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Post Disqualification Procedures

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Re: Post Disqualification Procedures

Post by Guest on Thu Feb 18, 2010 10:48 am

Civil and criminal actions arising from the performance of his/her duty as a BAC member... Ombudsman?? anyone.....

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Re: Post Disqualification Procedures

Post by engrjhez® on Thu Feb 18, 2010 10:27 pm

Pritong Kandule wrote:Civil and criminal actions arising from the performance of his/her duty as a BAC member... Ombudsman?? anyone.....

I mean, curious lang ako. Kung non-response for an invalid motion, pwede bang negligence yun? Or if ni-respond by informing the next procedure? What specific case kaya? Cool
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Re: Post Disqualification Procedures

Post by Guest on Fri Feb 19, 2010 9:17 am

Civil case
Right to recover damages. - under the principle of " whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. (Negligence)

Administrative case
for unreasonable, unfair, oppressive or discriminating, abuse of discretion grounds provided by Civil service law, Code of conduct of PO.

Criminal case
for Graft and corrupt practices. violation of Code of conduct of PO

Siguro it is much more proper that you answer each and every motions or letters, even if your answer pertains to the proper direction or procedure to undertake.

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Re: Post Disqualification Procedures

Post by Niwram on Fri Feb 19, 2010 9:37 am

engrjhez wrote:I mean, curious lang ako. Kung non-response for an invalid motion, pwede bang negligence yun? Or if ni-respond by informing the next procedure? What specific case kaya? Cool [/color]

In my own view, i think if there's no response for the motion even it is invalid it is tantamount to negligence.. or if the MR was answered the bidder must first file a protest because it is the proper procedure or process.. additionally, the bidder must first exhaust all available remedy before they can file a case in the regular court.. (this is only my opinion)
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Re: Post Disqualification Procedures

Post by amang'65 on Fri Feb 19, 2010 11:32 am

for my opinion, a loosing/disqualified bidder, they may file an MR addressed to the BAC first, once denied, they may file again another MR addressed this time to the HOPE and within the capacity of the HOPE he finally decided to deny the 2nd MR, that is the time now that the loosing/disqualified bidder may file for a protest and so on and so forth, therefore it is a matter of procedure otherwise known as due process.
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Re: Post Disqualification Procedures

Post by Guest on Fri Feb 19, 2010 11:38 am

Section 55. Protests on Decisions of the BAC
x x x
55.2. In the event that the request for reconsideration is denied, decisions of the BAC may be protested in writing to the Head of the Procuring Entity: Provided, however, That a prior request for reconsideration should have been filed by the party concerned in accordance with the preceding Section, and the same has been resolved.(a)
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. x x x

After MR to BAC is denied, Protest is next . (decisions of the BAC is not appealable thru MR to HOPE the proper remedy is to file Protest on the issues raised)

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Re: Post Disqualification Procedures

Post by amang'65 on Fri Feb 19, 2010 12:05 pm

Pritong Kandule wrote:Section 55. Protests on Decisions of the BAC
x x x
55.2. In the event that the request for reconsideration is denied, decisions of the BAC may be protested in writing to the Head of the Procuring Entity: Provided, however, That a prior request for reconsideration should have been filed by the party concerned in accordance with the preceding Section, and the same has been resolved.(a)
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. x x x

After MR to BAC is denied, Protest is next . (decisions of the BAC is not appealable thru MR to HOPE the proper remedy is to file Protest on the issues raised)



Heh.he hinaylight mo pa. well as far as these laws are concerned we could derive as many interpretations as we can, and as far as your interpretation is concerned it is just one of them, and so is mine, and therefore again, it is a matter of interpretation otherwise nothing should be debated in our courts.
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Re: Post Disqualification Procedures

Post by Guest on Fri Feb 19, 2010 12:07 pm

wala nmn pong nagbabawal na mag MR kayo sa HOPE e kaso you cannot compel them to answer un lng po ang point ko.

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Re: Post Disqualification Procedures

Post by amang'65 on Fri Feb 19, 2010 12:17 pm

Pritong Kandule wrote:wala nmn pong nagbabawal na mag MR kayo sa HOPE e kaso you cannot compel them to answer un lng po ang point ko.


precisely, that is why as the Generals say "Never under estimate your opponent" because we should always presume that bidders may likewise be knowledgeable of the law or probably better. therefore always give them the chance to answer but not to compel them.
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Re: Post Disqualification Procedures

Post by girl_25 on Mon Jul 23, 2012 8:37 pm

With respect to post-qualification: RA 9184 section 34 (34. states that "the post -qualification process shall be completed in not more than 7 calendar days from the determination of the LCB. In exceptional cases, the post-qualification may be extended by the of the Procuring Entity, BUT IN NO CASE SHALL THE AGGREGATE PERIOD EXCEED 30 CALENDAR DAY."

1.) Does it mean that if a bidder is not disqualified withing the aggregate period of 30 calendar days, the bidder passes the post-qualification?

2.) Is the disqualification sent to the bidder after more than 60 days still valid?

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Re: Post Disqualification Procedures

Post by engrjhez® on Mon Jul 23, 2012 11:16 pm

girl_25 wrote:With respect to post-qualification: RA 9184 section 34 (34. states that "the post -qualification process shall be completed in not more than 7 calendar days from the determination of the LCB. In exceptional cases, the post-qualification may be extended by the of the Procuring Entity, BUT IN NO CASE SHALL THE AGGREGATE PERIOD EXCEED 30 CALENDAR DAY."

