failure of bidding

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failure of bidding

Post by caesar m. ortega on Sat Feb 13, 2010 10:00 am

Can the board of directors of a GOCC declare a failure of bidding on ground that the winning bidder had the highest bid, although the other 2 bidders who had lower bids were disqualified only after the post-qualification proceedings?
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Re: failure of bidding

Post by RDV @ GP3i on Sat Feb 13, 2010 10:28 am

caesar m. ortega wrote:Can the board of directors of a GOCC declare a failure of bidding on ground that the winning bidder had the highest bid, although the other 2 bidders who had lower bids were disqualified only after the post-qualification proceedings?

The basis of the Board of Directors, as Head of the Procuring Entity (HOPE), to declare a failure of bidding or not award the contract is limited to the specific grounds enumerated under Sec. 41 of the IRR.
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Re: failure of bidding

Post by engrjhez® on Sat Feb 13, 2010 1:47 pm



...which is as follows:

The Head of the Procuring Entity reserves the right to reject any and all bids, declare a failure of bidding, or not award the contract in the following situations:

a) If there is prima facie evidence of collusion between appropriate public officers or employees of the procuring entity, or between the BAC and any of the bidders, or if the collusion is between or among the bidders themselves, or between a bidder and a third party, including any act which restricts, suppresses or nullifies or tends to restrict, suppress or nullify competition;

b) If the BAC is found to have failed in following the prescribed bidding procedures; or

c) For any justifiable and reasonable ground where the award of the contract will not redound to the benefit of the GOP, as follows: (i) if the physical and economic conditions have significantly changed so as to render the project no longer economically, financially, or technically feasible, as determined by the Head of the Procuring Entity; (ii) if the project is no longer necessary as determined by the Head of the Procuring Entity; and (iii) if the source of funds for the project has been withheld or reduced through no fault of the procuring entity.
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Re: failure of bidding

Post by sunriser431 on Sun Feb 14, 2010 3:58 pm

caesar m. ortega wrote:Can the board of directors of a GOCC declare a failure of bidding on ground that the winning bidder had the highest bid, although the other 2 bidders who had lower bids were disqualified only after the post-qualification proceedings?

In declaring failure of bid is limited to only under condition enumerated in section 41 of the IRR, but a bidder whose bid is within the ABC I see no reason for not awarding the contract except those mentioned in section 41. bounce
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Re: failure of bidding

Post by Guest on Mon Feb 15, 2010 8:55 am

sunriser431 wrote:
caesar m. ortega wrote:Can the board of directors of a GOCC declare a failure of bidding on ground that the winning bidder had the highest bid, although the other 2 bidders who had lower bids were disqualified only after the post-qualification proceedings?

In declaring failure of bid is limited to only under condition enumerated in section 41 of the IRR, but a bidder whose bid is within the ABC I see no reason for not awarding the contract except those mentioned in section 41. bounce

There is one more section to consider the section on misrepresentation. Section 23.7

This is not a mode of declaring the bidding failed but it can be a ground for not awarding the contract.

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Re: failure of bidding

Post by RDV @ GP3i on Mon Feb 15, 2010 9:49 am

Pritong Kandule wrote:
sunriser431 wrote:
caesar m. ortega wrote:Can the board of directors of a GOCC declare a failure of bidding on ground that the winning bidder had the highest bid, although the other 2 bidders who had lower bids were disqualified only after the post-qualification proceedings?

In declaring failure of bid is limited to only under condition enumerated in section 41 of the IRR, but a bidder whose bid is within the ABC I see no reason for not awarding the contract except those mentioned in section 41. bounce

There is one more section to consider the section on misrepresentation. Section 23.7

This is not a mode of declaring the bidding failed but it can be a ground for not awarding the contract.

Yes, it could be a ground for not awarding the contract to the specific bidder who misrepresented himself. In other words, that bidder, despite being declared eligible initially, will later has to be declared ineligible by the BAC and shall be disqualified from award of contract.

