2014-10-09

NPM 041-2014

Requesting Entity: Department of National Defense (DND)

Issues Concern: Government Procurement Policy Board Resolution No. 29-2012 and Bank Draft/Guarantee or Irrevocable Letter of Credit Issued by a Foreign Bank

 

Details

Whether the bidders are required to include in their statement of all ongoing and completed contracts government and private contracts those contracts governed by non-disclosure agreements/confidentiality clauses.

It is worthy to point out that the amended provision states statement of "all" on-going government and private contracts, including awarded but not yet started, if any, whether similar or not similar in nature and complexity to the contract to be bid within the relevant period as provided in the Bidding Documents. As such, even contracts that include non-disclosure agreements or confidentiality clauses are required to be disclosed. It is likewise good to clarify that the requirement refers to a “statement” to be made by the bidder relative to all its ongoing and private contracts, and not the actual submission of the physical contracts. Whether the confirmation and authentication of bank guarantee/draft or irrevocable letter of credit issued by a foreign bank, as mandated by Section 27 and 39 of the IRR of RA 9184, be done by a local bank.

[T]he confirmation contemplated in the rule refers to the confirmation of the “local” Universal or Commercial Bank that has linkage or tie-up with the foreign bank to assure government that it may call against the Bank Guarantee or the irrevocable LC with a bank in the local jurisdiction lest the requirement will be futile when it cannot be enforced against a bank outside the jurisdictional reach of the government, and even by the courts in the event a claim against the Bank Guarantee or Irrevocable LC is made to answer for an identified violation under the procurement law and the rules.