1.) Does it mean that if a bidder is not disqualified withing the aggregate period of 30 calendar days, the bidder passes the post-qualification?

2.) Is the disqualification sent to the bidder after more than 60 days still valid?

My answers:

1. No.

2. Yes, with reservations.

In reference to Annex "C" Latest Allowable Time, it must be true that for a procedure to be valid, it me be in accordance with the prescriptions. However, since the rules are merely directive in its wordings, it suggest a lesser degree of importance provided the reasons for delay outweighs reason for compliance.

In No. 2, while the disqualification may be valid, the BAC must be able to show that delays are not their fault or intention. Otherwise, penal provisions of RA 9184 without prejudice to RA 3019 as well as civil and administrative sanctions may be instituted to the BAC for having "delayed without justifiable cause" the procurement process. Smile
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Re: Post Disqualification Procedures

Post by RDV @ GP3i on Tue Jul 24, 2012 8:24 am

girl_25 wrote:With respect to post-qualification: RA 9184 section 34 (34. states that "the post -qualification process shall be completed in not more than 7 calendar days from the determination of the LCB. In exceptional cases, the post-qualification may be extended by the of the Procuring Entity, BUT IN NO CASE SHALL THE AGGREGATE PERIOD EXCEED 30 CALENDAR DAY."

1.) Does it mean that if a bidder is not disqualified withing the aggregate period of 30 calendar days, the bidder passes the post-qualification?

2.) Is the disqualification sent to the bidder after more than 60 days still valid?

It is mandatory that the post-qualification process be completed within 7 c.d. as the particular section of the IRR you quoted is uses the word "shall". It provides, however, for exceptional cases when the PQ process may be extended beyond 7 c.d. One example of these exceptional cases is when the LCB is post-qualified, then the BAC/TWG has to PQ the next LCB, and when also post-disqualified then the 3rd LCB, and so on. In this case, extension of the period from 7 c.d up to the aggregate period of 30 c.d. is allowed.

Immediately after a bidder is post-disqualified, the BAC should immediately notify the bidder is writing of its post-disqualification to allow the bidder to avail of its appropriate administrative remedies allowed under Sec. 55-58 of RA 9184.
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Re: Post Disqualification Procedures

Post by engrjhez® on Tue Jul 24, 2012 9:47 pm

RDV @ GP3i wrote:
girl_25 wrote:With respect to post-qualification: RA 9184 section 34 (34. states that "the post -qualification process shall be completed in not more than 7 calendar days from the determination of the LCB. In exceptional cases, the post-qualification may be extended by the of the Procuring Entity, BUT IN NO CASE SHALL THE AGGREGATE PERIOD EXCEED 30 CALENDAR DAY."

1.) Does it mean that if a bidder is not disqualified withing the aggregate period of 30 calendar days, the bidder passes the post-qualification?

2.) Is the disqualification sent to the bidder after more than 60 days still valid?

It is mandatory that the post-qualification process be completed within 7 c.d. as the particular section of the IRR you quoted is uses the word "shall". It provides, however, for exceptional cases when the PQ process may be extended beyond 7 c.d. One example of these exceptional cases is when the LCB is post-qualified, then the BAC/TWG has to PQ the next LCB, and when also post-disqualified then the 3rd LCB, and so on. In this case, extension of the period from 7 c.d up to the aggregate period of 30 c.d. is allowed.

Immediately after a bidder is post-disqualified, the BAC should immediately notify the bidder is writing of its post-disqualification to allow the bidder to avail of its appropriate administrative remedies allowed under Sec. 55-58 of RA 9184.

I suppose the underlined meant "post-disqualification". True enough that there are timelines provided for under the IRR of R.A. 9184. I also agree that the use of "shall" is generally mandatory in nature. But in in some instances, it can also be discretionary. In the case at hand, the words of the statute does not provide for nullity in case of non-compliance. From that measure, I delved into the understanding that the provision is merely a directive rather than imperative.

In Diokno vs. Rehabilitation Finance Corporation (G.R. No. L-4712, July 11, 1952), the Supreme Court said that the word "shall" may be construed as "may" when so required by the context or by the intention of the legislature. It shall be construed merely as permissive when no public benefit or private right requires that it be given an imperative meaning.
However, the rule is not absolute; it may be construed as "many"[sic], when so required by the context or by the intention of the statute.

In the ordinary signification, "shall" is imperative, and not permissive, though it may have the latter meaning when required by the context. Town of Milton vs. Cook, 138 N.E. 589, 590, 244 Mass. 93. (39 Words and Phrases, Permanent Ed., p. 89.)

"Must" or "shall" in a statute is not always imperative, but may be consistent with an exercise of discretion. In re O'Hara, 82 N.Y.S. 293, 296, 40 Misc. 355, citing In re Thurber's Estate, 162 N.Y. 244, 252, 56 N.E. 638, 639. (Ibid. p. 92.)

The word "shall" is generally regarded as imperative, but in some context it is given a permissive meaning, the intended meaning being determined by what is intended by the statute. National Transit Corporation Co.vs. Boardman, 197 A. 239, 241, 328, Pa. 450.

The word "shall" is to be construed as merely permissive, where no public benefit or private right requires it to be given an imperative meaning Sheldon vs. Sheldon, 134 A. 904, 905, 100 N.J. Ex. 24.

Presumption is that word "shall" in ordinance, is mandatory; but, where it is necessary to give effect to legislative intent, the word will be construed as "may." City of Colorado Springs vs. Street, 254 p. 440, 441, 81 Colo. 181.