The BAC will then proceed with the process of post-qualifying the next lowest calculated bidder to determine if the bid of the 2nd lowest calculated bidder is responsive to the requirements of the procuring entity to be eligible for award. If not, the BAC will proceed with the next until nobody is left. It is only then that a failure of bidding will ensue, but still limited to the situations enumerated under Sec. 35 of the IRR.
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Re: failure of bidding

Post by Niwram on Mon Feb 15, 2010 10:27 am

caesar m. ortega wrote:Can the board of directors of a GOCC declare a failure of bidding on ground that the winning bidder had the highest bid, although the other 2 bidders who had lower bids were disqualified only after the post-qualification proceedings?

as long as the bid does not exceed the ABC, although it is the highest bid it cannot be declared failure of bidding.
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Re: failure of bidding

Post by Guest on Mon Feb 15, 2010 10:44 am

caesar m. ortega wrote:Can the board of directors of a GOCC declare a failure of bidding on ground that the winning bidder had the highest bid, although the other 2 bidders who had lower bids were disqualified only after the post-qualification proceedings?

1. No, the board of directors of a GOCC cannot declare a failure of bidding on ground that the winning bidder had the "highest bid" provided that;
a. The Bid is within the ABC
b. Their is no other bidder whose bid is lower than the winning bidder or he became the Single calculated / rated and responsive bid under section 36

The the board of directors of a GOCC can declare a failure of bidding on ground under section 41 and by the BAC under section 35.

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Re: failure of bidding

Post by Niwram on Mon Feb 15, 2010 2:30 pm

Addition to the reply of PK.. section 41 of the revised IRR can only be used if the contract is not yet awarded to the bidder with the lowest calculated bid..
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Re: failure of bidding

Post by engrjhez® on Mon Feb 15, 2010 2:49 pm

Pritong Kandule wrote:
1. No, the board of directors of a GOCC cannot declare a failure of bidding on ground that the winning bidder had the "highest bid" provided that;
a. The Bid is within the ABC
b. Their is no other bidder whose bid is lower than the winning bidder or he became the Single calculated / rated and responsive bid under section 36
I think this statement is misleading kasi it is not connected to the Sec.41. The condition wherein the bid is below the ABC is for the BAC to determine. That is why the HOPE's grounds for failure resides on those beyond the INTEGRITY of the BAC. The assumption kasi is that the BAC has judiciously and meticulously performed their functions in arriving to a recommendation to award (for reasons 1 and 2). The third reason is his/her discretion promoting the most advantageous decisions in favor of the government.

Pritong Kandule wrote:
1. No, the board of directors of a GOCC cannot declare a failure of bidding on ground that the winning bidder had the "highest bid" provided that;
a. The Bid is within the ABC
b. Their is no other bidder whose bid is lower than the winning bidder or he became the Single calculated / rated and responsive bid under section 36
This to me is also misleading. In order to arrive to a SCRB/SRRB, the bidders are either not present or eliminated by disqualification. Does this mean the presence of bidders with proposals below than that the winning bidder but were post disqualified can be a ground for HOPE of GOCCs to declare a failure of bidding?

Pritong Kandule wrote:The the board of directors of a GOCC can declare a failure of bidding on ground under section 41 and by the BAC under section 35.
This is the real summary of it all. Regardless of foregoings statements, this will hold true on all cases. Very Happy
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Re: failure of bidding

Post by engrjhez® on Mon Feb 15, 2010 2:53 pm

Niwram wrote:Addition to the reply of PK.. section 41 of the revised IRR can only be used if the contract is not yet awarded to the bidder with the lowest calculated bid..

In case the contract has already been awarded, and then the HOPE later realized he/she has the grounds under Sec.41 (only it arrived after the award is issued), what are the next legal actions to correct the problem? Very Happy
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Re: failure of bidding

Post by Niwram on Mon Feb 15, 2010 3:10 pm

engrjhez wrote:
Niwram wrote:Addition to the reply of PK.. section 41 of the revised IRR can only be used if the contract is not yet awarded to the bidder with the lowest calculated bid..

In case the contract has already been awarded, and then the HOPE later realized he/she has the grounds under Sec.41 (only it arrived after the award is issued), what are the next legal actions to correct the problem? Very Happy

If the hope later realized after the contract has already awarded that he has a ground under section 41, of course he cannot used such grounds under said section because he will be questioned by the winning bidder..

