Requesting Entity: Bureau of Communications Services (BCS) Presidential Communications Operations Office
Issues Concern: Declaration of Failure of Bidding; Negotiated Procurement (Two-Failed Biddings); Limited Source Bidding
Whether BCS can resort to Negotiated Procurement (Two-Failed Biddings) under Section 53.1 of the revised Implementing Rules and Regulations (IRR) of Republic Act No. (RA) 9184 if the first bidding results in a failure of bidding, and whether it may resort to Limited Source Bidding instead.
Declaration of Failure of Bidding
At the outset, the declaration of failure of bidding is within the authority and accountability of the Bids and Awards Committee (BAC) and the Head of the Procuring Entity (HOPE) to exercise, under Sections 35 and 41 of the IRR of RA 9184, respectively. Thus, the Government Procurement Policy Board-Technical Support Office cannot favorably grant the request of BCS to declare its bidding to have failed. Moreover, since BCS has issued a Notice of Award and subsequently entered into a contract for a procurement project, the same is considered to have been successfully completed. Hence, the bidding can no longer be declared a failure despite the fact that it was eventually terminated.
Negotiated Procurement (Two Failed Biddings)
BCS cannot resort to Negotiated Procurement (Two-Failed Biddings) for either of its two procurement activities since these are two distinct procurement activities. Section 53.1 of the IRR of RA 9184 allows procuring entities to resort to Negotiated Procurement in the event that there has been a failure of public bidding for the second time for the same procurement project. The occurrence of two failed biddings will warrant resort to the Negotiated Procurement modality if the two failed biddings were for the same procurement project and based on reasons provided under Section 35 of the IRR.
Limited Source Bidding
The determination and accountability in using any alternative method of procurement rests with the HOPE, upon prior recommendation of the BAC, justifying the existence of the conditions and requirements provided in Rule XVI of the IRR of RA 9184.
BCS has to establish and justify that the conditions and requirements under Section 49 of the IRR exist and are complied with in order that it may employ Limited Source Bidding. Said section requires that the procurement be for highly specialized types of goods or consulting services where only a few suppliers or consultants are known to be are known to be available, such that resorting to public bidding will not likely result in any additional suppliers or consultants participating in the bidding, or for major plant components where it is deemed advantageous to limit the bidding to known qualified bidders in order to maintain uniform quality and performance of the plant as a whole.