The word "shall" does not necessarily indicate a mandatory behest. Grimsrud vs. Johnson, 202 N. W. 72, 73, 162 Minn. 98.

Words like "may," "must," "shall" etc., are constantly used in statutes without intending that they shall be taken literally, and in their construction the object evidently designed to be reached limits and controls the literal import of the terms and phrases employed. Fields vs. United States, 27 App. D. C. 433, 440. (39 Words and Phrases, Permanent Ed., 89, 92)
(underscoring mine)
In any case, the HOPE can always declare nullity of the procurement for failing to follow the prescribed bidding procedures. But that does not necessarily provide the mandatory meaning in the use of "shall", because should the HOPE decided to award the contract anyway, over-extension is deemed justified. As a result, the mandatory meaning of "shall" is repelled.

In a recent GPPB Non-Policy Matter Opinion Number NPM 52-2012:
x x x
(2) Whether it could validly issue a Notice of Award (NOA) eighty four (84) calendar days after the date of submission and receipt of bids.

x x x Section 38.1 of the IRR requires that the procurement process starting from the opening of bids up to the award of the contract shall not exceed three (3) months or ninety (90) calendar days. Considering that the submission of the bids took place on 15 December 2011 and the NOA was subsequently issued on 8 March 2012, it took the procuring entity a total of eighty four (84) calendar days to complete such actions, which is well within the three (3) months or ninety (90) calendar days period prescribed in RA 9184 and its IRR.

[T]he issuance of the NOA within eighty four (84) calendar days from the date of opening of bids is valid since it is within the allowable time frame under RA 9184 and its IRR.

In my humble opinion, over-extension of post qualification, as consistently interpreted by the GPPB in the above case, may be compromised, for as long as no public benefit or private right is violated as a consequence of the delays, without prejudice to the offenses from other laws such as but not limited to Act No. 386, R.A 3019, R.A. 6713 and R.A. 9485. This means the process may remain valid unless contested, but it will definitely not relieve the liabilities of those who committed the violation.

Smile


Last edited by engrjhez® on Wed Jul 25, 2012 9:51 am; edited 2 times in total
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Re: Post Disqualification Procedures

Post by regina avelino on Wed Jul 25, 2012 9:44 am

sir, sensya na po. I got confused. What if the procuring entity failed to make an award after 3 months has lapsed (as provided by section 38. period of action on procurement activities) from opening of bids up to the award of contract, what would happen next to the single calculated and responsive bidder? can the SCRB file a case (or other other remedy available for the SCRB under section 55-58) against the procuring entity as the former expects an award within that period of action? Assuming that the procuring entity cannot justify the delays in award based on Section 41. Reservation Clause.

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Re: Post Disqualification Procedures

Post by engrjhez® on Wed Jul 25, 2012 10:09 am

regina avelino wrote:sir, sensya na po. I got confused. What if the procuring entity failed to make an award after 3 months has lapsed (as provided by section 38. period of action on procurement activities) from opening of bids up to the award of contract, what would happen next to the single calculated and responsive bidder? can the SCRB file a case (or other other remedy available for the SCRB under section 55-58) against the procuring entity as the former expects an award within that period of action? Assuming that the procuring entity cannot justify the delays in award based on Section 41. Reservation Clause.

Following the same principle laid above, the permissive nature of the provision depends upon the consequence it inflicts to public benefit and private right. Award of contract cannot ministerially apply as it requires discretion based on lawful grounds. In the IRR:
Section 28. Bid Validity

28.1. Bids and bid securities shall be valid for a reasonable period as determined by the
Head of the Procuring Entity concerned, which shall be indicated in the Bidding
Documents, but in no case shall the period exceed one hundred twenty (120)
calendar days from the date of the opening of bids.

28.2. Should it become necessary to extend the validity of the bids and bid securities
beyond one hundred twenty (120) calendar days, the procuring entity concerned
shall request in writing all those who submitted bids for such extension before the
expiration date therefor. Bidders, however, shall have the right to refuse to grant
such extension without forfeiting their bid security.
It can be gleaned from above, that while the law sets the latest allowable time, award can still be made even after extensions. However, the bidder cannot be compelled to accept the award neither can their bid securities be forfeited in such cases. Smile
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Re: Post Disqualification Procedures

Post by RDV @ GP3i on Tue Aug 07, 2012 1:56 pm

engrjhez® wrote:[justify][color=green]
RDV @ GP3i wrote:
girl_25 wrote:With respect to post-qualification: RA 9184 section 34 (34. states that "the post -qualification process shall be completed in not more than 7 calendar days from the determination of the LCB. In exceptional cases, the post-qualification may be extended by the of the Procuring Entity, BUT IN NO CASE SHALL THE AGGREGATE PERIOD EXCEED 30 CALENDAR DAY."

1.) Does it mean that if a bidder is not disqualified withing the aggregate period of 30 calendar days, the bidder passes the post-qualification?

2.) Is the disqualification sent to the bidder after more than 60 days still valid?

It is mandatory that the post-qualification process be completed within 7 c.d. as the particular section of the IRR you quoted is uses the word "shall". It provides, however, for exceptional cases when the PQ process may be extended beyond 7 c.d. One example of these exceptional cases is when the LCB is post-qualified, then the BAC/TWG has to PQ the next LCB, and when also post-disqualified then the 3rd LCB, and so on. In this case, extension of the period from 7 c.d up to the aggregate period of 30 c.d. is allowed.