However, he/she can use the guidelines on termination of contracts specifically termination for convenience, but it must be clearly justified..
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Re: failure of bidding

Post by Guest on Mon Feb 15, 2010 3:29 pm

engrjhez wrote:
Pritong Kandule wrote:
1. No, the board of directors of a GOCC cannot declare a failure of bidding on ground that the winning bidder had the "highest bid" provided that;
a. The Bid is within the ABC
b. Their is no other bidder whose bid is lower than the winning bidder or he became the Single calculated / rated and responsive bid under section 36
I think this statement is misleading kasi it is not connected to the Sec.41. The condition wherein the bid is below the ABC is for the BAC to determine. That is why the HOPE's grounds for failure resides on those beyond the INTEGRITY of the BAC. The assumption kasi is that the BAC has judiciously and meticulously performed their functions in arriving to a recommendation to award (for reasons 1 and 2). The third reason is his/her discretion promoting the most advantageous decisions in favor of the government.

Pritong Kandule wrote:
1. No, the board of directors of a GOCC cannot declare a failure of bidding on ground that the winning bidder had the "highest bid" provided that;
a. The Bid is within the ABC
b. Their is no other bidder whose bid is lower than the winning bidder or he became the Single calculated / rated and responsive bid under section 36
This to me is also misleading. In order to arrive to a SCRB/SRRB, the bidders are either not present or eliminated by disqualification. Does this mean the presence of bidders with proposals below than that the winning bidder but were post disqualified can be a ground for HOPE of GOCCs to declare a failure of bidding?

Pritong Kandule wrote:The the board of directors of a GOCC can declare a failure of bidding on ground under section 41 and by the BAC under section 35.
This is the real summary of it all. Regardless of foregoings statements, this will hold true on all cases. Very Happy

Rephrase ko lang
No, the board of directors of a GOCC cannot declare a failure of bidding on ground that the winning bidder had the "highest bid"

The Board cannot declare failure because
1. The Bid is within the ABC even the winning bidder is the highest bid
2. He became the Single calculated / rated and responsive bid under section 36 even if the winning bidder has the highest bid. (Sole Bidder)

for the question
In case the contract has already been awarded, and then the HOPE later realized he/she has the grounds under Sec.41 (only it arrived after the award is issued), what are the next legal actions to correct the problem?

This one is a gray area in the provision of the IRR because you cannot use the Section 41 after awarding and you could only use the guidelines in termination of the contract if the contract is already consummated.

Taking into consideration Section 41, 37.1.4 (c) and Section 37.2
In my opinion Section 41 may still be used even if the NOA is already been given because under Section 37.1.4 NOA is under the condition of the submission of the Signed Contract.
If the Contract is already been signed the rules on termination of contracts should be used.

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Re: failure of bidding

Post by sunriser431 on Mon Feb 15, 2010 11:32 pm

caesar m. ortega wrote:Can the board of directors of a GOCC declare a failure of bidding on ground that the winning bidder had the highest bid, although the other 2 bidders who had lower bids were disqualified only after the post-qualification proceedings?
Can you please provide additional information, this topic is getting interesting. bounce
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Re: failure of bidding

Post by engrjhez® on Tue Feb 16, 2010 6:29 am

Pritong Kandule wrote:Rephrase ko lang
No, the board of directors of a GOCC cannot declare a failure of bidding on ground that the winning bidder had the "highest bid"

The Board cannot declare failure because
1. The Bid is within the ABC even the winning bidder is the highest bid
2. He became the Single calculated / rated and responsive bid under section 36 even if the winning bidder has the highest bid. (Sole Bidder)

The reasons why the Board cannot declare failure must not reside in any of the two because the reasons under Sec.41 are independent of each scenario underlined above. Whether the bidder got the lowest or highest financial bid; whether the bidder was declared SCRB/SRRB or LCRB/HRRB; or ultimately, whatever outcome of BAC's recommendation (to the Board of Directors) to award the contract, the decision of the Board of Directors still may or may not impose failure subject to conditions of Sec.41. There is no direct link to the fact that if the bid is below the ABC, the bidder cannot be disqualified even if the bid turns out to be the highest amongst the others.

