you gave actually supported my proposition that if required without much consideration for any value it might add to the quality of a supplier's eleigibility, it may actually be counter productive to the principles of good procurement
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Re: "Special" Eligibility Document

Post by sunriser431 on Mon Feb 22, 2010 9:02 pm

charlie brown wrote:
sunriser431 wrote:
orlan747 wrote:
charlie brown wrote:I would just like to lay my thoughts on whether or not it is proper for agencies to require additional documents:

In the eligibility requirements and technical proposal (goods and infra) i dont see much leeway for PEs to insert additional requirements. This is only proper because if im not mistaken, among the reasons for the "overhaul" of the requirements is to lower the barriers to entry and therefore maximise competition - at least in the first phase of the bidding process. Also allowing for arbitrary insertion of requirements could result to monopolies and the stifling of competition. An eligibility requirement is supposed to guarantee the PE that the prospective bidder possessES the minimum legal, technical and financial eligibility. thus care must be exercised to ensure that the requirements are there to protect the PE from bidders or suppliers with questionable eligibility. At the same time, the PE must also keep an eye on the possibility that a requirement will unneccesarily favor a particular bidder without necessarily improving on the quality of the supplier's eligibility. I would like to cite as an example the tendency of Local Chief Executives to require A SEPARATE mayors permit (before the revised IRR) from the locality where the bidding is conducted and making it difficult for those not favored to obtain such a permit.

I am not familiar as to what a LWUA accreditation would add to the capability of the bidder to undetake a waterwork project so I guess it is not for me to say whether it is proper or not. However, if we look at the ITB/BDS the additional requirement is only allowed during post qualification under 29.2 (d) and it has to be stated in the bid docs. The other instance is in the financial docs which i believe is not at issue here.

Thanks Charlie Brown.

The required "LWUA Accreditation for Contractors" for this particular agency was aimed mainly to stifle the competition. I have called up the BAC Secretariat of LWUA itself and they were very clear, "Even those who were not accredited are allowed to participate in their own LWUA projects provided all the needed Eligibility Requirement will be submitted." So you see, an accreditation is not an Eligibility Requirement even for the projects of LWUA itself.
I think, we have to differentiate the term " Acccreditation" and "Registry" for suppliers.
opinion of the GPPB, click this link for complete details. http://www.gppb.gov.ph/opinions/view_opinion.asp?o_id=333

the issue here is not the difinition of an accredited supplier vis a viz a registered supplier but rather whether an accreditation can ba added as an eligibility requirement. the link you gave actually supported my proposition that if required without much consideration for any value it might add to the quality of a supplier's eleigibility, it may actually be counter productive to the principles of good procurement
I have no further comment, cheers
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Re: "Special" Eligibility Document

Post by orlan747 on Tue Feb 23, 2010 8:20 am

Thanks Charlie Brown.

Thanks Sunriser for the link, really helpful for me.
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