Immediately after a bidder is post-disqualified, the BAC should immediately notify the bidder is writing of its post-disqualification to allow the bidder to avail of its appropriate administrative remedies allowed under Sec. 55-58 of RA 9184.

I suppose the underlined meant "post-disqualification". True enough that there are timelines provided for under the IRR of R.A. 9184. I also agree that the use of "shall" is generally mandatory in nature. But in in some instances, it can also be discretionary. In the case at hand, the words of the statute does not provide for nullity in case of non-compliance. From that measure, I delved into the understanding that the provision is merely a directive rather than imperative.

I beg to disagree to the proposition that the use of the word "shall", specifically in the timelines, in RA 9184 is merely directory rather than mandatory.

Even the GPPB itself, in NPM 10-2012, opined to the mandatory character of the requirement, as it really the intention of the law to make it mandatory, which I quote below:

"Mandatory nature of the procurement rules and timelines

Under RA 9184 and its IRR, the winning bidder and Procuring Entity (PE) shall enter into contract within ten (10) calendar days from receipt of the NOA. Thereafter, the PE shall issue the NTP together with a copy of the approved contract to the successful bidder within three (3) calendar days from the date of the approval of the contract by the appropriate government approving authority. The contract effectivity date, as provided in the NTP, shall not be later that seven (7) calendar days from its issuance. Hence, the PE is provided a maximum of twenty (20) days from the issuance of the NOA to execute the actual contract and mandate its implementation.

It is implicit, however, in Section 65.1 (b) of RA 9184 that awarding of contracts beyond the prescribed period of action may be recognized for justifiable causes. In that, although the periods of action under RA 9184 and its IRR are mandatory in character, penal sanctions or liability will not set in against the concerned public officers provided that valid and reasonable, and justifiable causes exist to warrant a delay in the contract extension. Thus, in a related opinion, we stated that the PE may still award the contract even beyond the three-month period, provided that the failure was due to justifiable causes, and provided further, that the bid security of the bidder remains valid.

From the foregoing, we are of the view that although there is a delay in the procurement process, the Honorable Ombudsman may opt to pursue the execution of the contract by requiring the winning bidder to comply with the conditions under Section 37.1.4 of the IRR of RA 9184 after determination that the delay is due to valid, reasonable, and justifiable cause."
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Re: Post Disqualification Procedures

Post by engrjhez® on Tue Aug 07, 2012 9:52 pm

RDV @ GP3i wrote:
engrjhez® wrote:[justify]
RDV @ GP3i wrote:
girl_25 wrote:With respect to post-qualification: RA 9184 section 34 (34. states that "the post -qualification process shall be completed in not more than 7 calendar days from the determination of the LCB. In exceptional cases, the post-qualification may be extended by the of the Procuring Entity, BUT IN NO CASE SHALL THE AGGREGATE PERIOD EXCEED 30 CALENDAR DAY."

1.) Does it mean that if a bidder is not disqualified withing the aggregate period of 30 calendar days, the bidder passes the post-qualification?

2.) Is the disqualification sent to the bidder after more than 60 days still valid?

It is mandatory that the post-qualification process be completed within 7 c.d. as the particular section of the IRR you quoted is uses the word "shall". It provides, however, for exceptional cases when the PQ process may be extended beyond 7 c.d. One example of these exceptional cases is when the LCB is post-qualified, then the BAC/TWG has to PQ the next LCB, and when also post-disqualified then the 3rd LCB, and so on. In this case, extension of the period from 7 c.d up to the aggregate period of 30 c.d. is allowed.

Immediately after a bidder is post-disqualified, the BAC should immediately notify the bidder is writing of its post-disqualification to allow the bidder to avail of its appropriate administrative remedies allowed under Sec. 55-58 of RA 9184.

I suppose the underlined meant "post-disqualification". True enough that there are timelines provided for under the IRR of R.A. 9184. I also agree that the use of "shall" is generally mandatory in nature. But in in some instances, it can also be discretionary. In the case at hand, the words of the statute does not provide for nullity in case of non-compliance. From that measure, I delved into the understanding that the provision is merely a directive rather than imperative.

I beg to disagree to the proposition that the use of the word "shall", specifically in the timelines, in RA 9184 is merely directory rather than mandatory.

Even the GPPB itself, in NPM 10-2012, opined to the mandatory character of the requirement, as it really the intention of the law to make it mandatory, which I quote below:

"Mandatory nature of the procurement rules and timelines

Under RA 9184 and its IRR, the winning bidder and Procuring Entity (PE) shall enter into contract within ten (10) calendar days from receipt of the NOA. Thereafter, the PE shall issue the NTP together with a copy of the approved contract to the successful bidder within three (3) calendar days from the date of the approval of the contract by the appropriate government approving authority. The contract effectivity date, as provided in the NTP, shall not be later that seven (7) calendar days from its issuance. Hence, the PE is provided a maximum of twenty (20) days from the issuance of the NOA to execute the actual contract and mandate its implementation.

It is implicit, however, in Section 65.1 (b) of RA 9184 that awarding of contracts beyond the prescribed period of action may be recognized for justifiable causes. In that, although the periods of action under RA 9184 and its IRR are mandatory in character, penal sanctions or liability will not set in against the concerned public officers provided that valid and reasonable, and justifiable causes exist to warrant a delay in the contract extension. Thus, in a related opinion, we stated that the PE may still award the contract even beyond the three-month period, provided that the failure was due to justifiable causes, and provided further, that the bid security of the bidder remains valid.