Kindly correct my understanding if I am the one misled. I may be reading it differently. Very Happy.
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Re: failure of bidding

Post by Guest on Tue Feb 16, 2010 9:10 am

engrjhez wrote:
Pritong Kandule wrote:Rephrase ko lang
No, the board of directors of a GOCC cannot declare a failure of bidding on ground that the winning bidder had the "highest bid"

The Board cannot declare failure because
1. The Bid is within the ABC even the winning bidder is the highest bid
2. He became the Single calculated / rated and responsive bid under section 36 even if the winning bidder has the highest bid. (Sole Bidder)

The reasons why the Board cannot declare failure must not reside in any of the two because the reasons under Sec.41 are independent of each scenario underlined above. Whether the bidder got the lowest or highest financial bid; whether the bidder was declared SCRB/SRRB or LCRB/HRRB; or ultimately, whatever outcome of BAC's recommendation (to the Board of Directors) to award the contract, the decision of the Board of Directors still may or may not impose failure subject to conditions of Sec.41. There is no direct link to the fact that if the bid is below the ABC, the bidder cannot be disqualified even if the bid turns out to be the highest amongst the others.

Kindly correct my understanding if I am the one misled. I may be reading it differently. Very Happy.

Sinagot ko lang po ung tanong ng thread starter na

"Can the board of directors of a GOCC declare a failure of bidding on ground that the winning bidder had the highest bid, although the other 2 bidders who had lower bids were disqualified only after the post-qualification proceedings?"

My understanding of the question is the declaration of failure is based on the bid of the winning bidder.

Pero sa comment nyo po I have no problem I definitely agree

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Re: failure of bidding

Post by Niwram on Tue Feb 16, 2010 9:20 am

This one is a gray area in the provision of the IRR because you cannot use the Section 41 after awarding and you could only use the guidelines in termination of the contract if the contract is already consummated.

Taking into consideration Section 41, 37.1.4 (c) and Section 37.2
In my opinion Section 41 may still be used even if the NOA is already been given because under Section 37.1.4 NOA is under the condition of the submission of the Signed Contract.
If the Contract is already been signed the rules on termination of contracts should be used.


Section 41 cannot be used if there is already a notice of award.. this is based on the answer of the Superior in the GPPB-TSO.. no offense Pritong Kandule..
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Re: failure of bidding

Post by Guest on Tue Feb 16, 2010 9:51 am

Niwram wrote:This one is a gray area in the provision of the IRR because you cannot use the Section 41 after awarding and you could only use the guidelines in termination of the contract if the contract is already consummated.

Taking into consideration Section 41, 37.1.4 (c) and Section 37.2
In my opinion Section 41 may still be used even if the NOA is already been given because under Section 37.1.4 NOA is under the condition of the submission of the Signed Contract.
If the Contract is already been signed the rules on termination of contracts should be used.


Section 41 cannot be used if there is already a notice of award.. this is based on the answer of the Superior in the GPPB-TSO.. no offense Pritong Kandule..

None taken

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Re: failure of bidding

Post by Niwram on Tue Feb 16, 2010 9:59 am

Pritong Kandule wrote:
Niwram wrote:This one is a gray area in the provision of the IRR because you cannot use the Section 41 after awarding and you could only use the guidelines in termination of the contract if the contract is already consummated.

Taking into consideration Section 41, 37.1.4 (c) and Section 37.2
In my opinion Section 41 may still be used even if the NOA is already been given because under Section 37.1.4 NOA is under the condition of the submission of the Signed Contract.
If the Contract is already been signed the rules on termination of contracts should be used.


Section 41 cannot be used if there is already a notice of award.. this is based on the answer of the Superior in the GPPB-TSO.. no offense Pritong Kandule..

None taken

Okay..
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Re: failure of bidding

Post by Berna on Tue Feb 16, 2010 3:14 pm

There were three bidders...the one with the lowest bid was declared by the BAC as ineligible? the second lowest bidder was also declared as ineligible? the BAC then should evaluate and post qualify the last bidder with the highest bid. if the bid is responsive then the third bidder shall be declared as Single Calculated and Responsive Bid, thus, awarding the contract to the bidder declared as SCRB.