From the foregoing, we are of the view that although there is a delay in the procurement process, the Honorable Ombudsman may opt to pursue the execution of the contract by requiring the winning bidder to comply with the conditions under Section 37.1.4 of the IRR of RA 9184 after determination that the delay is due to valid, reasonable, and justifiable cause."

Thank you for citing the said NPM 010-2012. I am hoping that this thread would flourish even more to give way for a more precise meaning of the provisions of the statute. But for the meantime, I would like to clear some issues.

First, I pose no disagreement in the "Mandatory nature of the procurement rules and timelines". In fact, to quote from my previous reply:
x x x True enough that there are timelines provided for under the IRR of R.A. 9184. I also agree that the use of "shall" is generally mandatory in nature. x x x
Second, what I believe is that there are instances where the "mandatory nature" may not apply. My contention is in agreement with NPM 052-2012, while the argument brought about is undoubtedly very much applicable and compatible for the case in NPM 010-2012. In the former:
x x x Section 38.1 of the IRR requires that the procurement process starting from the opening of bids up to the award of the contract shall not exceed three (3) months or ninety (90) calendar days. Considering that the submission of the bids took place on 15 December 2011 and the NOA was subsequently issued on 8 March 2012, it took the procuring entity a total of eighty four (84) calendar days to complete such actions, which is well within the three (3) months or ninety (90) calendar days period prescribed in RA 9184 and its IRR.

[T]he issuance of the NOA within eighty four (84) calendar days from the date of opening of bids is valid since it is within the allowable time frame under RA 9184 and its IRR. (underscoring supplied)
From bid opening to award, considering that 84 calendar days, the post qualification would definitely exceed the 30-days mentioned under Sec.34.8 of the IRR. But since the subsequent award is deemed valid, the "shall" must have been taken in a "permissive" and not in an absolute "mandatory" meaning. The lapse on procurement process period is absorbed if that award was given and the other party accepted it.

Third, that the case I have commented where the "mandatory nature" partakes the "permissive nature" is different from NPM 010-2012. In the former, the case is about exceeding the prescribed period of post qualification before any award is given. In the latter, the case is about the contract execution after the Notice of Award is already issued and received.

Fourth, and last, the link between the two different but compatible views can be obtained from my earlier response:
Following the same principle laid above, the permissive nature of the provision depends upon the consequence it inflicts to public benefit and private right. Award of contract cannot ministerially apply as it requires discretion based on lawful grounds. In the IRR:
Section 28. Bid Validity

28.1. Bids and bid securities shall be valid for a reasonable period as determined by the Head of the Procuring Entity concerned, which shall be indicated in the Bidding
Documents, but in no case shall the period exceed one hundred twenty (120)
calendar days from the date of the opening of bids.

28.2. Should it become necessary to extend the validity of the bids and bid securities
beyond one hundred twenty (120) calendar days, the procuring entity concerned
shall request in writing all those who submitted bids for such extension before the
expiration date therefor. Bidders, however, shall have the right to refuse to grant
such extension without forfeiting their bid security.
It can be gleaned from above, that while the law sets the latest allowable time, award can still be made even after extensions. However, the bidder cannot be compelled to accept the award neither can their bid securities be forfeited in such cases. Smile
To wrap up, no conflict exists between the two views. The permissive nature is taken on the meaning of "post-qualification" period before any award is issued and received. The mandatory nature in the contract execution after the issuance and receipt of award is unobjectionable. Smile
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Re: Post Disqualification Procedures

Post by RDV @ GP3i on Wed Aug 08, 2012 8:21 am

[quote="engrjhez®"]
RDV @ GP3i wrote:
I beg to disagree to the proposition that the use of the word "shall", specifically in the timelines, in RA 9184 is merely directory rather than mandatory.

Even the GPPB itself, in NPM 10-2012, opined to the mandatory character of the requirement, as it really the intention of the law to make it mandatory, which I quote below:

"Mandatory nature of the procurement rules and timelines

Under RA 9184 and its IRR, the winning bidder and Procuring Entity (PE) shall enter into contract within ten (10) calendar days from receipt of the NOA. Thereafter, the PE shall issue the NTP together with a copy of the approved contract to the successful bidder within three (3) calendar days from the date of the approval of the contract by the appropriate government approving authority. The contract effectivity date, as provided in the NTP, shall not be later that seven (7) calendar days from its issuance. Hence, the PE is provided a maximum of twenty (20) days from the issuance of the NOA to execute the actual contract and mandate its implementation.

It is implicit, however, in Section 65.1 (b) of RA 9184 that awarding of contracts beyond the prescribed period of action may be recognized for justifiable causes. In that, although the periods of action under RA 9184 and its IRR are mandatory in character, penal sanctions or liability will not set in against the concerned public officers provided that valid and reasonable, and justifiable causes exist to warrant a delay in the contract extension. Thus, in a related opinion, we stated that the PE may still award the contract even beyond the three-month period, provided that the failure was due to justifiable causes, and provided further, that the bid security of the bidder remains valid.

From the foregoing, we are of the view that although there is a delay in the procurement process, the Honorable Ombudsman may opt to pursue the execution of the contract by requiring the winning bidder to comply with the conditions under Section 37.1.4 of the IRR of RA 9184 after determination that the delay is due to valid, reasonable, and justifiable cause."

engrjhez® wrote:Thank you for citing the said NPM 010-2012. I am hoping that this thread would flourish even more to give way for a more precise meaning of the provisions of the statute. But for the meantime, I would like to clear some issues.

First, I pose no disagreement in the "Mandatory nature of the procurement rules and timelines". In fact, to quote from my previous reply:
x x x True enough that there are timelines provided for under the IRR of R.A. 9184. I also agree that the use of "shall" is generally mandatory in nature. x x x
To say that is "generally mandatory" is, in effect, going back to your argument that in some instances of RA 9184, the use of the word "shall" should be interpreted to mean as merely directory and not really mandatory. Again, I beg to disagree.

engrjhez® wrote:Second[/b][/i], what I believe is that there are instances where the "mandatory nature" may not apply. My contention is in agreement with NPM 052-2012, while the argument brought about is undoubtedly very much applicable and compatible for the case in NPM 010-2012. In the former:
x x x Section 38.1 of the IRR requires that the procurement process starting from the opening of bids up to the award of the contract shall not exceed three (3) months or ninety (90) calendar days. Considering that the submission of the bids took place on 15 December 2011 and the NOA was subsequently issued on 8 March 2012, it took the procuring entity a total of eighty four (84) calendar days to complete such actions, which is well within the three (3) months or ninety (90) calendar days period prescribed in RA 9184 and its IRR.

[T]he issuance of the NOA within eighty four (84) calendar days from the date of opening of bids is valid since it is within the allowable time frame under RA 9184 and its IRR. (underscoring supplied)
From bid opening to award, considering that 84 calendar days, the post qualification would definitely exceed the 30-days mentioned under Sec.34.8 of the IRR. But since the subsequent award is deemed valid, the "shall" must have been taken in a "permissive" and not in an absolute "mandatory" meaning. The lapse on procurement process period is absorbed if that award was given and the other party accepted it.
As a matter of fact, the GPPB opined in NPM 052-2012 that since the NOA was issued within 84 c.d. from bid opening, then it was done within the allowable time frame of 90 c.d. There was no showing in that opinion that the post-qualification exceeded the aggregate of 30 c.d. Otherwise, the GPPB would have mentioned that and would have observed that the maximum has been exceeded by the procuring entity.

engrjhez® wrote:Third, that the case I have commented where the "mandatory nature" partakes the "permissive nature" is different from NPM 010-2012. In the former, the case is about exceeding the prescribed period of post qualification before any award is given. In the latter, the case is about the contract execution after the Notice of Award is already issued and received.
I am sorry, but I still do not agree.

engrjhez® wrote:Fourth, and last, the link between the two different but compatible views can be obtained from my earlier response:
Following the same principle laid above, the permissive nature of the provision depends upon the consequence it inflicts to public benefit and private right. Award of contract cannot ministerially apply as it requires discretion based on lawful grounds. In the IRR:
Section 28. Bid Validity

28.1. Bids and bid securities shall be valid for a reasonable period as determined by the Head of the Procuring Entity concerned, which shall be indicated in the Bidding
Documents, but in no case shall the period exceed one hundred twenty (120)
calendar days from the date of the opening of bids.

28.2. Should it become necessary to extend the validity of the bids and bid securities
beyond one hundred twenty (120) calendar days, the procuring entity concerned
shall request in writing all those who submitted bids for such extension before the
expiration date therefor. Bidders, however, shall have the right to refuse to grant
such extension without forfeiting their bid security.
It can be gleaned from above, that while the law sets the latest allowable time, award can still be made even after extensions. However, the bidder cannot be compelled to accept the award neither can their bid securities be forfeited in such cases. Smile
If there were justifiable delays in the procurement process which resulted in not complying with the mandatory timelines, it doesn't make the mandatory nature permissive. It still is mandatory, but considering that the delays were justified, such as when delays were beyond the control of the procurement officials, then the latter may not be held accountable for such delays. When a delay is justified, it doesn't make it permissive. It is still mandatory, but accountability will not set in. It would be true to the procurement officials. It would be true to bidders as well.

engrjhez® wrote:To wrap up, no conflict exists between the two views. The permissive nature is taken on the meaning of "post-qualification" period before any award is issued and received. The mandatory nature in the contract execution after the issuance and receipt of award is unobjectionable. Smile
Let me also wrap up, there is no such thing as "permissive nature" in post-qualification. As a matter of fact, Section 34.8 of the IRR provides, as follows:

"34.8 The post-qualification process shall be completed in not more than seven (7) calendar days from the determination of the LCB/HRB. In exceptional cases, the post-qualification period may be extended by the HOPE, but in no case shall the aggregate period exceed thirty (30) calendar days."
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Re: Post Disqualification Procedures

Post by engrjhez® on Wed Aug 08, 2012 10:35 am

RDV @ GP3i wrote:To say that is "generally mandatory" is, in effect, going back to your argument that in some instances of RA 9184, the use of the word "shall" should be interpreted to mean as merely directory and not really mandatory. Again, I beg to disagree.
Does it mean that timelines and prescriptive periods in RA 9184 are (all) absolutely mandatory in nature?
RDV @ GP3i wrote:As a matter of fact, the GPPB opined in NPM 052-2012 that since the NOA was issued within 84 c.d. from bid opening, then it was done within the allowable time frame of 90 c.d. There was no showing in that opinion that the post-qualification exceeded the aggregate of 30 c.d. Otherwise, the GPPB would have mentioned that and would have observed that the maximum has been exceeded by the procuring entity.
I agree that none is mentioned at least expressly. But by implication, it is not far from understanding that it would be highly improbable that in the 84 days from the opening of bids, the prescribed period of post qualification ( under Sec.34.8 ) is not yet exceeded.
RDV @ GP3i wrote:If there were justifiable delays in the procurement process which resulted in not complying with the mandatory timelines, it doesn't make the mandatory nature permissive. It still is mandatory, but considering that the delays were justified, such as when delays were beyond the control of the procurement officials, then the latter may not be held accountable for such delays. When a delay is justified, it doesn't make it permissive. It is still mandatory, but accountability will not set in. It would be true to the procurement officials. It would be true to bidders as well.