Then there should be no failure of bidding.
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Re: failure of bidding

Post by Niwram on Tue Feb 16, 2010 3:32 pm

I Agree..
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Re: failure of bidding

Post by engrjhez® on Tue Feb 16, 2010 4:58 pm

Bernadette G. Driza wrote:There were three bidders...the one with the lowest bid was declared by the BAC as ineligible? the second lowest bidder was also declared as ineligible? the BAC then should evaluate and post qualify the last bidder with the highest bid. if the bid is responsive then the third bidder shall be declared as Single Calculated and Responsive Bid, thus, awarding the contract to the bidder declared as SCRB.

Then there should be no failure of bidding.(?)

If there are no grounds other than that stipulated under Sec.41, the answer is YES -there should be no failure of bidding. Very Happy
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Re: failure of bidding

Post by charlie brown on Tue Feb 16, 2010 6:40 pm

Bernadette G. Driza wrote:There were three bidders...the one with the lowest bid was declared by the BAC as ineligible? the second lowest bidder was also declared as ineligible? the BAC then should evaluate and post qualify the last bidder with the highest bid. if the bid is responsive then the third bidder shall be declared as Single Calculated and Responsive Bid, thus, awarding the contract to the bidder declared as SCRB.

Then there should be no failure of bidding.

there should be no failure of bidding but the bidder is still considered the LCRB and not SCRB. From the info it would appear that there were three bids in the abstract. However, the others were declared non responsive either in the detailed evaluation (as adjusted bid may have exceeded the ABC) or in the post qualification. the scrb as i understand it can only be used when ultimately there was only one bid submitted and considered responsive.
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Re: failure of bidding

Post by engrjhez® on Tue Feb 16, 2010 8:42 pm

charlie brown wrote:
there should be no failure of bidding but the bidder is still considered the LCRB and not SCRB. From the info it would appear that there were three bids in the abstract. However, the others were declared non responsive either in the detailed evaluation (as adjusted bid may have exceeded the ABC) or in the post qualification. the scrb as i understand it can only be used when ultimately there was only one bid submitted and considered responsive.

Please refer to Section 36:

Section 36. Single Calculated/Rated and Responsive Bid Submission
A single calculated/rated and responsive bid shall be considered for award if it falls under
any of the following circumstances:

a) If after advertisement, only one prospective bidder submits an LOI and/or applies for
eligibility check, in accordance with the provisions of this IRR, and it meets the
eligibility requirements or criteria, after which it submits a bid which is found to be
responsive to the bidding requirements;

b) If after advertisement, more than one prospective bidder submits an LOI and/or
applies for eligibility check, in accordance with the provisions of this IRR, but only one
bidder meets the eligibility requirements or criteria, after which it submits a bid which
is found to be responsive to the bidding requirements
; or

c) If after the eligibility check, more than one bidder meets the eligibility requirements,
but only one bidder submits a bid, and its bid is found to be responsive to the bidding
requirements.


In all instances, the procuring entity shall ensure that the ABC reflects the most
advantageous prevailing price for the Government.


Very Happy
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Re: failure of bidding

Post by sunriser431 on Tue Feb 16, 2010 9:13 pm

engrjhez wrote:
charlie brown wrote:
there should be no failure of bidding but the bidder is still considered the LCRB and not SCRB. From the info it would appear that there were three bids in the abstract. However, the others were declared non responsive either in the detailed evaluation (as adjusted bid may have exceeded the ABC) or in the post qualification. the scrb as i understand it can only be used when ultimately there was only one bid submitted and considered responsive.

Please refer to Section 36:

Section 36. Single Calculated/Rated and Responsive Bid Submission
A single calculated/rated and responsive bid shall be considered for award if it falls under
any of the following circumstances:

a) If after advertisement, only one prospective bidder submits an LOI and/or applies for
eligibility check, in accordance with the provisions of this IRR, and it meets the
eligibility requirements or criteria, after which it submits a bid which is found to be
responsive to the bidding requirements;

b) If after advertisement, more than one prospective bidder submits an LOI and/or
applies for eligibility check, in accordance with the provisions of this IRR, but only one
bidder meets the eligibility requirements or criteria, after which it submits a bid which
is found to be responsive to the bidding requirements
; or

c) If after the eligibility check, more than one bidder meets the eligibility requirements,
but only one bidder submits a bid, and its bid is found to be responsive to the bidding
requirements.


In all instances, the procuring entity shall ensure that the ABC reflects the most
advantageous prevailing price for the Government.


Very Happy
Yup, self explanatory bounce
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