There is a three-prong test for determining when the word “shall” may be interpreted as directory or permissive:
  • First, when a statute’s purpose “confute[s] the probability of a compulsory statutory design".
  • Second, “shall” will not be read as mandatory when “unjust consequences” result.
  • Third, “the word `shall’ may be held to be merely directory or permissive, when no advantage is lost, when no right is destroyed, when no benefit is sacrificed, either to the public or to the individual, by giving it that construction.

As for my, again, humble opinion, post qualification passes all these three.

To illustrate a scenario: suppose that there were fifteen (15) bidders who passed the eligibility check and bid evaluation. During the post-qualification, the first ten (10) bidders all failed in the post qualification. If the process took three (3) days each (not to mention that it may be longer than 3 days each), then the 30-day "mandatory" period is already compromised.

Following the three-prong test:

On first, we cannot by compulsory statutory design, finish the post qualification if the periods were taken in the strict sense.

On second, "unjust consequence" results if the next five (5) bidders will not be allowed to be post qualified (depending on the results of the antecedents) because of the "mandatory" nature of the periods.

On third, no advantage is destroyed, no right is destroyed, no benefit is sacrificed on either public or to the (private) individual.

Why permissive in this (post qualification stage)? It is so because the number of bidders, the complexity of certain procurement, and other justifiable factors may result in a longer period than prescribed. It (the term "shall") loses its mandatory meaning the moment its purpose is not achieved. Hence, we can only conclude that such provision is actually permissive as negated by the facts. Of course the case when award was already given and received is different. There is no more room for persuasion as NPM 010-2012 clearly provided.

I may sound as a liberalist here, but I hope not. What I just presented is a reality based on the construction of the statute. If the lawmakers really intended the absolute mandatory nature of these provisions (at least for post qualification), then it would just be easy to include a provision that will render the process void or voidable if not complied. In the absence of one, there is none.

Smile
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Re: Post Disqualification Procedures

Post by RDV @ GP3i on Wed Aug 08, 2012 10:50 am

engrjhez® wrote:
RDV @ GP3i wrote:To say that is "generally mandatory" is, in effect, going back to your argument that in some instances of RA 9184, the use of the word "shall" should be interpreted to mean as merely directory and not really mandatory. Again, I beg to disagree.
Does it mean that timelines and prescriptive periods in RA 9184 are (all) absolutely mandatory in nature?
When the law is clear, no interpretation is necessary. The use of the word "shall" makes it so. The intention of the law is to make it so.

engrjhez® wrote:
RDV @ GP3i wrote:As a matter of fact, the GPPB opined in NPM 052-2012 that since the NOA was issued within 84 c.d. from bid opening, then it was done within the allowable time frame of 90 c.d. There was no showing in that opinion that the post-qualification exceeded the aggregate of 30 c.d. Otherwise, the GPPB would have mentioned that and would have observed that the maximum has been exceeded by the procuring entity.
I agree that none is mentioned at least expressly. But by implication, it is not far from understanding that it would be highly improbable that in the 84 days from the opening of bids, the prescribed period of post qualification (under Sec.34.Cool is not yet exceeded.
We cannot imply that the post-qualification process exceeded 30 c.d. days just because it is already 84 days since bid opening and no award has yet been made. Couldnt it be possible that the post-qualification process was completed in 30 c.d. but the BAC did not recommend award yet because funds are not yet certified as available? Couldn't it be possible that the delay was attributable to the HOPE, meaning it took the HOPE more than 7 c.d. to approve the BAC recommendation for award? What if the HOPE approval of the BAC recommendation took over a month, which is highly possible?

engrjhez® wrote:
RDV @ GP3i wrote:If there were justifiable delays in the procurement process which resulted in not complying with the mandatory timelines, it doesn't make the mandatory nature permissive. It still is mandatory, but considering that the delays were justified, such as when delays were beyond the control of the procurement officials, then the latter may not be held accountable for such delays. When a delay is justified, it doesn't make it permissive. It is still mandatory, but accountability will not set in. It would be true to the procurement officials. It would be true to bidders as well.

There is a three-prong test for determining when the word “shall” may be interpreted as directory or permissive:
  • First, when a statute’s purpose “confute[s] the probability of a compulsory statutory design".
  • Second, “shall” will not be read as mandatory when “unjust consequences” result.
  • Third, “the word `shall’ may be held to be merely directory or permissive, when no advantage is lost, when no right is destroyed, when no benefit is sacrificed, either to the public or to the individual, by giving it that construction.

As for my, again, humble opinion, post qualification passes all these three.

To illustrate a scenario: suppose that there were fifteen (15) bidders who passed the eligibility check and bid evaluation. During the post-qualification, the first ten (10) bidders all failed in the post qualification. If the process took three (3) days each (not to mention that it may be longer than 3 days each), then the 30-day "mandatory" period is already compromised.

Following the three-prong test:

On first, we cannot by compulsory statutory design, finish the post qualification if the periods were taken in the strict sense.

On second, "unjust consequence" results if the next five (5) bidders will not be allowed to be post qualified (depending on the results of the antecedents) because of the "mandatory" nature of the periods.

On third, no advantage is destroyed, no right is destroyed, no benefit is sacrificed on either public or to the (private) individual.

Why permissive in this (post qualification stage)? It is so because the number of bidders, the complexity of certain procurement, and other justifiable factors may result in a longer period than prescribed. It (the term "shall") loses its mandatory meaning the moment its purpose is not achieved. Hence, we can only conclude that such provision is actually permissive as negated by the facts. Of course the case when award was already given and received is different. There is no more room for persuasion as NPM 010-2012 clearly provided.

I may sound as a liberalist here, but I hope not. What I just presented is a reality based on the construction of the statute. If the lawmakers really intended the absolute mandatory nature of these provisions (at least for post qualification), then it would just be easy to include a provision that will render the process void or voidable if not complied. In the absence of one, there is none.

Smile
As a parting word, I am saying mandatory, I did not say "absolute mandatory", whatever that phrase means. Although mandatory, the law provides for exception from exceeding the limits of the law when justified by the conditions. It would be up to the BAC, to the HOPE, and to the bidders themselves to show that exceeding the limits were not done deliberately, that they exerted all possible efforts to comply with the law, but circumstances prevent them from doing so. It is different when we say it is permissive because it would mean that the law permits everybody to exceed the time limit with or without any justification.

I don't want to make any other interpretation as only the Supreme Court can do that. I will just rest my case here.
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Re: Post Disqualification Procedures

Post by riddler on Wed Aug 08, 2012 11:19 am

Cool you guyz rock! Very Happy 'appreciate your ideas. Very Happy
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Re: Post Disqualification Procedures

Post by RDV @ GP3i on Wed Aug 08, 2012 11:52 am

riddler wrote: Cool you guyz rock! Very Happy 'appreciate your ideas. Very Happy

Thanks, riddler.

The effect of nothing to do because of the floods. Very Happy
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Re: Post Disqualification Procedures

Post by engrjhez® on Wed Aug 08, 2012 12:31 pm

RDV @GP3i wrote: When the law is clear, no interpretation is necessary.
I agree.

RDV @GP3i wrote:The use of the word "shall" makes it so.
Not in all cases.

RDV @GP3i wrote:The intention of the law is to make it so.
How and where can we find this? As for me, this have yet to be construed extensively from all intrinsic and extrinsic aides, whenever necessary.

RDV @GP3i wrote:We cannot imply that the post-qualification process exceeded 30 c.d. days just because it is already 84 days since bid opening and no award has yet been made. Couldnt it be possible that the post-qualification process was completed in 30 c.d. but the BAC did not recommend award yet because funds are not yet certified as available? Couldn't it be possible that the delay was attributable to the HOPE, meaning it took the HOPE more than 7 c.d. to approve the BAC recommendation for award? What if the HOPE approval of the BAC recommendation took over a month, which is highly possible?
Any of the two could be possible. But considering that most (not in all cases) of the time the Procuring Entity is inclined to to protect its HOPE, it will be very likely that the post-qualification is sacrificed. If post qualification was completed on time, making the HOPE exceed the "shall" provision of Sec.37.1.2, will subsequent award be valid? I believe so.

RDV @GP3i wrote:As a parting word, I am saying mandatory, I did not say "absolute mandatory", whatever that phrase means. Although mandatory, the law provides for exception from exceeding the limits of the law when justified by the conditions. It would be up to the BAC, to the HOPE, and to the bidders themselves to show that exceeding the limits were not done deliberately, that they exerted all possible efforts to comply with the law, but circumstances prevent them from doing so. It is different when we say it is permissive because it would mean that the law permits everybody to exceed the time limit with or without any justification.
My meaning of "absolute mandatory" is when the mandatory nature is enforced in all cases, leaving no provision associated with "shall" as permissive or directory. I cannot understand why a mandatory provision maintains its validity even after not being complied with. This will bring about a unique term of being "quasi-mandatory" which was never been used in any jurisprudence. There can only be either mandatory or directory:
The term "shall" may be read either as mandatory or directory depending upon a consideration of the entire provisions in which it is found, its object and the consequences that would follow from construing it one way or the other (cf. De Mesa v. Mencias, 18 SCRA 533 [1966]).
In the case of post qualification, and in the instant case of approving/disapproving the award, will the completion of the process (contract subsequently perfected) made outside the prescribed periods render the process void or at least voidable? I believe it's not.
RDV @GP3i wrote:I don't want to make any other interpretation as only the Supreme Court can do that. I will just rest my case here.
I submit to that also. With the hope that the GPPB-TSO will share their view on this matter, likewise, I have to also rest my case here. Smile

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Re: Post Disqualification Procedures

Post by engrjhez® on Wed Aug 08, 2012 12:36 pm

RDV @ GP3i wrote:
riddler wrote: Cool you guyz rock! Very Happy 'appreciate your ideas. Very Happy

Thanks, riddler.

The effect of nothing to do because of the floods. Very Happy

Peace guys.

Tama si RDV, medyo maluwag ng konti sa work today sa office. But there are a lot of work outside. Na-deploy na yung ibang team sa relief and restoration operations. Standby mode naman kami dito sa office.

Be safe everyone! Smile
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